Image Credit: Yells Fire in a Crowded Theater

By Bryan Russell

In the midst of Superstorm Sandy, someone anonymously tweeted: “BREAKING: Con Edison has begun shutting down all power in Manhattan,” and “BREAKING: Governor Cuomo is trapped in Manhattan. Has been taken to a secure shelter.” Both of these statements were patently false—outright lies. 

Through some crafty investigative journalism, comparing tweeted photos with others photos available online, Jack Stuef discovered and reported that this anonymous tweeter was in fact Shashank Tripathi—“a hedge fund analyst and campaign manager for a candidate for Congress.”

Tripathi tweeted these lies to his 6,500 followers under his Twitter account of @ComfortablySmug, listing his interests as including “Finance, Gin, Politics, Books, Food, Fine Clothing (and) Meeting Strangers.” Tripathi publicly acknowledged that the tweets came from him and unconditionally apologized for spreading misinformation, but this apology did not ameliorate all public scorn.

New York City Councilman Peter Vallone asked the Manhattan district attorney’s office to seek criminal charges and further likened “Tripathi’s tweets were the digital equivalent of shouting ‘Fire!’ in a crowded theater.”  Which begs the question: is this a thing? The First Amendment certainly protects expression online, but within what bounds?

In Schenck v. United States, 249 U.S. 47, 52 (1919), Justice Oliver Wendell Holmes, Jr. famously wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”  Through Schenck, the United States Supreme Court established a “clear and present danger” test, later amended to “imminent lawless action.”  That is, Congress and state legislatures cannot prescribe speech unless that speech incites, or is likely to incite, imminent lawless action. In plain English, let’s call this the “panic” factor.

Does Justice Holmes’s “shouting fire in a theater” analogize to Tripathi’s tweets?  Tripathi’s tweets could have, and likely did, cause some panic. It’s frightening that the Governor could be trapped in Manhattan, where—by the way—all electricity is being shut down. In referencing this analogy, many people increase the stakes to a “crowded theater.” So cardinality seems to play a role. But again, Tripathi is reported to have approximately 6,500 people receiving his tweets. So far, so good—there is both the potential for both panic and a critical mass of people panicking.  Seemingly, the government could have regulated the above tweets to the same extent that it could regulate falsely yelling fire in a theater.

But there’s a hitch: Twitter followers are not in one room, together, responding collectively. One user might have many followers, a hashtag might cause a tweet to be widely distributed, or traditional media might report on a tweet itself—a strangely common practice in today’s 24 hour news cycle. Widespread panic might ensue. But again, panic widely dispersed just isn’t the same as panic centralized. And frankly, it is unlikely that a tweet, even one causing panic widely dispersed, could cause enough panic in enough places to incite “imminent lawless action.”