Author: Various Authors
Are the people in PR entitled to find government information on the internet?
The question seems absurd! Everyone will agree that the people are entitled to see and read information that they need to use and that their government has compiled.
But, some will contend that this is not as clear cut as it seems. They are concerned that the government in power will have an ability to control what is seen and how it is presented. These people see danger lurking under every rock within their vision, and every sound to their ears.
If an election control section like the SEC in PR has a problem, it is for it to define what policy is controlling and then study what is on the net and try to prove which screens should be cut by court order. Instead they hide behind the paper work notion that the government needs to make five printed copies for multiple groups to study and eventually issue an approval to show on the net.
This is obviously a ploy to hamstring the government and try to embarass it with ridiculous charges and a call for censuring by a watchdog functioning agency looking for more work to do. This is a ‘make-work’ scheme on the one hand, and a political trick on the other.
It is time that the people bring suit and get the Court to unlock the doors if the governmental agencies can’t resolve such petty problems.
Or; we can encourage a form of ‘civil disobedience’ so popular today on the beach of Vieques. We could set up a private foundation that has a legal pipeline to the prstar.net array of information with an ability to distribute it publicly;
Or we could call for passage of legislation that forces the burden of proof of infringement of rules of the SEC to be put in their corner. Let the prstar.net be available and force the SEC to file suit for pages deemed to be in violation of the law. The same law can require that the SEC view such pages as it chooses to review on its own connection to prstar.net with the option to waste as much paper printing out pages at it can afford to pay for with the budgeted allocation of the people’s tax dollars.
This whole mess is symptomatic of the willingness of some politically minded people in PR to want to play ‘childish games’ with genuine leaders of the administration that are motivated to improve government services rather than to put them in endless legal straight-jackets.
It is high time for the press to lead a campaign to expose with examples of the kinds of pages to be studied by the SEC watch-dog group.
A letter from Jorge Aponte includes these words to show the issue in a very clear way:
"We, of PR Star Net have decided that Internet and websites are not "invasive" media, as compared to TV, radio, or newspapers. Websites are much like alibrary, where you go specifically to look for certain info, on your own
and by "pulling" that info. Our sites, basically provides "public information", much like the one that should be available traditionally by the rights to information acts in any state or the federal union. We did state our position to PREC in a letter to that effect (see:
http://www.prstar.net/default1aeng.htm ). In addition, the Puerto Rico Attorney General has issued a legal opinion (a translation to English will be available in a few more days) in which our position is sustained. However, a PREC member, representing a minority political party therein, has filed a complaint against OMB an the PREC has issued OMB a valid
citation for a hearing 4:30 PM, Wednesday Feb. 2.
We think that this may be the tip of an iceberg and a national issue. As as a matter of fact, Civic.Com has covered briefly the story (see:http://www.fcw.com/civic/articles/2000/0124/web-prweb-01-25-00.asp )."
Yes, an issue of real importance is now on the table. In a State controlled society, we must have strong censorship to insure that nobody is exposed to any thought but the officially sanctioned one. If PR is to avoid such control then the position of Jorge Aponte must be supported by all who believe in freedom of information.
Building another layer of bureaucracy to have a team read each of six copies of every web page connection is just the beginning. Give on this and we can expect the library to be invaded as well.
Feb. 5, 2000 update on the matter:
Since calling for a hearing on Feb. 2, the SEC perpetrators of the attack on freedom of information from the government to the public via the internet
Here is the official official request for a hearing aimed at trying to establish a charge for which the defendant must try to prove innocence rather than vice-versa!
Following this translation of the charge is a more literate evidence of an Opinion on Internet by the Sec of the Dept. of Justice) as related to the issue.
Any intelligent reader will have to wonder if the attackers can escape the consequence of filing such a frivolous suit. They should look to be rather inclined toward obstructionism rather than to be interested in promoting knowledge and awareness of matters of importance to the people of P.R.
