By Brian Hauss, ACLU Staff Attorney

Few things are more important during an emergency than a free and independent press to hold the government’s feet to the fire. During the ongoing COVID-19 public health crisis, reporters have debunked government statistics that undercounted infection and fatality rates, exposed public officials who dumped stock while telling the public that there was nothing to fear, and kept a running tally of President Trump’s many falsehoods.
 
Reporters are working double-time to hold our leaders accountable and keep the public well-informed. But in Puerto Rico, the free press is under direct threat.
 
Today, we filed a First Amendment lawsuit challenging two recently-enacted Puerto Rico laws that make it a crime to share information the government deems to be false about emergency conditions on the island. We represent Sandra Rodríguez Cotto and Rafelli González Cotto, two prominent investigative journalists who fear that the laws will be used to punish them for their reporting on the COVID-19 crisis, especially reporting that reflects negatively on the government. Because these laws pose an imminent threat to core First Amendment freedoms, we’re asking the federal court hearing our case to block them as soon as possible.
 
The first law, which was passed in 2017, makes it a crime to raise “false alarms” about “non-existing abnormalities” during a declared emergency. The second law, which was passed just last month in the midst of media coverage critical of Puerto Rico’s handling of the COVID-19 pandemic, makes it a crime to share “false information” about the government’s emergency orders and curfew orders with the intent to cause “confusion, panic, or public hysteria.” People convicted for violating these laws could face six months, or in some circumstances up to three years in prison, as well as thousands of dollars in government fines.
 
Just because these laws are limited to speech the government considers false does not mean that only false speech will be deterred. The laws’ broad sweep and vague language give people far too little guidance on what speech may constitute a crime, and government far too much discretion in deciding whom to prosecute. People will naturally think twice before speaking —or refrain from speaking entirely — if a factual dispute with the government or an inadvertent mistake or misunderstanding could land them in prison.

To prevent this kind of chill on public debate, the First Amendment protects false speech in most circumstances. And even unprotected false speech, like defamation, can’t be penalized if there’s a significant risk that it will deter speech on matters of public concern. Thus, for example, the Supreme Court has long held that criminal defamation laws must require the government to demonstrate “actual malice” – i.e., that the speaker knew (or at least strongly suspected) that the speech was false.
 
Puerto Rico’s “fake news” laws don’t include an actual malice requirement, which means that journalists cover the COVID-19 crisis at their peril. An article that happens to include an inadvertent mistake, or that contradicts the government’s official narrative (even when that official narrative is false), could easily lead to criminal prosecution.
 
Our clients’ fears that these laws could be used to punish journalists are not far-fetched. Under Puerto Rico’s former criminal defamation law, reporters were hauled into court and threatened with prosecution for exposing police corruption, even though the government had no evidence that anything the reporters wrote was inaccurate. Fortunately, that law was struck down for violating the First Amendment. These laws should suffer the same fate.
 
Access to reliable information is critical in times of emergency. “Fake news” laws may appear to promote this worthy cause by outlawing rumors and falsehoods. But the Constitution stands for the principle that the government cannot be trusted to regulate discussion on matters of public concern, and that a free press is the only reliable guarantee of a well-informed public. Especially in times of emergency, the First Amendment rights to free speech and a free press must be zealously defended against government meddling.
 
If the Puerto Rican government is genuinely concerned about the spread of misinformation during the COVID-19 public health crisis, then it should be promoting transparency rather than censorship. The government should be making it easier for journalists to inform the public about what is happening by holding regular press conferences, releasing pertinent records, and laying out the government’s proposed plan of action for public scrutiny. Laws criminalizing information the government deems false, on the other hand, will only make it easier for the government to clamp down on coverage it doesn’t like and harder for journalists to report the news the public needs to hear most.

By Jennesa Calvo-Friedman, ACLU Staff Attorney & Rebecca Ojserkis, ACLU Fellow, Women’s Rights Project

By the time a student graduates from college — particularly if they are a woman, LGBTQ, a person of color, or have a disability — the odds are high that they have experienced sexual harassment and assault. Over a quarter of women endure sexual assault during their undergraduate education, and more than half face harassment between 7^th-12^th grade. The experience of assault or harassment does not end with the incident, particularly for students who may have to see their harasser or assailant in class every day. Student survivors often develop anxiety and depression, and struggle to concentrate, which can result in poorer grades and skipping or dropping out of school. A single incident can derail a student’s life. Those students are mostly women.

The DeVos standard redefines what constitutes sexual harassment and assault in disturbing ways. It excuses schools from investigating reports of harassment and assault that take place off campus or schoolgrounds, like at unofficial frat houses, at an apartment on the edge of the campus, or during a school’s own study abroad program. This means that a school would not be obligated to help a middle school student harassed by another student on their way home from school. It means that a university can ignore a report of assault that occurred in off-campus housing — where the majority of college students live. Many commonplace scenarios like these would no longer require an adequate response.

The DeVos standard also allows colleges to ignore reports of assault or harassment unless they are made to the “right” official. Not even the biggest sexual abuse scandal in sports history — USA Gymnastics doctor Larry Nassar’s abuse of hundreds of gymnasts, including Michigan State students — would meet this standard, because many of the students reported the abuse to their athletic coaches, not the university’s designated Title IX coordinator. Let that sink in.

For 25 years, the federal government has defined sexual harassment as “severe, pervasive, or objectively offensive” conduct based on sex. ED is now redefining harassment as “severe, pervasive, and objectively offensive” conduct. The word swap makes all the difference. If the DeVos standard goes into effect, that middle schooler harassed on their way home from school every day could be deemed the victim of pervasive harassment, but the conduct will not trigger any responsibility to respond if it does not meet the additional thresholds of severity and objective offensiveness. Even worse, the new policy requires schools to dismiss any Title IX complaint that does not meet this heightened standard. And even where an incident plainly meets the new definition, the rule holds schools accountable only if they are “deliberately indifferent” to sex discrimination.

The impact of the DeVos standard would be devastating for survivors. Already, incidents of sexual harassment and assault are severely underreported. ED itself estimates 32 percent fewer investigations into sexual harassment complaints in institutions of higher education if the DeVos standard is adopted. Millions of students around the country would be made even more vulnerable to abuse — especially students who are women, LGBTQ, people of color, or have a disability.

Perhaps most egregiously, these provisions erect a double standard, taking sexual discrimination less seriously than other forms of discrimination that are equally prohibited by parallel federal laws that have long been interpreted consistently with each other. ED doesn’t impose such a demanding threshold for complaints of harassment based on race, national origin, or disability. In creating a higher threshold for only sex-based discrimination, DeVos has expressed an inherent skepticism for such claims, implying that students who report sexual assault or harassment should not be treated equally to students complaining of assaults or harassment based on race, national origin, or disability. The DeVos double standard will prevent many students from reporting abuse, and will let schools off the hook too easily when they do. There’s no basis in this country’s civil rights laws for treating sex discrimination differently from discrimination on the basis of race, national origin, and disability.

The ACLU is committed both to ending sexual harassment and assault on campus, and to ensuring fair process for complainants and respondents alike. This lawsuit targets those provisions of the rule that reduce the responsibility of schools to take sexual harassment seriously, and that treat sexual harassment as a second-class problem.

Sexual harassment and assault have no place in our schools. Federal law imposes obligations on schools to make sure that’s the case. Students shouldn’t have to jump through hoops just to report abuse, and schools should not be allowed to ignore claims of discrimination on the basis of sex when they would have to respond to claims of discrimination on other protected grounds. Students have the right to learn without suffering the effects of sex-based discrimination, and today the ACLU is taking DeVos to court to defend that right.