Journalists sue against Puerto Rico ‘fake news’ restrictions
ACLU-backed recourse alleges broad language in 2017 law could allow government to prosecute critics
SAN JUAN – Two Puerto Rico journalists represented by the American Civil Liberties Union (ACLU) filed a First Amendment lawsuit in U.S. District Court challenging provisions in a 2017 commonwealth public security law, including a recent amendment, that make it a crime to share information the government deems to be false about emergency conditions on the island.
Independent journalists Sandra Rodríguez Cotto and Rafelli González Cotto allege in the lawsuit that the two provisions contained in the Puerto Rico Department of Safety Act (Act 20-2017) violate the constitutional rights to free speech, a free press and due process contained in the First and Fourteenth Amendments to the U.S. Constitution, and petition the federal court to issue an injunction against their enforcement.
The 2017 law unified the commonwealth police and emergency management agencies as bureaus under one umbrella agency, the Public Safety Department.
Both journalists allege in the lawsuit, filed Wednesday, that the threat of prosecution under the law’s provisions has “chilled” their reporting on the Covid-19 public health emergency and the government’s response to the crisis, as well as their access to sources.
Rodríguez hosts a daily syndicated radio program, “En Blanco y Negro con Sandra,” and publishes a blog by the same name, where she features her own news stories, in-depth reporting, and analysis of the media and politics. González, an attorney and notary public, has worked with several newspapers on the island, including Caribbean Business and CB en Español, where he served as digital editor and now is a contributor.
Gov. Wanda Vázquez Garced, Justice Secretary Dennise Noemí Longo Quiñones, Public Safety Secretary Pedro Janer and Police Commissioner Henry Escalera are named as defendants in the lawsuit.
“During times of crisis, like the pandemic we are facing, people need more information on how the government is operating,” Rodríguez said in a statement. “The press has to be free to do its work, without fear of government reprisals. These laws place an important barrier to information of public interest and to debate that should be able to be held.”
‘Substantially overbroad’ provisions
The first provision, contained in the original law enacted April 10, 2017, makes it a crime to raise “a false alarm in relation to the imminent occurrence of a catastrophe in Puerto Rico or, if there is already a state of emergency or disaster, spread rumors or rais[e] a false alarm regarding non-existing abnormalities.”
The law was amended April 6, amid the current Covid-19 crisis, to include a second “fake news” provision making it a crime to “[t]ransmit 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 or disaster or curfew.”
People convicted for violating these laws could face six months, or in some circumstances up to three years in prison, and fines of up to $5,000.
The journalists allege the provisions violate the First Amendment because they are “substantially overbroad” and “do not require the government to establish that the defendant knew the information was false or acted with reckless disregard as to falsity.” The provisions also “impose an impermissible content-based restriction on speech about emergency conditions in Puerto Rico.”
The plaintiffs allege that the provisions violate the Fourteenth Amendment’s Due Process Clause because they include “unconstitutionally vague” terms.
“Terms like ‘non-existing abnormalities’ and ‘confusion’ are so vague that they provide inadequate notice about what speech is prohibited and give law enforcement officials largely untethered discretion to prosecute the government’s critics and opponents,” the lawsuit states.
“Few things are more important during an emergency than a free and independent press to hold the government’s feet to the fire. Reporters are working double-time to hold our leaders accountable and keep the public well-informed. But in Puerto Rico, the free press is under direct threat,” Brian Hauss, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said in a blog post about the lawsuit. The organization is representing the reporters in the case.
Covering Covid-19 crisis ‘at their peril’
“Access to reliable information is critical in times of emergency. ‘Fake news’ laws may appear to promote this worthy cause by outlawing rumors and falsehoods,” Hauss wrote in his post. “But the Constitution stands for the principle that the government cannot be trusted to regulate discussion on matters of public concern, and that the free press is the only reliable guarantee of a well-informed public. Especially in times of emergency, the First Amendment rights to free press must be zealously defended against government meddling.”
Hauss said that Puerto Rico’s “fake news” laws don’t include an actual malice requirement, stressing that journalists covering the Covid-19 crisis do so “at their peril.”
