Mangual v. Rotger-Sabat
| Decision Date | 21 January 2003 |
| Docket Number | No. 02-1669.,02-1669. |
| Citation | 317 F.3d 45 |
| Parties | Tomas De Jesus MANGUAL, Plaintiff, Appellant, Jorge Medina; Caribbean International News Corporation, Movants, Appellants, v. Angel E. ROTGER-SABAT, Secretary of Justice of the Commonwealth of Puerto Rico; John Doe, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Juan R. Marchand Quintero on brief for Appellants.
Roberto J. Sánchez Ramos and Camelia
Fernández Romeu, Office of the Solicitor General of the Commonwealth of Puerto Rico, on brief for Appellees.
Before LYNCH and HOWARD, Circuit Judges, and SHADUR, Senior District Judge.*
A newspaper reporter threatened with prosecution for articles he had published about government corruption brought suit in 1999 challenging the Puerto Rico criminal libel statute as unconstitutional under the First Amendment. Three other reporters, including one who had been prosecuted under the statute and another who had been threatened, sought to intervene on the plaintiff's side, along with a newspaper and the Overseas Press Club. The plaintiff sought declaratory and injunctive relief and at the outset moved for summary judgment on the ground that the statute is plainly unconstitutional. The district court dismissed the suit in 2002, finding no jurisdiction due to standing, ripeness and mootness concerns. We hold that the district court was in error as to its standing, ripeness and mootness rulings and that the criminal libel statute is unconstitutional as applicable to statements regarding public officials and public figures.
In 1974, Puerto Rico enacted a criminal defamation statute, in articles 118 to 121 of the Penal Code. 33 P.R. Laws Ann. §§ 4101-4104 (2001). The full text of the statute, as officially translated, reads:
§ 4101. Libel
Any person who maliciously, by any means, or in any way, publicly dishonors or discredits, or charges the commission of an act constituting a crime, or impugns the honesty, integrity, virtue or reputation of any natural or juridical person, or who blackens the memory of one who is dead, shall be punished with a term of imprisonment of not more than six (6) months, a fine of not more than five hundred dollars ($500), the penalty of restitution, or any combination of these, at the discretion of the court. However, the court may impose the penalty of rendering community service in lieu of the term of imprisonment.1
§ 4102. Truth as defense
In all criminal prosecutions for libel, the truth shall constitute a defense and the accused shall be acquitted, provided it is proven that the charge made is true and he had good intention and justifiable ends.
If the victim is a public officer and the charge made refers to the performance of his duties, or if what was related or published refers to matter of public interest, the accused shall be acquitted whenever it is proven that the charge made is true; Provided, That if the charge made is false, said accused shall not be acquitted, if it is proven that he acted knowing the fact to be false and with gross and obstinate contempt of the truth.
§ 4103. Report of official acts
No report or statement, which is true and fair, of any judicial or legislative act, or of any other official character, nor of statements, arguments and debates had [contained] therein shall be considered to be libelous.
§ 4104. Diffusion of conviction
The trial court shall order the diffusion of the conviction through the same means used by the offender or through any other analogous or similar nature, and at the latter's expense.
The Puerto Rico newspaper El Vocero de Puerto Rico ("El Vocero") is published by Caribbean International News Corporation ("Caribbean"). In 1995, Caribbean created an internal division of El Vocero, the Editorial Investigations Division, which was designed to investigate matters of public concern, such as police brutality, government corruption, and the like. Obed Betancourt, a reporter for El Vocero since 1995, was transferred to this division in June 1998 and assigned to investigate allegations that the Narcotics Squad of the Caguas police had been infiltrated by organized crime. Betancourt wrote a series of articles reporting on these allegations, including evidence that a drug dealer who was targeted by the Narcotics Squad helped to organize its Christmas party and was paying bribes to officers.