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COMMONWEALTH OF PUERTO RICO
> STATE ELECTORAL COMMISSION
> ADVERTISEMENT BOARD
>
>
>
> CASE NO: CEE- PU-00-21
> RE:
> THE OFFICE OF MANAGEMENT
RE: ADVERTISEMENTS BY GOVERNMENT AGENCY AND BUDGET (OMB) AND OF THE
> PRSTAR.NET COMMONWEALTH OF PUERTO RICO
>
> REQUEST FOR AN INVESTIGATION
>
> TO THE HONORABLE COMMISSION:
>
Comes now the undersigned Hearing Examiner of the Puerto Rico Independence
Party and respectfully alleges and prays:
>
> 1. The Office of Management and Budget of the Government of Puerto
Rico keeps a Gateway to the Internet with access for the general public, in
open violation to Article 8.001 of the Electoral Act.
>
> 2. Section 8.001 of the Electoral Act vests authority on the State
Electoral Commission in issues regarding the publication of advertisement
by Government agencies during an election year.
>
> 3. The Office of Management and Budget and PRStar.Net have not
requested the State Electoral Commission's authorization to broadcast the
information presented in the Gateway.
>
> 4. If the pertinent pages had been submitted to the State Electoral
> Commission, at least part of them would not comply with the Electoral
Act, the State Electoral Commission's Examining Board Advertisement
Regulation, and the case law interpreting them.
>
> 5. The Office of Management and Budget has expressed to the public and
the State Electoral Commission its intention to present the Gateway to the
public without requesting the State Electoral Commission's
authorization.
>
> 6. The Office of Management and Budget has informed the State
Electoral Commission's Chairman by letter that they are basing themselves
on supposed press information which contradicts the clear letter of the Law
and the Regulation to commit the violation (sic).*
>
> 7. The letter addressed to Honorable Juan R. Melecio, Chairman of
the State Electoral Commission, dated January 20, 2000, was shown on the
first segment of the Website, thus, giving access of the letter to the
network's readers before access was given to the Commissioners and members
of the Advertisement Board.
>
WHEREFORE, it is respectfully requested that the Director of the Office of
Management and Budget and the Director of PRStar.Net be summoned, so that
they may therefore show cause as to why they should not be found to have
incurred in a violation of the Electoral Act.
>
RESPECTFULLY SUBMITTED.
>
In San Juan, Puerto Rico, on the 21st day of January, 2000.
>
> Gilberto Concepción Súarez
> Hearing Examiner
>
> * The translation of paragraph 6 is literal, however even in Spanish, the
language of paragraph 6 of the complaint appears to be incomprehensible.
COMMONWEALTH OF PUERTO RICO
DEPARTMENT OF JUSTICE
P. O. BOX 9020192, SAN JUAN, P. R. 00902-0192
ADDRESS CORRESPONDENCE TO THE SECRETARY
January 18, 2000
Mrs. Frances RodrÌguez
Director
Central Communications Office
La Fortaleza
San Juan, Puerto Rico
Consultation Num. 145-99-A
Dear Mrs. RodrÌguez:
Referring to the your communique of last Thursday, January 13, 2000, requesting juridical orientation with respect to whether the Internet is one of the public broadcasting media subject to the provisions of Article 8.001 of the Electoral Law of Puerto Rico, 16 L.P.R.A. sec. 3001 et. sec.
You stated to us that last December 10, 1999, the Commonwealth Elections Commission approved the Regulation for the Control of Public Broadcasting Expenses of the Government of Puerto Rico for the year 2000, which includes the Internet as one of the broadcasting media whose contents will be judged based on the mandate of Article 8.001 of the Electoral Law,16 L.P.R.A. sec. 3351. You indicate in your letter that you understand the Internet is a technological medium that has no comparison with the traditional broadcast media, therefore should not be subject to the provisions cited in Article 8.001 of the Electoral Law. In addition, you state your concern that while members of the Commission could examine the content of the "websites", the Government will not be able to comply with its ministerial duty of making citizens aware of the essential aspects of public interest so that they can be in a better position to protect their well being and assert their rights.
