Caribbean Intern. News Corp. v. Fuentes Agostini

Decision Date03 March 1998
Docket NumberNo. Civ. 96-1502(HL).,Civ. 96-1502(HL).
Citation12 F.Supp.2d 206
PartiesCARIBBEAN INTERNATIONAL NEWS CORP., et al., Plaintiffs, v. Jose FUENTES AGOSTINI, Puerto Rico Secretary of Justice, in his official capacity, Defendant.
CourtU.S. District Court — District of Puerto Rico

Juan R. Marchand-Quintero, San Juan, PR, for El Vocero De Puerto Rico, Gaspar Roca.

Carmen P. Figueroa, Department of Justice, Federal Litigation Division, San Juan, PR, for Jose A. Fuentes-Agostini.


LAFFITTE, District Judge.

Before the Court are a motion to dismiss by Defendant José Fuentes Agostini ("Fuentes Agostini") and a motion for summary judgment filed by Plaintiffs Caribbean International News Corp and Gaspar Roca. They bring this action for declaratory relief pursuant to 28 U.S.C. § 2201, 42 U.S.C. § 1983, and the First, Fifth, and Fourteenth Amendments. Fuentes Agostini is the Puerto Rico Secretary of Justice, and he is sued in his individual and official capacity.1 Plaintiffs publish El Vocero newspaper in Puerto Rico. On March 31, 1997, the Court granted the unopposed motion of Luis Dávila Colón ("Intervenor") for leave to intervene as a co-plaintiff. See Fed.R.Civ.P. 24. Dávila Colón is a political commentator, newspaper columnist, and licensed attorney.

Plaintiffs challenge the constitutionality of a provision of Puerto Rico's Criminal Code. The statute at issue is Article 247, which reads as follows:

Influencing juror or others

Any person who attempts to influence any judge, juror or person summoned or drawn as such, or chosen or appointed as an arbitrator, or person authorized by law to hear and determine a matter or controversy, in regard to his verdict or decision in any action or proceeding, pending or about to be brought before him, through any of the following means, shall be punished by imprisonment for a fixed term of six (6) years:

(a) Any written or oral communication had with such person, except in the regular course of proceedings.

(b) Any book, paper, or instrument exhibited, other than in the regular course of proceedings.

(c) Any threat, intimidation, persuasion or entreaty.

In any of the preceding circumstances, should there be aggravating circumstances, the fixed penalty established may be increased to a maximum of ten (10) years; if there should be extenuating circumstances, it may be reduced to a minimum of four (4) years.

P.R. Laws Ann. tit. 33, § 4443 (1983).

Article 247 was derived from a similar statute in the California Penal Code. El Pueblo De Puerto Rico, Apelado v. Narvaez Narvaez, 122 P.R.Dec. 80, 88-89, No. CR-86-46 Official English translation slip op. at 6-7 (1988). The Puerto Rico Supreme Court has had occasion to address the scope of this law only once. See id. In that case, Esteban Narváez Narváez ("Narváez"), approached a female acquaintance whose husband was a juror in an ongoing criminal case. Id. at 83, Official English translation at 2. Narváez told her that the person being tried in the criminal case was a relative of his and that he was innocent. She replied that she was unable to do anything about the criminal case. Narváez replied that he "knew how things were." Id. He was subsequently charged with a violation of Article 247. The Puerto Rico Supreme Court held that the purpose of the statute was to protect judicial proceedings from improper external influences. Id. at 86, 89-90, Official English translation at 4, 7-8. The court further held that it did not matter that a defendant thought that he was helping to bring about justice. Id. at 92, Official English translation at 9-10. The statute was violated whenever a person attempts to exercise influence over a juror. Id. at 90, Official English translation at 8.

