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After Defendant Is Convicted for False Reporting for Crimes Committed Against Her, New York Appeals Court Reverses Charges Connected to Online Posts Under Free Speech Rights


In April, a New York Appeals court partially reversed a criminal conviction involving alleged false reporting of crimes on social media based on First Amendment free speech rights. The decision is an important one, as the Court goes to great lengths to point out that, in fact, it would be difficult to ever find that social media rises to the level of justifying restrictions on free speech.

The facts of the case involve disagreement amongst those who were involved in a fight that broke out on a bus (as can often happen when there are many people involved in a chaotic situation). However, in this particular case, the individual who identified themselves as a victim in the assault that occurred on the bus, and who called 911, was ultimately charged with 11-counts of assault in the third degree, four counts of falsely reporting an incident in the third degree, and harassment in the second degree by police and prosecutors. Although she was ultimately only convicted of two counts of falsely reporting an incident in the third degree and acquitted of the other counts, the case highlights why it is so important that defendants work with experienced criminal defense attorneys from the outset so that they do not risk also being victimized by police and prosecutors when attempting to report crimes committed against them.

What Happened

Although a number of different versions of what happened have been provided to the courts, it is generally agreed-upon that an altercation broke out on a city bus bound for the SUNY Albany University campus between several African-American females and a number of other students on the bus, both female and male. Afterward, the defendant, one of the African-American females, called 911 and reported that she had been “jumped” by a group of men on the bus, that the act was racially-motivated, and that she was physically struck and called the N-word. She also posted on social media (Twitter) that she was the victim of a racially-motivated crime on a bus. 

New York Penal Law § 240.50 (1)

New York law dictates that the crime of Falsely Reporting an Incident in the Third Degree requires that the state prove all of the following, beyond a reasonable doubt:

  • That the defendant circulated a false report of a crime or an emergency (or false information about an actual incident);
  • That they did so “under circumstances in which it was not unlikely” that inconvenience or public alarm would result; and
  • That they knew the information was false.

Why It Is Often Too Late for Defendants by The Time a Case Reaches the Appellate Level

Whether or not the defendant ever should have been charged by the police and/or whether race had anything to do with that choice was unfortunately not in question at the appellate level, and highlights why it is so important that defendants work with experienced criminal defense attorneys from the outset of any charges being brought against them so that they do not risk becoming victims themselves when they turn to the police for help. This is especially important given the history of corruption in the New York Police Department, in particular.

Sadly, in our society, once that someone is charged with a crime and put before a jury, it is often too late to ensure that the innocent are not convicted. Unfortunately, the New York Appeals Court must view the evidence in light of what is most favorable to the People (i.e. the state) and decide whether a rational person could reach the same conclusion that the jury did on the basis of evidence that was introduced at trial and on the basis of what the law requires in terms of proof. As a result, the Court found that the verdict was supported by “legally sufficient evidence” as to both counts of falsely reporting an incident in the third degree. The Court also points out that the jury’s verdict is supported by the weight of the evidence “although a different verdict would not have been unreasonable inasmuch as the jury could have credited the defendant’s version of events.”

However, the Court agreed with the defendant that New York’s law on falsely reporting an incident in the third degree, as applied, was unconstitutional because the public alarm standard is insufficient to criminalize public speech, regardless of whether that speech is ultimately determined to be false or not by the court. Specifically, the US Supreme Court has already dictated that in order to criminalize free speech, there must either be a great likelihood of harm or specific, identifiable victims involved, and that does not include a general online discussion on Twitter.

Court Still Reverses One False Reporting Charge & Dictates That It Can Never Be Brought in Connection with Social Media Due to First Amendment Protection of Free Speech

What is important about this decision is that the Court implies that it would be difficult to ever find that social media rises to the level of justifying restrictions on free speech, given that falsehoods can very quickly be countered by the truth. The First Amendment mandates that any restriction on speech must be absolutely necessary, and in this case, the Court found that the restriction was overly broad, given that Twitter does not rise to the level of public alarm that justifies escaping protection under free speech rights. As a result, the defendant’s action of posting what happened to her online cannot be criminalized, and this will likely affect a number of potential defendants accused of false reporting in conjunction with posting on social media.

NYC False Statement Criminal Defense Attorney

If you have been charged with making false statements, it is very possible that these charges are unconstitutional and a violation of your First Amendment rights, especially if they are being brought in connection with online statements. Contact NYC criminal attorney Mark I. Cohen, Esq. today to schedule a consultation and find out how we can ensure that your rights are protected.





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