The Washington Post recently made an interesting find when it sought the person responsible for recent extreme right actions like the appearance of heavily armed citizens at Gettysburg on Independence Day.  Two members of the House Intelligence Committee, Rep. Raja Krishnamoorthi, D-Ill., and Rep. Peter Welch, D-Vt., demanded that government investigate and identify who was behind the Gettysburg hoax and similar false claims in nine other cities this summer. While there has been evidence of extreme right groups fueling violence in the recent protest, the Post found instead Adam Rahuba, a part-time food-delivery driver and supporter of Sen. Bernie Sanders.  Rahuba said he supports the ant-fascist movement Antifa, a loosely organized group that I have criticized in the past for its anti-free speech agenda. Rahuba, 38, was trying to make chumps out of the far right but some have suggested possible criminal liability for the hoaxes.

Rahuba did not just make chumps out of the far right. The mainstream media took his fake postings hook, line, and sinker as a far-right call to arms.  He would spread rumors under false identities about efforts to confiscate guns or tear down statues to trigger the media and the far right.  Notably, many of those tweets and messages would reference Antifa as was the case with his hoax that there would be flag burnings at Gettysburg.

When the Post caught up with Rahuba at a friend’s apartment in Harmony Township, Pa., he admitted his culpability and said that he is a democratic socialist who supports Bernie Sanders. He also said that he supports Antifa but is not part of an organized group (“I am antifa. But I think you’re antifa as well . . . as is everybody with common sense. But as a part of an organized group? Absolutely not.”).

He is in many ways a homegrown version of the Russian trolling operation: creating fake identities to try to get people to tear each other apart.  Throughout his life, he has lacked the courage to speak under his own name or to take responsibility for his actions.  He has thrilled at the notion of causing fights and confrontations, including one that may have resulted in a gun shot wound.

But is it a crime?

Under federal law, the most serious penalties for hoaxes are found in bomb threat cases brought under 18 U.S.C. § 1038.

A recent case could shed light on this question. New York’s intermediate appellate court ruled in People v. Burwell that some hoax laws violate the First Amendment.  The case (which was discussed recently by Eugene Volokh) concerns New York Penal Law § 240.50(1), that defines the crime of “falsely reporting an incident in the third degree” as “knowing the information reported, conveyed or circulated to be false or baseless, … initiat[ing] or circulat[ing] a false report or warning of an alleged occurrence … of a crime … under circumstances in which it is not unlikely that public alarm or inconvenience will result.”

That language would seem to encompass the type of false reports created by Rahuba.  However, the Court found that it violated the First Amendment (including a reference to the ruling in United States v. Alvarez on stolen valor claims that we previously discussed).

[I]nasmuch as this statute criminalizes a certain type of speech, namely false speech, the restrictions on speech are content-based, rather than time, place or manner limitations…. Absent certain historical categories which do not apply here (see United States v. Alvarez [2012]), even false speech is considered protected and, in that context, content-based restrictions are subject to “the most exacting scrutiny.” Under this exacting, or strict, scrutiny standard, governmental regulation of speech “is enforceable only if it is the least restrictive means for serving a compelling government interest.” “The First Amendment requires that the [g]overnment’s chosen restriction on the speech at issue be actually necessary to achieve its interest. There must be a direct causal link between the restriction imposed and the injury to be prevented.”

We have no trouble finding that Penal Law § 240.50(1) is designed to address at least two compelling governmental interests—preventing public alarm and the waste of public resources that may result from police investigations predicated on false reports. However, when examining whether the statute uses the least restrictive means for serving those purposes, as applied to defendant, we reach the conclusion that the statute is impermissibly broad. More particularly, neither general concern nor the Twitter storm that ensued following defendant posting the false tweets are the type of “public alarm or inconvenience” that permits defendant’s tweets to escape protection under the First Amendment, and, therefore, the speech at issue here may not be criminalized.

What is interesting however is the Court noted that few people actually retweeted or spread the false rumor. That is not the case with Rahuba:

To that end, although it was “not unlikely” that defendant’s false tweets about a racial assault at a state university would cause public alarm (Penal Law § 240.50[1]), what level of public alarm rises to the level of criminal liability? Indeed, United States v. Alvarez [Breyer, J., concurring] informs us that criminalizing false speech requires either proof of specific harm to identifiable victims or a great likelihood of harm.

Certainly, general concern by those reading defendant’s tweets does not rise to that level, nor does the proof adduced at trial, which established that defendant’s tweets were “retweeted” a significant number of times. In fact, because these “retweets” led to nothing more than a charged online discussion about whether a racially motivated assault did in fact occur, which falls far short of meeting the standard set forth in Alvarez [Breyer, J., concurring], we reach the inescapable conclusion that Penal Law § 240.50(1), as applied to defendant’s conduct, is unconstitutional.

Indeed, Penal Law § 240.50(1) is a “[b]lunt [t]ool for [c]ombating [f]alse [s]peech” and its “alarming breadth” is especially on display with respect to social media. Notably, “[t]he remedy for speech that is false is speech that is true” (Alvarez) and “social media platforms are information-disseminating fora. By the very nature of social media, falsehoods can quickly and effectively be countered by truth, making the criminalizing of false speech on social media not ‘actually necessary’ to prevent alarm and inconvenience.” This could not be more apparent here, where defendant’s false tweets were largely debunked through counter speech; thus, criminalizing her speech by way of Penal Law § 240.50(1) was not actually necessary to prevent public alarm and inconvenience. {Overbroad enforcement of speech restrictions may also result in a chilling effect as to political speech where opinion and facts often collide and “those who are unpopular may fear that the government will use that weapon selectively” against them.} …

Rahuba was more successful with the help of the mainstream media.  However, as probably will not come as much surprise to many on this blog, I still believe that the free speech values should predominate.  In terms of flag burning, such acts are themselves protected speech.

In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court voted 5-4 that flag burning was protected speech under the First Amendment to the United States Constitution. It is considered one of the core cases defining free speech in the United States. Brennan was joined by Marshall, Blackmun, Scalia, and Kennedy (Kennedy wrote a concurrence). I agree with the decision as did conservatives like Scalia. Justice Anthony Kennedy wrote a powerful concurrence where he famously stated:

“For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”

To the extent that Rahuba was calling (falsely) for flag burning, it should be protected to the same degree as calling for actual flag burning.  Any hoaxes calling for criminal acts of destruction could be come closer to these criminal laws. In the Burwell case, the court only found the law was unconstitutional “as applied.”  While Rahuba’s hoaxes did cause confrontations with the police and cost resources to address, it probably still fell short of the line for a criminal charge absent additional examples.  He is connected to an incident three years ago when an armed man who went to Gettysburg in response to a purported flag burning and accidentally shot himself in the leg with a revolver.  Rahuba thought that that was enormously funny, stating “There’s some comedic value to that happening.”

Despite the injury, the discharge of the gun was due to the negligence of that individual.

He has called for criminal conduct like the desecration of confederate cemeteries. If people responded to the call, this might again be a closer issue.

Of course, this still leaves Rahuba as a thoroughly reprehensible person who enjoys causing fights and divisions. He did so after 9/11.  Despite thousands of dead victims and tens of thousands of grieving family members, Rahuba taunted us all from behind his false identities.  He created a website called 911wasfunny.com declaring “Those people deserved what they got, mostly because people from NY are pompous jerks.”

My view therefore is that Rahuba is neither a comical nor criminal figure.  He is the embodiment of some of the worst aspects of our society, someone who derives joy from watching others harmed or pushed into fights.  It is a sad existence for anyone but he found easy prey in the media on and on the Internet.