United States Court of Appeals
For the First Circuit
TOMÁS DE JESÚS MANGUAL,
Plaintiff, Appellant,
JORGE MEDINA; CARIBBEAN INTERNATIONAL NEWS CORPORATION,
Movants, Appellants,
v.
ANGEL E. ROTGER-SABAT, Secretary of Justice of the Commonwealth of Puerto Rico; JOHN DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lynch and Howard, Circuit Judges,
and Shadur, Senior District Judge. (1)
Roberto J. Sánchez Ramos and Camelia Fernández Romeu, Office of the Solicitor General of the Commonwealth of Puerto Rico, on brief for Appellees.
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January 21, 2003 |
LYNCH, Circuit Judge. A newspaper reporter threatened with prosecution for articles he had published about government corruption brought suit in 1999 challenging the Puerto Rico criminal libel statute as unconstitutional under the First Amendment. Three other reporters, including one who had been prosecuted under the statute and another who had been threatened, sought to intervene on the plaintiff's side, along with a newspaper and the Overseas Press Club. The plaintiff sought declaratory and injunctive relief and at the outset moved for summary judgment on the ground that the statute is plainly unconstitutional. The district court dismissed the suit in 2002, finding no jurisdiction due to standing, ripeness and mootness concerns. We hold that the district court was in error as to its standing, ripeness and mootness rulings and that the criminal libel statute is unconstitutional as applicable to statements regarding public officials and public figures.
In 1974, Puerto Rico enacted a criminal defamation statute, in articles 118 to 121 of the Penal Code. 33 P.R. Laws Ann. §§ 4101-4104 (2001). The full text of the statute, as officially translated, reads:
§ 4101. Libel
Any person who maliciously, by any means, or in any way, publicly dishonors or discredits, or charges the commission of an act constituting a crime, or impugns the honesty, integrity, virtue or reputation of any natural or juridical person, or who blackens the memory of one who is dead, shall be punished with a term of imprisonment of not more than six (6) months, a fine of not more than five hundred dollars ($500), the penalty of restitution, or any combination of these, at the discretion of the court. However, the court may impose the penalty of rendering community service in lieu of the term of imprisonment. (2)
§ 4102. Truth as defense
In all criminal prosecutions for libel, the truth shall constitute a defense and the accused shall be acquitted, provided it is proven that the charge made is true and he had good intention and justifiable ends.
If the victim is a public officer and the charge made refers to the performance of his duties, or if what was related or published refers to matter of public interest, the accused shall be acquitted whenever it is proven that the charge made is true; Provided, That if the charge made is false, said accused shall not be acquitted, if it is proven that he acted knowing the fact to be false and with gross and obstinate contempt of the truth.
§ 4103. Report of official acts
No report or statement, which is true and fair, of any judicial or legislative act, or of any other official character, nor of statements, arguments and debates had [contained] therein shall be considered to be libelous.
§ 4104. Diffusion of conviction
The trial court shall order the diffusion of the conviction through the same means used by the offender or through any other analogous or similar nature, and at the latter's expense.
Id.
The Puerto Rico newspaper El Vocero de Puerto Rico ("El Vocero") is published by Caribbean International News Corporation ("Caribbean"). In 1995, Caribbean created an internal division of El Vocero, the Editorial Investigations Division, which was designed to investigate matters of public concern, such as police brutality, government corruption, and the like. Obed Betancourt, a reporter for El Vocero since 1995, was transferred to this division in June 1998 and assigned to investigate allegations that the Narcotics Squad of the Caguas police had been infiltrated by organized crime. Betancourt wrote a series of articles reporting on these allegations, including evidence that a drug dealer who was targeted by the Narcotics Squad helped to organize its Christmas party and was paying bribes to officers.
Of particular importance for our purposes is Betancourt's article published on August 18, 1998. This article reported the allegation, made during an internal police administrative hearing, that Officer Elsa Rivera Colón, an agent with the Narcotics Squad, was having an affair with that same drug dealer. The purpose of publishing this information, according to Betancourt, was to explain why so many drug cases in Caguas were dismissed -- because the Narcotics agents did not appear to testify -- and how confidential information was leaked to investigation targets. The article also touched on Officer Rivera's fitness for police duty.
On September 10, 1998, Officer Rivera filed a civil action for libel against both Betancourt and El Vocero. On February 26, 1999, she also filed a complaint with the Caguas police against Betancourt for criminal libel under section 4101 and later urged the local district attorney to bring charges against Betancourt. Subsequently, she persuaded a fellow Caguas police officer to file a similar complaint and to secure his supervisor's signature on it. The case was then transferred to San Juan, where the newspaper's offices are located.
