Amicus win – First Circuit permanently enjoins Puerto Rico’s false information law

Article 5.14(a) of Puerto Rico’s law was enacted during the COVID-19 crisis and criminalized raising a “false alarm” or spreading false information about public emergencies, with penalties of up to three years in jail and fines of $5,000. Challenged by journalists Sandra Rodríguez-Cotto and Rafelli González-Cotto in 2020, and with an amicus brief filed by the Clinic in the trial court, a federal district judge declared the law unconstitutional in July 2023 and permanently enjoined it from being enforced.

On the government’s appeal before the First Circuit, the Clinic represented amici curiae Electronic Frontier Foundation, the Foundation for Individual Rights and Expression, the Freedom of the Press Foundation, Free Press, and PEN American Center, Inc. This group encouraged the appellate court to affirm that Article 5.14(a) is an overbroad, vague law that chills protected speech on matters of public concern and therefore must remain enjoined.

The First Circuit has now held that Article 5.14(a) does not meet the exacting standard of strict scrutiny, or even intermediate scrutiny. The court writes: “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.”

As argued in the brief, the free exchange of information assumes heightened importance during times of emergency when facts and knowledge are often rapidly evolving and changing. In such  circumstances, there may be contradictory or incomplete knowledge about the situation, and the urgency to share information may  result in unintentional errors. This heightens the risk that a speaker will be charged with knowingly communicating “false” information, even if the speaker had good reason to believe the information was true at the time of dissemination, or if the information remains true but is inconvenient or unflattering for the government and therefore decried as “false.”

Article 5.14(a) is also broadly worded, giving the public little guidance about what speech is prohibited while affording state prosecutors broad discretion to selectively charge speakers whose messages the government dislikes. For example, the law does not require that any actual harm have resulted from the “false” speech, only that it create “imminent risk” to one or more person’s health or safety, or that it “endangers” property. These vague, undefined terms make it easy to accuse an unpopular speaker of violating the law. This is chilling on citizens and journalists who intend to convey accurate information but do not wish to risk being prosecuted.

Finally, by chilling the free flow of information the “Fake News” law infringes on people’s First Amendment right to listen and receive ideas from others, reducing the range of facts, opinion, and viewpoint that are available. As explained in the Clinic’s filing, this “deeply impoverishes the First Amendment interests of speakers and listeners at large” during times when the public’s need for information is at its peak.

The amicus brief was authored by Clinic students Ben Privitera, Ellie Wilson-Wade, Clinic Director Clare Norins, and Clinic Fellow Christina Lee.