Ban on Knowingly False Statements During Emergencies Struck Down on First Amendment Grounds

“…From Judge Pedro Delgado-Hernández’s opinion today in Rodriguez-Cotto v. Perluisi-Urrutia (D.P.R.):

Article 5.14(a) criminalizes, after the Governor of Puerto Rico has decreed by executive order an emergency or disaster, to knowingly, purposely 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, transfers 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 that conduct it puts the life, health, bodily integrity or safety of one or more persons at imminent risk, or endangers public or private property. Properly read, Article 5.14(a) does not survive strict or intermediate scrutiny….

The court reasoned that the proper remedy was generally for the government to rebut false rumors, not to criminalize them:

[T]he Government did not prove why counter-speech in the form of increased transparency, would fail to accomplish its interests. The Government states that during the state of emergency, a person caused disruption in the food supply chain by falsely announcing that the government would close the food markets, and that although the Government clarified that this was false, the damage was done. But the Government did not submit evidence on who, when and how it sought to address the false message to which it has referred in order to allow the court to gauge the effectiveness of the response. Inversely, plaintiffs submitted clippings of articles about a message regarding closure of supermarkets on the island due to coronavirus, showing the Government has failed to demonstrate that increased transparency would not accomplish its objectives…”