Betancourt and El Vocero filed suit in federal court, requesting declaratory judgment that the criminal libel statute is unconstitutional under the First Amendment. (3) Betancourt averred that he has refrained from further investigating political corruption for fear of being prosecuted again. On August 4, 1999, a federal district judge issued an order prohibiting the prosecution of the charges against Betancourt while the declaratory judgment motion was before the court. In violation of that federal order, a police officer in San Juan brought the criminal libel charge against Betancourt on August 12, 1999; thus, four police officers in two departments were involved in initiating prosecutions. That same day Betancourt was forced to appear and testify at a probable cause hearing. The prosecution made no effort to put on evidence as to falsehood or reckless disregard for the truth. Cross-examination demonstrated that neither prosecution witness could establish anything about the truthfulness of the articles. The Puerto Rico court judge found no probable cause, and the criminal case was dismissed against Betancourt. Thereafter, the federal district court dismissed the federal declaratory judgment case as moot. El Vocero v. Fuentes Agostini, No. 99-1272 (D.P.R. Sept. 14, 1999).
Tomás de Jesús Mangual, the plaintiff in this case, is another reporter for El Vocero and was assigned to cover the Caguas police and courts. For over thirteen years he has written extensively on the subject of the corruption of government officials in the Caguas region, often identifying individual officials as corrupt and under the influence of drug traffickers. Mangual investigated the criminal libel complaint against Betancourt and wrote four articles on the subject between March 11 and 16, 1999. In these articles, Mangual accused the Caguas police, including Rivera, of being corrupt and of pursuing the libel charge against Betancourt in an attempt to silence him.
Mangual also made several accusations specifically against Officer Rivera, in addition to the charge that she had trumped up criminal charges against Betancourt in retaliation for his 1998 articles. The first was that Rivera was linked to drug traffickers, the same charge earlier made by Betancourt, and that she was under investigation as a result. The second was that Rivera had been conducting an adulterous affair with her married superior and had given birth to his child. This latter allegation was meant to explain Rivera's influence over the Caguas police. The articles asserted that she had managed to achieve a transfer to the drug unit in violation of normal procedures and had used her position to retaliate against officers who complained about her. Mangual wrote that the chief of the anti-corruption unit of the Puerto Rico police had instituted an investigation into a number of complaints against Rivera, and it was possible that probable cause to charge her would be found.
Officer Rivera responded to these articles by writing a letter to the Secretary of Justice on April 12, 1999. The letter notified Fuentes that "I am prepared not only to file the criminal charges that concern [Betancourt and Mangual], but also to bring this suit on its merits, up to the ultimate legal consequences." (4) This reference was to the filing of criminal libel charges against the two reporters. She complained of procedural anomalies in the handling of her prior criminal libel complaint against Betancourt, including the transfer of the case to San Juan, and requested an investigation "so that summons be issued for this case for the corresponding legal process."
The Assistant Attorney General, Edwin O. Vázquez Berrios, responded by letter to Officer Rivera. Vázquez noted that in cases such as this one, the Puerto Rico police investigate and file charges if necessary; the Department of Justice intervenes only after there has been a determination of probable cause and the case has been scheduled for trial. Accordingly, he forwarded the letter and the materials Rivera attached to the Superintendent of the Police "for any action he may deem pertinent." He did not inform either Officer Rivera or the Superintendent of the Police that the Department of Justice would not support prosecution in this matter, nor did he warn them that there may be constitutional infirmities in a prosecution.
Mangual's complaint stated he feared "prosecution by at least Officer Rivera, and possibly by other persons whose interest is obstructing publications regarding official corruption." Mangual also verified that he felt the effects of the threat of prosecution after the March 1999 articles. Police officers at Caguas Police Headquarters were being pressured not to give information to Mangual and were afraid to even be seen with him, seriously interfering with his work as a journalist.
There have been at least two other prosecutions under the criminal libel statute in the first six months of 2001. One of the complaints was brought on behalf of a Police Department lieutenant; the defendant was convicted and fined. In both cases, district attorneys from the Department of Justice were prosecuting. Neither case involved journalists or other members of the press. Details about the threats to the putative intervenors are discussed below.
