Wednesday, March 11, 2020

Can Law Ban False Reporting About Coronavirus?

By Eugene Volokh - March 11, 2020 at 12:45PM

The Newark Department of Public Safety writes:

Newark Public Safety Director Anthony F. Ambrose strongly urges the public against posting false information on social media regarding the presence of the coronavirus in the City of Newark.

"Any false reporting of the coronavirus in our city will result in criminal prosecution," Director Ambrose said. "We are putting forth every investigative effort to identify anyone making false allegations on social media to ensure that any posted misinformation is immediately addressed."

Director Ambrose adds that misleading information on social media may cause an unnecessary public alarm.

"The State of New Jersey has laws regarding causing a false public alarm and we will enforce those laws," Ambrose said. "Individuals who make any false or baseless reports about the coronavirus in Newark can set off a domino effect that can result in injury to residents and visitors and affect schools, houses of worship, businesses and entire neighborhoods," he added.

New Jersey law doesn't threaten to punish people for honest (even unreasonable) mistakes in what they say about epidemics or other immediate threats, but it does forbid certain knowing lies, see N.J. Stats. 2C § 33-3:

(a) [A] person is guilty of a crime … if he initiates or circulates a report or warning of an impending fire, explosion, crime, catastrophe, emergency, or any other incident knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm.

(b) A person is guilty of a [more serious crime] if the false alarm involves a report or warning of an impending bombing, hostage situation, person armed with a deadly weapon …, or any other incident that elicits an immediate or heightened response by law enforcement or emergency services.

(c) A person is guilty of a [similarly serious crime] if the false alarm involves a report or warning about … any building, place of assembly, or facility [in the State] that is indispensably necessary for national security, economic stability, or public safety….

Such bans on these sorts of knowing lies are likely constitutional (and might even be constitutional if applied to "reckless" falsehoods, which is to say statements that the speaker knows are probably though not certainly false).

U.S. v. Alvarez (2012) did hold that some lies are constitutionally protected; there, the Court struck down the Stolen Valor Act, which broadly banned lies about one's own military decorations. But the two-Justice concurrence concluded that lies are generally less protected than other speech, and in particular that lies that are likely to cause tangible harm (beyond just the emotional distress or misplaced affection created by the deceit) are often prohibitable. And the three-Justice dissent would have gone even further, and would have treated most lies as generally unprotected.

This having been said, the concurrence and the dissent agreed that "[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like" create "a grave and unacceptable danger of suppressing truthful speech," and are thus generally unconstitutional. The same may be true about the life sciences, so any attempt to punish even lies about (for instance) how coronavirus is generally transmitted would likely be unconstitutional; the remedy for such lies is public argument, and not criminal punishment. But the law likely can properly punish specific lies about whether one has been diagnosed with coronavirus, whether a person diagnosed with coronavirus has been present in some place, and so on; if the New Jersey statute (which is a bit vague on such matters) is interpreted as limited to lies on such specific topics, it will likely be upheld.

Thanks to reader Matt Monforton for the pointer.


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