First Circuit Strikes Down Puerto Rico’s Emergency Misinformation Law, Citing First Amendment
A unanimous federal appeals court has struck down a Puerto Rico statute that criminalized false warnings and misinformation during declared states of emergency, delivering a significant constitutional victory for press freedom and free speech. The U.S. Court of Appeals for the First Circuit ruled on Aug. 4 that Article 5.14(a) of Puerto Rico’s Law 20 violated the First Amendment because it gave the government sweeping power to punish speech based on its truthfulness without adequate safeguards. The case arose from the territory’s response to the coronavirus pandemic, when officials invoked the statute to prosecute a pastor accused of spreading false rumors and to threaten journalists who critically covered the government’s handling of the crisis. Writing for a three-judge panel, Judge Gustavo A. Gelpí acknowledged that Puerto Rico had a legitimate interest in limiting false information that endangers public safety, but held that the statute was a content-based restriction on speech that failed strict scrutiny. The ruling reinforces the principle that the First Amendment does not recede during emergencies, and that the proper response to harmful misinformation is more speech, not censorship. The Puerto Rico Department of Justice filed a petition for rehearing before the full First Circuit on Aug. 18, signaling that the legal battle over the scope of emergency powers and misinformation is not yet over.
The statute at issue was originally enacted to combat the intentional spread of false information during disasters and crises, but its broad language gave prosecutors dangerous discretion. Article 5.14(a) made it unlawful during a declared state of emergency for any person to purposefully, knowingly, or recklessly give “a warning or false alarm, knowing that the information is false, in relation to the imminent occurrence of a catastrophe in Puerto Rico” if that speech placed the safety of one or more persons at imminent risk or endangered public or private property. A violation was initially punishable as a misdemeanor with up to six months in prison and a $5,000 fine, but if the underlying conduct caused more than $10,000 in damages, the offense became a felony carrying a fixed three-year prison term. The law was activated by executive order, meaning the governor could unilaterally expand criminal liability for speech by declaring a state of emergency. Because the statute failed to define key terms such as “imminent risk” and did not require that the speaker’s false statement cause substantial public harm, the First Circuit found it was impermissibly vague and overbroad. The court acknowledged that the government has a compelling interest in protecting public safety, especially during a public health emergency, but concluded that the statute was not narrowly tailored to achieve that interest. The court noted that less restrictive alternatives existed, including counter speech, such as government messaging to correct false claims about masks or vaccines. As Judge Gelpí wrote, “Statements arguing that masks are ineffective to stop disease transmission could be countered by government messaging explaining the benefits of wearing masks.” The threat of criminal punishment, the court warned, could deter speakers from making true statements, particularly during emergencies when accurate information is most critical.
The litigation began in May 2020, when a group of Puerto Rican journalists who reported critically on the government’s pandemic response filed a pre-enforcement challenge to the law. The lawsuit followed a series of events that exposed the statute’s chilling effect: in March 2020, then-Gov. Wanda Vázquez-Garced declared a state of emergency under Law 20, unlocking the misinformation provision. Within weeks, the Legislative Assembly amended the statute to make it a crime to transmit through social networks or mass media false information with the intention of creating confusion, panic, or collective hysteria regarding any proclamation or executive order declaring a state of emergency. The government used this amended law to charge Pastor José Luis Rivera Santiago, who allegedly spread a rumor on WhatsApp that the government was planning to order a complete shutdown of all businesses. According to officials, his message caused a rush on grocery stores. The Court of San Juan dismissed the prosecution for lack of probable cause, but the pastor’s arrest sent a warning to journalists: critical reporting during an emergency could expose them to criminal investigation. The plaintiff journalists argued that the law chilled their reporting, since a fast-moving crisis made inadvertent inaccuracies inevitable even in the most carefully vetted reporting. While the lawsuit was pending, the government revised the statute again, adding a mens rea requirement that made it punishable to knowingly or recklessly communicate false information that placed people or property at imminent risk. The district court later permanently enjoined the law, ruling that even as amended, it constituted a content-based restriction that failed strict scrutiny. Puerto Rico appealed to the First Circuit.