On September 17, 1999, Mangual filed a verified complaint in the U.S. District Court for the District of Puerto Rico, requesting that the court declare sections 4101 to 4104 unconstitutional under the First Amendment. He also requested injunctive relief if necessary to protect his and others' First Amendment rights. With his complaint, Mangual filed a motion for summary judgment and a motion for an order to show cause and for expedited resolution. The suit named José Fuentes Agostini, the Secretary of Justice of the Commonwealth of Puerto Rico at the time of the initiation of the suit. Fuentes has since resigned, and he has been replaced as the defendant by the new Secretary of Justice, Angel Rotger-Sabat. See Fed. R. Civ. P. 25(d)(1). The suit also names John Doe as a defendant, to stand for any person who may be indispensable to the equitable relief requested.
Secretary Fuentes responded on October 18, 1999 by requesting the dismissal of the case for lack of jurisdiction. The Secretary also filed a memorandum opposing the plaintiff's motion for summary judgment. On May 2, 2000, Fuentes, no longer the Secretary, moved to dismiss the case entirely on the additional jurisdictional ground of mootness, because no criminal charges had been filed against Mangual, and the one-year statute of limitations had expired on March 17, 2000. See 33 P.R. Laws Ann. § 3412(b).
On May 11, 2000, two persons and an association moved to intervene as party plaintiffs under Fed. R. Civ. P. 24(a) (intervention of right). Two were reporters: Betancourt and Manny Suárez, who was a reporter for the San Juan Star, a New York Times stringer, and a professor of journalism. The third party was the Overseas Press Club, a nonprofit association of journalists, which said it had polled its members in the aftermath of the Betancourt prosecution and found that they feared criminal libel prosecution by the police even more than physical aggression. As a result, the Club claimed, its members were withholding publication of articles. The motion to intervene included affidavits from Betancourt, describing his prosecution, and Suárez, describing the chilling effect that prosecution had on his own journalism. Suárez said, "I am in a catch-22 situation, damned if I do, damned if I don't. Clearly, the alternative to not living under the risk of prosecution for libel . . . is not to publish. But, is this not a 'chilling effect'?" The district court denied these parties status as intervenors (5) but granted them leave to file an amicus brief, which they did. On July 24, 2000, the case was transferred from Judge Daniel Domínguez to Judge Jay A. García-Gregory.
On October 27, 2000, Caribbean and Jorge Medina, another journalist who wrote for El Vocero, filed an application to intervene as plaintiffs under Fed. R. Civ. P. 24(b) (permissive intervention). The application to intervene included an affidavit from Medina. The application was in part based on a threat of prosecution which had been leveled at Medina. Medina wrote three articles in October 2000 in El Vocero involving allegations of certain conduct by a Puerto Rico gubernatorial candidate. The candidate's campaign director, at a press conference, announced the filing of a civil suit against Medina and threatened to file a criminal complaint. The campaign director stated that the publications constituted criminal libel and such actions were a felony punishable by jail. Medina was present and felt threatened.
On March 28, 2002, the district court dismissed Mangual's
case, and denied Medina and Caribbean's motions to intervene, for
lack of subject matter jurisdiction. The court held that the
plaintiff and intervenors all lacked standing to sue, and that the
plaintiff's claims were both unripe and moot. Mangual v. Fuentes
Agostini,
III. Legal Analysis
Challenges to subject matter jurisdiction based on
standing, ripeness, and mootness are often pure matters of law, and
thus engender de novo review. Valentin v. Hosp. Bella Vista, 254
F.3d 358, 363 (1st Cir. 2001); N.H. Right to Life PAC v. Gardner,
A. Justiciability of Plaintiff's Claim
1. Standing
a. Legal Standards
The doctrine of standing is of both constitutional and
prudential dimension. See Barrows v. Jackson,
The burden to establish standing lies with the party
invoking federal jurisdiction. Bennett v. Spear,
that (1) he or she personally has suffered some actual or threatened injury as a result of the challenged conduct; (2) the injury can be fairly traced to that conduct; and (3) the injury likely will be redressed by a favorable decision from the court.
N.H. Right to Life,
A paradigm of a case or controversy under Article III is
a challenge to a statute that imposes criminal penalties for
constitutionally protected activities by a person likely to be
subject to the statute. Diamond v. Charles,
A plaintiff's subjective and irrational fear of
prosecution is not enough to confer standing under Article III for
either type of injury. See Laird v. Tatum,
As to whether a First Amendment plaintiff faces a
credible threat of prosecution, the evidentiary bar that must be
met is extremely low. "[C]ourts will assume a credible threat of
prosecution in the absence of compelling contrary evidence." Id.
at 15. The Supreme Court has often found standing to challenge
criminal statutes on First Amendment grounds even when those
statutes have never been enforced. See, e.g., Babbitt, 442 U.S. at
302; Doe,
b. Application of Standards
The district court correctly found that Mangual meets
both the second prong of the standing test, "causation," and the
third prong, "redressability." Mangual,
We think it apparent that Mangual has standing to
challenge Puerto Rico's criminal libel statute. In his complaint,
Mangual asserts standing under both alternative prongs of the N.H.
