Prohibition of knowingly false statements during emergencies Abolished under First Amendment

The court reasoned that the proper remedy is generally for the government to disprove false rumors, not to criminalize them:

[T]The government did not prove why counter-speech in the form of increased transparency would fail to achieve its interests. The government states that during the state of emergency, one person caused a disruption in the food supply chain by falsely announcing that the government would close the markets and that, although the government clarified that it was a lie, the damage was done. However, the Government did not submit evidence on who, when and how it tried to respond to the false message it referred to in order to allow the court to evaluate the effectiveness of the response. On the other hand, prosecutors submitted excerpts of articles about the message about the closure of supermarkets on the island due to the coronavirus, showing that the government failed to show that increased transparency would not achieve its goals.

One of these articles states that on Friday (March 20, 2020), a person who identified himself as an active member of the “Casa de Restauración” church, claimed that Governor Vázquez was preparing to announce the complete closure of all companies, such as the port; and on March 21, thousands of people filled the outlets to buy supplies. The article quoted Puerto Rico’s secretary of state as denying that supermarkets would close (“Of course not. How are we going to do it?”). Additionally, the Secretary of the Department of Public Safety is quoted as saying, among other things, “as far as the WhatsApp message is concerned, we are not denying or confirming,” and that the government has maintained an active site for reporting and evaluating complaints from people who used the media to commit crimes.

If this is how events unfolded, instead of qualifying as transparent, the information coming from government sources was contradictory, for example. denying, while at the same time neither denying nor confirming. It should be noted that on March 30, 2020, among other things, the governor limited the purchase of food between 5:00 a.m. and 7:00 p.m.; ordered supermarkets and small grocery stores to close on Sundays; and that the Department of Natural and Environmental Resources issue orders, guidelines and circulars to close all marinas in Puerto Rico. See Executive Order 2020-029. An April 6, 2020 article titled “Puerto Ricans Pack Supermarkets as Government Tightens Restrictions,” reports that Puerto Ricans flocked to stores on the morning of April 6, after the governor announced stricter regulations the night before to isolate the island due to the coronavirus during Holy Week , orders the closure of almost all businesses including supermarkets and banks from Friday to Sunday

And the purpose of the page that the secretary mentioned was to report and evaluate complaints, not to place accurate and reliable information in the public. The government retorts that when a lie travels fast, the truth will never reach it in time. However, as Tompros et al. Please note, following the Boston Marathon bombing, there was a lot of false information being spread on various social media platforms, but using those same platforms, the Boston Police Department (“BPD”) was quick to refute and correct the misinformation. BPD tweeted the exact number of casualties in response to inflated reports, denied rumors that a fire at the John F. Kennedy Presidential Library was linked to the bombing, and corrected another rumor that a Saudi had been arrested.

From this perspective, instead of criminalizing speech, the legislature could have simply required the government to use its multiple communication platforms to present a complete and accurate description of the facts. As Justice Kennedy pointed out in Alvarez“[t]he cure for

speech that is false is speech that is true. . . [t]the answer to the unreasonable is rational; the ignorant, the enlightened; to an outright lie, a simple truth.” Justice Breyer agreed with Justice Kennedy that in this area “more accurate information will normally contradict a lie.” For Justice Breyer, it was likely that a more narrowly tailored statute combined with information dissemination devices would effectively serve the purpose statute. So it is with section 5.14(a). The dynamic of free speech, counterspeech, and rebuttal can effectively overcome lies. Under these circumstances, there was no clear evidence that section 5.14(a) was necessary to achieve that purpose. . . .

The Court held that some other false statement prohibitions, even if constitutional, are narrower than Puerto Rico’s prohibition:

[Title 18 U.S.C. § 1038] prohibits engaging in any conduct intended to transmit false or misleading information in circumstances where such information may reasonably be believed and the information indicates that an activity has been, is being, or is about to occur that would constitute a violation of certain enumerated laws relating to , among others, destruction of aircraft and motor vehicles, biological and chemical weapons, improper use of explosives, improper use of firearms, destruction of shipping vessels, acts of terrorism, sabotage of nuclear facilities and piracy of aircraft. Such scams are designed to instill fear in the public or another target and pose a serious threat to public safety. In this context, false statements are “highly likely to cause” harm to be prevented.

The FCC’s Broadcast Fraud Rule provides that no licensee or licensee of any radio station shall broadcast false information about a crime or disaster if: (1) the licensee knows that the information is false; (2) it is foreseeable that the broadcast of the information will cause significant harm to the public; and (3) the broadcast of the information actually directly causes substantial harm to the public. For purposes of this rule, a “public harm” must begin immediately and cause direct and actual damage to property or the health and safety of the general public, or the distraction of law enforcement or other public health and safety authorities from their duties. Harm to the public will be considered foreseeable if the licensee can expect with a significant degree of certainty that harm to the public will occur. Meanwhile, a “disaster” is a disaster or imminent disaster involving a violent or sudden event that affects the public.

Contrary to Section 1038(a) and the FCC’s broadcast fraud rule, which identifies the events to which a false report must relate, the second clause is open-ended, prohibiting the dissemination by various means of a notice or false alarm knowing that the information is false if it endangers life, health, physical safety or security of one or more persons or threatens public or private property. But it is silent on the content of the alarm or notification. In other words, it leaves people wondering, a notification or false alarm about what? Furthermore, it does not require that the speech is likely to result in injury or harm and that such harm is imminent, that is, that it begins immediately after the speech. The government has not shown why a narrower law would be insufficient to protect its interests. The level of generality prevents section 5.14(a) from falling into one of the historical categories in which false speech has been held unprotected by the First Amendment….

The Government refers to the observation of Judge Holmes in Schenck c. OUR (1919), in the sense that “[t]the strictest protections of free speech would not protect a man who falsely shouts fire in a theater and causes panic.” He suggests that the same wording applies here because Article 5.14(a) deals with falsehoods and the government’s power to punish such speech involves careful consideration of proximity and degree of harm. The falsehood Justice Holmes has in mind is very closely, directly, and predictably related to highly determinable pecuniary damage, but as explained earlier, this is not the case with Article 5.14(a).

These are just some excerpts; for more, read the full opinion. Congratulations to Brian Hauss (ACLU) and Fermin Luis Arraiza-Navas (ACLU PR), representing the challengers.

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