59 RI Bar J., No. 9, Pg. 5. Criminal Consequences of Sending False Information on Social Media.

AuthorJohn R. Grasso, Esq. and Brandon Fontaine

Rhode Island Bar Journal

Volume 59.

59 RI Bar J., No. 9, Pg. 5.

Criminal Consequences of Sending False Information on Social Media

Rhode Island Bar Journal59 RI Bar J., No. 9, Pg. 5November / December 2011Criminal Consequences of Sending False Information on Social MediaJohn R. Grasso, Esq. and Brandon FontaineIf you used a computer in Rhode Island during the last 20 years, chances are you're a criminal because Rhode Island's computer crimes law -Section 11-52-7(b) of the Rhode Island General Laws - makes it a crime to transmit untruthful or exaggerated statements.

Specifically, the use of a computer to knowingly transmit any false information is chargeable as a criminal offense. Knowingly posting a lie on Facebook, or any other social media, is a crime in Rhode Island punishable by up to one year in prison. Emailing information you know not be true is a crime in Rhode Island. Sending a knowingly false text message is unlawful. Section 11-52-7(b) makes what are everyday occurrences misdemeanor crimes.

Would the police investigate and charge a person with lying on Facebook? Would the police issue subpoenas, secure search warrants, and use special technology to track down a liar on Facebook? Would the State charge that liar? Would the court convict and sentence him? If the suspect was a police officer, and he purposely created a Facebook page identifying the Facebook profile as that of his police chief, the answer to every one of these questions is yes. Even if the suspect published facts on the alleged user's profile so laughable that every person who saw the profile knew it was a joke, the State of Rhode Island would hunt him down, arrest, prosecute, and sentence him. This actually happened in one recent Rhode Island case charged under the statute.

Is it really criminal conduct to create a parody profile on Facebook, a popular social networking website, where the suspected wrongdoer intentionally misspelled his chief's first and last name, listed fictitious interests to include "Haiti, SpongeBob SquarePants, Milking Cows, Quilting, Sewing, Music, Police officers, and Reggae," so that it was clear from the reactions of his friends that the profile was a joke?(fn1) Yes. Following his arrest, the officer was charged under the Computer Crimes chapter of the Rhode Island General Laws with violating section 11-52-7(b) for "transmitting false data," specifically false data relating to his chief, "with the knowledge that it was false." Section 11-52-7(b) states that:

Whoever intentionally or knowingly:

1) makes a transmission of false data; or 2) makes, presents or uses or causes to be made, presented or used any data for any other purpose with knowledge of its falsity, shall be guilty of a misdemeanor and shall be subject to the penalties set forth in § 11-52-5.(fn2)

"Data," as used within the statute, is further defined as: ...any representation of information, knowledge, facts, concepts, or instructions which are being prepared or have been prepared and are intended to be entered, processed, or stored, are being entered, processed, or stored or have been entered, processed, or stored in a computer, computer system, or computer network.(fn3)

While individuals often do not conduct themselves in a socially acceptable manner, criminal prosecution is not always warranted.(fn4) In this case, by criminally charging the police officer with "transmitting false data," the State violated his First Amendment freedom of expression because the statute is unconstitutionally: 1) overbroad; 2) vague; 3) content-based; and, at the end of the day, the alleged wrongdoer's publication is nothing more than a parody.

Overbreadth

"The overbreadth doctrine arises when a statutory enactment is so broad in its sweep that it is capable of reaching constitutionally protected conduct. The overbreadth doctrine generally appHes in the context of First Amendment freedoms and is intended to prevent the imposition of criminal penalties for the exercise of one's constitutional rights."(fn5) Section 11-52-7(b) is substantially overbroad because it criminalizes speech protected by the First Amendment and Article I, Section 21 of the Rhode Island Constitution, which ensures that "no law abridging the freedom of speech shall be enacted."

Statutory challenges on overbreadth grounds are unique in that the defendant is not required to hold standing in order to attack the statute.(fn6) Therefore, even if a court finds that a particular defendant's speech is not protected by the First Amendment, he is still able to challenge section 11-52-7(b) on overbreadth grounds. The rationale is that "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted. . . . because of the possible inhibitory effects of overly broad statutes."(fn7)

There exists no basis on which the restrictions set forth in section 11-52-7(b) can be justified, as the statute is substantially overbroad on its face To determine whether the statute reaches too far, "the first step in overbreadth analysis is to construe the challenged statute"(fn8) A simple reading of the statute is all that is required to imagine the infinite scenarios of expressive speech that section 11-52-7(b) criminalizes.

The statute encompasses a vast amount of protected speech because it provides no limitation to its scope.(fn9) For example, it does not require anyone to be harmed by the transmission of false data, nor does it require that anyone receiving the data actually mistakenly believe it to be true. In fact, to the contrary, everyone reading it could clearly understand its falsity, but it would still be a crime.

While section 11-52-7(b) punishes falsity, "the First Amendment recognizes no such thing as a 'false' idea."(fn10) The fact that hyperbole, white lies, sarcasm, humor, and exaggeration (all of which are protected forms of speech) are all criminalized under section 11-52-7(b) demonstrates exactly why it is so substantially overbroad. To make matters worse, consider that many of the cellular phones on the market today would easily satisfy the statutory definition of a "computer,"(fn11) which could have the profound effect of criminalizing every half-truth or falsehood ever transmitted, perhaps in conversation and almost definitely by text message, when sent through a cell phone.

In effect, every Rhode Island resident who has ever used a computer has likely committed a misdemeanor offense under the overly broad language of this statute.

Of course, this is not to say that the State is actually going to begin prosecuting every untrue statement that the State's citizens transmit using computers. For example, entering an Internet chatroom and stating, "The sky is purple," is undoubtedly a crime under a literal reading of the statute, but it is fair to presume that the offender would be safe from prosecution. However, the fact that the State would never actually punish the conduct does not matter in...

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