Right to Life standing rubric. First, Mangual faced and continues
to face a real threat of prosecution. "The existence of federal
jurisdiction ordinarily depends on the facts as they exist when the
complaint is filed." Newman-Green, Inc. v. Alfonzo-Larrain, 490
U.S. 826, 830 (1989); see Becker v. FEC,
Mangual also has standing based on other factors. He states an intention to continue covering police corruption and writing articles similar to those which instigated Rivera's threat of prosecution. He asserts that there are several other individuals who have been mentioned in published articles he has authored who are inclined to prosecute him for criminal libel. The investigations into these individuals are ongoing, and further articles will be written, exacerbating Mangual's exposure to a criminal libel prosecution. Thus, even discounting Rivera's threat of prosecution, Mangual has shown a credible threat of prosecution for continuing his work as a journalist.
Second, Mangual asserts the existence of a "chilling effect of a very serious nature" on his investigative reporting due to the possibility of prosecution. The effect of the statute, as alleged by Mangual, has been severe. While insurance is available to cover civil libel cases, none is available to cover the legal fees or fines resulting from criminal libel charges. As a result, there is nothing Mangual can do to limit his exposure other than to curtail his investigative and journalistic activities. Mangual also says there is a danger his sources will silence themselves if he is criminally prosecuted and forced to disclose his sources to prove the truth of his allegations. The threat of prosecution against Mangual, and the ensuing chilling effect, certainly exceed the low probability threshold required for First Amendment standing purposes.
Puerto Rico's criminal libel statute is not an antiquated and moribund statute; it is less than thirty years old. Although it has been amended four times since Garrison v. Louisiana, 379 U.S. 64 (1964), was decided, the amendments have not attempted to conform the statute to the requirements of the First Amendment. The most recent amendment was in December 1999; it increased the criminal penalties dramatically in order to deter "anti-social" acts, including increasing the maximum fine tenfold. When the Department of Justice was asked to comment on this change during the pendency of this litigation, it supported the increased penalty without raising any federal constitutional concerns. The only constitutional protection the Department of Justice raised was "the constitutional protection that exists against attacks against honor and reputation." The defendants do not argue that the statute is not in current use; they cannot, for it has been recently used.
Nor does the libel statute carve out any exception for journalists. The prosecution of Betancourt in 1999, thwarted only by the judge in the probable cause hearing, belies the claim that journalists are immune from prosecution. The Secretary of Justice has not unequivocally stated a policy against prosecution of such cases, and the Secretary's actions gainsay any such avowal. Indeed, when Officer Rivera threatened to institute a criminal libel action against Mangual and notified the Department of Justice, the Department did not advise against it.
Even if the Department of Justice did disavow any intention to prosecute either any criminal libel cases or any cases against journalists, and it adhered to that policy, Mangual would still have a credible fear of having criminal charges filed against him by the local police, whom he has accused of corruption, and other government officials similarly accused. Under Puerto Rico law, if the crime is a misdemeanor, individuals may file a complaint with the police or pro se; it is after probable cause is shown and the matter is set for trial that the Justice Department steps in to prosecute the case. The Secretary exercises no control over whom the local police choose to prosecute for misdemeanors; indeed, as the history of Betancourt's prosecution indicates, at least one local police department prosecuted despite a federal court injunction ordering it not to prosecute. The plaintiff's credible fear of being haled into court on a criminal charge is enough for the purposes of standing, even if it were not likely that the reporter would be convicted.
The defendants do not raise separate prudential standing
concerns, and we see none. "[A] realistic risk of future exposure
to [a] challenged policy . . . is sufficient to satisfy" prudential
as well as constitutional standing concerns. Berner v. Delahanty,
2. Ripeness
The district court also found that Mangual's claim was
not ripe. Like standing, the doctrine of ripeness has roots in
both the Article III case or controversy requirement and in
prudential considerations. See R.I. Ass'n of Realtors, 199 F.3d at
33 (citing Pub. Serv. Comm'n v. Wycoff Co.,
The inquiry into fitness is both a constitutional and a
prudential one. The constitutional inquiry, grounded in the
prohibition against advisory opinions, is one of timing. Reg'l
Rail Reorganization Act Cases,
The district court found that Mangual's claim is unripe,
because he "is under no immediate or direct dilemma of facing a
prosecution," and because he "has not described a concrete plan to
engage in libel." Mangual,
The district court's analysis has two errors. First, its analysis under the ripeness doctrine that Mangual does not face a "credible threat of prosecution" is simply a repetition of its standing decision, one that is mistaken. Mangual has averred an intention to continue his work as an investigative journalist, and the recent prosecutions under the criminal libel law indicate a real threat of prosecution for his work. Ripeness does not require that he wait for such a prosecution.
