Free Speech

N.Y. Court Invalidates Conviction Under Anti-Crime-Hoax Law

The case was a hate crime hoax perpetrated by a SUNY Albany student.

|The Volokh Conspiracy |

A New York statute, Penal Law § 240.50(1), defines the crime of "falsely reporting an incident in the third degree": "knowing the information reported, conveyed or circulated to be false or baseless, … initiat[ing] or circulat[ing] a false report or warning of an alleged occurrence … of a crime … under circumstances in which it is not unlikely that public alarm or inconvenience will result." The crime is not limited to making false reports to the government; it includes making them publicly. Last Thursday, New York's intermediate appellate court in People v. Burwell held that a conviction statute violates the First Amendment:

[I]nasmuch as this statute criminalizes a certain type of speech, namely false speech, the restrictions on speech are content-based, rather than time, place or manner limitations…. Absent certain historical categories which do not apply here (see United States v. Alvarez [2012]), even false speech is considered protected and, in that context, content-based restrictions are subject to "the most exacting scrutiny." Under this exacting, or strict, scrutiny standard, governmental regulation of speech "is enforceable only if it is the least restrictive means for serving a compelling government interest." "The First Amendment requires that the [g]overnment's chosen restriction on the speech at issue be actually necessary to achieve its interest. There must be a direct causal link between the restriction imposed and the injury to be prevented."

We have no trouble finding that Penal Law § 240.50(1) is designed to address at least two compelling governmental interests—preventing public alarm and the waste of public resources that may result from police investigations predicated on false reports. However, when examining whether the statute uses the least restrictive means for serving those purposes, as applied to defendant, we reach the conclusion that the statute is impermissibly broad. More particularly, neither general concern nor the Twitter storm that ensued following defendant posting the false tweets are the type of "public alarm or inconvenience" that permits defendant's tweets to escape protection under the First Amendment, and, therefore, the speech at issue here may not be criminalized.

To that end, although it was "not unlikely" that defendant's false tweets about a racial assault at a state university would cause public alarm (Penal Law § 240.50[1]), what level of public alarm rises to the level of criminal liability? Indeed, United States v. Alvarez [Breyer, J., concurring] informs us that criminalizing false speech requires either proof of specific harm to identifiable victims or a great likelihood of harm.

Certainly, general concern by those reading defendant's tweets does not rise to that level, nor does the proof adduced at trial, which established that defendant's tweets were "retweeted" a significant number of times. In fact, because these "retweets" led to 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 Alvarez [Breyer, J., concurring], we reach the inescapable conclusion that Penal Law § 240.50(1), as applied to defendant's conduct, is unconstitutional.

Indeed, Penal Law § 240.50(1) is a "[b]lunt [t]ool for [c]ombating [f]alse [s]peech" and its "alarming breadth" is especially on display with respect to social media. Notably, "[t]he remedy for speech that is false is speech that is true" (Alvarez) 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; thus, criminalizing her speech by way of Penal Law § 240.50(1) was not actually necessary to prevent public alarm and inconvenience. {Overbroad enforcement of speech restrictions may also result in a chilling effect as to political speech where opinion and facts often collide and "those who are unpopular may fear that the government will use that weapon selectively" against them.} …

[UPDATE, 11:17 am: I originally wrote that the court struck down the subsection, but on reflection I think it just held the subsection was unconstitutional as applied in this case—though under the court's logic, I think this subsection would be unconstitutional in enough other cases that it could be struck down in a later case as unconstitutionally overbroad and thus facially invalid.]

Here is more from the court on the crime; the court upheld the conviction for falsely reporting a crime via a 911 call:

In 2016, defendant was charged in an 11–count indictment with assault in the third degree, harassment in the second degree and four counts of falsely reporting an incident in the third degree for her involvement in an altercation and its aftereffects that occurred on a city bus bound for the State University of New York at Albany (hereinafter SUNY Albany) campus. The indictment alleged that defendant, knowing the information to be false, reported, via an emergency 911 call, that "she was 'jumped' on a bus by a group of males, that it was a racial crime, and that she was struck by boys and called a 'nigger'" (count 4) [this was apparently under a different subdivision of the same statute, § 240.50[3][c] -EV]. The indictment also set forth that defendant, knowing the information to be false, circulated—via social media and through an appearance at an event on the SUNY Albany campus—an allegation that she was the victim of a racially-motivated assault on a bus (count 7). After a jury trial, defendant was convicted of two counts of falsely reporting an incident in the third degree (counts 4 and 7)….

