Dec. 17, 2012 at 5:35 PM ET
On Sunday, when addressing the media on the Sandy Hook massacre, Lt. Paul Vance of the Connecticut State Police warned that anyone posting "misinformation" on the case was committing a crime, and would be investigated "statewide and federally, and prosecution will take place." While it's easy to understand his anger and frustration, any legal action against Internet trolls is unlikely to hold up under the U.S. Constitution, experts say.
When asked the specifics of this misinformation, Lt. Vance said, "I’m not a social media expert," but cited everything from erroneous assumptions to information "deemed as threatening," homing in on what seems to be the most egregious, fake accounts and "quotes by people who are posing as the shooter."
True enough, a survey of the social media landscape revealed profiles in the guise of the shooter law enforcement knew to be dead. Even before the full story surrounding Friday's horrific shooting in Newtown, Conn., reached the public, Internet lowlifes had inserted themselves into the narrative.
On Facebook, at least a dozen fan pages appeared — first using the name of the alleged shooter’s brother, initially misidentified by officials, and following the clarification, under the deceased shooter's name, "Adam Lanza."
On Twitter, similar accounts appeared using variations of Lanza’s name, at least one posting offensive tweets about the shooting, baiting a shocked and grieving public to respond. The appearance of these faux accounts following any national tragedy is inarguably offensive, and unfortunately all too common. While they certainly violate both Facebook and Twitter's Terms of Service, they'd be unlikely to draw a conviction under either state or federal law.
To be clear, threats — even those made in jest — to mimic a violent crime making national news, will very likely get you arrested, as several careless Facebook users learned over the weekend. Any resulting charges may not stick, but it certainly will make your life miserable for a while.
Outrageous, and even false speech may very well be protected in the United States by the First Amendment, notes Jeff Hermes, director of the Digital Media Law Project, Berkman Center for Internet & Society at Harvard University. What matters is whether that speech is part of legitimate public discussion.
"Clearly the circumstances in Connecticut are matter of grave public concern right now," Hermes told NBC News. "We have to be careful that commentary, discussion and reaction can take many different forms, not only news coverage and public discussion."
Most would agree free speech doesn't get more obnoxious or offensive than that of the Westboro Baptist Church, known for picketing funerals of soldiers — and now threatening to picket the funerals of those killed at Sandy Hook Elementary. In 2011, the Supreme Court upheld the Westboro Baptist Church's right to picket the funeral of Matthew Snyder, a U.S. Marine who was killed in Iraq. The SCOUTUS judgement deemed the church not liable for causing emotional distress, even if the speech was found to be "outrageous." It was Snyder's father who filed the lawsuit.
As for "misinformation" allegedly interfering in the investigation, it's unlikely any such cases would hold up in the Supreme Court. Just this year, in the case of the U.S. v. Alvarez, the Supreme Court ruled that even false statements — in this case, lying about military medals — are protected by the First Amendment.
Certainly, law enforcement isn't fooled by social media accounts claiming to belong to someone who is no longer alive. As Lt. Vance emphasized to the media on Sunday, "social media websites that contain information relative to this case are not being posted by the Connecticut state police, are not being posted by the Newtown police, are not being posted by any authorities in this case."
Though likely protected by the First Amendment, those who post offensive content could face, under Connecticut law, a civil claim for the infliction of emotional distress, the Berkman Center's Hermes said, adding that there have been some lower court rulings on such cases.
That is, if the social networks themselves don't shut down the activity first.
While neither confirmed with NBC News, both Facebook and Twitter seem to have the fake Adam Lanza accounts under control. Those which popped up on Friday seem to have disappeared by Monday. No courts required.
You can't blame Lt. Vance for trotting out the prosecution threats, especially if he's trying to chill out the nastiest of trolls. As with an increasing number of major news events, law enforcement is having a hard time hearing the signal through all of the Internet noise.