On appeal, the government raised two primary arguments. First, Puerto Rico argued that the statute only punished false statements made with knowledge of their falsity or with reckless disregard for the truth, a category of speech that it claimed was categorically unprotected by the First Amendment. The government pointed to Supreme Court decisions allowing defamation claims against those who knowingly or recklessly spread false statements, and argued that if lies harming one person’s reputation are punishable, then lies endangering public safety during an emergency should be equally punishable. The First Circuit rejected this reasoning, explaining that defamation is a historically unprotected category of speech and does not stand for the broader proposition that all knowing falsehoods lie outside the First Amendment. The court quoted United States v. Alvarez, in which a plurality of the Supreme Court rejected “the notion that false speech should be in a general category that is presumptively unprotected.” In Alvarez, the Supreme Court struck down the Stolen Valor Act, which criminalized false claims of receiving military medals. Justice Anthony Kennedy, writing for the plurality, declared that “[o]ur constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth,” referencing George Orwell’s dystopian novel Nineteen Eighty-Four. Puerto Rico also argued that even if the law regulated protected speech, it should receive intermediate scrutiny because it was content neutral, applying to any false warning regardless of its subject matter. The First Circuit disagreed, holding that a statute targeting false speech is inherently content-based because a court must examine the truthfulness of the speaker’s statement to determine whether a violation occurred. The panel therefore applied strict scrutiny, requiring Puerto Rico to prove that the statute was narrowly tailored to serve a compelling government interest.
The First Circuit’s strict scrutiny analysis focused on the law’s overbreadth and lack of adequate limitations. The court acknowledged that the government’s interest in limiting false information that endangers public safety is compelling, especially during a public health emergency. But it emphasized that the statute was not limited to lies about terrorism or crimes, which inherently create a clear and direct risk of substantial harm. Instead, the law imposed criminal liability whenever an intentionally false report placed persons or property at “imminent risk,” a term the court described as “nebulous” and undefined. As Justice Stephen Breyer observed in his concurrence in Alvarez, statutes that prohibit false claims about terrorist attacks or other catastrophes require proof that substantial public harm is directly foreseeable or very likely. The Puerto Rico statute lacked any such requirement, meaning a speaker could be prosecuted for a false warning that did not actually cause harm or even create a serious danger. The court also rejected the government’s argument that the statute’s limitation to declared states of emergency was narrowing. Since the governor had the unilateral power to declare an emergency, the government effectively controlled the scope of criminal liability. The court further held that the statute was not the least restrictive means of achieving the government’s interest. It cited the First Amendment’s commitment to counter speech, stating that false statements during the coronavirus pandemic could be corrected by official government messaging and public health campaigns. The panel concluded that the statute gave the government too much power to punish disfavored speech and could deter truthful reporting, particularly at moments when the public needs information most.
The decision has implications far beyond Puerto Rico, as it reinforces a negative theory of First Amendment freedom that is rooted in distrust of government power. Under this view, speech is protected not merely because it serves democratic goals or advances truth, but because governments cannot be trusted to police the boundary between true and false speech. The First Circuit’s ruling sends a clear signal that state and local governments cannot criminalize misinformation simply by declaring an emergency. Even when false warnings pose genuine risks to public safety, the government must use precision-drafted laws that target specific categories of harmful conduct, such as false claims of an imminent terrorist attack, and must require proof that the speech actually created a substantial risk of harm. The decision also reaffirms that the First Amendment applies with full force in times of crisis. As the court noted, it is precisely during emergencies that the public depends on a well-informed citizenry and a free press to hold government accountable. While Puerto Rico’s statute was animated by the understandable desire to prevent panic and protect lives during a pandemic, the First Circuit’s opinion stands as a reminder that fear cannot justify the suppression of speech. The future of the case is now in the hands of the full First Circuit, which may rehear the case en banc, but for now, the ruling stands as a landmark defense of the right to speak truthfully — and even falsely — without fear of criminal prosecution.