Testimony of the People's witnesses at trial revealed that, on the night of the incident, the route number 11 bus operated by the Capital District Transportation Authority (hereinafter CDTA) was travelling towards SUNY Albany at approximately 1:00 a.m., and the passengers on the bus were almost exclusively SUNY Albany students. Testimony revealed that a verbal altercation arose when defendant requested that a passenger stop singing in exchange for a sandwich and a heated conversation regarding differential treatment on the basis of race ensued between defendant and several passengers. The verbal altercation escalated when defendant and her friends rose from their seats and approached a girl seated in the back of the bus.

The evidence demonstrates that a physical altercation between two girls—Ariel Agudio, one of defendant's friends, and a passenger—resulted. Multiple videos depicting the incident were admitted into evidence. One of these videos consists of footage gathered from eight cameras and three microphones on the bus. Although the bus cameras depict the incident from various angles, only portions of the incident were actually captured and the audio of the incident is largely undecipherable, with the exception of ambient background noise and occasional words and phrases.

None of the decipherable words was the "N-word." Video footage of the incident recorded by four individuals on the bus was also admitted at trial, each depicting small portions of the incident. Although the audio is slightly better than that of the bus videos, it is not possible to clearly discern every word that was said during the incident. Again, of the words and phrases that can be deciphered in these videos, none was the "N-word." As established by this video footage and the testimony, once the physical altercation began, several passengers intervened, resulting in defendant, her friends and other passengers being pushed and pulled and Agudio's clip-in hair extensions being torn from her head.

Approximately 18 SUNY Albany students testified about the incident, some of whom were directly involved and others were merely observers. One of these students, Mary Glisson, testified that she was sitting in the back of the bus singing "99 Bottles of Beer on the Wall" and that her singing annoyed defendant and two of her friends—one of whom offered to give her a sandwich if she would "shut up." Glisson testified that a friend of hers yelled, "you're f* * *ing ignorant, get a job" to the group of women who offered the sandwich. Thereafter, Glisson recalls her friend getting punched in the face, though she did not see by whom, and that, during the incident, she heard the term "white ignorant bitch." Glisson also testified that, preceding the altercation, defendant and her friends made statements about Glisson's ability to sing loudly and annoyingly as a white woman and their inability to object to it as black women.

Mark Pronovost, who was also present during the incident, testified that he engaged in a conversation about race with defendant and her friends during the verbal argument, prior to the physical altercation. Pronovost explained that he attempted to discern the substance of the verbal argument and one girl stated that it was a "black issue." Pronovost testified that he did not hear any racial terms used during the incident.

Gabrielle Camacho, who was also present during the incident, testified that, upon hearing a discussion regarding "ignorant bitches," she cut defendant and her friends off by stating, "[A]re you f* * *ing kidding me, you're ignorant, shut the f* * * up and get a job." Thereafter, Agudio stood up, approached Camacho and the physical altercation ensued. Camacho testified that she did not hear any racial slurs. The majority of the remaining SUNY Albany students who testified stated that they did not witness any males striking females and that they did not hear the "N-word" or other racial slurs used. However, two witnesses did testify to hearing the word "whale" and another witness testified to hearing the word "ratchet." One witness testified that he did not hear any racial slurs, but, in the days after the incident, he "heard" others saying that they may have heard the "N-word."

