United States Court of Appeals
For the First Circuit
No. 23-1626
SANDRA RODRÍGUEZ-COTTO; RAFELLI GONZÁLEZ-COTTO,
Plaintiffs, Appellees,
v.
JENNIFFER A. GONZÁLEZ-COLÓN, Governor of Puerto Rico, in the
official capacity and as representative of the Commonwealth of
Puerto Rico; LOURDES L. GÓMEZ TORRES, Secretary of the
Department of Justice, in the official capacity; ARTURO GARFFER,
Secretary of Puerto Rico Department of Public Safety, in the
official capacity; JOSEPH GONZÁLEZ FALCÓN, Commissioner of the
Puerto Rico Police Bureau,*
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Gelpí, Hamilton,** and Aframe,
Circuit Judges.
* Pursuant to Fed. R. App. 43(c)(2), Jenniffer A.
González-Colón has been substituted for Pedro R. Pierluisi-Urrutia
as Governor of Puerto Rico, Lourdes L. Gómez Torres has been
substituted for Domingo Emanuelli Hernández as Secretary of the
Department of Justice, Arturo Garffer has been substituted for
Alexis Torres Rios as Secretary of Puerto Rico Department of Public Safety, and Joseph González Falcón has been substituted for Antonio Lopez-Figueroa as Commissioner of the Puerto Rico Police Bureau.
** Of the Seventh Circuit, sitting by designation.
Francisco J. González-Magaz, with whom Francisco González
P.S.C. and Omar Andino Figueroa, Solicitor General of Puerto Rico,
were on brief, for appellant.
Brian Hauss, with whom Tyler Takemoto, Scarlet Kim, American
Civil Liberties Union Foundation, and Fermín L. Arraiza-Navas,
American Civil Liberties Union of Puerto Rico, were on brief, for
appellee.
Bradley D. Jones, Shelby Kostolni, and Stinson LLP on brief
for Hon. Frank J. Bailey, Hon. Eugene R. Wedoff, Hon. Bruce A.
Markell, and Professor David R. Kuney, as amicus curiae, in support of appellees.
Gabriel Rottman, Mara Gassmann, Reporters Committee for
Freedom of the Press, and University of Virginia School of Law
First Amendment Clinic, on brief for The Reporters Committee for
Freedom of the Press, The Center for Investigative Reporting, Inc., Dow Jones & Company, Inc., First Amendment Coalition, Hearst Corp., The Inter American Press Association, The Massachusetts Newspaper
Publishers Association, The McClatchy Company, LLC, The Media
Institute, The National Freedom of Information Coalition, National
Newspaper Association, National Press Photographers Association,
New England Newspaper and Press Association, Inc., The New York
Times Company, Radio Television Digital News Association, The
Society of Environmental Journalists, Society of Professional
Journalists, Student Press Law Center, and Time USA, LLC, as amicus curiae, in support of appellees.
Clare R. Norins and First Amendment Clinic, University of
Georgia School of Law, on brief for The Electronic Frontier
Foundation, The Foundation for Individual Rights and Expression,
Free Press, Freedom of the Press Foundation, and PEN American
Center, Inc., as amicus curiae, in support of appellees.
August 4, 2026
GELPÍ, Circuit Judge. Puerto Rico enacted Law 20 to
promote the public safety of its citizenry during emergencies and
disasters. Article 5.14(a) of Law 20 criminalizes certain false
statements made during governor-declared emergencies. See P.R.
Laws Ann. tit. 25, § 3654(a). Today, we consider the
constitutionality of this provision.
Sandra D. Rodríguez-Cotto and Rafelli González-Cotto
(the "Journalists") filed an action under 42 U.S.C. § 1983 against
the Governor of Puerto Rico and other officials1 (collectively,
the "Government") seeking a declaratory judgment that
Article 5.14(a) facially violates the First Amendment, alongside
an injunction barring its enforcement. The district court granted
relief to the Journalists. Because we conclude that the
challenged provision is a content-based regulation that does not
survive strict scrutiny, we affirm.
I.
