Can the Game Be Prosecuted for His Twitter Posting?
| By Scott Hughes
The Game could face possible prosecution for unlawful publication and dissemination of a telephone number of a county sheriff's office under California Penal Code § 146e. However, although the prosecution may be able to demonstrate that the number of the county sheriff's office was published, the prosecution may have a more difficult time demonstrating malice or the intent to obstruct justice or due administration of the law. Particularly, if the Game can show that his Twitter account was actually hacked into or that he did not personally tweet the number.
The prosecution may also charge The Game for interference with public safety radio communications under Cal Penal § 148. However, the prosecution may also run into difficulty to prove the elements of malice and scienter ("knowledge") requirement. Furthermore, it is arguable that the Game did not directly interfere with the public safety radio frequency directly. The telephone number was a non-emergency line and all calls were made by third parties, not the Game directly.
Additionally, The Game's failure to remove the posting immediately after law enforcement's requests could possibly constitute resisting an officer in his or her performance of duties. However, additional information is required to determine this.
The Game's unique situation falls into an unprecedented area of law. Courts have yet to examine the role of speech in a social media context, especially when it comes to criminalizing speech via social media. Arguably, posting messages via Twitter potentially falls within the First Amendment protections of freedom of speech and the expression of ideas. The difficulty in determining whether The Game's tweet falls within this protection will depend on what medium the expression was conveyed through. The courts will need to determine whether Twitter falls within broadcasting or telecommunications, or the Internet. Courts have held that broadcasters have certain public interest obligations while the Internet is afforded a high level of First Amendment protection.