Lisa Johnson, a 911 dispatcher with the Albany County Sheriff's office, testified that defendant called 911 following the incident and stated, "I'd like to report the fact that me and my friends were just jumped on a bus for being black." Defendant told Johnson that she and her friends were on a bus going to SUNY Albany. Due to confusion as to where the incident occurred, defendant's call was transferred to police for the City of Albany. An employee of the City of Albany testified that, after she received defendant's call, defendant identified herself and stated that "me and my friends were jumped on a bus because we're black." Defendant continued on to say, "These girls … they were calling us the 'N' word and hitting us and so were guys[,] and the bus driver didn't do anything about it until we got to campus, and he stopped the bus and still … guys continued to hit us in the face."

Benjamin Nagy, an investigator with the SUNY Albany police, testified that he conducted a recorded interview with defendant following the incident. During her interview, defendant informed Nagy that she heard the "N-word" twice during the incident and that defendant was the only individual to provide him with information that that word was used. An inspector with the SUNY Albany police also testified, explaining that, in the course of his investigation, an individual who was on the bus stated that he did not hear the "N-word," but that other people said they had heard it.

The People also admitted various statements, or tweets, made by defendant on her Twitter account in the days following the bus incident. The first tweets following the incident read, "I just got jumped on a bus while people hit us and called us the 'n' word and NO ONE helped us." Defendant also stated, among other things, via Twitter, "I can't believe I just experienced what it's like to be beaten because of the color of my skin," and "these were my fellow classmates[,] people that attend MY school."

Defendant testified as to the incident. In that regard, defendant recounted that, while sitting on the bus, she noticed a girl singing loudly behind her and that she offered the girl her sandwich in an attempt to stop the singing. Defendant testified that she heard the "B" word and Agudio informed her that a girl had referred to them as "ratchet bitches," which defendant testified offended her as she understood the word to mean "ghetto." She also testified that the phrase is commonly associated with black women or a person who is inferior. Thereafter, Agudio engaged in dialogue with a girl in the back of the bus; defendant heard people telling Agudio to "shut the 'F' up." Defendant testified that she then expressed to bystanders the racial distinction she perceived between people's reaction—or lack thereof—to a girl loudly singing and their reaction to black women yelling loudly. Defendant testified that a male then referred to Agudio as a "whale bitch," which she understood to mean something that is not human—a derogatory term for bigger women.

Defendant testified that following this dialogue, she stood up from her seat; she then felt her hair being pulled and was hit in the face. Defendant indicated that she began to fall over and attempted to get herself up; she eventually was pushed out of the commotion. She observed Agudio bent over a bus seat and that males and females were ripping her hair out. Defendant testified that she witnessed a man push Agudio down as others laughed. As defendant attempted to help Agudio, she was again pushed out of the commotion; she then felt someone grab her from behind and she turned to see a male pulling her backwards. Defendant testified that she was continuously pulled back by her arm and jacket, but no one was pulling back the people who were ripping out Agudio's hair.

Defendant testified that she heard a male voice say the "N-word" twice. Defendant explained that, after she got off the bus, she called 911 pursuant to the SUNY Albany crime policy. Defendant also tweeted about the incident. Defendant testified that she characterized the incident as racially motivated because no one would have used the "N-word or ratchet but for her status as a black woman. She stated that she reported the incident because she was injured and afraid; the altercation should not have happened and she did not want to attend school with people "like that."

The verdict is supported by legally sufficient evidence and is not against the weight of the evidence. In that regard, the trial evidence established that a verbal altercation arose that led to a heated conversation regarding differential treatment based on race. A verbal altercation ensued between Agudio and a passenger that resulted in defendant, her friends and other passengers being pushed and pulled and Agudio's hair extensions being pulled out. The evidence is inconclusive as to whether the "N-word" was uttered on the bus; however, the testimony and video footage indicate that the word was neither heard nor spoken. Defendant thereafter reported to the police that she and her friends were jumped on a bus on account of their race; defendant reported that men and women participated in the assault and that the passengers called defendant the "N-word." The evidence also demonstrates that defendant posted on social media that she was jumped on a bus, called the "N-word" and was beaten because of her skin color.

