A woman previously convicted for her role in an infamous racial hoax has had one of her convictions overturned.
Four years ago, Asha Burwell and two other African-American women made national headlines when they claimed they were attacked by a dozen white people on a bus heading back to the State University of New York at Albany. The trio said the attackers hurled racial slurs at them during the encounter as well.
As is always the case with these allegations, students protested on campus before any evidence emerged to back up the women’s claims. The women also received support from across the country.
Police stunned the women’s supporters when they arrested the three women and charged them with assault, criminal mischief, and filing a false police report. Burwell was convicted of filing a false police report and an additional charge of “falsely reporting an incident in the third-degree and causing a public alarm through her tweets,” reported the Times Union, Albany’s local newspaper.
The conviction was overturned by a 5-0 ruling by the Appellate Division of the state Supreme Court’s Third Department. Burwell’s attorney, Frederick Brewington, cited President Donald Trump earlier this year while arguing for the conviction to be overturned. Brewington argued that it was a slippery slope to criminalize Burwell’s tweets, which repeated her false hate crime claims about the bus attack. He said criminalizing such false tweets would have wide-ranging consequences for people “from the top to the bottom,” including the president.
“If, indeed, we put this standard in place, someone would have to arrest our president immediately,” Brewington told the Times Union earlier this year.
On April 9, the justices of the appellate court found Burwell’s tweets to be protected by the First Amendment even though they were false and caused protests and a national outcry.
“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,” wrote Justice Stanley Pritzker in the court’s decision.
The remaining four justices 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 added. “By the very nature of social media, falsehoods can quickly and effectively be countered by truth, making the criminalizing of flase 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.”
Even though Burwell lied, the decision is a win for the First Amendment.
Burwells conviction on falsely reporting the crime in the first place was upheld.
In February 2016, audio from two 911 calls and video footage from the bus revealed the women had lied. Footage showed one of the accusers threw the first punch and that it was one of the alleged victims who used a racial slur – toward a white passenger. Further, the 911 calls showed the women laughing about the incident. One said “I think it’s so funny” and “I beat up a boy” before getting connected to a dispatcher. Once connected, the accuser changed her tune and claimed she was the victim of a hate crime.
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