Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, and media law, and seminars in appellate advocacy and law & theology. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Thursday, November 8, 2012

Crying Hurricane in a Crowded Metropolis


During Superstorm Sandy, someone falsely tweeted that the New York stock exchange was flooded under more than three feet of water and that Governor Andrew Cuomo was trapped in Manhattan and had been rushed to safety.  These tweets were picked up and retweeted by various mainstream news sources. 

It was later discovered that the source of the false tweets was the campaign manager for a Republican candidate for congress.  The tweeter immediately resigned fromt the campaign--which may have saved him the trouble of worrying about whether he'd be fired, but probably did not save him the trouble of worrying about whether he'd be indicted.

As a recent Wall Street Journal article reports, under New York law it is a crime to initiate or circulate "a false report or warning of [a] ... catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result."  The article goes on to note that, while some First Amendment scholars have questioned whether such laws pass constitutional muster, others have compared these tweets to the famous example of unprotected speech offered by Justice Holmes: crying "Fire!" in a crowded theater.

For present purposes, I don't want to undertake the ambitious project of trying to assess the constitutionality of such laws.  Instead, I want only to offer an observation about social media that I think might figure into the calculus. 

For most of human history, our communications fell into two categories.

Some of our communications were impetuous.  We shouted or cried out or muttered in a moment of anger or zeal or folly, often saying things that we would not have said if we had thought more carefully.  Still, there was one consolation: such impulsive communications were not rendered in a permanent medium. 

On the other hand, some of our communications had more permanence to them.  We committed some of our statements to writing or recording and, because that was a more serious (or at least more time consuming) enterprise, we acted with a higher level of deliberation.  Of course, sometimes the stuff we wrote or recorded was irresponsible gibberish.  But a little more thoughtfulness made it a little less likely that this would be the case. 

Social media, however, mix these two characteristics together into a potentially troublesome potion.  They allow us (in many contexts, encourage us) to be dazzlingly impetuous.  At the same time, they enshrine our recklessness in a kind of permanence.  And, to magnify the concerns, with the push of a button we can launch these communications into the universe--so that they go virtually everywhere to virtually everyone, forever.

I am not implying that these considerations provide an answer to the constitutional question.  I am merely suggesting that our traditional ways of framing First Amendment problems may not have kept up with the technology.

Were these tweets like crying "Fire!" in a crowded theater?

I'm not so sure.

Is a written message that appears on your phone more--or less--alarming than a cry?  At a minimum, can we at least agree that it is different?

And, while we're at it, can we agree that a tweet that is recirculated by the Wall Street Journal--as these tweets were--will reach vastly more people than you could ever fit into any theater ... no matter how crowded?

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