I- Article 8.001 of the Electoral Law of Puerto Rico and its interpretive jurisprudence.
Article 8.001 of the Electoral Law, prohibits that from the 1st of January of every general election year, and until the day after such election is held, agencies of the government, the Legislature and the Judiciary Branch of the Government of Puerto Rico, incur expenses for the purchase of time and space in the public broadcasting media with the purpose of divulging its programs, projects, achievements, performances, projections and plans. However, it is indicated, that announcements will be used to broadcast public interest, urgency or emergency information, but they shall only be permitted upon prior authorization of the Commonwealth Elections Commission.
The Electoral Law, in Article 1.003, 16 L.P.R.A. sec. 3003, states that "broadcast media", shall be understood to be radio, movie, television, newspapers, magazines and periodic publications.
Let us ponder how the Supreme Court of Puerto Rico has interpreted Article 8.001 of the Electoral Law, in order to know its significance in our juridical code.
In Romero Barceló vs. Hernandez Agosto, 115 D.P.R. 368 (1984), suits were filed against the President of the Senate, as well as chairman the President of the Judiciary Committee of said body, in order to prevent them from using of public funds for the televised transmission of public hearings that would discuss a bill that proposed the creation of the position of the Special Independent Prosecutor to investigate the events on Cerro Maravilla case. It was alleged that said televised transmission would violate the provisions of Article 8.001 of the Electoral Law and Section 9 of Article VI of the Constitution of Puerto Rico. After elaborating on the parliamentary immunity doctrine, and its application to the case before its consideration, the Supreme Court concluded that Article 8.001 did not apply to the case, since, "[ t] he televising of a parliamentary procedure, whose diffusion still holds its constitutional base, does not truly represent the exposition of * programs, projects, achievements, performances, projections or plans". Ibid., page 392. On that same page, it further states that divulging legislative procedures complies with a purpose of constitutional stature, which makes it distinguishable from the reigning electoral propaganda. It indicates that the law primarily refers to advertisements and propaganda proselytism on such programs, achievements, etc.
Years later, in the case of Miranda vs. Commonwealth Elections Commission, opinion of October 25, 1996, 96 J.T.S. 137, the Supreme Court found violations of Article 8.001 in the commercial of the Department of Education that displayed a star with a slogan that stated: "to each child, a future, to each child, their star. The use of the star was prohibited in the Department's commercials, and indicated that for the effects of such prohibition the term "commercial" must be understood in its most general and broad meaning, including not only press, television or other traditional diffusion media announcements, but such things as billboards in front of buildings as well.
The Supreme Court cited with approval the expository vote of Mr. Concepción Sua·rez, Esq., in the report of the Commonwealth Elections Commission of January 29,1996, in which section 1.4( 8) of the Regulations for the Control of Expenditures for Public Diffusion of the Government, in the context of a request for approval of some pins in the shape of a star of the Tourism Company, accompanied by some cards with a message. Such expository vote indicated that "[m] ore than just a definition, what the section does is an enumeration. In these times of such great technological changes in communications, we cannot accept a limiting list and the exclusion of other diffusion media...".
Thus, the Supreme Court embraced a flexible and broad reading of Article 8.001, particularly on what should be understood as announcements.
To such effects, it pointed at page 238, that previously had considered stickers, signs, garbage cans with labels, placards on light posts; emblems in the center of a municipal, basketball court, on official vehicles, on the official stationery of a municipality and on T-shirts.
It is necessary to point out that our Highest Forum validated its broad reading of this Article with the postulate that defends electoral economic equality. To such effects, it stated on page 237:
"From its beginnings, its purpose was to prohibit the use of public funds in political campaigns. This principle, in turn, responds to the postulate of equality immersed in our Constitution, which pursues to achieve economic parity among political parties for the circulation of ideas and messages in our country. N.P.P. vs. Electoral Court, 104 D.P.R. 741 (1976); Marrero vs. Municipality of Morovis, 115 D.P.R. 643 (1984). * The concept of economic equality with regard to the distribution of public funds in the electoral process prevents a political party that has the power to govern the People at a given moment to use public funds, taking undue advantage to promote its position. Art. 8.001 is, precisely, a preventive measure so that such practice does not occur. P.D.P. vs. Rosselló Gonza·lez I, Op. of September 8, 1994,94 J.T.S. 117, page 132.
