Free Speech

Can Law Ban False Reporting About Coronavirus?

Probably, if it's limited to knowing falsehoods (or perhaps statements where the speaker knows they are probably false).

|The Volokh Conspiracy |

The Newark Department of Public Safety writes:

Newark Public Safety Director Anthony F. Ambrose strongly urges the public against posting false information on social media regarding the presence of the coronavirus in the City of Newark.

"Any false reporting of the coronavirus in our city will result in criminal prosecution," Director Ambrose said. "We are putting forth every investigative effort to identify anyone making false allegations on social media to ensure that any posted misinformation is immediately addressed."

Director Ambrose adds that misleading information on social media may cause an unnecessary public alarm.

"The State of New Jersey has laws regarding causing a false public alarm and we will enforce those laws," Ambrose said. "Individuals who make any false or baseless reports about the coronavirus in Newark can set off a domino effect that can result in injury to residents and visitors and affect schools, houses of worship, businesses and entire neighborhoods," he added.

New Jersey law doesn't threaten to punish people for honest (even unreasonable) mistakes in what they say about epidemics or other immediate threats, but it does forbid certain knowing lies, see N.J. Stats. 2C § 33-3:

(a) [A] person is guilty of a crime … if he initiates or circulates a report or warning of an impending fire, explosion, crime, catastrophe, emergency, or any other incident knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm.

(b) A person is guilty of a [more serious crime] if the false alarm involves a report or warning of an impending bombing, hostage situation, person armed with a deadly weapon …, or any other incident that elicits an immediate or heightened response by law enforcement or emergency services.

(c) A person is guilty of a [similarly serious crime] if the false alarm involves a report or warning about … any building, place of assembly, or facility [in the State] that is indispensably necessary for national security, economic stability, or public safety….

Such bans on these sorts of knowing lies are likely constitutional (and might even be constitutional if applied to "reckless" falsehoods, which is to say statements that the speaker knows are probably though not certainly false).

U.S. v. Alvarez (2012) did hold that some lies are constitutionally protected; there, the Court struck down the Stolen Valor Act, which broadly banned lies about one's own military decorations. But the two-Justice concurrence concluded that lies are generally less protected than other speech, and in particular that lies that are likely to cause tangible harm (beyond just the emotional distress or misplaced affection created by the deceit) are often prohibitable. And the three-Justice dissent would have gone even further, and would have treated most lies as generally unprotected.

This having been said, the concurrence and the dissent agreed that "[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like" create "a grave and unacceptable danger of suppressing truthful speech," and are thus generally unconstitutional. The same may be true about the life sciences, so any attempt to punish even lies about (for instance) how coronavirus is generally transmitted would likely be unconstitutional; the remedy for such lies is public argument, and not criminal punishment. But the law likely can properly punish specific lies about whether one has been diagnosed with coronavirus, whether a person diagnosed with coronavirus has been present in some place, and so on; if the New Jersey statute (which is a bit vague on such matters) is interpreted as limited to lies on such specific topics, it will likely be upheld.

Thanks to reader Matt Monforton for the pointer.

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  1. I’ve never understood how a ban on knowing falsehoods risks suppressing truthful speech. But I guess I lost that argument in 2012…

    1. Because the process is the punishment. If I get to accuse you of a falsehood, drag you through the mud and can force you to pay exorbitant legal fees defending yourself, even if you are eventually exonerated, that could cause you (and would cause most reasonable people) to self-censor – to not say truthful speech merely to avoid the risk of being falsely accused.

      1. Professor Volokh, could you please explain a bit more about the reasoning which asserts that “reckless,” speech must involve likely knowledge of falsehood. I cannot understand why someone who publishes a false, damaging claim of a factual nature cannot be held liable based on, for instance, making no effort whatever to discover the truth. Indeed, it seems to me the standard as you present it incentivizes taking extra care to remain ignorant, prior to publishing potentially damaging falsehoods.

