While Puerto Rico continues to suffer from an epidemic of drug-related street crime, legislative efforts to update its criminal laws have drawn a First Amendment challenge in the federal district court in San Juan.
Of all the crimes faced by the “Island of Enchantment,” a U.S. Territory, legislators decided to tackle what they view as criminal acts related to public protests.
The island’s new criminal code imposes a mandatory three-year prison term on anyone who “engages in any disorder” in the “immediate view and presence” of the Puerto Rico Legislature, or of any municipal council, that “tend to interrupt their activities” or “reduce the respect due to their authority.”
The legislation was approved last month by Puerto Rico Governor Luis Fortuño, one of the speakers at this month’s Republican National Convention in Tampa.
The new provision was immediately challenged by the American Civil Liberties Union, which for years has been denouncing the Puerto Rico Police Department for excessive force against nonviolent protesters.
The street demonstrations, which have been taking place on and off since early 2009, have included protests against the austerity policies of the Fortuño administration. These have included the mass layoff of some 17,000 unionized government employees, and large budget cutbacks and tuition and fee increases at public universities.
The ACLU alleges that police officers “indiscriminately use a toxic form of tear gas and pepper spray, batons, rubber bullets and rubber stinger rounds, sting ball grenades, bean bag bullets, Tasers, carotid holds, and pressure point techniques on protesters.”
In June, the ACLU filed suit alleging violations of the constitutional rights of peaceful protesters on the island. It amended the lawsuit this week to also challenge the new prison terms for protesters who cause a disorder near legislators.
The new law, according to the ACLU, is vague as to the terms “disorder” and “immediate view,” and as to the requirement that a person’s actions not “reduce the respect” owed legislators “due to their authority.” It argues that the law’s vagueness will lead to discriminatory police enforcement based on an individual’s viewpoint and political affiliation.
The ACLU is asking U.S. District Judge Jose A. Fusté, a Reagan appointee, to issue an injunction that prohibits the new law from taking effect on Sept. 1. They also want the judge to determine that the police department’s “current well-settled practice of using excessive force” against demonstrators violates the First Amendment.
Judge Fusté will have to decide whether freedom of speech and assembly still exist in Puerto Rico, or whether Gov. Fortuño is allowing the island to become a fascist police state like Vladimir Putin’s Russia.
Gov. Fortuño should take the lead, disavow the new law before Judge Fusté and make sure his police department is trained to understand and respect the rights of all Puerto Ricans under the U.S. Constitution.
Angel Castillo, Jr., a former reporter and editor for The New York Times and The Miami Herald, practices employment law in Miami.