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Volokh Conspiracy

Falsely shouting 'Ebola!' on a crowded bus—the California criminal prohibition


Last week, I blogged about the man who shouted on a bus, "Don't mess with me, I have Ebola!" The bus was removed from service, and the driver was quarantined. I noted that the shouting was constitutionally unprotected, because it was a damaging knowing falsehood—assuming it was indeed knowingly false—but I didn't know whether a California law actually outlawed such speech, which wasn't quite a threat or fighting words.

Commenter 9HeadedCaesar, however, came to the rescue, pointing to Cal. Penal Code § 148.3 (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). The statute rarely appears in reported decisions, but one seems on point: 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. Britney M. is not a precedential decision, but it does reflect how state authorities seem to read the statute; and I think this reading is likely correct.