[ by Melanie Gretchen ]

Twitter is a means to an end: to disseminate news, share life stories, and otherwise communicate with the digital world.  For Twitter user @ComfortablySmug, it was to spread misinformation by tweeting that, among other things, the New York Stock Exchange "is flooded under more than 3 feet of water" and New York Gov. Andrew Cuomo "is trapped in Manhattan. Has been taken to a secure shelter."

Could @ComfortablySmug's end be jail?  Legal experts say it's possible.

"This is the modern version of someone falsely screaming 'Fire!' in a crowded theater," said Stuart Benjamin, a law professor at Duke University, referring to a famous illustration offered by Justice Oliver Wendell Holmes Jr. in a 1919 Supreme Court ruling.  The court held that such statements are imminently dangerous and not protected by the First Amendment.

What are the chances? Mr. Benjamin might find an ally in New York law, which, like many states, prohibits people from falsely reporting an event in certain circumstances.  Specifically, 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."  Violations are punishable by up to a year in prison.

Who is @ComfortablySmug? The Twitter user was less smug when he was outed by the BuzzFeed news site as Shashank Tripathi, the campaign manager for a congressional candidate.  Thereafter, New York City Council Member Peter F. Vallone Jr. asked the Manhattan district attorney to file charges against the 29-year-old, who has since resigned from Republican Christopher Wight's campaign and tweeted a "humble and unconditional" apology for his "irresponsible and inaccurate" tweets.  Prior to discovery about his identity and the false nature of his misinformation, his tweet about the stock exchange was retweeted by journalists, including at The Wall Street Journal.
 
To date, however, charges didn't appear to have been filed.  Potential obstacles standing in prosecutors' way:

• precedent: for the New York statute to be applied, it would have to stand up against a landmark U.S. Supreme Court decision this year that struck down a law making it a crime to lie about being a war hero

   

   

  • lying is protected speech, according to U.S. v. Alvarez, with the exception of some falsehoods, including perjury, lies to the government about official matters or pretending to speak on behalf of the government
     
• language of the law: Eugene Volokh, a law professor at the University of California, Los Angeles, said some of the law's language could be too imprecise to survive a challenge.
   
• effect: Tripathi's falsehood was "not intended to call the government into action," according to Frederick Schauer, a professor at the University of Virginia
   
• application: "If it could be invoked against this guy, there is no apparent reason why it could not be used to prosecute news media, which unfortunately do sometimes report the 'impending occurrence of a crime, catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result.' " --  David Anderson, a law professor at the University of Texas, in an e-mail, quoting the statute

Ultimately, what it comes down to is whether prosecutors could prove that Tripathi "was making stuff up," City Council Member Vallone, a former prosecutor, said.

"This was one of the first times Twitter has been used as a way for many people to get their information, and by and large social media did a good job.  Unfortunately, you've got [Mr. Tripathi] who was scaring people for no reason."

For further details, go to [WSJ, 11/5/12].