During Hurricane Sandy, @ComfortblySmug a/k/ Shashank Tripathi made a number of false and misleading tweets. For example, he tweeted that the New York Stock Exchange was flooding, that Con-Ed was going to shut down all power in Manhattan, that Governor Cuomo was trapped in Manhattan, that subways would be closed for a week, and other falsehoods.

Tripathi apologized, and resigned as a campaign manager for a NY Congressional Candidate.

But that’s not the end of the matter. NYC Councilman Peter Vallone said he has asked the Manhattan District Attorney to look into prosecuting Tripathi.

But is that even constitutional? Vallone thinks so.

Vallone told BuzzFeed that “the Manhattan DA is taking this very seriously.” But he conceded that “it’s a very difficult case to make.”

Vallone said the DA’s office would have to make the case that the tweets were sent deliberately to fool the public with “no legit basis for the tweets themselves.” He said it was “easier to prove” tweets sent by Tripathi about Manhattan losing power were more obviously conjured up and not based on other false news reports.

“Everyone know’s the example of yelling fire in a crowded movie theater,” Vallone said.

“A little bit of truth makes them much more dangerous,” Vallone added, saying the nature of the feed having truth mixed with falsehoods made it hard for people to separate lies from fact.

“I hope the fact that I’m asking for criminal charges to be seriously considered will make him much less comfortable and much less smug,” Vallone said.

Is this right? Can false speech be punished? Would the fact that it was made during a time of emergency matter? Was there in fact a clear and present danger? Were the harm from his statements imminent? Wasn’t he just  some putz tweeting? What statute did he violate? He didn’t make false statements to any official?

And the fact is that counterspeech–tweets from Con-Ed–quickly corrected the false speech.

Last term the Court in United States v. Alvarez the constitutionality of the Stolen Valor Act, a law that criminalized falsely stating that one earned military honors and decorations. No one opinion commanded a majority, but the Court held that the Act was unconstitutional.

From Justice Kennedy’s plurality opinion, the statute which criminalized false speech was “unprecedented”:

Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered con- versations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so en- tirely without regard to whether the lie was made for the purpose of material gain. . . .

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern- ment authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle.

Breyer, joined by Kagan, would reject a “strict categorical approach,” and instead look to the harm caused by hte speech.

 I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Ante, at 4– 10. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Govern- ment can achieve its legitimate objectives in less restric- tive ways

I doubt this prosecution will go very far.

Update: The ABA Journal asked Stuart Benjamin and Eugene Volokh what they think:

Duke University law professor Stuart Benjamin told the newspaper that a challenge may depend on whether sending disaster tweets had the same impact as sending a false report to the government, which would more clearly withstand a First Amendment challenge. If not, a strong argument could be made that the New York law is unconstitutionally broad.

University of California at Los Angeles law professor Eugene Volokh told the newspaper he doesn’t think there is “an Alvarez problem” with the New York law, given the concurring opinion in the case by Justice Stephen G. Breyer. The justice agreed with the decision to strike down the law barring lies about military honors, while distinguishing laws that prevent lies when a tangible harm is likely to result. As an example, he cited laws that bar lies about “the commission of crimes or catastrophes.” (Volokh wrote about the case in June at the Volokh Conspiracy.)