May 2020 E-Newsletter

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University of Albany Student's Charge of Falsely Reporting Racially Motivated Attack is Dropped After Court Rules Her Social Media Post of the Incident is Protected Free Speech

Asha Burwell, a student at the State University of New York at Albany (SUNY-Albany), had one of her charges dismissed after an appeals court ruled that her social media post, even though it contained false information, was protected under the First Amendment.

In 2016, Ms. Burwell, was indicted on eleven counts of assault in the third degree, harassment in the second degree and four counts of falsely reporting an incident in the third degree for her involvement in an altercation on a city bus heading back to the university and the events that followed. The indictment alleged that the Defendant, knowing the information to be false, called 911 and claimed that “she was ‘jumped’ on a bus by a group of males, that it was a racial crime, and that she was struck by boys and called a [racial epithet]” (count four), and she posted on social media, through an appearance at an event on the SUNY Albany campus, that she was the victim of a racially motivated attack on a bus. After a jury trial she was convicted of two counts of falsely reporting an incident in the third degree (count seven).

Ms. Burwell moved to dismiss the indictment claiming, among other things, that the seventh count of the indictment impermissibly infringed on her First Amendment right to free speech. At the sentencing, the Supreme Court denied the motion in its entirety and sentenced her to concurrent terms if three years of probation on each count, assessed a fine and ordered community service. The Defendant appealed, contending that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence.

According to testimony, one of Ms. Burwell’s friends became annoyed with the loud singing of a student, Mary Glisson, and said she would offer Ms. Glisson a sandwich if she would just “shut up.” One of Ms. Glisson’s friends said to Ms. Burwell’s friend, “you’re […] ignorant, get a job.” Ms. Glisson testified that her friend was punched in the face but did not see who punched her, and that she heard the term “white ignorant b----.” Ms. Glisson also told the court that, before the altercation, Ms. Burwell and her friends made statements about her inability to sing loudly and annoyingly as a white woman and their inability to object to it as black women.

Another student, Mark Pronovost, said he engaged in a conversation about race with Ms. Burwell and her friends. He said that, during the verbal argument, her friend said it was “a black issue.” He also testified that he did not hear the “N-word.” Gabrielle Camacho testified that, upon hearing a discussion about “ignorant b----es,” she yelled back at Ms. Burwell and her friends, “[A]re you […] kidding me, you’re ignorant, shut the […] up and get a job.” Thereafter, Ariel Agudio, one of the Defendant’s friends, stood up and attacked Ms. Camacho. Ms. Camacho also testified that she heard no racial slurs.

Other students testified and likewise denied hearing the “N-word” or any other racial slurs, and did not witness any males striking any females. However, two witnesses testified that they heard the word “whale” being used and another witness testified to hearing the word “ratchet.” Another witness said he did not hear the “N-word,” but a few days after the incident, he said he “heard” other people saying that they may have heard the “N-word.”

Lisa Johnson, a 911 dispatcher with the Albany County Sheriff’s office, testified she received a call from Ms. Burwell, who told her she was taking the bus back to SUNY-Albany and that “me and my friends were just jumped on a bus for being black.” Her call was later transferred to City of Albany police. A city employee testified that he received a call from Ms. Burwell, who said the same thing to Ms. Johnson adding, “These girls … they were calling us the ‘N’ word and hitting us and so were guys[,] and the bus driver didn’t do anything about it until we got to campus, and he stopped the bus and still … guys continued to hit us in the face.” SUNY Albany Investigator Benjamin Nagy testified that, in an interview with the Defendant, she told him that she heard the “N-word” being used twice and that she was the only person who could provide that information. Another SUNY Albany inspector testified that a witness on the bus stated that he did not hear the “N-word” but that other people said they heard it.

Ms. Burwell proceeded to post on Twitter: “I just got jumped on a bus while people hit us and called us the ‘n’ word and NO ONE helped us.” Another post read, “I can’t believe I just experienced what it’s like to be beaten because of the color of my skin.” She also posted, “these were my fellow classmates[,] people that attend MY school.”

In her testimony, Ms. Burwell recalled that a student was singing loudly and she offered the student a sandwich if she would stop singing. She also testified that she heard the “B” word and her friend Ms. Agudio said another female referred to them as “ratchet b----es,” which, she said, offended her since the term is meant to refer to African-American women, or women who are inferior. According to the Defendant, she stood up when a male passenger called Ms. Agudio a “whale b----,” a term which, she said, referred to her friend as not being human and referenced her weight. She also testified that she went to defend her friend when she was hit in the face and had her hair pulled; she fell down and attempted to get back up, but was pushed away from the commotion. As her friend had her hair pulled out and was pushed down, Ms. Burwell tried to help her, but was continuously pulled back by her arm and her jacket. The Defendant further testified that, after she got off the bus, she called 911 and proceeded to tweet about the incident.

On February 19, 2020, Fred Brewington of The Law Offices of Frederick K. Brewington, representing the Defendant, argued before the New York State Supreme Court, Appellate Division, Third Department, that count 7 should be dismissed because it violates Ms. Burwell’s right to free speech. On April 9, 2020, the Court found that the allegations in the tweets, although they were false, were protected under the First Amendment because the content in the tweets did not rise to the level of public alarm and that “criminalizing false speech requires either proof of specific harm to identifiable victims or a great likelihood of harm.”

To read the decision, click here.

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