A year ago, civil rights attorney Frederick Brewington suggested that if false tweets were a crime, someone would have to immediately arrest President Donald J. Trump.
The Long Island lawyer played the Trump card on behalf of former University at Albany student Asha Burwell, who was convicted of falsely reporting an incident, in part, because she falsely tweeted about a hate crime on a CDTA bus in 2016. Prosecutors said Burwell caused a public alarm with her Twitter post; Brewington argued to appellate justices with the Third Department in Albany that her tweets were protected by the First Amendment.
Brewington's strategy worked. The Third Department reversed Burwell's conviction on free speech grounds (a separate conviction for falsely reporting an incident with a 911 call was upheld).
A year later, Albany attorney Mark Mishler will argue the appeal for Burwell's co-defendant, former UAlbany student Ariel Agudio, during a virtual appearance Monday before the Third Department. But this time, the Trump card will not be necessary. Albany County prosecutors are conceding that the tweets in question were protected under the First Amendment, and are asking themselves that the Third Department toss that conviction.
Timing is everything.
Considering the impeachment trial of the former president is starting this week in the U.S. Senate, in which House Democrats allege that Trump's words led to the insurrection at the Capitol Jan. 6, the statements of Appellate Justice Stanley Pritzker in last year's decision reversing Burwell's conviction are interesting.
"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?" he asked. "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."
A year later, the ability to counter falsehoods with truth did not stop the former president from continuing to spread a false narrative on social media that the election he lost to President Joseph Biden had been rigged and stolen. Trump repeatedly tweeted that he would be in Washington D.C. on Jan. 6, the same day he spoke to a fired-up crowd that included people who stormed the Capitol.
So in short, what helped Burwell’s appeal in February 2020 may not have helped her appeal if it was in February 2021. That's not to say the end result of the appeal would necessarily be any different.
In the meantime, Agudio's appeal is here. Here's a refresher on the case:
On Jan. 30, 2016 about 1 a.m., Agudio, Burwell and a third student, Alexis Briggs, got on a CDTA bus in Albany heading back to the university's uptown campus. It was known as the “drunk bus.” Agudio and Burwell, who are Black, got off the bus and called police to report that they were jumped by a group of white men and women. They said the bus driver did not act. They said passengers watched the attack or recorded it on their phones.
It led to an on-campus rally and gained national attention. But later-released footage from the bus showed that it was the students who appeared to be the attackers. The college expelled Agudio and Burwell and suspended the third student, Alexis Briggs. In 2017, an Albany County jury convicted Burwell and Agudio of two counts of misdemeanor charges for falsely reporting an incident – one for calling 911, another for social media comments that caused a public alarm. Acting Supreme Court Justice Roger McDonough sentenced both women to three years' probation, 200 hours of community service and a $1,000 fine.
Fast forward to Feb. 18, 2020 when Brewington made his appeal to the Third Department. That afternoon, Brewington told appellate justices it was a slippery slope to criminalize tweets given the wide range of people “from the top to the bottom” who use Twitter. Such speech, he argued, was protected under the First Amendment. If it was not, he told Law Beat, "someone would have to arrest our president immediately.”
In April, the Third Department upheld Burwell’s conviction for the 911 call. In a victory for Brewington and Burwell, the court tossed Burwell’s conviction for allegedly causing a public alarm.
Which brings us to the present.
The arguments, to be made virtually, are scheduled to go before the Third Department at 1 p.m. Monday. Justices John Egan, Sharon Aarons, Christine Clark, John Colangelo and Pritzker will hear the case. Mishler will be opposed by Albany County Assistant District Attorney Vincent Stark, who is seeking to have the conviction on the 911 call stand.
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February 07, 2021 at 11:58PM
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