        1. That was meant to stand on its own, not to be a reply to Rossami.

          1. Oh, well. It actually went two places. Never seen that before. Ignore this one.

      2. That suggests the true evil is the American cost rule (and procedural law more generally), rather than the substantive law. But apart from that, it’s a fair point.

        1. I would agree. If we had a functional user-pays legal system, there would be a lot less risk of abuse.

  2. Epidemics raise compelling interest concerns. Lying about them is analogous to the proverbial example of shouting. “fire” in a crowded theatre.

    For this reason, the constitutionality of these bans is based on special compelling interests concerns, separate from the state’s interest in lies generally.

    1. ReaderY…Ok, but how do you define compelling instance? BTW, this is definitely a compelling public concern (i.e. coronavirus).

      Will there be other kinds of compelling interests and how will we know?

  3. Professor Volokh, could you please explain a bit more about the reasoning which asserts that “reckless,” speech must involve likely knowledge of falsehood. I cannot understand why someone who publishes a false, damaging claim of a factual nature cannot be held liable based on, for instance, making no effort whatever to discover the truth. Indeed, it seems to me the standard as you present it incentivizes taking extra care to remain ignorant, prior to publishing potentially damaging falsehoods.

    1. Not Prof Volokh, but normally for defamation cases against private figures (particularly on matters not of public concern) the minimal standard is negligence—i.e.: reasonable care—not recklessness or actual knowledge of falsity.

      For claims against public figures and lies about issues of public concern like coronavirus, SCOTUS has reasoned that, since these are thought to be at the core of what the First Amendment protects, people need more “breathing room” so that they wont feel deterred from speaking less their research is not deemed to meet the “reasonable care” standard. Hence the heightened standard for these cases.

      1. sam123, do you happen to know where the Supreme Court describes that standard, and the limits of it?

        I don’t need the whole schmeer, starting with NYT v Sullivan. I am trying to zero in on only one thing: why someone concludes the term “reckless disregard of the truth,” does not burden a publisher who completely disregards the truth or falsity of what he publishes.

        I get that the Court was attempting to create space for well-meaning, deadline-pressured publishers to speak freely on public affairs, while possibly being misinformed, or simply making mistakes. For the life of me I do not understand why that has been interpreted to mean no requirement for conscientious effort to discover the truth need apply.

        It seems to me that interpreting things that way takes what NYT v Sullivan seemed to state clearly as two ways to offend—either actual malice, or reckless disregard—and as a practical matter reduced it to only one. If to establish reckless disregard, you must prove the publisher in fact believed something was actually false, how much room does that leave between reckless disregard and actual malice? I suggest it is not enough room to make the distinction worth preserving.

        1. You should read the decision in Sarah Palin’s lawsuit against the New York Times. I believe it discusses the issue in great detail.

          1. jph12, if you are referring to the Aug. 6 proceeding, I read the decision, and do not see that it at all discusses how to draw a distinction between knowing falsehood and reckless disregard, except to say that the Times’ editor could be construed to have committed one or the other, and that deciding whether he did was up to a jury.

            I do see after reading that in my own comment I mistakenly described actual malice, suggesting it was only knowing falsehood, and that reckless disregard was something else. The correct standard is that actual malice is established either by knowing falsehood, or by reckless disregard.

            What I did not see anywhere was a standard for what constitutes reckless disregard, let alone a standard to show that reckless disregard is different conduct than publishing with knowledge of actual falsity. But New York Times v Sullivan says reckless disregard can be one “or” the other—asserting a difference between them. I am asking what that difference is.

            Perhaps you intended me to find some other Palin-related decision. If so, a link would be helpful.

            1. I don’t have a handy link, but the district court opinion dismissing the case should be available somewhere (I believe Eugene Volokh blogged about it when it came out). If I remember correctly, the judge gave a long explanation about how the editor’s behavior didn’t qualify as reckless disregard for the truth, which required an explanation of the standard.

