Is this is a criminal tweet?
“BREAKING: Confirmed flooding on NYSE. The trading floor is flooded under more than 3 feet of water.”
On October 29th, when Hurricane/Post-Tropical/Superstorm Sandy barreled through the east coast, water poured through the streets and subways of New York. Amidst the chaos, and people’s overwhelming desire to tweet the most exclusive information first, the aforementioned tweet was sent out through the Twitter user “@comfortablysmug.” CNN picked up the tweet before doing its own fact-checking, and realizing the New York Stock Exchange was not actually flooding.
CNN backtracked, which as of this year, has burned them badly. Cue the CNN Public Relations twitter account:
“CORRECTED: #NYSE officials reporting that floor is NOT flooding at this time.”
So many incorrect tweets, so much retraction. Now who is the culprit behind the original incorrect tweet? It is Shashank Tripathi, he is a manager for the congressional campaign of Republican Christopher Wright for New York’s 12th Congressional District. On Tuesday, October 30th, a day after his tweet, he resigned. He apologized for several false tweets, saying “I deeply regret any distress or harm they may have caused.”
I’m not sure of the timeline of events, but also on Tuesday, New York City Councilman Peter Vallone told Buzzfeed.com that he might consider criminal charges. He told the website, the “Manhattan DA is taking this very seriously.”
I want to discuss what is the likelihood of this happening and if there’s a Pandora’s box it could open. Since the First Amendment doesn’t narrowly address free speech posted through social media, we have to accept that all speech is protected (with perhaps the exception of violent threats, but that’s another discussion). Therefore, the chances of Tripathi facing any punishment seems doubtful. I’m certain Tripathi issued his apology after learning he could get in big trouble for it.
Clear and Present Danger Test
One could make the case that in times of natural disaster, such speech isn’t completely protected, even if it is on social media. Let’s go back to the old standard of protected speech: the Clear and Present Danger test. Supreme Court Justice Oliver Wendell Holmes, Jr. established it in his famous opinion for the case Schenck v. United States, back in 1919:
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree.” Additionally, he said in times of war, speech is also limited given the tense circumstances war brings. Also in his opinion, he explains that free speech doesn’t protect someone from yelling “fire” in a theater when there isn’t a fire.
Natural disasters, especially in the moment of impact, create a dangerous environment. The dissemination of correct information is crucial when time is of the essence. People purposefully providing lies can jeopardize rescue efforts, or detract from them. However, what is difficult to prove is whether or not someone is intentionally lying, or just doesn’t have the right information. I would argue people who thoughtfully type the letters into a tweet are responsible for the facts they present. A simple verbal utterance, untruthful or misinformed, should receive a higher level of protection than that what is tweeted, because an audience within earshot of the message is smaller than the online community.
If the Supreme Court would rule on limiting speech made online, it could create a troublesome slippery slope for TV news. Consider how much cable and local news networks rely on social media to gather information. Earlier I mentioned CNN reported what Tripathi tweeted. Can you hold CNN accountable for false information? I’m sure the network would argue that by saying “we’re hearing reports” before any statement helps them wipe their hands clean of any responsibility. Obviously, they are still accountable for everything they report. A Supreme Court ruling may force CNN and other networks to do its own original reporting (gasp!). I would have to support such a ruling because it ensures accuracy.
When it comes to tweeters sending out information just to gain followers, Vallone told Buzzfeed: “I think the consideration of criminal charges will assure this kind of stuff doesn’t happen again,” but also said that the criminal case is a “very difficult case to make.” Ultimately, I don’t see the Supreme Court ruling on social media anytime soon. I think the Court is letting people use their own judgments when it comes to getting information from social media. So, people will simply have to rely on their instincts to figure out which tweets are true, which are incorrect, and which ones are completely made up.
Mike Brannen is a morning newscast producer for KSTP, the ABC affiliate in Minneapolis-St.Paul. Before that, he was a producer at KIRO7 in Seattle, where he led the 4:30 a.m. show to a #1 share in the U.S. He received an MA in Broadcast Management from the University of Missouri-Columbia in 2010 and received his Bachelor of Journalism degree the year before. He shares more about his life at mikebrannen.com and on Twitter: @MikeBrannen.
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