By: Cam Kollar

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While on quarantine, some people are currently bored while others are baking bread. As a law student, my quarantine days are spent eating, reading, and writing. Rinse, wash, repeat. The world has been on quarantine for about two months going on five years. A little over a month ago, a young man was of the mind to conduct his own social experiment on Facebook.[1] The goal of his social experiment was simple, he wanted to prove how important it was for people to be educated and do their own research before assuming everything they read or hear is true.[2] But the way that he went about it was to draft a Facebook post telling his family and friends that he had tested positive for coronavirus.[3] In his post he also stated that the doctors had told him that the virus was now airborne.[4] The problem was that he had made the whole thing up.[5]

Although we have the right of free speech, it is not without limits.[6] As the Court explained in Schenck, “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Although this is a common statement that is often repeated, it no longer carries the same impact it did when it was first used.[7] During the preceding time period when the Schenck opinion was written, there were some significant theater fires, notably the 1903 Iroquois Theater fire in Chicago.[8] The devastating fire resulted in more than 600 dead, due to flames, smoke, and being trampled during the massive panic to escape the building.[9] When the Schenck court incorporated the rhetorical device in their opinion, it evoked strong imagery and powerful emotions.[10] Until the quarantine, the modern day equivalent analogy would have been ‘you don’t shout he has got a gun at a school.’[11]

Few things come to mind that are able to cause mass hysteria, but I vividly remember the time shortly after September 11, 2001, when the fear of anthrax laden mail gripped the public’s attention.[12] The anthrax attacks of 2001 and 2002 used anthrax spores enclosed in mailing envelopes and were mailed to several news agencies and then in a second round, mailed anthrax envelopes to a pair of senators.[13] Extremely dangerous, inhalation of those anthrax spores was 90 % fatal unless the victim is treated immediately with massive doses of antibiotics.[14] Untreated, death can occur within three to twenty-four hours, even from extremely low quantities of exposure.[15] Significantly contributing to the widespread fear, some experts estimated that a single gram of effectively distributed anthrax could kill more than one-third of the U.S. population.[16] Ultimately from these mailings, 22 people were sick with anthrax and five died.[17] In the midst of the legitimate anthrax attacks, adding to the paranoia were the fake attacks where envelopes filled with flour, sugar, cornstarch, Tylenol, sand, talcum powder, body deodorant, or even parmesan cheese were sent in the mail.[18] In fact, more than 15,000 anthrax hoaxes were made nationwide between September 2001 and August 2002.[19] In response to these threats, large volumes of mail were put into quarantine by the U.S. Postal Service.[20]

No matter the year, there are always dangers that can cause mass panic. As a result, some states have laws to protect the public from themselves. Texas is one such state. In Texas, there is a criminal law which penalizes the false alarm or report if someone knowingly initiates, communicates, or circulates a report of a past, present, or future offense or other emergency that he knows is false or baseless and that would ordinarily cause action by an official or volunteer agency organized to deal with emergencies, place a person in fear of imminent serious bodily injury, or prevent or interrupt the occupation of a place to which the public has access.[21] The Facebook post that the young man drafted, spread quickly across the county where he resided, with anxious people calling the local hospital.[22]

The social experiment may have been about trying to teach a lesson in not always believing what you read online[23], but instead it became a lesson in responsible behavior. While none are appropriate behavior, unlike yelling fire when there isn’t one or sending fake anthrax spores, covid-19 is a virus-something that you can’t see without a microscope. The lies about the virus’s capabilities, especially in these times, irresponsibly impacts hospital resources that are already heavily taxed. Furthermore, unlike most other social experiments, people did not realize they were being tested on, and the lies spread with no way to contain the “experiment.” The young man has been charged with the offense of False Alarm or Report.[24] We may have a right to say almost anything, but that privilege is not without responsible limits.

Using the best analogy to explain first amendment limitations: in 1919, “You don’t scream fire in a crowded theater;” in 2018, “You don’t scream he has a gun, in a school;” in 2020, “You don’t lie about Covid-19 airborne transmissions for social experiments on social media.”

[1] Joe Tidy, Coronavirus: ‘I Faked Having Covid-19 on Facebook and Got Arrested’, BBC (Apr. 24, 2020), https://www.bbc.com/news/technology-52397294.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] E.g., Schenck v. United States, 249 U.S. 47, 52 (1919).

[7] See Fire in a Crowded Theater, Legal Talk Network (June 28, 2018), https://legaltalknetwork.com/podcasts/make-no-law/2018/06/fire-in-a-crowded-theater (explaining the common catchphrase as ‘You can’t yell fire in a crowded theater’).

[8] See id.

[9] See id.

[10] See id.

[11] See Legal Talk Network, supra note 7.

[12] See Jackson Landers, The Anthrax Letters That Terrorized a Nation Are Now Decontaminated and on Public View, Smithsonian Mag. (Sept. 12, 2016), https://www.smithsonianmag.com/smithsonian-institution/anthrax-letters-terrorized-nation-now-decontaminated-public-view-180960407.

[13] See id. (describing the anthrax spores in these anthrax envelopes as looking like baby powder).

[14] See Ira P. Robbins, Anthrax Hoaxes, 54 Am. U.L. Rev. 1, 5 (2004).

[15] See id.

[16] See id.

[17] See Landers, supra note 12.

[18] See Robbins, supra note 14 at 4.

[19] See Ira P. Robbins, Anthrax Hoaxes, 54 Am. U.L. Rev. 1, 3-4 (2004).

[20] See Landers, supra note 12.

[21] See Tex. Penal Code Ann. § 42.06 (West 2019).

[22] See Tidy, supra note 1.

[23] See id.

[24] See id.

image source: https://www.gutenberg.org/files/39280/39280-h/39280-h.htm

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