Second, the district court failed to consider Mangual's
alternative ground for standing: the chilling effect that the
statute has on his work as a journalist. If that effect emanates
from a credible threat of prosecution, as it does here, Mangual
need not either describe a plan to break the law or wait for a
prosecution under it. The purpose of the alternative ground for
standing in such cases is so that plaintiffs need not break the law
in order to challenge it. "[T]he doctrine of ripeness . . . asks
whether an injury that has not yet happened is sufficiently likely
to happen to warrant judicial review." Gun Owners Action League,
Inc. v. Swift,
3. Mootness
The doctrine of mootness enforces the mandate "that an
actual controversy must be extant at all stages of the review, not
merely at the time the complaint is filed." Steffel, 415 U.S. at
460 n.10. Thus, mootness can be viewed "as 'the doctrine of
standing set in a time frame.'" United States Parole Comm'n v.
Geraghty,
The district court found that Mangual's claim is moot,
because the one-year statute of limitations has expired as to an
action based on the newspaper articles about which Officer Rivera
threatened prosecution. Mangual,
Finally, this case meets the standards of the "capable of
repetition, yet evading review" doctrine. S. Pac. Terminal Co. v.
ICC,
Mangual's claims are not moot. The district court erred in dismissing the case on that basis.
B. Intervenors
The district court, in a summary discussion, found that
both Medina's and Caribbean's allegations of injury amount to mere
subjective fears and fail to meet the "objectively reasonable" test
required to create a case or controversy. Mangual, 203 F. Supp. 2d
at 90. We review denial of intervention for abuse of discretion.
See Allen Calculators, Inc. v. Nat'l Cash Register Co., 322 U.S.
137, 142 (1944); Daggett v. Comm'n on Governmental Ethics &
Election Practices,
Whether standing is required for intervenors is an as yet
unsettled question. The controversy over whether intervention of
right under Fed. R. Civ. P. 24(a) requires Article III standing is
a well-known one. See Diamond,
We need not decide this complicated question, because it is clear that Medina has sufficient standing under Article III. Medina is also a journalist working for El Vocero who has been threatened with prosecution under the Puerto Rico criminal libel statute. While the statute of limitations has expired as to that particular threat, he continues to work as a journalist and to risk prosecution under the statute. As such, he is in a position like that of Mangual. Medina has expressed the fear that he may be prosecuted and has articulated his desire to continue publishing, as a journalist, on matters that may draw a libel prosecution. Given the history of threatened and actual prosecution under the statute detailed above, Medina has evidenced enough of a threat to establish standing to intervene in this suit.
Under the circumstances of this case, we see no reason to
remand for consideration of Medina's motion to intervene under the
correct legal standards. We grant Medina's motion to intervene for
several reasons. First, the only objection raised as to
intervention was standing, and that has now been resolved in
Medina's favor. (7) Second, because we go on to resolve the merits,
there is no point in remanding this issue. Third, we have the
discretion to permit intervenors at the appellate level, and we
choose to do so here. See Ruthardt v. United States,
Caribbean has also moved to intervene, based upon the potential injury done to the newspaper it owns, El Vocero, through the prosecution of its journalist employees. Because we hold that both the plaintiff, Mangual, and the intervenor, Medina, have standing to challenge the Puerto Rico criminal libel statute, we need not reach the question of whether a newspaper can assert standing to challenge a criminal libel statute based on threats of prosecution against its reporters.
C. Abstention
In the district court the defendants argued that the plaintiff and intervenors could vindicate their rights by undergoing criminal prosecution and presenting the Garrison issues to the Puerto Rico courts. For this reason, they argued, the federal court should abstain. Such an argument fundamentally misunderstands the law of pre-enforcement action under the First Amendment and of abstention. On appeal the Secretary urges that the federal court stay its hand and wait "until the Puerto Rico Supreme Court has had the opportunity to express itself." That opportunity would presumably arise on appeal from a conviction of a media defendant under the criminal libel statute.
At no time has the Secretary of Justice identified any
unclear issue of state law, as opposed to federal constitutional
law, in this dispute. Nor has the Secretary ever requested
certification of any such issue to the Puerto Rico Supreme Court.