Of particular importance for our purposes is Betancourt's article published on August 18, 1998. This article reported the allegation, made during an internal police administrative hearing, that Officer Elsa Rivera Colón, an agent with the Narcotics Squad, was having an affair with that same drug dealer. The purpose of publishing this information, according to Betancourt, was to explain why so many drug cases in Caguas were dismissed — because the Narcotics agents did not appear to testify — and how confidential information was leaked to investigation targets. The article also touched on Officer Rivera's fitness for police duty.
On September 10, 1998, Officer Rivera filed a civil action for libel against both Betancourt and El Vocero. On February 26, 1999, she also filed a complaint with the Caguas police against Betancourt for criminal libel under section 4101 and later urged the local district attorney to bring charges against Betancourt. Subsequently, she persuaded a fellow Caguas police officer to file a similar complaint and to secure his supervisor's signature on it. The case was then transferred to San Juan, where the newspaper's offices are located.
Betancourt and El Vocero filed suit in federal court, requesting declaratory judgment that the criminal libel statute is unconstitutional under the First Amendment.2 Betancourt averred that he has refrained from further investigating political corruption for fear of being prosecuted again. On August 4, 1999, a federal district judge issued an order prohibiting the prosecution of the charges against Betancourt while the declaratory judgment motion was before the court. In violation of that federal order, a police officer in San Juan brought the criminal libel charge against Betancourt on August 12, 1999; thus, four police officers in two departments were involved in initiating prosecutions. That same day Betancourt was forced to appear and testify at a probable cause hearing. The prosecution made no effort to put on evidence as to falsehood or reckless disregard for the truth. Cross-examination demonstrated that neither prosecution witness could establish anything about the truthfulness of the articles. The Puerto Rico court judge found no probable cause, and the criminal case was dismissed against Betancourt. Thereafter, the federal district court dismissed the federal declaratory judgment case as moot. El Vocero v. Fuentes Agostini, No. 99-1272 (D.P.R. Sept. 14, 1999).
Tomás de Jesús Mangual, the plaintiff in this case, is another reporter for El Vocero and was assigned to cover the Caguas police and courts. For over thirteen years he has written extensively on the subject of the corruption of government officials in the Caguas region, often identifying individual officials as corrupt and under the influence of drug traffickers. Mangual investigated the criminal libel complaint against Betancourt and wrote four articles on the subject between March 11 and 16, 1999. In these articles, Mangual accused the Caguas police, including Rivera, of being corrupt and of pursuing the libel charge against Betancourt in an attempt to silence him.
Mangual also made several accusations specifically against Officer Rivera, in addition to the charge that she had trumped up criminal charges against Betancourt in retaliation for his 1998 articles. The first was that Rivera was linked to drug traffickers, the same charge earlier made by Betancourt, and that she was under investigation as a result. The second was that Rivera had been conducting an adulterous affair with her married superior and had given birth to his child. This latter allegation was meant to explain Rivera's influence over the Caguas police. The articles asserted that she had managed to achieve a transfer to the drug unit in violation of normal procedures and had used her position to retaliate against officers who complained about her. Mangual wrote that the chief of the anti-corruption unit of the Puerto Rico police had instituted an investigation into a number of complaints against Rivera, and it was possible that probable cause to charge her would be found.
Officer Rivera responded to these articles by writing a letter to the Secretary of Justice on April 12, 1999. The letter notified Fuentes that "I am prepared not only to file the criminal charges that concern [Betancourt and Mangual], but also to bring this suit on its merits, up to the ultimate legal consequences."3 This reference was to the filing of criminal libel charges against the two reporters. She complained of procedural anomalies in the handling of her prior criminal libel complaint against Betancourt, including the transfer of the case to San Juan, and requested an investigation "so that summons be issued for this case for the corresponding legal process."
The Assistant Attorney General, Edwin O. Vázquez Berrios, responded by letter to Officer Rivera. Vázquez noted that in cases such as this one, the Puerto Rico police investigate and file charges if necessary; the Department of Justice intervenes only after there has been a determination of probable cause and the case has been scheduled for trial. Accordingly, he forwarded the letter and the materials Rivera attached to the Superintendent of the Police "for any action he may deem pertinent." He did not inform...
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