Thread by @thomasafine

Why can't we charge media outlets or personalities — or politicians for that matter — with reckless endangerment?

I'm asking this seriously.

(Note: IANAL for the rest of this thread.)

https://twitter.com/jimsciutto/status/1413320163328413697

We all know the old saw about yelling "fire" in a crowded theater.

What about yelling "There is non fire" in a theater that's burning down?

And for those into the deep nuances of the first amendment, purists will say you actually can not pass a law against yelling "fire" in a crowded theater, because that's prior restraint. This is correct.

However you can still charge someone who does it with reckless endangerment after the fact. Because that doesn't have any prior restraint issues.

And so I have to assume that you could charge someone with reckless endangerment for telling people that there's NO fire in a building that IS burning down.

Irresponsible journalists and politicians have told people — and are still telling people — that vaccines are dangerous and COVID is safe, and this messaging has killed hundreds of thousands of people in the United States.

So what does Constitutional precedent say about this? I really can't find anything directly on topic.

The closest I find is precedents related to incitement (which is relevant to sedition charges, but that's a different issue).

So for example the expression "Fire in a crowded theater" comes from Schneck v U.S. in 1919. Though this case wold not stand today. It was, to a significant degree, overturned in 1969 by Brandenburg v. Ohio.

However both of these cases dealt with "inflammatory" speech. And the 1969 case in particular dealt with incitement of violence. (And is why sedition charges are hard, but not impossible.)

However what I'm talking about is speech that incites inaction. Incitement of doing nothing. Incitement of sitting still in a burning building. I can't see how the 1969 SCOTUS decision would apply to knowingly lying to people about a building burning down.

Reckless endangerment cases though usually come down to intent. If you yell fire in a crowded theater because you believed (incorrectly) that there's a fire, you can't be charged.

If your intent however was to incite a panic and get people to rush out because you hoped someone would get hurt, that's definitely (at least) reckless endangerment. Probably more.

If your intent was to get everyone to leave the theater so you could rob the cash registers, and people ended up getting hurt, you could definitely still be charged with reckless endangerment even if you didn't intend for anyone to get hurt.

Because your intent was to get them to leave and you could reasonably foresee the possibility of panic and injury.

This would be true even if your motive for clearing the theater was not a crime.

If you intended for people to leave, for reasons you knew to be false, and you could reasonably foresee a risk of panic and injury, that's reckless endangerment regardless of your other reasons for wanting them to leave.

So if a Fox News personality gets on TV and rants about COVID and vaccines and convinces people to not get vaccinated I have a really hard time seeing how this is different.

Yes, you can fairly argue that if that TV host actually believes they're offering the safest advice, that provides legal shelter even if they're wrong.

But if that host gets vaccinated, tells their family to get vaccinated, etc. then they ought to be in the same legal hot water as any other reckless endangerment case.

I am not a lawyer, though as I have said before, not being a lawyer does not absolve us from responsibility of trying to deeply and fully understand the law. I'd love to hear takes from others, lawyers or not.