Tweeting fake news in a crisis — illegal or just immoral?

When Hurricane Sandy battered their city on Monday night, New Yorkers looked after each with courage and generosity. Unfortunately, a few people behaved badly and one person was downright despicable.

That person was Shashank Tripathia, a hedge fund analyst, who began issuing false and alarming news reports on Twitter at the height of the storm. As hospitals lost power and a major power station exploded, Tripathia contributed to the chaos by falsely claiming that all of Manhattan had gone black and that:

The tweet — which said a pillar of the world economic infrastructure was in peril — was finally refuted by the stock exchange, but not before it had been repeated hundreds of times, including on CNN and the Weather Channel. In short, Tripathia used a media platform at the height of an emergency to promote panic and anxiety.

Everyone agrees that his behavior was reprehensible. But there is also the question of whether tweets like Tripathia’s are (or should be) illegal.

Keep in mind that Twitter is not just an online gab fest, it is also a newswire. During the hurricane, a phone-based Twitter feed was the last and best source of news for some of us who had lost access to TV and the internet. It was at this very time that Tripathia chose to make mischief with his fake news reports, knowing full well his lies would be picked up by other news sources. It’s as if the local TV channel began broadcasting fake hurricane news just for fun.

Criminal mischief or Free speech?

Should he be punished? As others have pointed out, the damage he caused is limited because Twitter operates much like a self-cleaning oven by disinfecting false news. And Tripathia himself is likely to face the wrath of angry New Yorkers and possibly lose his job, now that BuzzFeed exposed his identity.

This doesn’t mean, however, that the state or city shouldn’t consider criminal charges against Tripathia — or anyone else who uses a broadcast channel in an emergency to endanger or incite. But any government action would, of course, be subject to the law of free speech.

“Lies are constitutionally protected except in very rare exceptions. Someone recklessly tweeting is beyond the reach of the law except in rare exceptions,” said Ken Paulson, a lawyer and former USA Today editor at the First Amendment Center, in a phone interview.

Paulson added that Twitter is typically so much loose talk and that “anything you want to outlaw on Twitter, you’d have to outlaw in conversation.”

Paulson’s reasoning is appealing, especially to a journalist, but may be hard to square with situations in which a Twitter feed becomes a de facto emergency broadcast channel. After all, the government already regulates rumors related to the SEC and the stock market, and courts say they will draw a line at protecting speech that gives rise to “imminent lawless action.” Should there be limits on social network speech in emergencies too?

At GigaOM, we’re fond of highlighting Twitter’s role as a source of freedom and public media tool. For now, my instinct is to leave Twitter alone. But future emergencies may test that position.

Update: it looks like at least one city official in New York thinks Tripathia’s tweets amount to a criminal act:

Update 2: Tripathia has apologized for the tweets and resigned as campaign manager for a Republican candidate for Congress. Respected Reuters columnist Felix Salmon isn’t in a forgiving mood.

(Images by Benjamin Simeneta and Zacarias Pereira da Mata via Shutterstock)