First Circuit Strikes Down Puerto Rico Ban on Certain Knowingly False Statements During Declared Emergencies

Rodríguez-Cotto v. González-Colón, decided Tuesday by First Circuit Judges Gustavo Gelpí and Seth Aframe and Seventh Circuit Judge David Hamilton, struck down a Puerto Rico law (Article 5.14(a)) that makes it a crime “to purposefully, knowingly, or recklessly,” “during a governor-declared state emergency or disaster,”

[g]ive[ ] a warning or false alarm, knowing that the information is false, in relation to the imminent occurrence of a catastrophe in Puerto Rico, or disseminate[ ], publish[ ], transmit[ ], transfer[ ] or circulate[ ] through any means of communication, including the media, social networks, or any other means of dissemination, publication or distribution of information, a notice or a false alarm, knowing that the information is false, when as a result of its conduct it puts the life, health, bodily integrity or safety of one or more persons at imminent risk, or endangers public or private property ….

The court concluded that the law was content-based, and didn’t fit within existing First Amendment exceptions (such as the defamation exception). It also concluded that the law wouldn’t fit within any special latitude provided by the extent Justice Breyer’s two-Justice concurrence in U.S. v. Alvarez (2012), which provided the necessary votes to support the conclusion in that case:

Article 5.14(a) is not the kind of regulation governing “false statements about easily verifiable facts” to which Justice Breyer would apply less rigorous scrutiny…. In times of disaster and emergency covered by the statute, there are many kinds of false statements regulated by Article 5.14(a) that would not be easily or quickly verifiable. Consider, for example, statements about the efficacy of masks during the COVID-19 pandemic or the damage likely to arise from a storm that is presently offshore. These are assertions for which there is not easy verification but that would be covered by Article 5.14(a). Moreover, given that the law is about restricting speech related to a governor’s action in declaring a state of emergency or disaster, Article 5.14(a) may operate in a “political context[ ],” which brings it outside the kinds of falsity laws that Justice Breyer views as permissible under his proposed lesser form of scrutiny.

Because of this, the law was unconstitutional unless it “furthers a compelling interest and is narrowly tailored to achieve that interest,” which includes as an element the requirement that the law be the “least restrictive means” of furthering that interest. And, the court held, this test (“strict scrutiny”) wasn’t satisfied here:

A comparison of Article 5.14(a) with other false reporting statutes illustrates that the Puerto Rican regulation is far from the least restrictive means for achieving the Government’s aim. Generally, regulations on false assertions comport with the First Amendment when they contain “limitations of context, requirements of proof of injury, and the like” which “narrow the statute to a subset of lies where [the] specific harm is more likely to occur.” Certain false reporting or false alarm statutes pass constitutional muster because they “require proof that substantial public harm be directly foreseeable, or, if not, involve false statements that are very likely to bring about that harm.”

The Government asserts that Article 5.14(a) is one such statute because it is “based [on] and significantly similar to Section 250.3” of the Model Penal Code (“MPC”), which “[p]resumably” would not contain unconstitutional language. Section 250.3 limits its scope to require the speaker to know that the false report “is likely” to cause harm. {[“]A person is guilty of a misdemeanor if he initiates or circulates a report or warning of an impending bombing or other crime or catastrophe, knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm.[“]} And the FCC’s Broadcast Hoaxes rule goes even a step further: To incur liability under this rule, it must be “foreseeable that broadcast[ing] [false] information will cause substantial public harm” and the broadcast must actually and “directly cause substantial public harm.”

But even if Article 5.14(a) was modeled on one of these rules, the Puerto Rican statute does not contain analogous limitations. Under Article 5.14(a), liability attaches “when as a result” of making a false statement, persons or property are put “at imminent risk.” No actual harm is required, no knowledge that a harm is likely to occur is mandated, and “risk” is undefined. “[I]mminent risk” is thus an inherently nebulous concept that provides little protection for a speaker. As such, Article 5.14(a) is far broader than both section 250.3, on which the Government relies, and the Broadcast Hoaxes rule, which was cited approvingly by Justice Breyer.

Moreover, Article 5.14(a) is unbounded in other dimensions. The federal hoaxes statute, also referenced by Justice Breyer in Alvarez, criminalizes the conveyance of false or misleading information (1) “where such information may reasonably be believed” and (2) when the information relates to specific violations of federal law or about the armed forces. By contrast, Article 5.14(a) contains no such restrictions. As we have already explained, the regulation establishes liability if there is an “imminent risk” of personal or property harm, regardless of what listeners actually believe.

Moreover, and as the Government concedes here, Article 5.14(a) could cover even “incredible assertions” so long as the statements are “in relation to the imminent occurrence of a catastrophe in Puerto Rico.” The law could even cover jokes, satire, or fiction. {At oral argument, the Government suggested that whether liability would attach to a humorist stating King Kong and Godzilla were coming to destroy the island of Puerto Rico—in the vein of Orson Welles’ faux radio broadcast of an alien invasion, The War of the Worlds—could be a matter that is left to prosecutorial discretion because such a scenario would fit within the text of Article 5.14(a). That Article 5.14(a) could result in liability for even such statements further indicates it would have a significant chilling effect on free speech and is not narrowly tailored.}

We further note that, unlike the FCC’s Broadcast Hoaxes regulation, “catastrophe” appears to be undefined in Law 20, adding to our concern that Article 5.14(a) could be construed to reach innumerable statements regardless of their relation to public emergencies.

The Government also claims that a saving limitation on Article 5.14(a) is that it operates only during states of emergency. But Law 20 permits the Governor to declare such emergencies through proclamation, and since the law’s enactment in 2017, at least four states of emergency have been declared, with one spanning over three years. Where “governmental power has no clear limiting principle,” there is the potential for the government to exercise “broad censorial power” that chills free speech. We should be wary of regulations like Article 5.14(a) that permit the Government to so quell speech.

The Government has also failed to show that Article 5.14(a) is necessary to achieve its goals. Strict scrutiny requires that there “be a direct causal link between the restriction imposed and the injury to be prevented.” Although the Government asserts that such a link exists, it “points to no evidence to support its claim” that the kinds of false information regulated by Article 5.14(a) endanger public safety during states of emergency. Without such evidence, the Government cannot establish this necessary causal link.

Finally, the Government “has not shown, and cannot show, why counter[ ]speech would not suffice to achieve its interest.” The Government asserts—without record support—that counter speech would be ineffective because “[o]nce the false information is released, the damage is done.” This does not explain why counter speech would be inadequate to achieve its interest.

Consider again the COVID-19 pandemic. Statements arguing that masks are ineffective to stop disease transmission could be countered by government messaging explaining the benefits of wearing masks. Perhaps there are false statements that immediately cause harm such that counter speech would be ineffective, but this law is not limited to that category.

In short, Article 5.14(a) does not meet the exacting standard of strict scrutiny. It represents an impermissible restriction of speech, particularly during times of emergency when it is most imperative that the public be well-informed and the government held to account. “[S]ince informed public opinion is the most potent of all restraints upon misgovernment,” we look upon such a restriction “with grave concern.” …

Brian Hauss, Tyler Takemoto, and Scarlet Kim (ACLU Foundation) and Fermín L. Arraiza-Navas (ACLU of Puerto Rico) represent the challengers.