Therefore, neither the regulation nor its interpretation, can contravene Article 8.001 and the purpose pursued in promulgating it. Validly and agreeing with the aforementioned, it was proper to broadly interpret the phrase diffusion media."
In the same liberal tenor announced by our Supreme Court in the reviewed case of Miranda vs. Commonwealth Elections Commission, supra; the Regulation for the Control of Government Public Diffusion Expenses for the General Elections of the year 2000, approved on December 10, 1999, includes, in its Section 1.4, as definition of "diffusion media ", the following:
"Radio, movie, television, newspapers, magazines, periodic publications, flyers, signs, symbols, emblems, photographs, recordings, whether on tape, records, CDs or others, Internet and any other medium capable of disseminating, propagating and divulging a message, whether directly or indirectly." (Emphasis supplied).
In virtue of what has up to now been outlined, and circumscribing ourselves to the present controversy, it is clear that the broad reading of our Supreme Court of term "diffusion media ", and which the Commonwealth Elections Commission continues in its regulations - including the Internet among the other sources - based on the supposition that it seeks to avoid the undue advantage of the principal political parties before those of the minorities, so as not to violate the concept of economic equality immersed in our Constitution, which seeks to achieve economic parity among political parties for the dissemination of ideas and messages in Puerto Rico.
It must be mentioned that the Internet is not the type of medium that Article 8.001 seeks to regulate, since it is not invasive as other media that the legislator had in mind and, in an irremediable manner it broadcast their message on a great scale, configuring a true disadvantage for the minority parties when such invasive media are used for what Article 8.001 seeks to prohibit. On the other hand, the Internet is not seen as the medium that should be subject to scrutiny under this Article because the concepts of purchase of time and space delineated in the law do not apply. In virtue of this difference, the Internet is seen as one of the most economical means whose benefits are more accessible for any person, but which, different from the rest of the invasive media, requires deliberate steps directed to acquire information, which does not appear spontaneously as in the other media. On the other hand, as we shall see, the Internet is a medium cataloged by federal jurisprudence as an avenue of interstate commerce and free diffusion of ideas that have remained unscathed and free of restrictions even before constitutional arguments against it that have threatened the free flow of information received by it in various instances . Before exploring the casuistry on the subject, we should expose the situation of Puerto Rico before the Interstate Commerce Clause of the United States Constitution, since, depending on its applicability or not, the federal jurisprudential precedents could or not be entailable for Puerto Rico. Let us see.
II- Interstate Commerce Clause: its application to Puerto Rico
Although the Supreme Court of Puerto Rico has questioned the issue whether the Interstate Commerce Clause applies to Puerto Rico, see Iberia vs. Secretary, opinion of February 1st, 1994, 94 J.T.S.8, it has been understood that such conclusion applies since Puerto Rico is integrated to the United States commerce system. To these effects, it has been commented:
"With respect to Puerto Rico, although there have been intense debates over the application of the Commerce Clause to our country (see Chapter VI, Sec. 4D.), there is no doubt that, regardless of theoretic justifications, the norms established by the Federal Supreme Court for the states, rule in Puerto Rico since the Congress included the Island since 1900 in the North American commerce system" Ra·l Serrano Geyls, U. S. & P. R. Constitutional Law, Vol. I, P. R. Bar Association educational Practice Institute, Inc., 1986, page. 341.
