The Volokh Conspiracy

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Falsely shouting 'Ebola!' on a crowded bus [UPDATED]


The L.A. Times reports:

A Metro driver has been quarantined and the bus he was operated taken out of service after a masked passenger began yelling, "Don't mess with me, I have Ebola!"

Metro officials said they are working with Los Angeles County sheriff's transit authorities to review surveillance footage taken from inside the bus to determine the identity of the masked passenger, who was accompanied by a woman, Metro spokesman Marc Littman said.

The Monday afternoon incident is being investigated as a possible terrorist threat because of the fear it incited, he said.

Los Angeles County Department of Public Health officials don't believe the rider has Ebola and believe the incident was a hoax ….

I haven't seen any details on why the health officials view the bus driver as being especially at risk.

The shouting is pretty clearly constitutionally unprotected, because it's a knowing falsehood that has the potential to cause direct and substantial harm (seriously emotionally distressing fear of injury, the interference with daily activities caused by a quarantine, the cost needed to disinfect the bus, and so on). As I read United States v. Alvarez (2012), most knowing falsehoods can be restricted if the restriction passes "intermediate scrutiny," and in this case a suitably crafted restriction on lies about communicable diseases would indeed pass such scrutiny.

But it would be interesting to see just which California statute would be used to punish such speech. The threat statute, Cal. Penal Code § 422, covers "willfully threaten[ing] to commit a crime which will result in death or great bodily injury to another person." Threatening to deliberately touch someone in an attempt to get them sick (even if the threat is a false threat, and the touching would be unlikely to infect someone even if the threatener was infected) would be threatening a crime. Simply saying that one has a disease that can make others sick if they come into contact with the bodily fluids, such as sweat, that the speaker normally sheds, though might not be a threat of a crime.

Or would the claim be that merely appearing in public knowing that one has a deadly casually communicable disease is a crime, so that the statement threatens continued commission of the crime? I can imagine such a crime, but I don't know of any such criminal statute in California. If you do, please let me know.

You might think this would be the crime of disturbing the peace because it, well, disturbs people's peace; but under Cal. Penal Code § 415, disturbing the peace only includes public fights (or challenges to fight), "loud and unreasonable noise" (might the very loudness of the shouting might qualify, independently of the content?), or "offensive words in a public place which are inherently likely to provoke an immediate violent reaction"—"fighting words," not frightening words.

Note that there are specific California statutes barring knowingly false reports about bombs or possessing or displaying fake weapons of mass destruction with the intent to create fear; but I know of no such statute barring knowingly false reports about communicable diseases.

[UPDATE: Thanks to commenter 9HeadedCaesar, we may have the statute that does cover this. Cal. Penal Code § 148.3 states (emphasis added),

Any individual who reports, or causes any report to be made, to any city, county, city and county, or state department, district, agency, division, commission, or board, that an "emergency" exists, knowing that the report is false, is guilty of a misdemeanor [and shall be liable for the reasonable costs of the emergency response] ….

"Emergency" as used in this section means any condition that results in, or could result in, the response of a public official in an authorized emergency vehicle, aircraft, or vessel, any condition that jeopardizes or could jeopardize public safety and results in, or could result in, the evacuation of any area, building, structure, vehicle, or of any other place that any individual may enter, or any
situation that results in or could result in activation of the Emergency Alert System ….

Knowingly falsely reporting to a county department employee—the bus driver—that one has ebola may well result in the sending of an emergency vehicle, or evacuation of the bus. It would also almost certainly "cause[ a] report to be made" to other government officials (which would be important, for instance, if this was said in a private shuttle bus or some such, so the driver wouldn't himself be a county employee). See In re Britney M. (Cal. Ct. App. 2011), where planning a fake kidnapping, in which the pretend victim's father was called with a ransom demand, was treated as a § 148.3 violation, presumably because it was very likely that the father would call the police; that case is not a precedential decision, but it does reflect how state authorities seem to read the statute, and likely correctly so.]

For a case that's about falsely shouting fire (well, close), see here. Of course, the title of this post refers to the famous line from Schenck v. United States (1919), though there the stated concern was a panic in which people might be trampled or otherwise injured, not just fear as such.