Hurricane Sandy will go down as one of the worst natural disasters in American history. According to the latest news reports, more than 100 people have died from the storm and economic damages may surpass more than $50 billion dollars.
To make matters worse, looters have made some people afraid to leave their homes to obtain much needed supplies. As a former New Yorker, my heart goes out to my friends and former neighbors who are dealing with this terrible tragedy.
During the storm, many people were Tweeting and posting content online. Some people were making predictions about the storm, others were discussing their greatest fears about the storm, some were asking for help, and others were Tweeting intentionally false and misleading information. Were all of these posts protected by the 1st Amendment?
One of those people who were allegedly making false and misleading Tweets during the storm was Shashank Tripathi. For example, one of Tweets stated, "BREAKING: Confirmed flooding on NYSE. The trading floor is flooded under more than 3 feet of water." This was an intentionally false Tweet. However, intentionally misleading Tweets are generally protected under the 1st Amendment.
New York City Councilman Peter Vallone, Jr. has stated that he has asked the Manhattan District Attorney to look into filing charges against Tripathi for his Tweets. Under Brandenbury v. Ohio 395 U.S. 444 (1969), the Supreme Court held that the government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite imminent lawless action. In addition, under U.S. v. Alvarez 132 S.Ct 2537 (2012) lying in some situations is constitutionally protected free speech. Was Mr. Tripathi's Tweets or online posts by others directed to inciting and likely to incite imminent lawless action? Most likely not. Was Mr. Tripathi lying? It appears he was misrepresenting the truth.
Regulating free speech is a very slippery slope. During Hurricane Sandy, social media helped bring out the best in people and it has also has brought out the worst in others. However, the storm should not be utilized as a reason to further regulate speech.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.