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.”
In 2023, a federal judge agreed and struck down the law: “Courts must be vigilant to ensure the First Amendment is not weakened during periods of declared emergencies. The watchdog function of speech is never more vital than during a large-scale crisis."
Can the government regulate fake news and hoaxes?
The law in Puerto Rico is startling precisely because of its broad language: it could let the government control all sorts of information during crises like a pandemic or a hurricane. Such sweeping censorial powers, and the attendant chilling effect on speech that differs from the government’s official narrative, could endanger people by limiting their news sources and deterring journalists and individuals from contradicting those in power. For example, as the Reporters Committee for Freedom of the Press described in an amicus brief on behalf of media organizations, “fake news” laws like the one in Puerto Rico could have deterred reporters from challenging the George W. Bush Administration’s attempts to downplay the devastation caused by Hurricane Katrina.
Although Puerto Rico insists that its “fake news” law is essential to prevent false alarms from causing dangerous mass panics, the FCC’s broadcast hoaxes rule from the 1990s shows that it’s possible to write a law that protects public safety without undermining press freedoms. That rule was introduced as a way to combat radio hoaxes common beginning in the 1970s. Several radio shows staged hoaxes on air for promotion, ranging from fake confessions of violent crimes to fake kidnappings of hosts. In one high profile example, the station director of WALE-AM in Rhode Island falsely announced that the host of the show, Steve White had been shot in the head outside the studio on a cigarette break.
The announcement caused police and media to respond to the station, wasting public resources and causing panic among listeners. After decades of similar hoaxes with varying degrees of public response, the FCC created the broadcast hoaxes rule based on feedback from broadcasters and the public. The regulation punishes the broadcast of false information about a “crime or catastrophe” if the station knows the information is false, it is practically certain that the speech will cause immediate and substantial public harm, and the broadcast does, in fact, create that harm.
Most stations know that the hoax rule can be invoked only if they aired, say, a fake bomb threat or a hoax broadcast about a mass shooting. That is in stark contrast to the broad language in the Puerto Rico law, which potentially criminalizes speech on any topic during a declared emergency, ranging from speculation about the origins of COVID-19 to reporting on the outcome of an election.
As the Supreme Court has held, the government does not have the authority to punish false speech, especially on matters of public concern, except in very limited contexts, such as prohibiting perjury or impersonating a police officer. Puerto Rico’s law goes well beyond those limited contexts and violates the First Amendment.
Protecting the right to a free press for Puerto Ricans’ and beyond
For Puerto Rico, the future is up in the air. The government appealed the 2023 ruling that struck the law down, and the First Circuit heard the appeal in October. The result will have implications far beyond newsrooms on the island.
For González Cotto, this is the point: “To me, the stakes were — and still are — whether Puerto Ricans get to live in a society where questioning the government is protected, not criminalized,” he said. “This case was never just about one statute. It was about setting a precedent that prevents future administrations from weaponizing vague laws to silence dissent.”
History teaches that without a robustly free press, the government can get away with abuses of power with little opposition. For González Cotto, journalists are a means through which the public can exercise its power to question, verify, and hold institutions accountable. “A free press ensures that no government, corporation, or powerful interest can operate unchecked,” he said. “When the press is restricted, the public becomes vulnerable. When the press is free, the public becomes invincible.”
At a time when the government is clamping down on press access and using the FCC to punish comedians, maintaining that freedom is more important than ever. Allowing the government to decide what’s true and what’s not is dangerous for us all. But history has also taught us something else: when we fight for it, the First Amendment is strong enough to weather the storm.
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