First Amendment Friday Roundup

Late-night hosts have become targets as the Trump administration pressures networks, raising urgent questions about First Amendment protections.

SAN JUAN, Puerto Rico — At a time when the freedom of the press is in growing peril, the U.S. Court of Appeals for the First Circuit heard arguments about Puerto Rico’s “fake news” law, which was struck down by a federal district judge in 2023 for violating the First Amendment. Two journalists challenged the law, saying it chilled their reporting and could endanger any journalism during an emergency that may reflect poorly on the government. “If recent attacks on the freedom of the press have taught us anything, it is that the government cannot be allowed to make themselves the arbiter of public debate,” said Brian Hauss, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Prohibiting ‘fake news’ during an emergency gives the government far too much power to chill and criminalize reporting that they don’t like, and it threatens the foundational principle of our Constitution: a free people requires a free press.” The 2020 Puerto Rico law made it a crime to knowingly raise a “false alarm” about impending catastrophes or knowingly convey false information on any topic when doing so results in an imminent risk to safety, health, property; those found in violation of the law could face up to three years in jail and a fine of up to $5,000. “This is a law created to try to control speech and eliminate any dissent, under the threat of criminally prosecuting people who say something the government disagrees with,” said Fermín Arraiza-Navas, legal director of the ACLU of Puerto Rico. “With this law, the government of Puerto Rico endangers the right to freedom of expression and freedom of the press, especially at a time when we know that freedom of expression is being attacked from multiple angles. This is also an attempt to discourage fair and necessary oversight of the government—precisely during times of emergency. Puerto Rico has plenty of examples showing how, in moments of crisis, the government has failed to provide the public with truthful information, and instead, it has been thanks to journalists and the public that the correct information about these matters has come to light.” Originally filed during the COVID-19 public health crisis, the American Civil Liberties Union and the ACLU of Puerto Rico filed the lawsuit on behalf of two journalists, Sandra Rodríguez Cotto and Rafelli González Cotto, who feared that the laws would be used to punish them for their reporting on public emergencies, especially reporting that reflects negatively on the government. On March 31, 2023, the U.S. District Court for the District of Puerto Rico permanently enjoined the law, holding that it violates the First Amendment because it imposes a content-based restriction on protected speech without adequate justification. The court observed that the statute’s exceedingly broad sweep risked politicized prosecutions and chilling protected speech on matters of public concern. As the court put it, “[t]he watchdog function of speech is never more vital than during a large-scale crisis.” For more information about the case, see here.

NEW YORK – In a landmark victory for judicial transparency, the New York State Court of Appeals reversed an Appellate Court decision in NYCLU v. New York State Office of Court Administration (OCA) yesterday, ruling that the administrative arm of the New York State court system, OCA, cannot blanketly shield its guidance to judges concerning how to interpret the law. As shown by the leaked 2021 Crawford Memorandum, it is believed that these directives play a role in how pressing issues are determined by state court judges. The New York Civil Liberties Union and American Civil Liberties Union have been fighting for these records for four years. “This ruling is an unequivocal vindication of the public’s right to understand the workings of our judicial system,” Daniel Lambright, supervising attorney with the New York Civil Liberties Union. “Every day, judges make decisions that have enormous impact on the rights and lives of New Yorkers, especially vulnerable communities. With so much at stake, New Yorkers deserve to know the influences behind judge decision making — and we’re gratified that the state's highest court agrees. Our judicial system is strongest when it is transparent and accountable to the public.” “The public has a right to know when the government urges judges to adopt its preferred interpretations of the law,” said Terry Ding, staff attorney with the ACLU's State Supreme Court Initiative. “That is true whether those communications take the form of legal briefs filed by government agencies in litigation or legal memos from court administrators. We therefore welcome the Court of Appeals’ decision rejecting the Office of Court Administration’s blanket claim that, under the auspices of attorney-client privilege, it can advise New York judges in secret about how they should interpret the law.” The OCA is intended to be a non-partisan, administrative arm of New York’s court system that oversees operations, staffing, and day-to-day support for judges. But in July 2021, reporting from the New York Focus revealed that the OCA had a practice of issuing secret guidance to state court judges.. This included guidance affecting the adjudication of critical civil rights, including whether defendants in criminal cases are granted bail, whether courts can order people to be forcibly committed for mental health reasons, and whether to uphold due process protections for people accused of crimes. In September 2021, New York Civil Liberties Union filed a Freedom of Information request expressing concern over the OCA’s secretive practices and requesting copies of all memos of this nature. The agency denied the request, so the NYCLU sued, arguing that the public is entitled to such guidance. The trial court then ordered OCA to produce its memos, agreeing with the NYCLU that the request was reasonably tailored and that the guidance is not privileged. The OCA appealed, and the Appellate Division reversed the trial court’s ruling. This ruling overturns that Appellate decision. The ruling is available here: https://www.aclu.org/cases/nyclu-v-oca?document=Opinion