Last week’s emergence of a “bogus Facebook page” representing the city of Dunkirk created a significant amount of controversy at Dunkirk City Hall and on social media, which resulted in several intriguing questions.

What is free speech and what protections does it afford?

Is there a line between satire and defamation?

What is the difference between parody and criminal impersonation?

This week, City Attorney Richard Morrisroe and Mike Igoe, attorney and SUNY Fredonia assistant professor of communications, specializing in communication law, shared their thoughts with the OBSERVER.

Originally called “The City of Dunkirk,” early last week, the “bogus” page raised eyebrows in its similarity to the city’s official page, which is simply “City of Dunkirk.” In an email to the OBSERVER on Friday, Morrisroe said that “there are constituents calling City Hall this week that cannot distinguish between the satirical ‘The City of Dunkirk’ page and the official City of Dunkirk page.”

On Thursday, Morrisroe posted a “cease and desist letter” on the bogus page, saying “this page creates a false association with Dunkirk and its actual Facebook page, and is in direct violation of New York State Penal Law 190.25(4), Criminal Impersonation in the 2nd Degree, Internet or Electronic Impersonation of Another.”

Later in the letter, Morrisroe said the page constitutes defamation and unfair business practices, and that the city could file a lawsuit for these legal violations.

By Friday, the page was taken down and was recreated as “The City of Dunkirk 2.0.” By Monday, the page changed names again to become “Totally Not The City of Dunkirk We Swear,” which now has over 500 followers. The page spoofs local news headlines and announcements from the city of Dunkirk.

“I think in this particular case, if it were to go to court, they would have to prove that it’s of compelling government interest,” Igoe said. “It sounds like it’s parody: using something to make fun of the same thing.”

Parody and satire are both protected by the First Amendment’s free speech clause, Igoe added. While Igoe said the misleading name of the original bogus page may be problematic, “When it comes to the First Amendment, content-based restrictions by the government are a no-no unless it is obscenity, child pornography or incitement to riot. Even hate speech is protected unless it rises to the level of incitement to riot or becomes a true threat.”

To Morrisroe, the name of the original bogus page is key.

“The issue is the title of the Facebook page…That’s what creates the potential charge of criminal impersonation, and what creates grounds for defamation. If they call the page ‘Dunkirk Follies’ or ‘Marauder Madness,’ for example, the legal issues disappear,” Morrisroe said.

Morrisroe said some social media consumers do not view the “about” section on a Facebook page at first glance, and may not have seen the original page self-identify as “satire.” The subtle difference in the “the” that set the name apart from the real city of Dunkirk Facebook page was also problematic.

“This would have to pass the ‘strict scrutiny test,'” Igoe explained. “The city would have to prove that this is of compelling government interest and they can’t restrict any more speech than is necessary.”

Ultimately, Igoe said it would be up to a judge to determine which is weightier: a constitutional right or principle (in this case, free speech) or the government’s interest against the right or principle.

“If the original name was creating problems for Dunkirk’s citizenry, it could be made that it’s of compelling government interest,” Igoe pointed out. “Defamation is a harder case for anybody. It’s a knowingly false statement made with reckless disregard of the truth. When all is said and done, it’s often whatever the judge or jury accepts.”

Morrisroe believes that the original name of the bogus Facebook page was intended to be misleading, and therein lies the problem. “No one is calling Saturday Night Live to ask about Facebook posts assuming SNL is the White House or the Federal Government,” Morrisroe said, in response to Saturday’s OBSERVER article. “In this case, residents/constituents have called Dunkirk City Hall in response to the satirical Facebook page and its posts. That’s a problem.”

On Tuesday afternoon, the OBSERVER contacted Morrisroe about whether or not the Facebook page has caused any more confusion at Dunkirk City Hall since the name change. “No, not that I am aware of,” Morrisroe replied.