The strongest case for the law
The case for Puerto Rico's Article 5.14(a) is not frivolous. During a hurricane or a pandemic, people act on what they read. A false claim that a storm has shifted course, that a shelter is full, or that a bridge is safe can send people the wrong way at the wrong moment. Legislators who amended the statute on April 5, 2020, in the first weeks of COVID-19, were responding to a real fear that panic spreads faster than corrections. That is a legitimate government interest, and the court treated it as one.
On August 4, 2026, the U.S. Court of Appeals for the First Circuit nonetheless held the statute unconstitutional in Rodríguez-Cotto v. González-Colón, No. 23-1626. The panel was unanimous. It affirmed a permanent injunction that a federal district court had already issued.
What the court decided
Article 5.14(a) criminalized transmitting false information through social networks or mass media, with the intent to create confusion, panic or collective hysteria, about matters tied to a governor-declared emergency. According to FindLaw's report of the opinion, penalties included fines of up to $5,000, jail terms, and a fixed three-year term where the false alarm caused more than $10,000 in damage. The plaintiffs were two independent journalists who had published coverage critical of the government's pandemic response.
The First Circuit reasoned that a law aimed at false speech about a subject is a content-based rule, so strict scrutiny applies. The law then failed on narrow tailoring. As Eugene Volokh's summary on Reason describes it, the panel found the statute lacked limiting features that comparable laws contain, such as a requirement that harm be likely or foreseeable. It could reach satire, jokes and fiction touching on a catastrophe.
The court also rejected the argument that false statements about "easily verifiable" facts deserve softer review, an idea drawn from Justice Breyer's concurrence in United States v. Alvarez. In an emergency, the panel observed, claims about storm damage or mask efficacy "would not be easily or quickly verifiable." The moments when the government most wants to police falsehood are the moments when the truth is least settled, and when officials are most likely to be wrong themselves.
Counterspeech is the operative point
The most important passage is about evidence. According to the FindLaw text, the court wrote that the government "points to no evidence to support its claim" that false information actually endangers public safety during emergencies. It added that the government "has not shown, and cannot show, why counter speech would not suffice," noting that mask misinformation "could be countered by government messaging."
That is a demanding standard, and it is the right one. Narrow tailoring, the court said, requires a demonstration that alternatives burdening substantially less speech would fail, "not simply that the chosen route is easier." Prosecution is easier than publishing a correction, running a hotline, or partnering with local broadcasters. Ease is not a constitutional justification.
Why this matters beyond Puerto Rico
This is a U.S. constitutional ruling, and it does not bind any other country. But the design problem is global. Governments in many jurisdictions have passed or proposed laws that criminalize or force takedowns of "false" or "misleading" content, typically with emergency or public-order justifications. The structural weaknesses the First Circuit identified travel well:
- Vague triggers. "Confusion" or "panic" is measured by the listener's reaction, not the speaker's conduct, so enforcement depends on official judgment.
- Verification lag. Emergencies are when facts are contested. A rule that punishes what later proves false will punish honest error and legitimate dissent.
- Targeting the press. A statute like this hands officials a tool against the people scrutinizing them. Here, the challengers were journalists whose reporting criticized the government's response.
- Absent evidence. Governments rarely demonstrate that lesser measures failed before reaching for criminal penalties.
Civil-society groups made the same case. Free Press reported that six organizations, including the Electronic Frontier Foundation, FIRE, the Freedom of the Press Foundation and PEN America, joined a brief supporting the challengers. Freedom of the Press Foundation's Seth Stern argued that overbroad speech restrictions get abused against journalism and dissent as a matter of "when, not if."
What proportionate crisis policy looks like
Rejecting criminal false-speech laws does not mean governments should be passive. The court's own logic points to a workable toolkit:
- Fast, authoritative official communication, including multilingual alerts, so that accurate information is the easiest to find.
- Transparency from platforms about how emergency-related content is amplified or labeled, without government-ordered removal of lawful speech.
- Narrow, well-defined liability for genuine fraud, impersonation of officials, or incitement to imminent violence, which existing law already covers.
- Evidence requirements for any new measure: what harm, how much, and why softer tools failed.
The last item is the one most legislatures skip. If Puerto Rico could not produce evidence of concrete harm after years of litigation, a takedown regime elsewhere should be expected to do better before it is enacted, not after.
The bottom line
The First Circuit did not say misinformation is harmless. It said that a state that wants to jail people for it must prove the harm, prove that counterspeech would fail, and write a statute tight enough not to catch satire or honest mistakes. Puerto Rico's law met none of those tests. Policymakers weighing takedown mandates or criminal false-information offenses in other systems should read the opinion as a checklist. Emergencies raise the stakes for accurate information, and they raise the stakes for protecting the people who report it.