  4. It doesn’t seem like New Jersey’s law would allow the state to punish someone for stating that they were infected with the Coronavirus, even if they knew it was false and were trying to cause a panic. The key word in the statute would appear to be, “an impending” which is probably best read as applying to all the subsequent words in the list rather than just “fire.” It seems like the statute would only come into play if the person falsely claimed that they were infected and threatened to attend an event.

    1. If I announce on social media that I am infected and I walk into the town square (even without threatening to attend some specific event) their is still an impending risk of infection for others in the town square. Even if my being supposedly infected is no longer an ‘impending’ event itself, the danger to others still is, whether or not i threaten to attend some specific event.

    2. https://www.merriam-webster.com/dictionary/impending
      Webster also defines impending loosely as “occurring or likely to occur soon”. It would be a quite unnatural reading for the penalties not to apply to someone who suggests falsely that there is a fire in the theater NOW vs. someone who falsely suggests that there will be one within 5 minutes. In the former case, the risk of some public harm ( a stampede out of the theater) seems heightened as if the fire is going to start in 5 minutes, such a stampede would be less necessary

      1. You are probably right. I was mostly looking at the evacuation portion and didn’t pay enough attention to the “or to cause public inconvenience or alarm.”

  5. I was yesterday listening to NPR when the station’s (supposed) legal expert was asked whether Santa Clara county having banned gatherings of more than 1,000 people might run afoul of the first amendment guarantee of the right to assembly. Response was something along the lines of “no, since appropriate legislation had been passed.” Appalling was passes for informed opinion these days…

  6. Prof, it seems that section a)’s “public inconvenience or alarm” could be seen as overbroad. No?

    Also it is a fine line between lies with a great potential for “tangible harm” vs lies about “the life sciences” particularly now lies about “how coronavirus is generally transmitted”.

    If I lie about the means of transmission of the virus, I could cause folks to adopt the improper precautions and put them at greater risk of infection. As contagious diseases are high-stakes, fast moving situations, we might see some tangible harm before the usual free market of speech solution prevails.

  7. For the government to censor news about the virus, the government (i.e. Trump) only needs to claim the information is false?

    The people should be able to determine for themselves whether or not to trust the government.

  8. So….when are we going to arrest the Governor and the Legislature? They lie and put out half-truths all the time that cause considerable public inconvenience. Example: No, we won’t raise your taxes. You can relax now. 🙂

    (a) [A] person is guilty of a crime … if he initiates or circulates a report or warning of an impending fire, explosion, crime, catastrophe, emergency, or any other incident knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm.

    But of course, it is no surprise in the People’s Republic of NJ that our politicians would never apply this to themselves? Lord knows they cause considerable inconvenience to this taxpayer. 🙂

    My philosophical concerns: Who decides what is misinformation? Using what standard, decided by whom?

  9. This morning I stopped at the supermarket to buy a gallon of milk. While in the checkout line, I saw a tabloid — the Globe — with big headlines saying that the coronavirus will destroy the world and we know about this vaccine that will save your life.

    I’m completely sympathetic to Rossami’s argument about the process being the punishment. That said, I really wish there were a way to shut that shit down. I did contact the supermarket’s corporate offices to ask them to be good corporate citizens and stop selling it.

    1. I agree, but wonder why this sort of thing is not just plain fraud. Is it legal for me to sell you a magic elixir to cure your cancer?

      1. I suspect that you will have a difficult time proving that someone reasonably relyied on a headline in a supermarket tabloid when they decided to purchase it.

        1. I would agree that no reasonable person would rely on a supermarket tabloid for facts. The problem is all the unreasonable people out there who do believe it, and then act on their beliefs.

  10. It is interesting that the law makes it a crime to more or less raise false alarms that endanger, alarm, or inconvenience the public, but not to give false assurances of safety, which may equally endanger people.

    1. Exactly. It was the lack of free speech in China that allowed the virus to spread as quickly as it did. If they had known sooner, people could have self-quarantined or started social distancing.

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