P.R. Ass'n of Mayors v. Vélez-Martínez

• Citation: 482 F.Supp.3d 1
• Decision Date: 26 August 2020
• Docket Number: CASE NO. 20-1405 (GAG)
• Parties: PUERTO RICO ASSOCIATION OF MAYORS, Plaintiff, v. Hon. Walter VÉLEZ-MARTÍNEZ, in his Official Capacity, Defendant.
• Court: U.S. District Court — District of Puerto Rico

482 F.Supp.3d 1

PUERTO RICO ASSOCIATION OF MAYORS, Plaintiff,

v.Hon. Walter VÉLEZ-MARTÍNEZ, in his Official Capacity, Defendant.

CASE NO. 20-1405 (GAG)

United States District Court, D. Puerto Rico.

Signed August 26, 2020

Emil J. Rodriguez-Escudero, Jorge Martinez-Luciano, M.L. & R.E. Law Firm, San Juan, PR, for Plaintiff.

Carlos E. Cardona-Fernandez, Carolina, PR, for Defendant.

OPINION AND ORDER AND PERMANENT INJUNCTION

GUSTAVO A. GELPI, United States District Judge

"A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more." Packingham v. North Carolina, ––– U.S. ––––, 137 S. Ct. 1730, 1735, 198 L.Ed.2d 273 (2017).

Plaintiff, the Puerto Rico Association of Mayors, filed suit challenging the constitutionality of certain provisions of Circular Letter OCE-DET-2020-02, issued by defendant, the Puerto Rico Elections Comptroller. (Docket No. 1). Namely, the Mayors argue, said determination "broadens the definition of what is considered official electronic media to web/social media pages the content of which is provided by a ‘principal officer’, regardless of whether or not the page is maintained with public funds." Id.

Plaintiff challenges Defendant's proposed policy "wherein it is announced that the purpose of the circular policy letter is to consider as official web/social media pages those in which content is provided mainly by a "principal officer’ (a term that encompasses all mayors) regardless of whether or not such page was created and/or is maintained by said officers privately." (Docket No. 1 ¶ 3.17). "The challenged circular letter explicitly provides that, once a personal electronic media page is deemed "official" under the loose definition that includes a mayor's personal media, said media may not include any references to elections, candidates or even flattering remarks regarding the officer's performance in office. Defendant clearly seeks to regulate the content of the speech contained in a candidate's private electronic media." (Docket No. 2). Plaintiff asserts the Mayors have the right to express their political views and to advocate for their election/the defeat of their opponents, and that this right extends to electronic social media. "Any restriction on the content of plaintiffs’ personal social media pages is deemed unconstitutional unless the government is able to show that there are compelling state interests and that the restriction is the narrowest possible." Id. In conclusion, Plaintiff contends that the Mayors are "entitled to a declaration that the proposed regulation of the political content in the personal electronic media of mayors, as stated in OCE-DET-2020-02 is in violation of the First Amendment's protection of freedom of speech." (Docket No. 1 ¶ 3.26).

I. Relevant Factual and Procedural Background

After hearing from Defendant, the Court granted Plaintiff's request for preliminary injunction, finding that "the mayors will suffer immediate and irreparable constitutional harm. Enforcing the First Amendment is also in the public interest. Finally, the Elections Comptroller has not presented any compelling government interest that outweighs the freedom of political expression." (Docket No. 17), and issued a preliminary injunction prohibiting the Elections Comptroller from enforcing OCE-DET-2020-02 as to the personal social media accounts of plaintiff mayors. Id. Moreover, the Court ordered both the plaintiff and Elections Comptroller to show cause by Monday, August 17, 2020 "as to why the Court should not convert its preliminary injunction to a permanent one and enter judgment accordingly."

Plaintiff complied. (Docket No. 21) Defendant filed a Memorandum in compliance and Motion to reconsider and Set Aside Preliminary Injunction (Docket No. 23) arguing that the Court committed manifest error of law by granting the preliminary injunction. Namely, Defendant contends the Court erroneously held OEC's Determination OCE-DET-2020-02 "patently unconstitutional on its face as applied to private social media accounts of candidates seeking reelection or another elected government position." (Docket No. 17). In essence, Defendant argues that "[the Determination does not abridge free speech and was tailored to serve compelling government interests: to avoid the unconstitutional utilization of public funds and deter corruption." Moreover, he posits that it "allows all mayors to freely express themselves through their personal or private campaign media accounts. What the Determination forbids is the use of public funds or resources for electioneering purposes during the period known as the ‘veda electoral.’ " (Docket No. 23 at 13).