Plaintiffs and Intervenor allege that they publish reports or editorials on ongoing judicial proceedings in Puerto Rico. In their complaint and motion for summary judgment, Plaintiffs claim that Article 247 is unconstitutional because it is overbroad and void for vagueness. They also claim that it is not narrowly tailored to a compelling state interest and that it unconstitutionally limits their right to report on or criticize judges and judiciary proceedings. Fuentes Agostini contests these arguments. He also claims that Plaintiffs lack standing to bring this challenge and the Court should abstain from ruling on this issue to allow the local courts to address this controversy. The Court has reviewed the record, and there do not appear to be any material factual issues in dispute. For the reasons set forth below, the Court grants Plaintiffs' motion for summary judgment and declaratory relief.


Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." See Fed. R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party has satisfied this requirement, the nonmoving party has the burden of presenting any facts that demonstrate a genuine issue for trial. Fed.R.Civ.P. 56(e). The nonmovant must do more than show "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). An issue is genuine when, based on the evidence, a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. at 2512. Additionally, summary judgment is available in a declaratory judgment action, just as it is available in any other action. 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2768, at 753-54 (2d ed.1983).

1. Standing

In the motion to dismiss, Fuentes Agostini claims that Plaintiffs lack standing to challenge the constitutionality of Article 247. Specifically, he argues that Plaintiffs fail to show that they have been prosecuted under Article 247 or that there is a general threat of prosecution. As a result, he argues, there is not a case or controversy as required by Article III of the Constitution. Standing is one of the most complex areas in the field of federal jurisdiction. It is a threshold issue which goes to a federal court's power to hear a claim. Berner v. Delahanty, II, 129 F.3d 20, 23 (1st Cir.1997). Before a court considers the merits, it must first determine whether the plaintiff has standing to bring the cause of action. Id. If the plaintiff lacks standing, the court lacks jurisdiction to entertain the case. New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir.1996).

A disagreement between the parties, no matter how acrimonious, is not sufficient by itself to meet Article III's limitation that a federal court may only hear a case or controversy. Diamond v. Charles, 476 U.S. 54, 62, 106 S.Ct. 1697, 1703, 90 L.Ed.2d 48 (1986). The conflict between a state official authorized to enforce a law and the private party subject to prosecution under the law is a classic Article III case or controversy. Id. at 64, 106 S.Ct. at 1704. In order to satisfy Article III's requirements, a party invoking federal jurisdiction must establish three elements (1) that he has personally suffered "some actual or threatened injury as a result of the challenged conduct;" (2) that his injury is fairly traceable to the challenged conduct; and (3) that his injury is likely to be redressed by a favorable ruling from the court. Berner, 129 F.3d at 24 (quoting Gardner, 99 F.3d at 13). In the present case, the second and third elements are not at issue. Any injury suffered by Plaintiffs can be fairly traced to the enforcement or risk of enforcement of Article 247 against them; and any such injury would be properly redressed by an action seeking to have the article declared unconstitutional and naming as a defendant the Secretary of Justice — the government official charged with enforcing the article. See Gardner, 99 F.3d at 13.

The nub of the standing question in the present case, then, boils down to whether Plaintiffs have suffered an actual or threatened injury. When a plaintiff brings a pre-enforcement challenge to a criminal statute on the grounds that the statute is a facial violation of the First Amendment, the court must consider two potential injuries. Id. One is the injury of threatened enforcement; the other is the injury of a chilling effect brought about by a plaintiff limiting his own expression in order to avoid prosecution. Id. Both of these injuries are based on the existence of a credible threat that the statute at issue will be enforced. Id. at 14. In the present case, Plaintiffs argue that the credibility of any threat of prosecution can be established based on Gaspar Roca's personal fears that he is in danger of being prosecuted. This is an incorrect application of the law of standing. A plaintiff's subjective concerns that he will be prosecuted for engaging in his right of expression will not constitute an injury under the standing analysis unless the fear is objectively reasonable. Id. If there is a credible threat of prosecution, the plaintiff will have standing to bring his pre-enforcement challenge on First Amendment grounds. Id. If, however, there is no credible threat of enforcement, there will be no chilling effect and Article III's requirements will not have been met. Id.

Thus, whether there is a credible threat of prosecution becomes a critical issue. A plaintiff challenging the...

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