In 2017, Puerto Rico enacted the Puerto Rico Department
of Public Safety Act, also known as Law 20. Law 20 grants the
Governor of Puerto Rico several powers, including the ability to
"declare through a proclamation that a state of emergency or
disaster exists" during "emergency or disaster situations." 2
1 These officials include the Secretary of the Department
of Justice, the Secretary of the Puerto Rico Department of Public
Safety, and the Commissioner of the Puerto Rico Police Bureau.
2 Law 20 defines emergency as "any situation or
- 3 -§ 3650. As originally enacted, Article 5.14 of Law 20
criminalized, among other offenses, raising false alarms regarding
"the imminent occurrence of a catastrophe in Puerto Rico" and
spreading rumors or giving false alarms "about non-existent
abnormalities" during a declared state of emergency.3 On March 12,
2020, then-Governor Wanda Vázquez-Garced declared a state of
emergency because of the COVID-19 pandemic.4 Less than a month
later, on April 5, 2020, Article 5.14 was amended to criminalize
the "transmission . . . through any social network or mass media"
of "false information with the intention of creating confusion,
panic or collective public hysteria, with respect to any
proclamation or executive order decreeing a state of
emergency . . . ." The amendment was intended to discourage
"conduct undermin[ing] the safety of the people and the social
order" that "endanger[ed] the health and lives of citizens."
circumstance that warrants the necessary state and municipal
efforts geared towards saving lives and protecting property,
health, and public safety, or minimizing or avoiding the risk of
a disaster in any part of Puerto Rico" and disaster as "an event
that results in damages to the property as well as deaths and/or
injuries in one or more communities." Id. § 3643(c), (e).
3 This provision was originally located at Article 6.14,
but it was renumbered as Article 5.14 in 2020. To avoid confusion,
we refer to it as Article 5.14 throughout this opinion.
4 The state of emergency due to the COVID-19 pandemic
lasted three years. Other states of emergency were declared in
September 2017 due to Hurricane Maria, in January 2020 due to an
earthquake, and in May 2024 due to torrential rains.
- 4 -The Journalists conduct independent, investigative
reporting covering the Puerto Rican government. During the
COVID-19 pandemic, the Journalists reported, among other things,
on the effects of the pandemic on Puerto Rico and the government's
handling of the emergency. They published numerous articles
critical of the Government's actions during this period.
In May 2020, the Journalists filed this action
challenging Article 5.14(a) on First and Fourteenth Amendment
grounds. On July 13, 2020, the Governor signed P.R. Law No.
66-2020 ("Law 66"), which substantially amended Article 5.14 by
modifying section (a) and deleting a different section that had
been added just three months earlier. After the Law 66 amendment,
section (a) of Article 5.14 made it a crime for a person to
purposefully, knowingly, or recklessly
[g]ive[] a warning or false alarm, knowing
that the information is false, in relation to
the imminent occurrence of a catastrophe in
Puerto Rico, or 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 its conduct it puts the life,
health, bodily integrity or safety of one or
more persons at imminent risk, or endangers
public or private property[,]
during a governor-declared state emergency or disaster.
§ 3654(a). Violating Article 5.14(a) constitutes a misdemeanor
- 5 -punishable by a maximum of six months' imprisonment, a $5,000 fine,
or both; however, if the "notice or false alarm" causes over
$10,000 in damages, the offense becomes a felony punishable by a
"fixed term" of three years' imprisonment. Id.
In response to post-complaint changes to Article 5.14(a)
made by Law 66, the Journalists filed an amended complaint and
renewed their request for a preliminary injunction, asserting that
the enacted changes did not cure the constitutional deficiencies
of Article 5.14. In due course, the district court consolidated
the Journalists' request for preliminary and permanent injunctive
relief. See Fed. R. Civ. P. 65(a)(2).5 It then determined that
Article 5.14(a) was unconstitutional and entered a permanent
injunction barring Puerto Rico from enforcing the law.
In so doing, the district court found that
Article 5.14(a) is content-based because it distinguishes between
true and false speech. Applying strict scrutiny, the district
court acknowledged the Government's compelling interest in
protecting lives and property during emergencies but found no
evidence that the statute's broad speech restrictions were
necessary to achieve that goal. The court further concluded that,
5 Before consolidating, the district court gave both
parties two weeks to inform the court of any "special measures"
required for consolidation, and to "supplement their brief[s] on
issues awaiting disposition." Neither party requested special
measures nor moved to supplement their filings.
