Rodriguez-Cotto v. Pierluisi-Urrutia
| Decision Date | 31 March 2023 |
| Docket Number | CIVIL 20-1235 (PAD) |
| Parties | SANDRA RODRÍGUEZ-COTTO, ET AL., Plaintiffs, v. PEDRO R. PIERLUISI-URRUTIA, ET AL., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
This is a pre-enforcement action by journalists Sandra Rodríguez-Cotto and Rafelli González-Cotto to enjoin, under the First Amendment, Article 5.14(a) of the Law of the Puerto Rico Department of Public Safety, Law No. 20 of 2017, P.R. Laws Ann. tit. 25, §§ 3501, et seq. (“Law 20”), which criminalizes some types of speech after the Governor has decreed a state of emergency or disaster in the Commonwealth.[1] For the reasons explained below, the challenged provision cannot be enforced. As drafted, it does not pass muster under the First Amendment.
Law 20 creates the Puerto Rico Department of Public Safety. See, P.R. Laws Ann. tit., 25 § 3503. It addresses various organizational and functional aspects of the Department's operation and includes a proviso related to states of emergency, catastrophes, and disasters. Id. at § 3654. To this end, as originally enacted as part of Law 20, Article 5.14(a) made it a crime to raise a false alarm in relation to the imminent occurrence of a catastrophe in Puerto Rico or, if there was a declared state of emergency or disaster, to spread rumors or raise a false alarm regarding non-existing abnormalities. See, Docket No. 24-1. On April 6, 2020, the Legislature amended Article 5.14 to add paragraph (f), which made it a crime to transmit 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, disaster or curfew. Id. Plaintiffs challenged these provisions, essentially alleging that they were overbroad and imposed an impermissible content-based restriction on speech. See, Docket No. 47.
While the challenge was pending, in July 2020, the Legislature amended Article 5.14 to eliminate paragraph (f) and amend paragraph (a) to make it a criminal offense for any person natural or legal, who, after the Governor of Puerto Rico has decreed by executive order a state of emergency or disaster, to purposely, knowingly or recklessly: (1) give a warning or false alarm, knowing that the information is false, in relation to the imminent occurrence of a catastrophe in Puerto Rico; or (2) disseminate, publish, transmit, transfer or circulate through any means of communication, including the media, social networks, or any other means of dissemination, publication or distribution of information, a notice or a false alarm, knowing that the information is false, when as a result of such conduct, the life, health, bodily integrity or safety of one or more persons are put at imminent risk or public or private property are endangered. See, Law No. 66 of 2020 (“Law 66”) (Docket No. 45-1, p. 2). A person found guilty of violating this provision commits a misdemeanor with a penalty of up to six months of imprisonment, a fine of not more than $5,000.00 dollars, or both penalties, at the discretion of the court. Id. Nonetheless, the speech is considered a felony, carrying an imprisonment term of three years, if the notice or false alarm results in damages exceeding $10,000.00 to the public purse, third parties, or public or private property, or the conduct results in injury or physical harm to another person. Id.
Article 5.14(a) derives from Article 20 of the Commonwealth of Puerto Rico Emergency Management and Disaster Administration Act, Law No. 211 of 1999, P.R. Laws Ann. tit. 25, § 172r (“Law 211”), which in turn originated in Article 26 of the Law for Civil Defense of Puerto Rico, Law No. 22 of 1976, P.R. Laws Ann. tit. 25, § 171 (“Law 22”). Law 20 repealed Law 211, and Law 211 repealed Law 22. See, P.R. Laws Ann. tit. 25, §§ 171-172 (2022 Supp.). Among other things, Article 20 of Law 211 made it a misdemeanor to raise “a false alarm with respect to the imminent occurrence of a catastrophe in Puerto Rico or spreading rumors or raising a false alarm regarding non-existing abnormalities under a state of emergency or disaster.” P.R. Laws Ann. tit. 25, § 172r(b). As for Article 26 of Law 22, it penalized as a misdemeanor giving a “false alarm with regard to the imminent occurrence of a catastrophe in Puerto Rico, or there existing already a state of emergency or disaster, spreads rumors or gives false alarms on nonexisting abnormalities.” P.R. Laws Ann. tit. 25, § 171y (1976).
