The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From U.S. v. Perez, decided June 9 by Judge David Ezra (W.D. Tex.), but apparently not publicized (or uploaded to Westlaw) until now; the defendant was just sentenced to 15 months in prison, though he is appealing the decision:
According to the Indictment, on or about April 5, 2020, … Defendant posted on Facebook the following: "PSA!! Yo rt HEB MERCADO!! My homeboys cousin has covid19 and has licked every thing for past 2 days cause we paid him too [4 EMOTICONS] … big difference is we told him not to be these fucking idiots who record and post online … YOU'VE BEEN WARNED!!! HEB on nogalitos next ;)." Defendant also posted the following on the same day: "Lol…I did try to warn y'all but my homegirl changed my mind … mercado already is, nogalitos location next …"
Defendant was charged with a violation of 18 U.S.C. § 1038(a)(1), and the court held that the charge wasn't precluded by the First Amendment:
"The statute requires conduct that conveys false information that, if true, would violate certain enumerated statutes" that would cover a broad range of topics, including: "destruction of aircraft and motor vehicles, biological and chemical weapons, improper use of explosives, improper use of firearms, destruction of shipping vessels, acts of terrorism, sabotage of nuclear facilities, and aircraft piracy." Hoaxes of this nature often create responses such as "deployment of first responders, evacuations, hazardous materials units, S.W.A.T. teams, bomb squads, extensive investigations concerning the threat, and more." Section 1038(a) thus prohibits more than just "false statements"; it prohibits false statements that create serious responses to potential "grave and imminent" threats to the order of society. See United States v. Keyser, 704 F.3d 631 (9th Cir. 2012) (rejecting a First Amendment challenge to a section 1038(a) hoax-speech conviction where the defendant mailed packets of sugar labeled "anthrax" to businesses and public officials in order to promote a book because terror hoaxes are grave and imminent threats).
Because section 1038(a) prohibits more than just "false statements," it is distinguishable from the Stolen Valor Act, which criminalized making false statements about earning military awards. In holding that the Act was unconstitutional, the plurality in United States v. Alvarez (2012) noted that "[t]he Court has never endorsed the categorical rule … that false statements receive no First Amendment protection." In a concurring opinion, Justice Breyer provided examples of false factual statements that would be protected under the First Amendment, including public statements that "may stop a panic or otherwise preserve calm in the face of danger." Section 1038(a) prohibits speech that would cause panic in society, whereas the Stolen Valor Act does not….
Defendant maintains that the statute is not actually necessary to achieve its stated interest as applied to Defendant's conduct. Defendant states, "[Defendant] is alleged to have joked on Facebook about paying a friend to lick items at a grocery store. This is likely not the type of conduct that would spark a public panic or merit an overwhelming law enforcement response."
The Court disagrees. COVID-19 has caused death to thousands of people and hospitalized many more. To say that COVID-19 has caused fear in this country would be an understatement of epic proportions. And while many individuals, particularly those with underlying health conditions, stayed at home to avoid exposure to the virus, the grocery store was one of the few places that could not be avoided. Posting online that a friend with COVID-19 licked foods at a particular grocery store would likely spark a public panic and an investigation, as many people would fear for their own health as well as the health of those whom the grocery shoppers interacted with after leaving the store.
The Court is also mystified by Defendant's argument that "the alleged conduct likely had more beneficial than harmful results." Defendant attempts to justify this assertion by explaining that his behavior "would likely have encouraged the appropriate level of concern as compared to the downplaying of the seriousness of the pandemic that occurred at the highest levels of Government and permeated through communities around the country." However, the Court respectfully disagrees that joking about having exposed innocent people to COVID-19 while purchasing basic biological needs had "more beneficial than harmful results."
The speech that is being prohibited in this case had the potential to cause mass panic. Instead of yelling "fire" in a crowded movie theater, Defendant here posted online that his friend with COVID-19 licked foods at a grocery store during a deadly global pandemic. Both actions have the potential to cause mass panic. The actions in this case, however, had the potential to cause even more panic. Yelling "fire" in a crowded movie theater affects everyone inside the movie theater. Posting online that someone with COVID-19 licked foods at the grocery store affects everyone that was in the grocery store over a span of several days and the people that the grocery shoppers interacted with after leaving the grocery store. The speech in this case is of the type that 18 U.S.C. § 1038(a) seeks to prohibit….
Defendant's examples of potential violations of § 1038(a) that allegedly lie beyond its stated legislative goals do not outweigh the numerous proper uses of this statute. Most of Defendant's examples would likely not fall under the statute in any event. See e.g., United States v. Brahm (D.N.J. 2007) ("Orson Welles's 'War of the Worlds' broadcast … may not qualify as something within the reasonable belief required by the statute."). Further, when comparing valid restrictions on speech to invalid restrictions, courts utilize "a sensitivity to reality" when considering hypothetical situations. It would appear that the proper uses of the statute, described above, would occur with much more frequency than indictments for parodies and other artistic expressions….
Defendant posted his comments online on April 5, 2020 …. At that time, the country was in a state of hysteria. Some people hoarded toilet paper, cleaning products, and hand sanitizer. Others refused to leave home without gloves, hand wipes, or other protective gear. While the healthcare system was on the verge of being overrun with COVID-19 patients, Americans in large cities cheered on healthcare workers after their long shifts by clanging pots, pans, and cowbells outside of their windows. Thousands of people were infected with the virus, many were hospitalized, and many lost their lives. Americans have not suffered physically, mentally, and emotionally from a such a deadly disease since the 1918 influenza pandemic.
As people calculated the risks of leaving their homes and decided "to do without" many things, the one place that could not be avoided was the grocery store. People gave up haircuts, appointments, and other social outings, but they could not forgo basic biological needs. And it was at this time that Defendant posted online that his friend with COVID-19 licked items at the grocery store. These online posts, when considering the state that country was in at that time, presented a grave and imminent threat not just to the innocent grocery shoppers and essential grocery workers, but to all of the other innocent victims who later interacted with them….
For a different hoax case, see here.