- 6 -unlike other false statement statutes, Article 5.14(a) lacked
meaningful limiting features and was impermissibly over and
underinclusive. Ultimately, the court held that Article 5.14(a)
could "not be enforced consistently with the First Amendment."
After unsuccessfully seeking reconsideration, the Government
timely appealed.6
II.
We review a district court's grant of a permanent
injunction for abuse of discretion, assessing conclusions of law
de novo and factual findings for clear error. Shell Co. (P.R.)
v. Los Frailes Serv. Station, Inc., 605 F.3d 10, 19 (1st Cir.
2010); García v. State Ins. Fund Corp., 169 F.4th 13, 21 (1st Cir.
2026).
III.
On appeal, the Government asserts the district court
erred by failing to conclude that (1) Garrison v. Louisiana, 379
U.S. 64 (1964) and Frese v. Formella, 53 F.4th 1 (1st Cir. 2022)
place Article 5.14(a) beyond the First Amendment's reach and that
(2) Article 5.14(a) is not a content-based regulation warranting
strict scrutiny. It also contends that Article 5.14(a) should
6 We asked the parties to brief all issues, including
whether the Puerto Rico Oversight, Management, and Economic
Stability Act ("PROMESA") barred this action. Because the parties
agree that PROMESA does not bar this appeal, we assume that we may
entertain it consistent with PROMESA.
- 7 -survive strict scrutiny if that standard were to be applied. We
address these arguments in turn.
A.
The First Amendment "prohibits the enactment of laws
'abridging the freedom of speech.'" Reed v. Town of Gilbert,
Ariz., 576 U.S. 155, 163 (2015) (quoting U.S. Const. amend. I).7
Generally, this "means that government has no power to restrict
expression because of its message, its ideas, its subject matter,
or its content." Alvarez, 567 U.S. at 716 (citation modified).
There are, however, a "few" exceptions to this general rule. Id.
at 717. These exceptions enable the government to restrict speech
based on its content and are confined to certain "historic and
traditional categories of expression long familiar to the bar,"
such as incitement, obscenity, defamation, speech integral to
criminal conduct, and fighting words. Id. (citation modified).
These types of unprotected expression operate as a
presumptively closed set: "[N]ew categories of unprotected speech
may not be added to the list by a legislature that concludes
certain speech is too harmful to be tolerated." Brown v. Ent.
Merchants Ass'n, 564 U.S. 786, 791 (2011). Nor do courts have
"freewheeling authority to declare new categories of speech
7 The amendment applies "to the States through the
Fourteenth Amendment," Reed, 576 U.S. at 163, and to Puerto Rico
as a territory, see Pérez-Guzmán v. Gracia, 346 F.3d 229, 231 n.1
(1st Cir. 2003).
- 8 -outside the scope of the First Amendment." Alvarez, 567 U.S. at
722 (quoting United States v. Stevens, 559 U.S. 460, 472 (2010));
cf. Nat'l Inst. of Family & Life Advocates v. Becerra, 585 U.S.
755, 767 (2018) (declining to exempt "professional speech" from
First Amendment protections). Only when offered "persuasive
evidence that a novel restriction on content is part of a long (if
heretofore unrecognized) tradition of proscription" may a court
decide that a category of speech is unprotected by the First
Amendment. Ent. Merchants Ass'n, 564 U.S. at 792.
The Government nonetheless urges that Article 5.14(a)
falls within the scope of First Amendment permissibility.
Specifically, it contends that Puerto Rico's false reporting
statute is constitutional because it criminalizes only knowingly
or recklessly false statements. In support of this argument, it
suggest that two cases, Garrison, 379 U.S. 64, and Frese, 53 F.4th
1, hold statements of this sort to be outside the First Amendment's
ambit. The Government misreads those cases.