We also note that this statute has been in place since 1974, and
the Puerto Rico courts have had ample opportunity to construe this
statute. When asked to apply the statute in light of federal
constitutional concerns in People v. Olivero Rodríguez, 112 P.R.
Offic. Trans. 460 (1982), the court did not address the federal
constitutional issues which concern us. Moreover, the question is
less one of construal of an unclear issue than of judicial
rewriting of the statute -- a statute that is not "readily
susceptible" to a narrowing construction. See Am. Booksellers
Ass'n,
Defendants say their abstention argument falls under the
Pullman abstention doctrine. R.R. Comm'n v. Pullman Co., 312 U.S.
496 (1941). There the Supreme Court abstained from deciding a
constitutional issue which turned on an interpretation of state law
until the state courts were given the chance to clarify the state
law issue. Id. at 500. The Pullman doctrine requires that "when
a federal constitutional claim is premised on an unsettled question
of state law, the federal court should stay its hand in order to
provide the state courts an opportunity to settle the underlying
state law question and thus avoid the possibility of unnecessarily
deciding a constitutional question." Harris County Comm'rs Court
v. Moore,
If state law questions are unambiguous, abstention is
inappropriate. Examining Bd. v. Flores de Otero,
The need for a federal constitutional ruling would not be
obviated by abstention. That the defendants may prefer to have the
federal constitutional ruling made by a Puerto Rico court rather
than by a federal court is of no moment. The Puerto Rico courts
would be faced with exactly the same issues as this Court -- issues
which are federal ones and not ones of Puerto Rico law. The
plaintiff is entitled to his federal forum. Were we to abstain in
this matter, we would merely "await an attempt to vindicate the
same claim in a state court," McNeese v. Bd. of Educ., 373 U.S.
668, 672 (1963), and that we may not do. City of Houston v. Hill,
Not only does the case fall short of these two standards, but the delay involved in abstention is especially problematic where First Amendment rights are involved. Id. at 467 ("[W]e have been particularly reluctant to abstain in cases involving facial challenges based on the First Amendment."). Abstention in these circumstances would be unwarranted.
D. First Amendment Challenge
1. Procedural Posture
Normally, when a district court dismisses a matter on
jurisdictional grounds and this court reverses, the case is
remanded for consideration of the merits. See, e.g., Rivera-Gomez
v. De Castro,
The issues in contention are pure ones of federal law. At both the district court level and here, there have been arguments on the merits from both sides, after limited discovery. Mangual filed a verified complaint, and there are relevant affidavits in the record from Medina, Suárez and Betancourt. Mangual also filed a motion for summary judgment and addressed the merits of his First Amendment claim, arguments he repeated in his appellate brief. The Secretary also addressed the merits, both in a memorandum opposing summary judgment before the district court and in his appellate brief. Importantly, he did not oppose summary judgment on the ground that there were material facts in dispute.
This case asserting ongoing violations of constitutional rights has also been prolonged for far too long. Mangual first filed his complaint in September of 1999, when he also requested summary judgment. Since that time he has requested adjudication of this motion three times: in November 1999, in May 2000, and in June 2000. The case was transferred to a new judge in July 2000, and between that time and March 2002, no action was taken on the summary judgment motion. A resolution of this case is now due, if not past due.
2. Merits of First Amendment Claim
The speech threatened here with prosecution under the criminal libel statute is at the heart of the First Amendment protections of speech and the press.
The core facts are these: A newspaper publishes a series of stories about corruption in government. In turn, the government responds with actual and threatened criminal prosecution of the reporters. The newspaper later publishes a story critical of a candidate for high public office; the reporter is threatened with criminal prosecution. The free press is threatened for commenting on public officials on matters of public concern.
"[T]here is practically universal agreement that a major
purpose of [the First] Amendment was to protect the free discussion
of governmental affairs." Mills v. Alabama,
The history of the United States has been marked by a
"profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open, and
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials."