Based on the foregoing proof adduced at trial, we find that legally sufficient evidence exists to support both counts of falsely reporting an incident in the third degree. As to the weight of the evidence, although a different verdict would not have been unreasonable inasmuch as the jury could have credited defendant's version of events, we find that the jury's verdict is supported by the weight of the evidence. Deferring to the jury's credibility determinations, the evidence supporting defendant's convictions rests upon multiple sources that demonstrate that defendant knew she was not jumped on a bus by boys and girls as part of a racially-motivated assault and that she nonetheless falsely reported to a 911 dispatcher and posted on social media that she was beaten because of the color of her skin….

NEXT: Today in Supreme Court History: April 11, 1862

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  1. Professor Volokh – I think you forgot to turn circulates into a gerund, as you did with initiates, in the first sentence.

    1. Well, that changes everything!

  2. Stupid ain’t illegal, or they’d all be in jail.

    1. Stupid ain’t always illegal, but often is.

  3. [I]nasmuch as this statute criminalizes a certain type of speech, namely false speech, the restrictions on speech are content-based, rather than time, place or manner limitations…. Absent certain historical categories which do not apply here (see United States v. Alvarez [2012]), even false speech is considered protected and, in that context, content-based restrictions are subject to “the most exacting scrutiny.”

    So CNN gets to stay on the air?

    1. Nice one. See, CNN says false things, while Fox News is known for its honest and fair reporting. Zing!!! You really burned CNN on this one.
      (Out of curiosity; if CNN airs clips from a press conference of the president, and the clips show Trump telling 10 lies…does that mean that CNN should be subject to penalties, for the false statements of facts, or, that the president should?)

  4. So, does this mean yelling “fire” in a crowded theater is now protected speech?

    Given New York’s recent forays into “bail reform,” this makes perfect sense.

    1. 1) It’s falsely yelling fire.
      2) The case that’s from…hadn’t aged well. It found jailing people for anti-war advocacy was okay.

      1. 3. Under Brandenburg, certainly falsely shouting fire with the intention of causing a panic is unprotected.

      2. Sarcastr0 — it was (a) falsely yelling “fire”, (b) in a crowded theater, (c) in 1911, when Justice Oliver Wendell Holmes penned those words.

        Back in 1911 movie film was made out of explosive nitrocellulose which was not only highly flammable but would continue to burn even completely submerged in water. It was scary stuff, and the heat of the movie projector was often enough to ignite it, dropping a roll onto the floor often was enough to cause it to explode into flames.

        Starting in the 1930’s, Kodak introduced “safety film” made from something else which wasn’t explosive, and that’s the camera, movie, and X-ray film that those of us who remember the pre-digital age are familiar with. And we’ve all grown up with modern fire codes and fire alarm systems and fire trucks powered by 400 horsepower engines.

        None of that existed back in 1911, when most fire trucks were still pulled by horses, and consisted of little more than a steam boiler that was used to pump water. For a state-of-the-art circa 1911 fire truck, see: https://www.youtube.com/watch?v=dDfV7pPx6G0

        And the fire alarm in 1911 was someone shouting “Fire”, which would then be repeated by others — that’s all they had. (It’s like the Boston Massacre and someone ringing the church bell — of course everyone showed up, that was the fire alarm back then.)

        Hence Holmes analogy needs to be viewed as penned by a man who defined “theater” as being in wooden firetrap buildings where they were using movie film only slightly more stable than nitroglycerine and where the shout of “fire” was the fire alarm of the day.

        My guess is that he wouldn’t have typed it on his laptop today — the thing to remember about the _Schenck_ decision is that Holmes was a Civil War veteran and undoubtedly remembered the 1863 New York Draft Riots, which I believe is still the worst urban rioting we’ve ever had in this country. I’m not saying he was right (nor that Wilson was right getting us into that war), but with this knowledge in the context of the Pro-German (and Anti-British) sentiments then being expressed, I can see his concept of “clear and present danger.”

        One needs to also remember that this was the same court that ruled that movies did not enjoy First Amendment protections (_Mutual Film Corp. v. Industrial Commission of Ohio_, 236 U.S. 230 (1915)) and a time when Robert Goldstein was sentenced to 10 years in prison (later commuted to 3) for The Spirit of ’76 — a movie about the American Revolution that involved scenes of British soldiers bayoneting babies and raping American women.

