Rodriguez-Cotto v. Gonzalez-Colon

Opinion

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.

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