In a very similar manner, in Sea-Land Services, Inc. vs. Municipality of San Juan, 505 F. Supp. 533 (D.P.R. 1980), it was concluded that the Interstate Commerce Clause applies to Puerto Rico. In concluding this, the Court adduced several reasons. First, it indicated that regardless of the nature of the relationship between Puerto Rico and the United States, the Territorial Clause is a source of congressional power over Puerto Rico. Second, it was indicated that the ideas of public policy that motivated the forefathers of the federal Constitution to approve this clause, are equally applicable to the commercial relationship between Puerto Rico and the states or foreign countries. In this tenor, the Federal District Court stated that to permit an unrestricted interference to Puerto Rico in interstate or foreign commerce, could generate rivalry among the states of the Union and impede regulatory uniformity, even when the Congress understands that it is necessary. Third, it is consigned that the internal authority of Puerto Rico is very similar to that of the states. To this extent, it is indicated that powers acquired by the Commonwealth of Puerto Rico, not only under the Federal Relations Act, as under the Constitution, are very similar to those of the states. Finally, the Court points out that there is no reason whatsoever to conclude that the constitutional policy of avoiding adverse interference of state legislation in interstate commerce, should not be equally applied to Puerto Rico. Furthermore, there has been no congressional statement to the contrary.
In Trailer Marine Transport Corp. vs. Rivera V·Vazquez, 977 F. 2d 1 (1st Cir. 1992), it is pointed out that the main purpose of the Interstate Commerce Clause is promote economic integration and impede local interference with the Nation's commercial flow. Indicated, at page 8:
"This rationale applies with equal force to official actions of Puerto Rico. Full economic integration is as important to Puerto Rico as to any state in the Union".
With the above quote, the Court approached the controversy of whether the so called "sleeping" commerce clause applies to Puerto Rico.
This is the one we have considered throughout this present opinion, since it defends that for state or local laws or regulations shall be invalid under the Interstate Commerce Clause when they unduly tax or discriminate against interstate or foreign commerce. Ibid., page. 8.
The conclusion that this modality of the clause applies to Puerto Rico is undoubtedly imposed when we consider that there is no controversy about the original modality of this clause being equally applicable to Puerto Rico. The original denominated modality is nothing else than that contained in Article I, Section 8 of the Constitution of the United States, empowering Congress to regulate commerce with foreign nations and between the different states. This original modality, as stated by the Court in annotation 3 of the opinion, applies to Puerto Rico. To such effects, the Court decided on pages 7 and 8: "Both the Supreme Court and this court have long held or assumed that Congress has power under the Commerce Clause to regulate commerce with Puerto Rico. See Secretary of Agric. v. Central Roig Refining Co., 338 U.S. 604, 616, 70 S. Ct. 403, 409, 94 L.Ed. 381 ( 1950) ( Sugar Act of 1948 applied to Puerto Rico through the Commerce Clause); Puerto Rico Tel. Co. v. FCC, 553 F.2d 694,701 (1st Cir. 1977) (Federal Communications Commission regulations applied via the Commerce Clause to government-owned Telephone Company in Puerto Rico). Thus, in one aspect, the question * whether the Commerce Clause applies to Puerto Rico has been settled in the affirmative for many years; the more precise issue, posed in this case, is whether the dormant Commerce Clause doctrine also applies to Puerto Rico." In addition, see, United Egg Producers v. Department of Agriculture, 77 F. 3d 567 (1st Cir. 1996).
Although, as designated before, our Supreme Court has left in question if the Interstate Commerce Clause applies to Puerto Rico, several jurisprudential precedents established by this Court appear to point to the implicit recognition that Puerto Rico is linked by said clause. If it is true that the cases of R.C.A. vs. Government of the Capital, 91 D.P.R. 416 (1964), and South P. R. Sugar Corp. vs. Public Service Commission, 93 D.P.R. 12 (1966), indicate that the congressional power to regulate commerce with foreign nations, between the states and with Indian tribes, does not extend to Puerto Rico other subsequent cases have been implicitly based on the existence of said power.
