Puerto Rico law against ‘false alarms’ gets free speech scrutiny at First Circuit

BOSTON (CN) — A Puerto Rico law that criminalizes spreading false information that harms the public came under withering criticism at oral argument at the First Circuit Monday, with the judges strongly suggesting that it violates the First Amendment.

Puerto Rico enacted the law in 2017 and strengthened it in 2020 following the devastation of Hurricane Maria and in the midst of the Covid pandemic. It makes it a crime to (1) make a false warning about an imminent catastrophe in Puerto Rico or (2) make a false statement that endangers safety or property during a declared state of emergency.

The law applies only if the speaker knows the information is false. The penalty for a violation is up to six months in prison and a $5,000 fine, although it can be increased to a felony with a three-year prison term if the violation causes a personal injury or $10,000 in property damage.

A federal judge struck down the law in 2023 as violating the First Amendment. The judge relied on a 2012 Supreme Court case that rejected a federal “stolen valor” law that criminalized falsely claiming to have received military honors.

On appeal, Puerto Rico argued this case was different from the stolen-valor law because it didn’t involve a “content-based” restriction on speech. The commonwealth relied instead on a 1964 Supreme Court ruling suggesting that criminal libel laws were permissible if the speakers knew what they were saying was false.

“Here’s what concerns me greatly about this law,” said U.S. Circuit Judge David Hamilton. “Think about pandemics. There are states where the state government takes the position that vaccines are dangerous and unproven. Could a state government prosecute someone who argues in favor of vaccines?”

“That has a chilling effect on the marketplace of ideas,” agreed U.S. Circuit Judge Seth Aframe. “If the government holds that as a sword of Damocles and says, ‘Don’t talk about that because we might prosecute you,’ that’s a problem.”

Aframe continued, “The Covid emergency lasted two years. So this law could be in effect for two years. What if I make a false statement about a hurricane during a Covid emergency? Is that covered? This strikes me as quite overbroad. There’s no connection, or at least I don’t see it, between the emergency and the thing you’re talking about.”

U.S. Circuit Judge Gustavo Gelpí asked what would happen if the governor authorized a state of emergency and a minute later, before the declaration had been publicly announced, someone told a lie. Puerto Rico’s lawyer, Francisco Gonzalez-Magaz, admitted that that would be a crime.

“During elections, there are false statements all over the place,” the Joe Biden appointee went on. “If someday a governor doesn’t like certain speech, wouldn’t there be an incentive to issue an order and chill that speech? That’s something our framers contemplated would not happen when they created the First Amendment.”

Gonzalez-Magaz argued a governor wouldn’t issue a frivolous state of emergency, but Hamilton, a Barack Obama appointee sitting by designation from the Chicago-based Seventh Circuit, wasn’t so sure. He noted President Donald Trump recently claimed Chicago was facing an insurrection, and “any connection to the actual facts on the ground is tenuous at best.”

The judges were also concerned that there was no requirement that the risk of harm be imminent. “If I say the undertow isn’t bad, and three weeks later someone drowns, that’s covered,” Aframe worried.

“Not just if they drown,” the plaintiffs’ lawyer, Brian Hauss of the ACLU, pointed out. “If they just swim, they’re at risk,” even if nothing bad happens to them.

Gelpí asked, “Suppose an aqueduct bursts, and a humorist on the media is like Orson Welles in War of the Worlds and says it’s the result of King Kong vs. Godzilla. That’s knowingly false; could that person get prosecuted?”

Gonzalez-Magaz tried to argue the statute wasn’t so broad as all that, but Hamilton disagreed. “That makes sense to me if I were writing this law as a legislator, but I don’t get that from the text,” he said.

Gonzalez-Magaz also argued prosecutors wouldn’t go after marginal cases. “If there’s a reference to King Kong or Godzilla, there’s very little chance that would create a risk.”

But Aframe, a Biden appointee, wasn’t satisfied: “All you’re telling me is a prosecutor wouldn’t do that. A prosecutor wouldn’t prosecute a lie about a hurricane during a Covid emergency. You’re asking me to take your word for it.”

But, he said, “it’s the chilling effect that you’re not grappling with. People will worry that, if I say certain things, I might get prosecuted, and maybe I’ll win, but the safer thing is to not say it.”

“And that’s not a good enough answer,” Aframe complained. “There needs to be breathing room for us to function as a democracy.”

Gonzalez-Magaz had no better luck persuading the judges that the law wasn’t content-based. “If I say the food at a restaurant is bad, don’t eat there, that’s not in relation to an imminent catastrophe,” said Aframe. “If I say a hurricane is coming, that’s covered. What’s the difference? You have to look at the content.”

Sensing that things were going his way, Hauss began arguing that the judges should throw out the law altogether rather than adopting an interpretation that limited its scope, suggesting that any such limitation wouldn’t be binding on Puerto Rico courts.

The case drew more than 30 amicus filings, including from media outlets such as the New York Times, Dow Jones and the Hearst Corporation.