On August 13, 2020, the First Amendment Clinic, in collaboration with PEN American Center, Inc., filed an amicus brief in Puerto Rico’s federal district court arguing that a recently enacted ‘false information’ law chills journalists from reporting on public emergencies and burdens the public’s First Amendment interest in receiving information from the press.
Puerto Rico’s law, passed in April and amended in July, imposes six months’ jail time and/or a $5,000 fine for disseminating knowingly false information in the context of a “warning or false alarm” or if it creates “imminent risk” of harm. As the law does not define these terms and includes no safe harbor provisions, it creates a credible threat of prosecution for reporters and news media working to inform the public about rapidly evolving situations during state-declared emergencies. Internationally, statutes which criminalize false
or misleading news have become tools for suppressing legitimate reporting and citizen dissent. Puerto Rico’s law similarly provides a powerful tool for punishing news reporting and other speech that the government disfavors.
“Such broad discretion on the part of government to retaliate against its critics is particularly chilling to members of the press and their publishers who serve the essential role of shining light on state action, including governmental ineptitude, corruption or abuse,” the brief reads. Because of this law, “journalists, publishers, and their sources wishing to avoid arrest or prosecution will necessarily refrain from contributing to the public debate on any number of matters of public concern during a state-declared emergency or disaster, including criticizing the government or speaking counter to government narratives.”
The brief further argues that the chilling effect of the law “impedes the ability of the press to perform its ‘essential role’ of informing the public . . . This, in turn, inhibits the free flow of information upon which the public relies in exercising their own First Amendment rights and significantly hinders their ability to hold their government accountable or to bring about lawful change.”
The government defendants opposed the filing of the amicus brief but were overruled by the Puerto Rico district court, which accepted the brief for consideration.
Clinic Fellow Samantha Hamilton and law student Jeffrey Murphy contributed to the brief written by Clinic Director Clare Norins and PEN America’s Nora Benavidez, and filed by local counsel in Puerto Rico.