False news, scam emails, fake bomb threats, April Fool’s Day pranks, swatting attacks and conspiracy theories tend to have one thing in common -they all start with a lie. While lying isn’t explicitly illegal, it can be if it puts someone at risk of harm. In fact, the most famous example of why free speech can’t be completely unlimited is the concept of “shouting fire in a crowded theater,” which was first used in a 1919 Supreme Court ruling establishing the fact that there must be some limits on what people can or can’t say. This is precisely why many things people consider to be hoaxes are not considered protected free speech under the 1st Amendment.
Hoaxes That Can be Considered Fraud
In most cases, hoaxes are simply lies. Fake news websites, conspiracy theories, totally useless lifehacks online are a handful of popular hoaxes in modern society. But when hoaxes turn into scams to defraud someone of money or property, that’s when they cross the line and become a crime. A few good examples include email hoaxes that threaten to share images from a hacked webcam if money isn’t deposited into a specific account or phone calls where the caller claims to be from credit card company and needs to discuss an important issue with the call recipient but can only do so after the recipient gives them their credit card number.
In California, fraud is a type of theft that involves the use of deception or false claims. The specific charges someone will face for fraud depend on how the offense takes place, but most cases involving hoaxes that involve the use of the internet or phone calls will be charged as wire fraud.
It’s worth mentioning that in order for a hoax to be considered fraud, someone must have actually given up property or money. That means that while someone can make money by operating a website filled with fake news or bogus lifehacks that are all hoaxes, they haven’t actually broken the law as long as the money comes from advertisers and not from the website visitors that have been convinced of the site’s lies. This is one of the big differences between having a website filled with hoaxes and setting up a Go Fund Me to collect money for a fictional malady.
Hoaxes That Put People in Physical Danger
While less common than those involving financial scams, sometimes the most problematic hoaxes are those that put people in danger. Swatting is a prime example as it puts someone in a high tension situation where even a small mistake could result in their injury or death. Both swatting and false bomb threats are also problematic because they take police away from their important daily duties so they can respond to a non-existent emergency, which puts the public in danger as well.
Other hoaxes can result in criminal charges for putting people in danger as well.These are cases where someone uses a hoax to convince someone to do something that puts their health in danger. An example would be if someone created a fake website that told said contact lenses should be soaked in bleach before use to kill germs. If someone actually followed the instructions and lost their vision, the person who posted the content could face criminal charges.
While these types of cases are less frequent and are more likely to be handled through lawsuits in civil courts, it is possible the D.A. would choose to bring up charges against the person who created the website. The problem in this case though would be that the prosecutor would have to prove both that the website creator intended to make the website seem realistic and actually believed (or should have believed) people might actually follow the advice on the page. If it was posted on an obvious joke site, for example, this would be protected free speech. If, on the other hand, the website was not only designed to look just like the packaging of a popular contact lens brand, but actually had a URL one letter off from the contact lens brand, then it could be argued that the website creator was intentionally trying to trick people and was posting dangerous content likely to harm someone.
The First Amendment is a Strong Defense
When it comes to fighting charges related to these types of hoaxes, it’s important to remember that while the First Amendment offers strong legal protections regarding what you publish and say, it’s protections are not unlimited. Arguing that you were exercising your right to free speech could be used as an admission of guilt if what you said is not protected speech. This is why you should never attempt to defend yourself without an attorney present.
In fact, the First Amendment remains a strong defense even against civil charges, though there is a lower threshold when it comes to finding someone responsible for the harm they may have caused. A good example includes the recent civil cases brought against former President Trump that rely on the theory he promoted the hoax of a stolen election and got people to attack the Capitol based on these lies. Mr. Trump’s defense is he believed in good faith he won the election and didn’t tell the protestors to get violent but only to have their voices heard. His defense is firmly rooted in the First Amendment.
While criminal attorney Peter M. Liss does not handle civil matters, if you have been accused of a crime, he can help. Please call (760) 643-4050 to schedule a free initial consultation.