Garrison and Frese involve criminal defamation statutes,
see Garrison, 379 U.S. at 65; Frese, 39 F.4th at 6; they thus fall
within one of the historic and traditional exceptions to the
protections for content-based speech. See Stevens, 559 U.S. at
468-69. These cases therefore stand only for the proposition that
defamatory speech made knowingly or recklessly is unprotected by
the First Amendment. See Garrison, 379 U.S. at 73 ("[E]ven where
- 9 -the utterance is false, the great principles of the Constitution
which secure freedom of expression in this area preclude attaching
adverse consequences to any except the knowing or reckless
falsehood." (emphasis added)). Critically, these types of
defamation cases involve false statements that cause a "legally
cognizable harm" to reputation. In contrast, Article 5.14(a)
"targets falsity and nothing more." Alvarez, 567 U.S. at 719.
Contrary to the Government's suggestion, there is no historical
category of unprotected speech for all speech that is knowingly
false or made with reckless disregard of the truth.
Alvarez supports this conclusion. There, the
four-justice plurality "reject[ed] the notion that false speech
should be in a general category that is presumptively unprotected."
567 U.S. at 722; see also id. at 718 (noting there is not "any
general exception to the First Amendment for false statements").
And the two concurring justices likewise recognized that false
statements generally merited First Amendment protection. See id.
at 731-32 (Breyer, J., concurring in the judgment); 281 Care Comm.
v. Arneson, 766 F.3d 774, 783 (8th Cir. 2014) ("[A]ll six
[j]ustices in Alvarez agreed that false statements do not represent
a category of speech altogether exempt from First Amendment
protection."); Animal Legal Def. Fund v. Kelly, 9 F.4th 1219, 1232
(10th Cir. 2021) (same).
Article 5.14(a) is not a criminal defamation statute,
- 10 -nor does it fall under any other category exempted from First
Amendment protection. Accordingly, the law merits additional
First Amendment analysis.
B.
The initial step in that analysis is to identify the
appropriate level of scrutiny to apply. To do so, we must
determine whether Article 5.14(a) is a content-based or
content-neutral law because content-based laws generally merit
strict scrutiny while content-neutral laws usually receive only
intermediate scrutiny. See Signs for Jesus v. Town of Pembroke,
977 F.3d 93, 101 (1st Cir. 2020).
A law regulating speech is content-based if it
"target[s] speech based on its communicative content." Reed, 576
U.S. at 163. Otherwise stated, content-based laws regulate speech
"because of the topic discussed or the idea or message expressed."
Id. We must therefore consider whether Article 5.14(a) "'on its
face' draws distinctions based on the message a speaker conveys."
Id. We conduct this inquiry by asking whether "'enforcement
authorities' [must] 'examine the content of the message that is
conveyed to determine whether' a violation has occurred."
McCullen v. Coakley, 573 U.S. 464, 479 (2014) (quoting FCC v.
League of Women Voters of Cal., 468 U.S. 364, 383 (1984)).
These principles dictate that Article 5.14(a), a statute
"target[ing] falsity and nothing more," is inherently
- 11 -content-based because an official would have to determine the
veracity of a speaker's statement to decide whether the law was
violated. Alvarez, 567 U.S. at 719. The Government disagrees,
contending that Article 5.14(a) is content-neutral because
liability under the statute depends "not [on] the content of the
speech, but whether it takes the form of a warning or an alert, or
if it results in a risk to public safety." That argument fails.
Article 5.14(a) criminalizes the provision or dissemination of a
"warning or false alarm, knowing that the information is false."
P.R. Laws Ann. tit. 25, § 3654(a). The "falsity" requirement
requires an assessment of the veracity of the speaker's words.
Since a violation of the statute "depends . . . on what [a person]
say[s]" and how an official construes that statement,
Article 5.14(a) is content-based. McCullen, 573 U.S. at 479
(quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 27 (2010))
(citation modified).
Moreover, Article 5.14(a) contains other provisions that
implicate content. First, it targets false speech "in relation
to the imminent occurrence of a catastrophe in Puerto Rico."
