The Disaster Will Be Tweeted
On Monday night, October 29, Superstorm Sandy wreaked havoc across the Atlantic Seaboard. The trading floor of the New York Stock Exchange, the world’s largest stock exchange, drowned under three feet of water. ConEd, the electricity provider for Manhattan, would soon cut power to the entire island. New York Governor Andrew Cuomo was stranded in lower Manhattan, without power or transportation. Officials were moving him to a secure location. People around the world waited for the next shoe to drop as information seeped out of the Big Apple in drips.
But this didn’t happen. Instead, a mega-troll using the Twitter handle @ComfortablySmug, identified by Buzzfeed as Shashank Tripathi, knowingly and purposefully disseminated this false information. The motives behind these false Tweets are unknown. Besides a Twitter apology, in which Mr. Tripathi takes responsibility for his “irresponsible and inaccurate tweets” and resigns from the Congressional campaign he managed, he has remained largely silent since outrage at his actions filled the internet. But his Tweets were not merely the ranting of a loner desperately seeking attention. They were picked up and retweeted by journalists including Luke Russert of NBC, and discussed on CNN live by Chad Myers, Piers Morgan and Erin Burnett. His digital megaphone became exponentially more powerful when his false claims were broadcasted on cable news during a natural disaster.
In light of Mr. Tripathi’s Twitter antics, New York City Councilman Peter Vallone has asked the Manhattan District Attorney’s Office to look into criminal charges against Mr. Tripathi. Are Mr. Tripathi’s Twitter comments criminal? Would they be protected under the First Amendment? Should we allow Twitter-shaming and digital-mob justice to do our dirty work for us? These questions will become more important to answer as more individuals take to Twitter and other social media with every intention to spread lies and falsehoods.
Mr. Tripathi could potentially be prosecuted under New York State Law § 240.50, falsely reporting an incident in the third degree. Subsection 1 makes initiating or circulating a “false report… of an alleged occurrence… of a catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result” a class A misdemeanor. Is a Tweet a “false report?” Nowhere in the statute does the report need to be in the form of a television or radio broadcast. However, if it did, the Tweets Mr. Tripathi’s initiated did end up on CNN, a national broadcaster.
There is also the question of whether these types of statutes violate the First Amendment’s protection of free speech. While Oliver Wendell Holmes’s declared the First Amendment does not protect someone falsely shouting fire in a crowded theater, does the same hold true for a Tweet? While the Supreme Court has not directly updated Holmes’s famous phrase for the digital millennium, the recent case of United States v. Alvarez does give guidance when dealing with false claims statutes. In his concurrence, Justice Breyer noted that statutes prohibiting lies about the commission of “crimes or catastrophes” require proof that public harm could be a directly foreseeable outcome of the lies.
While there are avenues to criminally prosecute this individual, it is unlikely to happen. But we can take solace in the fact that the uproar following his lies and unmasking resulted in Mr. Tripathi resigning from the Congressional campaign he was managing and the suspension of his Twitter account. Maybe the digital mob served a purpose in this case, because Mr. Tripathi is definitely not comfortably smug anymore.