See in an illustrative manner, the decision in Gómez Hermanos, Inc. vs. the Secretary of the Treasury, 114 D.P.R. 367 ( 1983). In this case, our Supreme Court, although it did not state categorically that the Interstate Commerce Clause applies to Puerto Rico, it developed its analysis stemming from said presumption, and stated it expressed, on pages 370-371:
"Interstate as well as foreign commerce are not deemed immune today, contrary to the doctrine of several years ago, to the taxing power of the states. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979). In the case of interstate commerce, jurisprudence demands that tax legislation fulfills four requirements: taxes must be applied to an activity possessing a substantial tie with the taxing State; the contribution must be fairly distributed; the tax should not discriminate against interstate commerce; and should be adequately related to the services that the State provides. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 ( 1977); Washington Rev. Dept. v. Stevedoring Assn., 435 U.S. 734, 750 ( 1978).
When a state taxes foreign commerce, it should take two other factors into consideration. The fact whether the foreign entity is subject to taxation, must be examined. It should also be determined if it is an area in which federal uniformity is essential. Japan Line, Ltd., supra, pages. 446-448." Also see, Banco Popular de Puerto Rico v. Municipality of Mayagüez¸, 126 D.P.R. 653 ( 1990).
Outlining our criteria that the Interstate Commerce Clause applies to Puerto Rico, we will proceed to review out certain jurisprudence on the Internet and the Constitutional design in which it has developed.
III- Internet: Interstate Commerce Medium and Freedom of Speech.
In American Libraries Association v. Pataki, 969 F. Supp. 160 ( S.D.N.Y.1997), a New York penal statute was challenged for imposing an improper tax, not only under the freedom of speech guaranteed by the First Amendment of the Constitution of the United States, but also in interstate commerce. Said statute penalized any person who, utilizing a computer, initiated or sustained a communication of sexual content with a minor.
The district Court of N. Y. concluded that the challenged statute contravened the Interstate Commerce Clause of the Constitution of the United States. To such end, it stated, on page 173:
"The courts have long recognized that railroads, trucks, and highways are themselves * instruments of commerce, because they serve as conduits for the transport of products and services. The Internet is more than a means of communication; it also serves as a conduit for transporting digitized goods, including software, data, music, graphics, and videos which can be downloaded from the providers site to the Internet users computer. For example, plaintiff Biblio Bytes and members of plaintiff IDSA both sell and deliver their products over the Internet.
The inescapable conclusion is that the Internet represents an instrument of interstate commerce, albeit an innovative one; the novelty of the technology should not obscure the fact that regulation of the Internet impels traditional Commerce Clause considerations. The New York Act is therefore closely concerned with interstate commerce, and scrutiny of the Act under the Commerce Clause is entirely appropriate. As discussed in the following sections, the Act cannot survive such scrutiny, because it places an undue burden on interstate traffic, whether that traffic be in goods, services, or ideas." (Omitted quotes) (Underscoring ours).
The District Court of New York, in spit of, recognizing the laudable purposes of the statute, deemed that the benefit that could be obtained locally was less than the damage caused by the imposition of a tax on interstate commerce. In synthesis, it stated that the law in question was not sustained under the Interstate Commerce Clause for several reasons. It was thus stated, on pages 183-184:
"The protection of children from pedophilia is an entirely valid and laudable goal of State legislation. The New York Acts attempts to effectuate that goal, however, fall afoul of the Commerce Clause for three reasons. First, the practical impact of the New York Act results in the extra territorial application of New York law to transactions involving citizens of other states and is therefore, per se, violative of the Commerce Clause.
Second, the benefits derived from the Act are inconsequential in relation to the severe burdens it imposes on interstate commerce. Finally, the unique nature of cyberspace necessitates uniform national treatment and bars the states from enacting inconsistent regulatory schemes."