§ 3654(a). Thus, only a subset of false statements is covered and
that subset is defined by content, i.e., whether the statement is
related to a catastrophe. Such a provision closely resembles the
content-based law at issue in Alvarez, which governed false
statements about military decorations and awards. 567 U.S. at
- 12 -717; see also Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473
(6th Cir. 2016) (holding a false statement law "govern[ing] speech
about political candidates during an election" was content-based).
Second, Article 5.14(a) prohibits the distribution of
false information that "as a result . . . puts the life, health,
bodily integrity or safety of one or more persons at imminent risk,
or endangers . . . property." § 3654(a). This provision
concerns how false speech affects listeners, which also renders it
content based. See Forsyth Cnty., Ga. v. Nationalist Movement,
505 U.S. 123, 134 (1992) ("Listeners' reaction to speech is not a
content-neutral basis for regulation"); Bible Believers v. Wayne
Cnty., Mich., 805 F.3d 228, 252 (6th Cir. 2015) (holding that a
"message does not lose its protection under the First Amendment
due to the . . . reaction of those who hear it").
Having determined that Article 5.14(a) is a
content-based restriction, there is one remaining wrinkle in
determining the applicable level of scrutiny. The plurality in
Alvarez concluded that the false statements statute at issue there
merited the "most exacting scrutiny."8 567 U.S. at 724 (citation
modified). That view is consistent with the Supreme Court's
typical position that "laws regulating speech based on its subject
8 In this context, "'most exacting scrutiny' is
interchangeable with strict scrutiny." 281 Care Comm., 766 F.3d at 783 n.7.
- 13 -matter or communicative content are presumptively
unconstitutional" and thus "content-based restrictions trigger
strict scrutiny." Chiles v. Salazar, 607 U.S. 627, 640 (2026)
(citation modified). However, Justice Breyer's concurring opinion
in Alvarez suggested that while "[l]aws restricting false
statements about philosophy, religion, history, the social
sciences, the arts, and the like . . . call[] for strict
scrutiny," laws "concern[ing] false statements about easily
verifiable facts" warrant only intermediate scrutiny. Id. at 732
(Breyer, J., concurring). Generally, the Supreme Court has not
adopted Justice Breyer's view that lesser forms of scrutiny should
apply to certain types of content-based regulations.9 David S.
Han, Transparency in First Amendment Doctrine, 65 Emory L.J. 359,
398 (2015) (discussing the Supreme Court's "preference for th[e]
nearly categorical application of strict scrutiny in cases
involving content-based speech restrictions").
In any case, Article 5.14(a) is not the kind of
regulation governing "false statements about easily verifiable
facts" to which Justice Breyer would apply less rigorous scrutiny.
Alvarez, 567 U.S. at 732 (Breyer, J., concurring). As we have
9 Justice Breyer has offered variations of this argument
in multiple First Amendment contexts. E.g., Reed, 576 U.S. at
176-77; Barr v. Am. Assoc. of Pol. Consultants, Inc., 591 U.S.
610, 645 (2020) (Breyer, J., concurring in part); Sorrell v. IMS
Health, 564 U.S. 552, 585-86 (Breyer, J., dissenting).
- 14 -discussed, Article 5.14(a) covers statements related "to the
imminent occurrence of a catastrophe in Puerto Rico." § 3654(a).
In times of disaster and emergency covered by the statute, there
are many kinds of false statements regulated by Article 5.14(a)
that would not be easily or quickly verifiable. Consider, for
example, statements about the efficacy of masks during the COVID-19
pandemic or the damage likely to arise from a storm that is
presently offshore. These are assertions for which there is not
easy verification but that would be covered by Article 5.14(a).
Moreover, given that the law is about restricting speech related
to a governor's action in declaring a state of emergency or
disaster, Article 5.14(a) may operate in a "political context[],"
which brings it outside the kinds of falsity laws that Justice
Breyer views as permissible under his proposed lesser form of
scrutiny. Alvarez, 567 U.S. at 738 (Breyer, J., concurring). In
sum, Article 5.14(a) is the kind of content-based regulation that
should be subjected to strict scrutiny under the Alvarez plurality
and concurrence.
C.