“An article that happens to include an inadvertent mistake, or that contradicts the government’s official narrative (even when that official narrative is false), could easily lead to criminal prosecution,” the ACLU attorney wrote. “Our clients’ fears that these laws could be used to punish journalists are not far-fetched. Under Puerto Rico’s former criminal defamation law, reporters were hauled into court and threatened with prosecution for exposing police corruption, even though the government had no evidence that anything the reporters wrote was inaccurate. Fortunately, that law was struck down for violating the First Amendment. These laws should suffer the same fate.”
Government ‘disquietingly opaque’
In the lawsuit, journalists Rodríguez and González contend that throughout the Covid-19 public health crisis, the government has been “disquietingly opaque about its actions and the current state of the public health emergency,” noting that between April 17 and May 17 Gov. Vázquez had appeared in only two official press conferences to speak about the virus. In her prior appearance May 12, she spent five minutes answering questions from the press, they said.
Vázquez held a press conference Thursday announcing a new executive order that will make business operations, sports activities and worship services more flexible starting Tuesday, May 26.
“If the Puerto Rican government is genuinely concerned about the spread of misinformation during the COVID-19 public health crisis, then it should be promoting transparency rather than censorship,” Hauss wrote. “The government should be making it easier for journalists to inform the public about what is happening by holding regular press conferences, releasing pertinent records, and laying out the government’s proposed plan of action for public scrutiny.”
Attorney William Ramírez, executive director of the ACLU chapter in Puerto Rico, condemned the fact that the “fake news” provisions were approved without public debate over their implications. Ramírez, along with attorney Fermín Arraiza, are representing the reporters in the case.
“For far too long the people of Puerto Rico have had to tolerate administrations that legislate in the dark of night, without having to account for their actions, nor respond to any type of supervision,” Ramírez said in a statement. “These laws only serve to encourage fear in those who demand answers and a clean government. They must be branded as offensive to the First Amendment and to democratic government.”
Journalists Association backs recourse
Puerto Rico Journalists Association President Damaris Suárez told Caribbean Business that her organization “totally backs the position of our fellow reporters in their lawsuit” against the “fake news” provisions of the Puerto Rico Department of Safety Act of 2017, noting that these legal restrictions have “a chilling effect on journalistic work.”
“Even though the association does not favor or applaud anyone publishing false information, we believe the law’s language is so broad that it could affect the work of journalists during an emergency, when they do not have access to certain information,” Suárez said. “This law enables the intimidation of sources due to the penalties contained in the law. And journalists do not always have the government to confirm or corroborate information from sources.”
The radio journalist said the legal restrictions could affect reporting because journalists may hold back on publishing information obtained exclusively from their sources but that could not be confirmed by the government, for fear of prosecution.
“This has a chilling effect on information the government does not want to corroborate, and that runs counter to free expression and access to information,” Suárez said, noting that that the publishing of damaging or libelous information is already covered by existing civil laws that require proof of malicious intent. “Sources will fear giving out information on something the government has not corroborated and is negative, even though it might be correct, for fear of being criminally charged.”
These provisions were applied in the case of Pastor José Luis Rivera Santiago, who was charged last month for allegedly disseminating false information on the mobile messaging application WhatsApp about a rumored executive order to close businesses in response to the Covid-19 pandemic during Holy Week. The government alleged that Pastor Rivera Santiago’s speech resulted in a rush on the supermarkets.
In fact, however, Gov. Vázquez eventually announced an executive order closing almost all businesses in Puerto Rico over Easter weekend, which itself caused a run on the grocery stores. The case was thrown out by San Juan Superior Court earlier this month.
The Associated Press, which pointed out that “González worked on stories about a contract that the government awarded to Whitefish, a small Montana firm in the wake of 2017′s Hurricane Maria” that “was later canceled and the island’s power company director resigned,” added that “Justice Secretary Dennise Longo had no comment on the action, saying in a brief statement that the agency had not yet seen the lawsuit.”