These types of provisions, generally known as false reporting statutes, are not unique to Puerto Rico. See, Louis W. Tompros, et al., The Constitutionality of Criminalizing False Speech Made on Social Networking Sites in a Post-Alvarez, Social Media-Obsessed World, 31 Harv. J. L. & Tech. 65, 69 (2017)(“Many states have false reporting statutes that impose criminal liability on those who engage in false speech related to emergencies or natural catastrophes, regardless of the medium used to communicate that speech”). Most of those statutes derive “in part” from Section 250.3 of the American Law Institute's Model Penal Code. Tompros, supra. That Section, adopted in 1962, states:
A person is guilty of a misdemeanor if he initiates or circulates a report or warning of an impending bombing or other crime or catastrophe, knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm.
See, Model Penal Code § 250.3 (Am. Law Inst. 1980).[2]
On May 20, 2020, plaintiffs filed a “Complaint for Declaratory and Injunctive Relief” against the Governor, the Secretary of Justice, the Secretary of Public Safety, and the Police Commissioner of Puerto Rico (collectively, the “Government”), challenging under the First Amendment Articles 5.14(a) and (f) of Law 20, as amended by Law 66 (Docket No. 1). On May 22, 2020, plaintiffs moved for preliminary injunctive relief (Docket No. 4). On June 5, 2020, the Government opposed the motion (Docket No. 13). On June 10, 2020, plaintiffs replied (Docket No. 16). On June 15, 2020, the Government sur-replied (Docket No. 19).
On June 16, 22 and 23, and July 1, 2020, the court conducted teleconferences to discuss various litigation-related issues with counsel (Docket Nos. 21, 25, 28, and 30). On June 16, 2020, it ordered the parties to submit briefs on whether the anticipated amendments to Article 5.14 would moot the action (Docket No. 21). On June 23, 2020, plaintiffs filed a supplemental memorandum regarding the legislative bill, arguing that the contemplated changes would be unconstitutional (Docket No. 29). The same day, the Government presented its brief, asserting in the main that the proposed modifications would be substantial enough to moot the case (Docket No. 30).
On July 13, 2020, the legislative bill was enacted as Law 66 (Docket Nos. 35, p. 2; 45-1). On July 29, 2020, plaintiffs filed the Amended Complaint for declaratory and injunctive relief, challenging the constitutionality of Article 5.14(a), as amended by Law 66 (Docket No. 47), and renewed their request for a preliminary injunction (Docket No. 48). On August 13, 2020, PEN America Center, Inc., and the University of Georgia School of Law's First Amendment Clinic, moved for leave to file a brief as amici curiae in support of plaintiffs' renewed motion for preliminary injunction (Docket No. 53), which the court granted over the Government's opposition (Dockets Nos. 56, 59, and 60). On August 21, 2020, the Government opposed plaintiff's renewed motion for preliminary injunction (Docket No. 62). On August 28, 2020, plaintiffs replied to the Government's opposition (Docket No. 70). On September 9, 2020, the Government sur-replied to plaintiffs' reply (Docket No. 74).
Given that a renewed motion for preliminary injunction had been filed, on February 12, 2021, the court denied without prejudice plaintiffs' initial motion for preliminary injunction, (Docket No. 84). After reviewing the record, on July 5, 2022, the court expressed it was persuaded that the preliminary injunction phase should be consolidated with the request for permanent injunctive relief; ordered the parties to inform by July 19, 2022, if the court should consider special measures for consolidation; and provided that by that same date, the parties could supplement their brief on issues awaiting disposition (Docket No. 86). In response, the parties indicated that no special measures were needed for consolidation (Docket Nos. 87 and 88). Accordingly, on July 21, 2022, the court consolidated the preliminary and permanent relief phases for disposition (Docket No. 91). Given that no supplemental briefs were filed, the case is ripe for disposition.
On September 18, 2017, then-Governor Rosselló-Nevares declared a state of emergency due to the devastation caused by Hurricane María (Docket No. 23, p. 1). On January 7, 2020, then-Governor Vázquez-Garced declared a state of emergency due to the devastation caused by an earthquake. Id. On March 12, 2020, she declared a state of emergency due to the COVID-19 pandemic. Id. at p. 2. In late March 2020, the Commonwealth charged Pastor José Luis Rivera-Santiago under Article 5.14 of Law 20, in effect at that time, for allegedly creating a false alarm over the WhatsApp messaging platform. Id. On May 7, 2020, the charges were dismissed. Id. at p. 3.
Throughout their journalism career, plaintiffs have published numerous articles or participated in panels discussing states of emergencies in...
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