Strict scrutiny "requires the Government to prove that
the restriction furthers a compelling interest and is narrowly
tailored to achieve that interest." Reed, 576 U.S. at 171
(citation modified). It is "the most demanding test known to
constitutional law." City of Boerne v. Flores, 521 U.S. 507, 534
- 15 -(1997); see also Free Speech Coal., Inc. v. Paxton, 606 U.S. 461,
484 (2025) (noting the standard is "unforgiving"). The Government
cannot meet that most exacting standard here.
The Government asserts that Article 5.14(a) serves
Puerto Rico's compelling interest in limiting false information
that risks public safety during an emergency. We acknowledge that
this objective is "not without significance," Alvarez, 567 U.S. at
724, particularly during the kinds of natural disasters and public
health crises that have caused states of emergency in Puerto Rico.
See, e.g., Does 1-6 v. Mills, 16 F.4th 20, 32 (1st Cir. 2021) ("Few
interests are more compelling than protecting public health
against a deadly virus.").
However, this is not the end of the inquiry. See
Alvarez, 567 U.S. at 725. The Government must also show that
Article 5.14(a) is "narrowly drawn" to serve and "actually
necessary" to achieve its compelling interest. Ent. Merchants
Ass'n, 564 U.S. at 799. Narrow tailoring requires a
"demonstrat[ion] that alternative measures that burden
substantially less speech would fail to achieve the government's
interests, not simply that the chosen route is easier." McCullen,
573 U.S. at 467. Here, the Government asserts -- with little
substantiation -- that the statute is the "least restrictive means
to ensure the free and trusting exchange of information during an
emergency."
- 16 -A comparison of Article 5.14(a) with other false
reporting statutes illustrates that the Puerto Rican regulation is
far from the least restrictive means for achieving the Government's
aim. Cf. Alvarez, 567 U.S. at 720-21 (discussing other false
statement statutes when assessing the Stolen Valor Act).
Generally, regulations on false assertions comport with the First
Amendment when they contain "limitations of context, requirements
of proof of injury, and the like" which "narrow the statute to a
subset of lies where [the] specific harm is more likely to occur."
Id. at 736 (Breyer, J., concurring). Certain false reporting or
false alarm statutes pass constitutional muster because they
"require proof that substantial public harm be directly
foreseeable, or, if not, involve false statements that are very
likely to bring about that harm." Id. at 735 (Breyer, J.,
concurring) (referring to 47 C.F.R. § 73.1217, the Federal
Communications Commission's ("FCC") Broadcast Hoaxes rule, and 18
U.S.C. § 1038, the federal false information and hoaxes statute).
The Government asserts that Article 5.14(a) is one such
statute because it is "based [on] and significantly similar to
Section 250.3" of the Model Penal Code ("MPC"), which
"[p]resumably" would not contain unconstitutional language. 10
10 Section 250.3 provides that
A person is guilty of a misdemeanor if he
initiates or circulates a report or warning
of an impending bombing or other crime or
- 17 -Section 250.3 limits its scope to require the speaker to know that
the false report "is likely" to cause harm. See MPC § 250.3. And
the FCC's Broadcast Hoaxes rule goes even a step further: To incur
liability under this rule, it must be "foreseeable that
broadcast[ing] [false] information will cause substantial public
harm" and the broadcast must actually and "directly cause
substantial public harm." 47 C.F.R. § 73.1217(a). But even if
Article 5.14(a) was modeled on one of these rules, the Puerto Rican
statute does not contain analogous limitations. Under
Article 5.14(a), liability attaches "when as a result" of making
a false statement, persons or property are put "at imminent risk."
P.R. Laws Ann. tit. 25, § 3654(a). No actual harm is required,
no knowledge that a harm is likely to occur is mandated, and "risk"
is undefined. "[I]mminent risk" is thus an inherently nebulous
concept that provides little protection for a speaker. As such,
Article 5.14(a) is far broader than both section 250.3, on which
the Government relies, and the Broadcast Hoaxes rule, which was
cited approvingly by Justice Breyer.
Moreover, Article 5.14(a) is unbounded in other
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.
MPC § 250.3 (Am. Law. Inst. 1980).
