Defamation

A Puerto Rico criminal defamation statute that imposes a fine and term of imprisonment on anyone who "maliciously … publicly dishonors or discredits, or charges the commission of an act constituting a crime, or impugns the honesty, integrity, virtue or reputation of any … person" is unconstitutional under the First Amendment standards established by the U.S. Supreme Court, the U.S. Court of Appeals for the First Circuit declared Jan. 21. 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, the court decided (Mangual v. Rotger-Sabat, 1st Cir., No. 02-1669, 1/21/03; Media Law Case Alert 1/31/03).

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 court said. It described the core facts as follows: A newspaper published a series of stories about corruption in government. In turn, the government responded with actual and threatened criminal prosecution of the reporters. The newspaper later published a story critical of a candidate for high public office; the reporter was threatened with criminal prosecution. Thus, the press was threatened with criminal sanctions for commenting on the conduct of public officials and matters of public concern.

Actual Malice.

The seminal Supreme Court case of New York Times v. Sullivan, 376 U.S. 254 [1 Med.L.Rptr. 1527] (1964), contains several requirements that constrain libel law when the challenged statement is about a public official, the court observed. 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." The actual malice standard is distinct from common law malice, which refers to spite or ill will. The Supreme Court later extended actual malice protection to speech about public figures as well as public officials.

The actual malice standard, and other constitutional protections of criticisms of public officials, was extended to the criminal libel context in Garrison v. Louisiana, 379 U.S. 64 [1 Med.L.Rptr. 1548] (1964), the court continued. There, the Supreme Court held that criminal libel statutes share the constitutional limitations of civil libel law.

The section of the Puerto Rico statute quoted above, 33 P.R. Laws Ann. §4101, is constitutionally deficient on its face, the court concluded, because 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 secretary of justice of Puerto Rico, citing People v. Olivero Rodriguez, 112 P.R. Offic. Trans. 460 (1982), asserted that Section 4101 has been narrowed by the Puerto Rico Supreme Court to incorporate the New York Times actual malice standard. That court described the elements of the case as follows: "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."

The court disagreed with the secretary, finding that that case did not address the New York Times or Garrisonrequirement of actual malice. Although it did cite federal case law, it was only for the question of who qualifies as a public figure, and it found that the case did not involve a public figure. Furthermore, the opinion's use of the "reckless disregard" phrase is followed by the Latin phrase "animus injuriandi," which is defined in Black's Law Dictionary as "the intention to injure, esp. to insult." That standard is materially different from the one dictated byNew York Times, the court noted, pointing out that the opinion uses "reckless disregard" to further define "a real and malicious intent" and does not impose a distinct requirement of knowing or reckless disregard for the statement's truth.

Truth as Defense.

In addition to the actual malice standard, Garrison requires that truth must be a complete defense in a criminal libel prosecution for a statement concerning a public official, the court said. It found that Section 4102 of the statute does permit an unqualified affirmative defense of truth, but that 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 intentions and justifiable ends."

Although Section 4102 only applies to statements about public officials in the performance of official duties, under Garrison, the public officials exception extends to "anything which might touch on an official's fitness for office," including "dishonesty, malfeasance, or improper motivation." The affirmative defense under Section 4102 is not broad enough to cover all such statements concerning public officials, the court ruled. 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 court said.

Moreover, the statutory affirmative defense does not protect all public figures, only public officers, the court stressed. 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. Later rulings expanded the New York Timesstandard to statements regarding public figures. Thus, truth must be a complete defense for all public figures, not merely public officials. Section 4102 does not provide such protection for statements involving public figures who are not officials, the court said, ruling it unconstitutional.

Report of Official Acts.

Section 4103 provides that, as to judicial or legislative acts, or any other act of "official character," any report or statement that is true and fair "shall [not] be considered to be libelous." The official Spanish version uses "imparcial y exacta," rendered in the official English translation as "true and fair."

Taking the statute as officially translated, the court said, "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. In order to amount to a known or reckless falsehood, the alteration must result in a material change in the meaning conveyed by the statement. Otherwise, small inaccuracies, if the product of knowing or reckless behavior, could form the basis of liability even when commenting about public officials or figures, the court said.

Reporters in this case argued that the translation of the passage as "true and fair" is neither true nor fair. They claimed the original Spanish translates more accurately to "impartial and exact." The court found this to be a valid argument, pointing out that in the only other Puerto Rico statute that has a passage that is translated as "true and fair," the original Spanish is "verdadero y justo." "Were the statute read literally in Spanish," the court said, "an exactness standard (even an impartiality standard) is even more clearly constitutionally deficient."

In the end, the court concluded, 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, it declared.

The full text of Mangual v. Rotger-Sabat will be published in an upcoming issue of Media Law Reporter.