In Reno vs. American Civil Liberties Union, 117 S. Ct. 2329 ( 1997), The United States Supreme Court declared unconstitutional two federal statutory precepts that had been approved to protect minors from communications through the Internet, that would be considered "indecent" or "patently offensive". The Supreme Court described in detail the nature of the media, and defined it on page 2334 as "a unique and completely new medium of human communication at world level". (Our translation). In this tenor, it differentiated it from other media, such as radio and television, in the following manner:
"Unlike communications received by radio or television, * the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial." Ibid, page 2336.
Furthermore on page 2343, it stated:
"* Each medium of expression... may present its own problems. Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers. In these cases, the Court relied on the history of extensive government regulation of the broadcast medium; the scarcity of available frequencies at its inception; and its * invasive nature.
Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forms of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as *invasive as radio or television. The District Court specifically found that * communications over the Internet do not * invade* an individuals home or appear on ones computer screen unbidden. Users seldom encounter content * by accident." (Quotes Omitted).
Continuing with the explanation of elements that differentiate the Internet from other sources, those that characterize this medium as unique and exclusive, the Supreme Court pointed to its relative under cost:
"Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a * scarce* expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that * [ a] s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999. This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and news groups, the same individual can become a pamphleteer. As the District Court found, * the content on the Internet is as diverse as human thought 929 F. Supp., at 842 ( finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." (Underscoring ours).
We are impressed by the defense that the Supreme Court makes of the free flow of ideas through the Internet although recognizing that it could be prejudicial, as it would be for minors exposed to noxious publicity of a sexual nature. Note, on page 2346, the Supreme Court stated:
"* [R]Regardless of the strength of the governments interest in protecting children, [t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox".
Finally, the Supreme Court, on page 2351 of the case, indicated the supremacy of freedom of speech in the following terms:
"The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."
In another similar case, in Cyberspace Communications, Inc. & Engler, 55 F. Supp. 2d 737 ( E.D. Mich. 1999), the situation was the following.
The Michigan Legislature had approved a statute in 1978, to protect minors, prohibiting the distribution of obscene material to the children of said state. In order to temper the legislation to technological advances, an act was approved in 1999, which established a penal prohibition against the use of computers or the Internet to disseminate sexually explicit material to minors. The Court mentioned that the Internet is an interstate commerce vehicle, since it allows the free flow of ideas beyond state limits, and there is no form to prevent it from reaching certain places. Ibid., pages. 744-745. In concluding that the statute violates the First Amendment of the Constitution of the United States, the Supreme Court consigned, at page 751:
"In summary, Defendants have asserted a broad right to censor the expressive activity of the receipt and communication of information through the Internet with an Act that (1) addresses a compelling government interest but is not necessary to further that interest; ( 2) is not narrowly tailored; and, ( 3) fails to employ the least restrictive means available to further that interest. The Act offends the guarantee of free speech in the First Amendment and is, therefore, unconstitutional."
On the other hand, on concluding that the statute in question also violated the Interstate Commerce Clause, the court in Cyberspace, supra, stated the following, on page 752:
"As further explained in Pataki, the chilling effect on Internet communications outside of Michigan greatly outweighs any putative benefit inside Michigan. The Act, and other state statutes like it, would subject the Internet to inconsistent regulations across the nation. Information is a commodity and must flow freely. On this basis alone, the Act may be preliminarily enjoined as a violation of the Commerce Clause." (Underlining ours).
Also see, the case of American Civil Liberties Union v. Johnson, 4 F. Supp. 2d 1029 ( D.N.M. 1998),where, in a similar context to the cases reviewed in this opinion, equally concluded that the challenged statute violated the First Amendment and the Interstate Commerce Clause of the Constitution of the United States.
Finally, it must be indicated, that the restriction of individuals access of and the press to information in the hands of the State, such as subjecting the Internet to the scrutiny of Article 8.001 of the Electoral Law, could configure a situation of unconstitutionality.
IV- Right of access to information in the hands of the Government as a con substantial part of the right to free speech.