Plaintiff responded in opposition, arguing: 1) that "the main argument against plaintiffs’ claim remains an audacious contention that neither the appearing parties, nor the Court, were able to correctly read OCE-DET-2020-02 and comprehend its scope", and 2) The plain language of OCE-DET-2020-02, clearly means to censor the content of plaintiffs’ personal electronic media if they use any identifiers of the office that they hold, in which case, they may not engage in political/campaign speech. The hard fact is that the government has no business regulating the political speech of its citizens, absent a very compelling public interest. (Docket No. 24).

A. OCE-DET-2020-02

The Office of the Puerto Rico Elections Comptroller, created by Puerto Rico Law 222 of November 18, 2011, as amended, P.R. LAWS ANN . tit. 16, § 621, et seq. , has statutory authority to monitor official government web and social media pages for improper political content and to level administrative fines against those who violate this norm.

Specifically, with regard to web and social media pages of government entities, Article 10.006 (4) provides that:

Web pages and portals of the three branches of the Government and of municipal governments, including their respective official contents on social media , may continue to operate and be broadcasted, as long as they do not include any display of achievements, messages, slogans or symbols related to political campaigns; and they do not favor or disfavor the figure or image of any elected official or of any contender or candidate for public office by election .

In the event that a breach is detected or a complaint is lodged in relation to the prohibitions of this paragraph, the public entity involved may be required to make the necessary modifications and adjustments or even to immediately refrain from any further cybernetic publication whatsoever.

In order to enforce the aforementioned restrictions, the Act delegated in the OEC the passing of regulations to establish rules and procedures for evaluating and awarding public broadcasting expenses financed with Government of Puerto Rico funds, pursuant to clear, objective and uniform parameters. In compliance with the mandate of the Act, the OEC passed Regulations No. 39 on Oversight of Public Broadcasting Expenses (hereinafter "Regulations 39"). Section 2.9 of said Regulations established the criteria for evaluating web and social media pages of government entities.

(Docket No. 10-1 at 3) (emphasis in original. In keeping with these Regulations, the OEC has the power to review web and social media pages to detect any potential violation of Article 10.006 of Act 222 or these Regulations. (Docket No. 10-1 at 2-3) (In re: Official Web and Social Media Pages of Government Entities and Chief Officers, OCE-DET-2020-02, DECISION ON THE OFFICIAL WEB AND SOCIAL MEDIA PAGES OF GOVERNMENT ENTITIES AND CHIEF OFFICERS.)¹

Circular Letter OCE-DET-2020-02 further extends its scope. "[I]in addition to official pages of government entities," individual social media accounts or pages may be considered official individual social media pages or accounts if: 1) these are accessible to the public-at-large, regardless of their classification, and 2) their "content ... is provided by a Main Official, either elected or not or by persons directly supervised by the Main Official, be they public employees, contractors or volunteers, and who promote the Main Official by performing official duties or identifying him/her by his/her post as a Main Official."

To determine whether a page is of an official nature, even if the page is published on a platform that is not controlled or created by the government entity or the Chief Officer, such as, for example, Facebook, Twitter, Instagram, YouTube, among others, the OEC shall examine one or more of the following factors, which were considered in Knight First Amendment Institute v. Trump, [928 F.3d 226, 239–40 (2d Cir. 2019) ] and Davison v. Randall, [912 F.3d 666, 682 (4th Cir. 2019) ], to determine whether a page published on the Internet or social media is official or private:

1. Whether or not the Chief Officer is identified on the web or social media page with the public position that he holds (either through a description, seals, symbols or logos used on the page);

2. Whether or not the Chief Officer uses the web page or social media account to publish official business that he conducts in his capacity as Chief Officer;

3. How other agencies or their Chief Officers refer to and treat the web page or social media account.

4. Whether employees are used during governmental work time, facilities or resources, or such services are paid for through public funds.

(Docket Nos. 10-1 at 22-1 at 3.) The determination further clarifies the meaning of "use of public funds, "the fact that the government entity does not use its funds to maintain the page or the contents of the account of the Chief Officer in his social media account of preference does not exempt the entity from the application" of the aforementioned policy. (Docket Nos. 10-1 at 3; 22-1 at 4). "The mere use of employees during work hours, including the work hours of the Chief Officer himself, or of government facilities, is included in the...