Third Department holds that falsely reporting hate crime is not disorderly conduct

The jury properly found this defendant had falsely reported a racially-motivated assault on a bus transporting SUNY Albany students back to the campus one night. The appellate court reaches that holding because it cannot find evidence in the video footage of racist comments. But the conviction is overturned in any event because the Appellate Division, Third Department, says the provision of the disorderly conduct law under which the defendant was convicted does not criminalize public, noncommercial speech, even if false.

The case is People v. Burwell, issued on April 9. The statutory provision is P.L. 240.50(1), which makes it unlawful to "falsely report[] an incident . . . when, knowing the information reported, conveyed or circulated to be false or baseless, he or she initiates or circulates a false report or warning of an alleged occurrence . . . of a crime . . .  under circumstance in which it is not unlikely that public alarm or inconvenience will result."

This provision is unconstitutional because it regulates speech based on content in that it only criminalizes a certain type of speech. Even false speech is protected under the First Amendment, but only this kind of false speech is illegal under the statute. There is in fact a compelling governmental interest in singling out this kind of false speech, i.e. hate crimes, as the government has the right to prevent public alarm and the waste of public resources predicated on false reports. Even so, the statute does not attack this misconduct from the least-restrictive means, as required under the First Amendment, because the defendant's false comments (including her comments on Twitter) are not the kind of "public alarm or inconvenience" that the statute was intended to prohibit. The statute is impermissibly broad under the First Amendment.

The Third Department goes on to ask, "although it was not unlikely that defendant's false tweets about a racial assault at a state university would cause public alarm, what level of public alarm rises fo the level of criminal liability?" General concern by those reading the tweets "does not rise to that level, nor does proof adduced at trial, which established that defendant's tweets were 're-tweeted' a significant number of times," which constituted nothing more than "a charged online discussion about whether a racially motivated assault did in fact occur, which falls far short of meeting the standard set forth in" Justice Breyer's concurrence in United States v. Alvarez, 567 U.S. 734 (2012). The Appellate Division offers some language that could only arise from the modern era:

The remedy for speech that is false is speech that is true, and social media platforms are information disseminating fora. By the very nature of social media, falsehoods can quickly and effectively be countered by truth, making the criminalizing of false speech on social media not 'actually necessary' to prevent alarm and inconvenience. This could not be more apparent here, where defendant's false tweets were largely debunked through counter speech," which means this portion of the disorderly conduct statute "was not actually necessary to prevent public alarm and inconvenience."