183 A.D.3d 173
N.Y. App. Div.2020Background
- Late-night altercation on a CDTA bus to SUNY Albany involving defendant and several students; a physical fight occurred and a passenger's hair extensions were torn out.
- Surveillance and bystander videos captured portions of the incident; audio was largely unintelligible and none of the clearly decipherable audio included the "N-word."
- Multiple witnesses testified; most did not hear racial slurs, a few heard insults like "whale" or "ratchet," and some later reported having "heard" others say the N-word.
- Defendant called 911 reporting she and her friends had been "jumped" on the bus because they were black and that people used the N-word; she also posted tweets claiming a racially-motivated assault.
- Indicted on multiple counts; after a jury trial defendant was convicted of two counts of falsely reporting an incident in the third degree: count 4 (911 call) and count 7 (social media/circulation).
- Appellate court affirmed the conviction based on sufficiency and weight for the 911-call count but reversed and dismissed the social-media count as an unconstitutional application of Penal Law § 240.50(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency / weight of evidence for false-report convictions | Evidence (911 call, recorded interview, tweets, witness testimony) supports that defendant knowingly reported false racial assault | Defendant testified she was assaulted and heard the N-word; evidence was inconclusive | Conviction for the 911-report (count 4) supported; verdict not against the weight of the evidence |
| Constitutionality of Penal Law § 240.50(1) as applied to defendant's tweets (count 7) | The statute serves compelling interests (preventing public alarm and waste of public resources) | Tweets are content-based regulation of speech; false speech on social media is protected unless narrowly tailored; statute is not least restrictive | § 240.50(1) as applied to defendant's social-media circulation is unconstitutional; count 7 reversed and dismissed |
| Whether defendant's tweets caused public alarm sufficient to criminalize them | Retweets and online dissemination made public alarm or inconvenience "not unlikely" | Online discussion and retweets fall short of specific harm or great likelihood of harm; counter-speech can address falsity | Tweets did not produce the level of harm required to justify criminalization under strict scrutiny |
| Repugnancy of convictions (count 4 conviction vs acquittal of another count) | (People) Claim not raised timely | (Burwell) Conviction repugnant to acquittal | Claim not preserved for appeal; forfeited |
Key Cases Cited
- Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) (content-based speech restrictions are presumptively invalid)
- United States v. Alvarez, 567 U.S. 709 (2012) (false statements can be protected speech; strict scrutiny applies to content-based bans)
- Town of Delaware v. Leifer, 34 N.Y.3d 234 (2019) (regulation of speech must be least restrictive means to serve compelling interest)
- People v. Marquan M., 24 N.Y.3d 1 (2014) (distinguishing speech from criminal conduct)
- People v. Haynes, 177 A.D.3d 1194 (2019) (legal sufficiency standard for convictions)
- People v. Colon, 177 A.D.3d 1086 (2019) (standards for reviewing sufficiency and inferences supporting conviction)