- 18 -dimensions. The federal hoaxes statute, also referenced by
Justice Breyer in Alvarez, criminalizes the conveyance of false or
misleading information (1) "where such information may reasonably
be believed" and (2) when the information relates to specific
violations of federal law or about the armed forces. See 18 U.S.C.
§ 1038(a). By contrast, Article 5.14(a) contains no such
restrictions. As we have already explained, the regulation
establishes liability if there is an "imminent risk" of personal
or property harm, regardless of what listeners actually believe.
Moreover, and as the Government concedes here, Article 5.14(a)
could cover even "incredible assertions" so long as the statements
are "in relation to the imminent occurrence of a catastrophe in
Puerto Rico." § 3654(a). The law could even cover jokes, satire,
or fiction.11 Compare with 47 C.F.R. § 73.1217(b) (permitting an
exemption from the broadcast hoax rule if a program is accompanied
by a disclaimer that it is fiction). We further note that, unlike
the FCC's Broadcast Hoaxes regulation, 47 C.F.R. § 73.1217(c),
"catastrophe" appears to be undefined in Law 20, adding to our
11 At oral argument, the Government suggested that whether
liability would attach to a humorist stating King Kong and Godzilla were coming to destroy the island of Puerto Rico --in the vein of
Orson Welles' faux radio broadcast of an alien invasion, The War
of the Worlds -- could be a matter that is left to prosecutorial
discretion because such a scenario would fit within the text of
Article 5.14(a). That Article 5.14(a) could result in liability
for even such statements further indicates it would have a
significant chilling effect on free speech and is not narrowly
tailored.
- 19 -concern that Article 5.14(a) could be construed to reach
innumerable statements regardless of their relation to public
emergencies.
The Government also claims that a saving limitation on
Article 5.14(a) is that it operates only during states of
emergency. But Law 20 permits the Governor to declare such
emergencies through proclamation, and since the law's enactment in
2017, at least four states of emergency have been declared, with
one spanning over three years. Where "governmental power has no
clear limiting principle," there is the potential for the
government to exercise "broad censorial power" that chills free
speech. Alvarez, 567 U.S. at 723. We should be wary of
regulations like Article 5.14(a) that permit the Government to so
quell speech.
The Government has also failed to show that
Article 5.14(a) is necessary to achieve its goals. Strict
scrutiny requires that there "be a direct causal link between the
restriction imposed and the injury to be prevented." Alvarez, 567
U.S. at 725. Although the Government asserts that such a link
exists, it "points to no evidence to support its claim" that the
kinds of false information regulated by Article 5.14(a) endanger
public safety during states of emergency. Id. at 726. Without
such evidence, the Government cannot establish this necessary
causal link. See United States v. Playboy Ent. Grp., Inc., 529
- 20 -U.S. 803, 819 (2000) (requiring a "careful assessment and
characterization of an evil in order to justify" a sweeping speech
regulation).
Finally, the Government "has not shown, and cannot show,
why counter[ ]speech would not suffice to achieve its interest."
Alvarez, 567 U.S. at 726. The Government asserts -- without
record support -- that counter speech would be ineffective because
"[o]nce the false information is released, the damage is done."
This does not explain why counter speech would be inadequate to
achieve its interest. Consider again the COVID-19 pandemic.
Statements arguing that masks are ineffective to stop disease
transmission could be countered by government messaging explaining
the benefits of wearing masks. Perhaps there are false statements
that immediately cause harm such that counter speech would be
ineffective, but this law is not limited to that category.
In short, Article 5.14(a) does not meet the exacting
standard of strict scrutiny.12 It represents an impermissible
restriction of speech, particularly during times of emergency when
it is most imperative that the public be well-informed and the
government held to account. "[S]ince informed public opinion is
the most potent of all restraints upon misgovernment," we look
12 Given all that we have discussed here, we think the
statute would also fail to survive intermediate scrutiny, even if
that were the appropriate standard.
- 21 -upon such a restriction "with grave concern." Grosjean v. Am.
Press Co., 297 U.S. 233, 250 (1936). The district court correctly
determined that Article 5.14(a) violates the First and Fourteenth
Amendments.
IV.
For these reasons, we affirm.
- 22 -