N.Y. Times Co. v. Sullivan,
Against these fundamental principles we evaluate the criminal libel statute challenged here, sections 4101-4104. We find the statute unconstitutional under the First Amendment standards established by the Supreme Court.
a. Actual Malice
The seminal New York Times case contains several
requirements that constrain libel law when the challenged statement
is about a public official. For public officials to recover
damages, they must prove "that the statement was made with 'actual
malice' -- that is, with knowledge that it was false or with
reckless disregard of whether it was false or not." 376 U.S. at
279-80. Even when erroneous statements are published, the
statements may be protected, because "erroneous statement is
inevitable in free debate." Id. at 271. The "actual malice"
standard is distinct from common law malice, which refers to spite
or ill will. See Rosenbloom v. Metromedia,
The court originally defined "public official" narrowly:
"The employee's position must be one which would invite public
scrutiny and discussion of the person holding it, entirely apart
from the scrutiny and discussion occasioned by the particular
charges in controversy." Rosenblatt v. Baer,
In Gertz v. Robert Welch, Inc.,
The actual malice standard, and other constitutional
protections of criticisms of public officials, were extended to the
criminal libel context in Garrison. The court held that criminal
libel statutes share the constitutional limitations of civil libel
law.
Section 4101, on its face, is constitutionally deficient,
in that it does not require that the New York Times and Garrison
standard of actual malice be proven in order for a statement
disparaging a public official or figure to be successfully
prosecuted. The statute does not, by its terms, require proof that
the defendant either knew of the statement's falsehood or acted
with reckless disregard of falsehood. Therefore, section 4101 is
unconstitutional under Garrison,
The Secretary maintains that section 4101 has been narrowed by the Supreme Court of Puerto Rico to incorporate the New York Times actual malice standard. The Secretary points to Olivero. There the court described the elements of the case: "a real and malicious intent, indicating the untruth of the fact and reckless disregard for the truth ('malice' animus injuriandi) which is expressed directly in a publication . . . which communicates information tending to denigrate a person's worth." 112 P.R. Offic. Trans. at 465.
Our reading of Olivero is quite different, and we think
it does not at all mean what the Secretary offers. That case did
not address the New York Times or Garrison requirement of actual
malice. It did cite federal caselaw, but only for the question of
who qualifies as a public figure, and it found that the case did
not involve a public figure. Further, the opinion's use of the
"reckless disregard" phrase is followed by the Latin phrase "animus
injuriandi," defined as "The intention to injure, esp. to insult."
Black's Law Dictionary 87 (7th ed. 1999). That standard is
materially different from the one dictated by New York Times. See
Garrison,
b. Truth as a Defense
In addition to the actual malice standard, Garrison requires that in a criminal libel prosecution for a statement concerning a public official, truth must be a complete defense. Section 4102 does permit an unqualified affirmative defense of truth, but it does so only if the victim "is a public officer and the charge made refers to the performance of his duties." Otherwise, truth is only a defense if the defendant "had good intention and justifiable ends." The section 4102 defense of truth is not broad enough to encompass all constitutionally protected statements. This affirmative defense is constitutionally deficient.
First, section 4102 only applies to statements about public officials in the performance of official duties. Under Garrison, the public officials exception does not extend only to the discharge of official duties, but to "anything which might touch on an official's fitness for office," including "dishonesty, malfeasance, or improper motivation." 379 U.S. at 77. The affirmative defense under section 4102 is not broad enough to cover all such statements concerning public officials. And the default provision -- that the defendant may otherwise prove truth as a defense only by showing "good intentions and justifiable ends" -- does not cure the problem; it exacerbates it.
The statutory affirmative defense also does not protect
all public figures, only public officers. Garrison rejected any
notion that the allegedly libelous utterance must have been
published "with good motives and for justifiable ends," as applied
to public officials.
c. Report of Official Acts
Section 4103 also applies to plaintiff's activities. Mangual investigated and reported the details of the judicial proceedings against Betancourt. Mangual also reported on other acts of official character, the internal investigations of the police department. Section 4103 states that, as to judicial or legislative acts, or any other act of "official character," any report or statement which is true and fair "shall [not] be considered to be libelous." The official Spanish version, enacted in 1974, uses "imparcial y exacta," rendered in the official English translation as "true and fair."
Taking the statute as officially translated, we think the
"fairness" requirement is itself constitutionally deficient. A
true report of an official act is not protected; the report must be
"fair" as well. It is inconsistent with First Amendment standards
to require that a true statement about official acts must also be
fair. Further, when proving actual malice, falsity is not
established by "minor inaccuracies," whether deliberate or not.
Masson v. New Yorker Magazine,
Mangual and the intervenors argue that the translation of the passage as "true and fair" is neither true nor fair: they say the original Spanish translates more accurately to "impartial and exact." Their complaint appears to be a valid one. See Oxford Spanish Dictionary 277, 335 (1996). Indeed, the only other Puerto Rico statute that has a passage which is translated as "true and fair" is 33 P.R. Laws Ann. § 517(5), and there the original Spanish is "verdadero y justo." Were the statute read literally in Spanish, an exactness standard (even an impartiality standard) is even more clearly constitutionally deficient, for the reasons stated above.
