Free Speech

Puerto Rico "Fake News" Ban Challenged by ACLU

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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.

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  1. So now ACLU claims Holmes was wrong and “falsely shouting fire in a theatre and causing a panic” actually is protected speech.

    1. That was when movie film was made out of guncotton and fire trucks were horse powered. You need to understand Holmes comment in the context of his times.

      1. You’ve said this same thing many times and have never explained why it mattered more then than now.

        Fires in theaters are still dangerous.

        Theaters still don’t have enough exits to allow easy panic egress, and probably never will.

        On Holmes’ time, it was more likely to be a stage theater, complete with dangerous footlights.

        1. I believe you missed the implied “/s” in Ed’s comment.

        2. Fires in theaters are still dangerous.

          No.

          1: What’s going to burn?
          The building is steel & concrete, not wood. Instead of being stuffed with straw, the seats are fire-rated as is the carpet & drapes. It’s to the point where you have to use an approved duct tape so as to contain any possible HVAC fire to the ducts.

          2: What’s going to start it?
          Film is made of rayon, smoking is banned — men were smoking pipes back then.

          3: How will it spread?
          All public buildings have fire alarms, most have sprinklers.
          All have emergency lighting and lit exit signs, and the capabilities of modern fire trucks are amazing.

          Theaters still don’t have enough exits to allow easy panic egress, and probably never will.

          1: Post-Coconut Grove fire, they do. There are things you never think about like mandates that all doors open out, and for some doors opening directly outdoors. It gets complicated, but there are codes for how many horizontal inches of openable door space you must have relative to your permitted occupancy.

          2: Isles are specified and required to be kept clear.

          3: Lobbies are required to have a clear path out.

          On Holmes’ time, it was more likely to be a stage theater, complete with dangerous footlights.

          _Birth of a Nation_ came out in 1915 — I can’t speak to footlights.

          1. There is the National Fire Protective Association and it’s codes, etc.

            1. And we have cell phones — today one would dial 911 rather than shout in hopes that someone near the door could go for help.

              And we have loud (120 dB) fire alarms with strobe lights — code says how many you have to have and it’s more than you might think.

              It’s like the difference between a smartphone and a rotary dial landline — or the hand-crank phone of Holmes’ day.

          2. The fire in the theater was irrelevant. The stampede was the danger, so if you shout fire, it better be because of a fire and not a goof.

  2. Maybe Holmes was wrong, eh? When Holmes saw his epigram used to send someone to the slammer for 20 years (Abrams v. U.S.).

    I think it’s nice to see the ACLU in favor of free speech and due process instead of against it, as in their recent suit against Sec, DeVos #notmyfavoritesecretaryofeducation

  3. Oh, I don’t mind this one cause I’ve always wanted a cheap machinegun to play around with. 😉 Probably a 22 because anything bigger spews $10 per minute or more.

    That said, I’ve never personally supported unfettered speech, don’t believe any originalist reading does either, and don’t give this much chance of success.

  4. A civil war era hand cranked Gatling gun isn’t a machine-gun under the NFA definition and would be legal.

    I’ve seen scale model reproductions in .22 LR on-line.

    1. Don’t own one AND a cordless drill. Constructive possession…

  5. What we need is a Ministry of Truth to tell us all what to believe.

    1. I thought that’s what CBS, NBC and CNN were…

  6. “. . . spread[] rumors or rais[e] a false alarm regarding non-existing abnormalities.”

    So if PR is hit by another hurricane and I post this on social media “OH NO – THE SUN IS ABOUT TO EXPLODE TOO,” then I could be prosecuted?

    These laws need to be knocked down for the simple reason of overly vague.

  7. I can only support a “fake news ban” if I am the sole person who gets to decide what is fake news!

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