ALBANY – Citing the First Amendment, the region’s appellate court Thursday unanimously reversed one of the convictions of a former University at Albany student found guilty of falsely reporting a hate crime aboard a CDTA bus in 2016.
In a 5-0 ruling, appellate justices overturned Asha Burwell’s conviction for falsely reporting an incident in the third-degree and causing a public alarm through her tweets, the comments she posted on her Twitter account.
However, Burwell’s conviction for falsely reporting an incident in the third-degree in a 911 call was upheld, according to the decision Thursday by the Appellate Division of state Supreme Court’s Third Department. Both are misdemeanors.
In February, Burwell’s attorney, Frederick Brewington, argued it was a slippery slope to criminalize Burwell’s tweets given the wide range of people "from the top to the bottom" who use Twitter. He noted President Donald Trump’s fondness for Twitter.
"If, indeed, we put this standard in place, someone would have to arrest our president immediately," Brewington told the Times Union after the Feb.19 arguments.
On Thursday, justices found Burwell’s tweets to be permitted under free speech – regardless of their accuracy.
“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,” stated the decision authored by Justice Stanley Pritzker.
Presiding Justice Elizabeth Garry and Justices Christine Clark, Eugene “Gus” Devine and John Colangelo concurred.
“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, what level of public alarm rises to the level of criminal liability?” the decision said. “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… was not actually necessary to prevent public alarm and inconvenience.”
In response to the decision, Albany County District Attorney David Soares' office released a statement saying: "We respect the decision of the Court to uphold the falsely reporting an incident charge regarding the claims made during the 911 call. 'A lie can travel halfway around the world before the truth puts on its boots,' is the old saw. A tweet can make it 1,000 times around. While the Constitution protects your right to lie on Twitter, it certainly doesn’t protect your right to lie to the police. And make no mistake, Asha Burwell lied and remains convicted for her behavior."
Assistant District Attorney Vincent Stark had argued that while opinions are always protected under the First Amendment, Burwell falsified facts.
Brewington had argued that even if what his client tweeted was untrue, it was not criminal. Burwell, now 24, graduated with honors from Howard University in Washington D.C. She is studying to become an attorney, Brewington said.
On Jan. 30, 2016, Burwell, along with fellow former UAlbany students Ariel Agudio and Alexis Briggs, all of whom are black, boarded a CDTA bus at Quail Street and Western Avenue in Albany headed to the university's uptown campus. Agudio and Burwell exited the bus and called police to report they had been jumped by a group of white men and women because of their skin color. They said the bus driver did nothing and that passengers watched the attack or recorded it on their phones.
Reports about the incident led to an on-campus rally and national attention. Footage from the bus, which was later released, showed the students appeared to be the attackers.
Agudio and Burwell were both expelled. Briggs was suspended.
Burwell had tweeted: “I just got jumped on a bus while people hit us and called us the ‘n’ word and NO ONE helped us,” as well as “I can’t believe I just experienced what it’s like to be beaten because of the color of my skin," court papers show.
In 2017, jurors convicted Burwell and co-defendant Agudio of two counts of the false reporting charges, which are misdemeanor offenses. Acting Supreme Court Justice Roger McDonough sentenced both women to three years' probation, 200 hours of community service and a $1,000 fine.
The defendants were acquitted on four other counts, including allegations of assault and harassment.