The Volokh Conspiracy

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Free Speech

Puerto Rico "Fake News" Ban Challenged by ACLU


From the Complaint in Rodriguez-Cotto v. Vazquez-Garced (filed today):

25 L.P.R.A. § 3654(a), 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 on April 6, 2020, to include a second fake news provision, 25 L.P.R.A. § 3654(f), which makes 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."

The ACLU argues that the provisions are unconstitutional because

  1. They're not limited to knowing or reckless falsehoods.
  2. They are impermissibly content-based, because "they criminalize sharing false information only about certain subjects, namely emergencies in Puerto Rico and the government's response to those emergencies."
  3. The terms "spread[ing] rumors or giv[ing] false alarms about non-existing abnormalities" and "with the intent of creating confusion, panic, or collective public hysteria" are unconstitutionally vague.

A court may be able to avoid objection 1, by reading a recklessness/knowledge requirement into the statute (something courts often do as to statutes that are silent about what mental state is required); but I think that even with such a mental state requirement, the statute is likely to be struck down as unconstitutionally vague or overbroad. I expect that the ACLU will likely seek a preliminary injunction, at which point it can add some other First Amendment arguments as well (e.g., that even knowingly false statements about the government can't be banned just because they intend to create "confusion").

For the Spanish-language text of the statutes, see p. 2 n.1 of the Complaint.