In the end, the constitutional infirmity does not depend on whether the original Spanish or the official English translation is relied upon. Section 4103 is not broad enough to privilege minor inaccuracies when reporting on government acts, statements, or debates.
d. Further Arguments
The plaintiff and intervenors challenge the criminal
libel statute on two additional grounds. First, they argue that
the penalty of restitution permitted by section 4101 violates the
Gertz requirement that damages be proven unless liability is
established under the actual malice standard. See Gertz, 418 U.S.
at 349-50 (prohibiting "presumed or punitive damages, at least when
liability is not based on a showing of knowledge of falsity or
reckless disregard for the truth" and requiring that "all awards
must be supported by competent evidence concerning the injury").
Second, plaintiffs independently challenge section 4104, which
requires that the criminal court "shall order" the publication of
conviction for libel through the same or analogous means as the
libel was published. The plaintiff and intervenors argue that this
provision unconstitutionally violates editorial independence under
the standards set out in Miami Herald v. Tornillo,
We have held that section 4101 violates the First Amendment under several analyses; as to section 4104, there is no severability clause, and this section would in any event lack force standing alone. We need not reach the separate questions of whether the penalty of restitution or the requirement of publication of conviction violates the First Amendment.
Conclusion
We hold that the Puerto Rico criminal libel statute
incorporates constitutionally invalid standards in the context of
statements about public officials or public figures. We hold that
Puerto Rico's criminal libel statute, 33 P.R. Laws Ann. §§ 4101-4104, is unconstitutional under the First Amendment as applied to
statements regarding public officials or figures. We reverse the
denial of Medina's motion to intervene and grant intervention to
Medina, reverse the dismissal of the case on jurisdictional
grounds, and remand the case with instructions that the district
court enter a declaratory judgment and injunctive relief consistent
with this opinion. So ordered. Costs are awarded to Mangual and
Medina.
1. Of the Northern District of Illinois, sitting by
designation.
2. This translation does not include a December 10, 1999
amendment to section 4101; that amendment increased the criminal
penalty to incarceration between one and three years and a fine of
not more than five thousand dollars, but made no other changes to
the statute.
3. The residents of Puerto Rico are protected by the First
Amendment. Torres v. Puerto Rico, 4. This letter and the response from the Department of Justice
were written in Spanish; we quote from the certified translation of
Rivera's letter, and a translation provided by the plaintiff of the
response.
5. Betancourt, Suárez, and the Overseas Press Club do not
appeal the denial of their motions to intervene.
6. Some cases have held that intervenors must independently
meet Article III standing requirements. See, e.g., EEOC v. Nat'l
Children's Ctr., Inc., 7. Neither the district court below, nor the defendants on
appeal, argue that Medina or Caribbean's claims are unripe or moot;
they challenge jurisdiction over the intervenors' claims purely on
the basis of standing. In any event, the intervenors' claims are
neither moot nor unripe.
8. The vast majority of state courts that have found
constitutional infirmities in criminal libel statutes have declined
to rewrite them but have instead struck them down. See, e.g., Ivey
v. State, 9. The threats of prosecution to which the plaintiffs point all
involve statements regarding either public officials, such as
police officers, or public figures, such as political candidates.
Thus, we have no occasion to consider whether the Puerto Rico
criminal libel statute is unconstitutional as applied to statements
about private figures on matters of public concern.
10. The criminal libel statute makes no mention of any
requirement that the prosecution prove a defendant's knowledge of
falsity or recklessness with regard to falsity. The plaintiff and
intervenors allege that this also makes the statute
unconstitutional.
It is an open question whether criminal libel statutes must
include non-truth as an element of the crime instead of truth as an
affirmative defense. The Supreme Court, in Garrison, indicated
that the constitutional protections in the civil arena should apply
to criminal libel prosecutions as well. See
One concern about placing the burden of proving truth on the defendant is that it may require defendants to waive their Fifth Amendment rights in order to take advantage of the New York Times standards. In other words, the Puerto Rico statute potentially puts defendants into the position of choosing between their First and Fifth Amendment rights. Another concern is that journalists may be unable to protect confidential sources if required to prove the truth of published statements.
It may be that the Supreme Court will reason that the requirement that civil plaintiffs prove falsity in certain circumstances means that prosecutors must also prove falsity as an element of the crime of libel in those circumstances. However, because the Supreme Court has yet to rule on this precise issue, and because the Puerto Rico criminal libel statute clearly has other constitutional infirmities, we need not reach this issue.