If Spreading Fake News on Facebook Is a Crime in Ohio, They Will Need More Jails

TwitterTwitterSocial media are teeming with people who like to publicly worry about imaginary risks. That’s not a good thing. But is it a crime? According to an Ohio jury and judge, it is, at least when someone’s worries are echoed by others, resulting in irritating phone calls and emails to government officials.

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. Then again, some might question whether saying dumb stuff on Facebook should be a crime at all, given that the First Amendment is supposed to protect even ill-informed and misleading commentary.

Croghan’s journey to jail began on November 2, 2017, when she was at her daughter’s school bus stop and heard that another student had seen a gun at school the day before. Croghan asked her daughter’s teacher at Coventry Elementary School about the rumor and eventually heard from Coventry Local Schools Superintendent Lisa Blough, who said kids riding a bus had seen a middle school student with a pellet gun in his front yard as they passed by his house. Blough assured Croghan that no gun had been found at any of the schools she oversees.

Croghan evidently did not believe Blough, because she revived the rumor several months later, following the February 14 mass shooting at a high school in Parkland, Florida. “A student brought a gun to school a few months ago,” she claimed on the “Portage Lakes Rocks!” Facebook page. (Portage Lakes is a town south of Akron that apparently aspires to be as cool as Cleveland.) Croghan said the weapon was a pellet gun but “still could’ve caused harm,” adding that she was “just curious if parents were made aware of this past incident.”

Croghan’s post prompted other parents to contact Tina Marie Norris, the Coventry Middle School principal. At Croghan’s trial, the Akron Beacon Journal reports, Norris testified that “the assistant principal was off the day after Croghan’s post,” so Norris “spent her entire day fielding phone calls and emails from concerned parents.” She said parents were “significantly worried.” Norris responded on Facebook at the time, saying no guns had been found at any Coventry schools. “This type of post is why social media is dangerous,” she wrote.

Croghan refused to back down. Instead she speculated that Norris and other school officials were lying about the purported incident so as not to endanger voter approval of funding for the school district. “The posts kept getting more outrageous and, frankly, very attacking,” Norris testified.

It’s not clear whether Croghan knowingly spread fake news or was just confused and stubborn. “It simply was a false report that Erin Croghan put out there for attention-seeking behavior,” Assistant Barberton Prosecutor Michelle Banbury said during her opening statement. “I wish I could explain why she did what she did. I don’t have a motive.”

To convict Croghan, Banbury was supposed to prove that she knew the pellet gun rumor was false, and there seems to be reasonable doubt on that point. It also seems like a stretch to claim that annoying Norris qualifies as “serious public inconvenience or alarm,” another element of the crime that Croghan supposedly committed.

“You heard there was no robocall, no evacuation, no lockdown,” Croghan’s lawyer, Jeff Laybourne, told the jury. “If it had been ‘serious,’ those things would have occurred.” He said the “serious public inconvenience or alarm” alleged by the prosecution amounted to “phone calls from parents to administrators who are paid by taxpayers as part of their job to answer phone calls.”

Laybourne also noted the First Amendment implications of the case. “They have criminalized freedom of speech on Facebook,” he said, arguing that convicting Croghan could have a “chilling effect” on “concerned parents and their ability to ask questions.”

This precedent might make people think twice before passing along unsubstantiated rumors, but it also could deter people from questioning the government’s position on any number of issues where the facts are unclear. Could strongly worded Facebook posts about a controversial police shooting be construed as “inducing panic” by convincing young black men that cops pose a deadly danger to them? What about tweets alleging that the government’s preparations for an impending natural disaster are woefully inadequate?

Croghan’s sentence is particularly troubling because it includes a prior restraint on her speech, banning her from social media during her year of probation. Last year the Supreme Court unanimously ruled that a North Carolina law banning registered sex offenders from social media was inconsistent with the First Amendment. This case involves a probation condition rather than a statute, and the ban lasts a year rather than decades. Then again, Croghan’s crime pales in comparison to those of many people covered by the North Carolina law.

Croghan, who is appealing her conviction, asked Judge Fish to at least let her use Facebook to coordinate her volunteer work for a local program that provides food to needy families. He said she would have to get someone else to fill that role or find another method of identifying recipients.

The Columbus Dispatch reports that Fish “said Croghan is the ‘ultimate contradiction’ because she does so much good in the community but also made these erroneous posts.” Alluding to the “counseling” that Croghan is undergoing, the judge told her, “I think you’re going to get there. You’re a good person, Erin.”

Fish nevertheless thought Croghan’s reckless disregard for the truth justified a jail sentence and one year of enforced silence on social media. Myriad good but misguided people commit similar crimes every day. “If we’re going to charge every person who puts misinformation on Facebook,” Laybourne told the jury, “this place will be inundated.”

[Thanks to Braden McConnell for the tip.]


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