In the height of the COVID-19 pandemic, when Puerto Rico passed a law attempting to ban “fake news,” two journalists feared the ban would open them to prosecutions against their reporting that was critical of the government, its officials, or their emergency response measures. Under the law, anyone accused could face up to three years in prison and thousands of dollars in fines.
The law targeted anyone accused of raising “a false alarm” or spreading false information that resulted in a risk to life, health, or property during a declared public emergency on the island. The ACLU and the ACLU of Puerto Rico filed suit to challenge the law in May 2020, representing Sandra Rodríguez Cotto and Rafelli González Cotto, both longtime journalists who have reported on public emergencies. The U.S. Court of Appeals for the First Circuit, which will decide the law’s constitutionality, heard oral arguments in the case in October.
“I believed it was essential to pursue this litigation because the government had crossed a line that threatened the very core of democratic participation,” said González Cotto. “When the state gives itself the power to decide what information is true or false, especially during an emergency, it opens the door to censorship, intimidation, and the silencing of legitimate scrutiny.”
In this installment of Press in Peril, we’ll examine the ACLU’s challenge to that law in Puerto Rico and why protecting “fake news” from government regulation protects all news.
Laws against misinformation can limit government accountability
The lawsuit argues that allowing the government to become the arbiter of public debate violates the First Amendment. In this case, the law attempted to criminalize reporting the government considers dangerously false, putting the rights of every journalist at risk and endangering the public in the process. In 2017, for instance, the governor’s chief of staff publicly accused Rodríguez Cotto of lying after she exposed the government’s severe undercount of the death toll from Hurricane Maria; had the law been in effect at that time, she could have been prosecuted.
Puerto Rico is hardly the only place that has introduced a “fake news” law, but if the law is allowed to stand, it will find itself in troubling company, as the University of Georgia Law School’s First Amendment Clinic pointed out in an amicus brief on behalf of free speech and free press groups. Hungary, for example, prohibits “imbalanced” coverage and requires outlets to register with the state. Russia has harshly punished journalists for their coverage of the government under the guise of combatting “false news.” Egypt has banned outlets for “publishing false news” about Israel and Gaza.
“A free people requires a free press,” says Brian Hauss, deputy director of the ACLU’s Speech, Privacy, and Technology Project and lead counsel on the case. “If the Trump Administration’s recent attacks on the media, from CBS News to Jimmy Kimmel, have taught us anything, it’s that the government can’t be allowed to dictate what we debate or how we debate it. But that’s exactly what this law tries to do.”
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How a COVID-era Law Banning ‘Fake News’ in Puerto Rico Targets the Press