        Contrast Goldstein to Jane Fonda — that decision definitely has not aged well — but pulling the fire alarm when there is no fire is still a criminal offense.

        1. Hence Holmes analogy needs to be viewed as penned by a man who defined “theater” as being in wooden firetrap buildings where they were using movie film only slightly more stable than nitroglycerine and where the shout of “fire” was the fire alarm of the day.

          Or more likely he defined theater as being a place where live actors put on a play, making all of your statements utterly irrelevant.

  5. The perpetrators of the alleged hate crime were singing “99 Bottles of Beer” on a bus at 1 a.m.? They’re lucky that the worst that happened to them was being falsely accused of a hate crime.

  6. In the utter chaos of a brawl in a confined area, I challenge anyone to state, with absolute certainty, what was or wasn’t said — and it’s even worse if folks are somewhat less than sober (which, at 1AM, probably was the case here). Three witnesses will have three slightly different versions of story — and be worried if they don’t.

    And then people tend to hear what they expect to hear — I’m thinking of an incident where a museum guard saying “no waterbottles” was heard to be “no watermelons” and hence a racist insult. Eyewitnesses are notoriously inaccurate.

    That said, I’d argue that on a college campus in 2020, tweeting an allegation of racism is what shouting “fire” in a crowded theater was in 1911. Why isn’t this “inciting to riot”?

    1. ’m thinking of an incident where a museum guard saying “no waterbottles” was heard to be “no watermelons” and hence a racist insult. Eyewitnesses are notoriously inaccurate.

      I was afraid we were going to go an entire day without Dr. Ed making up an anecdote.

  7. This is a little confusing… let me see if I have this right:

    It is still against the law in NY to make a false report to the police.

    The law that was struck down additionally made it illegal to post a false allegation of a crime to facebook or Twitter.

    Hmmmm.. I suppose that seems about right.

    Besides, what are MSNBC, CNN, BlazeTV, Fox et. al. going to do if they can’t make false allegations of criminal activity? Hell, Rachel Maddow basically had false criminal allegations and no other content for the better part of 3 years.

  8. My first impression is the result (the law is facially constitutional, is unconstitutional as applied to the tweets, and constitutional as applied to the 911 calls) is consistent with Breyer’s controlling concurrence in Alvarez. However, that concurrence applied intermediate scrutiny, not strict scrutiny called for by this court.

    1. Josh R: Thanks for your comment; I’ve revised the post to make clear that the decision held the subsection was unconstitutional as applied, though under the court’s logic it could be struck down as unconstitutionally overbroad in a later case.

      TIlted: Thanks also for your correction — fixed.

      1. It’s certainly possible a future court could facially strike down the law. However, wouldn’t such a ruling be at odds with the result in this case that the defendant’s conviction for falsely reporting an incident in a 911 call was upheld?

        1. That conviction was apparently under a different subsection of the same statute, which focuses on false reports to law enforcement:

          As relevant here, ‘[a] person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he or she … [g]ratuitously reports to a law enforcement officer or agency … false information relating to an actual offense or incident’ (Penal Law § 240.50[3][c] ) or ‘[i]nitiates or circulates a false report … of an alleged occurrence … of a crime … under circumstances in which it is not unlikely that public alarm or inconvenience will result’ (Penal Law § 240.50[1] ).

          Count 4 looks to have been under [3][c], and count 7 (the one that was thrown out) was under [1].

  9. Just don’t lie to the government. If you want to tie up law-enforcement resources or cause alarm, say your lie to nongovernmental civilians.

    By the way, I hear the Martian brain-eaters have landed and they’re so hungry they’ll settle for human beains.

    Just kidding, they’re too really into haute cuisine, and human brains won’t do it for them.

    1. ” If you want to tie up law-enforcement resources or cause alarm, say your lie to nongovernmental civilians.”

      Send your friends into the admin building demanding “justice” for you — I’ve seen that happen more than a few times.

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