By The Star Staff
A U.S. federal district court has granted the American Civil Liberties Union’s (ACLU) request to strike down a Puerto Rico law that made it a crime to knowingly raise a “false alarm” about public emergencies, holding that “[t]he watchdog function of speech is never more vital than during a large-scale crisis.”
The decision in Rodríguez Cotto vs. Pierluisi Urrutia issued March 31 was described by the ACLU as an important step in press freedom. The lawsuit was filed by independent journalist Sandra Rodríguez Cotto.
The court ruled that the law violated the First Amendment because its broad sweep created a danger of partisan abuse or selective enforcement, enabling the government to suppress or chill speech that contradicts its official narrative.
“[I]nstead of criminalizing speech,” the court observed, “the Legislature could simply have required the Government to use its multiple communications platforms to present a complete and accurate description of the facts” relating to emergencies in Puerto Rico.
While there is a law that bans raising a false alarm in relation to the occurrence of an imminent disaster, on April 6, 2020, the island Legislature amended the law to make it a crime to transmit or allow another person to transmit by any means, through any social network or mass media, false information with the intention of creating confusion, panic or collective public hysteria, regarding any proclamation or executive order decreeing a state of emergency, disaster or curfew. The plaintiffs challenged those provisions, essentially alleging that they were overbroad and imposed an impermissible content-based restriction on speech. In July, the Legislature further amended the law to make it a criminal offense for any person, natural or legal, who, after the governor of Puerto Rico has decreed by executive order a state of emergency or disaster, to purposely, knowingly or recklessly: give 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 such conduct, the life, health, bodily integrity or safety of one or more persons are put at imminent risk or public or private property are endangered.
A person found guilty of violating that provision commits a misdemeanor with a penalty of up to six months of imprisonment, a fine of not more than $5,000, or both penalties, at the discretion of the court. The speech is considered a felony, carrying an imprisonment term of three years, if the notice or false alarm results in damages exceeding $10,000 to the public purse, third parties, or public or private property, or the conduct results in injury or physical harm to another person.
The ACLU and the ACLU of Puerto Rico argued that Puerto Rico’s law violated the First and 14th Amendments because its vague terminology and broad sweep gave people far too little guidance on what speech may constitute a crime, and the government far too much discretion in deciding whom to prosecute.
“This win sends an unequivocal message that, in Puerto Rico -- where transparency, accountability, and oversight is all but nonexistent -- the press cannot be silenced,” said William Ramírez, executive director of the ACLU of Puerto Rico.
The law threatened to chill reporting on the COVID-19 crisis and other emergencies because journalists risked prosecution if the government disputed the accuracy of their reporting.
“The declaration of a ‘state of emergency’ must never be used to promote censorship and repression,” said Fermín Arraiza, legal director of the ACLU of Puerto Rico. “This is an important victory for journalists in Puerto Rico and across the United States.”
The ACLU and the ACLU of Puerto Rico filed the lawsuit on behalf of two journalists, Rodríguez Cotto and Rafelli González Cotto, who feared that the laws would be used to punish them for their reporting on public emergencies, especially reporting that reflects negatively on the government.
“No journalist in Puerto Rico should allow undue government interference to restrict the right to freedom of speech that is enshrined in both the federal and Puerto Rican constitutions, much less when a state of emergency is declared and in place,” Rafelli González Cotto said. “False information can be fought only with true information, not with threats of imprisonment and large fines under the criminal law.”
Sandra Rodríguez Cotto noted that she had already faced intimidation for attempting to report the truth when she was denounced by a former governor’s chief of staff after she disputed the plausibility of the government’s official death toll from Hurricane Maria. It eventually emerged that the hurricane claimed more than 3,000 lives, instead of the 64 deaths initially reported by the government.
“As journalists, our sole duty is to inform the public,” Rodríguez Cotto said. “Let this case serve as a reminder that we must be vigilant in defending the freedom of the press from any attempt to obstruct the public’s access to information.”