'Fake News' Results In Real Jail Time For Ohio Woman

from the never-mind-the-Constitution dept

It appears fake news is a crime in the United States -- at least in Ohio. Jacob Sullum at Reason reports an Ohio woman has just been jailed for repeating an unfounded rumor about a gun being found on school grounds.

Last week Barberton Municipal Judge David Fish sentenced Erin Croghan to three days in jail, a month of house arrest, and a year without social media for "inducing panic" by using Facebook to repeat an unfounded rumor about a pellet gun found at a local school. It could have been worse. Inducing panic is a first-degree misdemeanor in Ohio, meaning it is punishable by a maximum fine of $1,000 and up to six months in jail.

As Sullum points out, this sentencing appears to ignore the First Amendment, which allows for the spreading of stupidity, even if the stupidity could conceivably provoke reactions from those who come across it.

The school claims the repeating of the unfounded rumor -- months after the alleged event had happened -- disrupted school administration. Apparently, the principal of Coventry Middle School "spent the entire day" answering phone calls from parents who had read Croghan's post. Croghan's post -- referencing a rumor she had heard from her daughter the previous November -- hit Facebook shortly after the mass shooting in Parkland, Florida.

The impact of her post certainly was felt by the school, but did it really meet the "serious public inconvenience or alarm" standard needed to convict Croghan? That seems unlikely. As her defense pointed out, the school didn't alert parents, go into lockdown mode, or do anything else that would signal it believed the unfounded rumor to be true.

Croghan either believed the rumor was true or deliberately inflamed the rumor to… well, that question remains unanswered. Even the judge handing down the sentence seemed at a loss for words.

Barberton Municipal Judge David Fish also put Erin Croghan on probation for one year and ordered that she refrain from using social media during that time.

“I wish I understood why you conflated this story about a pellet gun in a locker that school officials say never happened,” Fish said. “That may remain an eternal mystery.”

Therein lies the other problem with the sentence: prior restraint. Just because the incident Croghan was sentenced for occurred on Facebook doesn't justify the revocation of this privilege for an entire year. This is in addition to a sentence of 180 days in jail (with 147 suspended and 30 days of house arrest) -- all over the spread of info Croghan may have sincerely believed to be true.

The school claims Croghan knew the rumor was false, offering up perhaps the most unbelievable justification for this claim:

Coventry schools officials say what Croghan posted wasn’t true and that she knew it because they told her.

Right. No one has ever lied about anything. Except Croghan. Apparently.

The end result is a ruling that will be used to punish more people for spreading rumors on social media. Ohio needs to start pouring money into their jail system if this is the way these cases are going to be handled, as Croghan's lawyer points out:

"If we're going to charge every person who puts misinformation on Facebook," [Jeff ]Laybourne told the jury, "this place will be inundated."

The sentence is being appealed. This will likely be followed by a lawsuit, especially if the sentence is overturned. The application of the state law in this fashion criminalizes ignorance. And, in this case, it comes with additional Constitutional violations (prior restraint) that make it litigation bait. Handing out jail time in response to "fake news" is the worst way to handle careless -- but protected -- speech. Sooner or later, Ohio taxpayers are going to be paying real dollars to settle cases stemming from "fake news" arrests.

Filed Under: 1st amendment, erin croghan, fake news, free speech, ohio, rumors, social media


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  1. icon
    Tanner Andrews (profile), 29 Dec 2018 @ 10:38am

    Appeal Does Seem Likely

    The sentence is being appealed

    It may be, since there is likely no provision in the sentencing statute permitting a ban on facebook posting.

    What is missing, however, is a statement that the conviction is being appealed, probably with arguments that [a] the statute itself violates the First Amendment and [b] the application to these facts violates the First Amendment. Near v. Minnesota, 238 U.S. 697 (US 1931).

    This appears the sort of case where everyone involved should have known that you should not prosecute someone for passing along rumors. Even if the rumors are untruthful and probably silly. I see an unsuccessful S:1983 action lurking here once the conviction and possibly statute are overturned. Unsuccessful mostly because the judges will find some way to apply a judicially-created immunity doctrine.

    This is probably an appropriate opportunity also to insult those who feel that there was evern any appropriate justification for the result in Schenck v. U.S., 249 U.S. 47 (US 1919). It was an embarassment in 1919, and Holmens spent much of the rest of his career trying to distance himself from it without being seen to do so. And, of course, Holmes is also the author of Buck v. Bell, 274 U.S. 200 (US 1927), as if you need another opportunity to be embarrassed.

    So, for those of you above, referring to Schenck without derisive intent, please take this as a gratuitous insultment.


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