In Soto vs. Secretary of Justice, 112 D.P.R. 477 (1982), the Supreme Court declared, on page 488:
"The First Amendment protects the right of any person to freely express their ideas without the State restricting its content and the manner it is expressed, except, of course, in those situations of social urgency tolerated by the Constitution itself. However, the protection does not stop there, but its scope extends to the communication itself and to the right of the passive subject to receive it. Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748 ( 1976)."
Therefore, it is clear, that the right to free speech constitutionally consecrated, can only acquire materiality in the measure that the State permits its citizens to obtain access to information in the hands of government in order to effectively exercise their rights.
Applied to the controversy that concerns us today, we see that, although it is not the intention of the State, through the Commonwealth Elections Commission, to permanently withdraw government information from the reach of the public that can be found through the Internet, in practical terms that is what is happening, since it could paralyze such information until said Commission passes judgment on its content In view of this picture, the statement of the Supreme Court on page 489 of the cited case of Soto vs. Secretary of Justice, supra, are very sound:
"[I]n receiving from the sovereign People the function to govern, the State did not retain the freedom to decide which papers and documents resulting from its public actions would be apart from the scrutiny of those who are, in essence, the main source of their sovereignty. It is only admissible for the State to be able to invoke the mantle of secrecy for its own actions in cases of underlying public interest ". (Underlining ours).
Therefore, we could not validate the secrecy, permanent or temporary, of the official information appearing on the Internet, since, it lacks the "underlying public interest" to justify limiting access to such information. As we have seen, the Internet has been defined as the sole medium that serves as the medium for interstate commerce and freedom of expression. By virtue of those characteristics that distinguish it from the traditional diffusion media, its juridical treatment is, likewise, different. It is for such reason, that while there is in existence an imperative public interest of binding the traditional diffusion media to the scrutiny of Article 8.001 of the Electoral Law, there is an underlying public interest that operates inversely, and promulgates the free flow of information that courses through the Internet in the tide of interstate commerce.
We must not lose the perspective, in analyzing a controversy such as that which concerns us, that the general rule founded on our democratic base is what propels access to the information in the hands of the Government and proclaims the faculty or the duty that the government apparatus has of informing its issues. One of the uncommon exceptions to public policy of access to such information is the cited Article 8.001 of the Electoral Law. See, Popular Democratic Party vs. Rosselló Gonza·lez, Opinion of December 22, 1995, 95 J.T.S. 165.
In such case, the Supreme Court stated, on page 443:
"In the different laws that organize the government in our Country we find general provisions that empower the officials to inform the citizenry on matters related to the functions performed by the various agencies of the Country.
We have recognized that the governments' educational and informative expression is indispensable for the people to judge its work and require remedies of government injuries. Refer to Santiago vs. Bobb, 117 D.P.R. 153, 158 (1983); Romero Barceló vs. Hernandez Agosto, 115 D.P.R. 368, 381 (1984). Our jurisprudence reflects the continuing tendency of favoring the dissemination of public information, to the point of imparting a broad & robust dimension to the freedom of speech consecrated in our Bill of Rights. Refer to Sierra v. Tribunal Superior, 81 D.P.R. 554 (1959); D·Dávila vs. Electoral Superintendent, 82 D.P.R. 264 (1960); Soto vs. Secretary of Justice, 112 D.P.R. 477, 485 (1982); López Vives vs. P. R. Police , 118 D.P.R. 219 (1987); Noriega Rodríguez vs. Governor, 122 D.P.R. 650 (1988) & Noriega Rodríguez vs. Hernandez Colón, Op. of June 30, 1992, 92 J.T.S. 85, among others.
In Santiago vs. Bobb, supra, citing Soto vs. Secretary of Justice, supra, we indicated the following:
"there is a strict correspondence between the right to Free Speech and Freedom of Information. The premise is simple. One cannot judge without knowledge of the facts; nor can remedies be demanded for government injuries through judicial procedures or through the electoral process every four(4) years. In this desideratum, the press is a vehicle of information and opinions [to] inform and educate the public, offer criticism, provide a forum for discussion and debate, and act as a substitute to obtain news and information for its readers, which per se and as individuals cannot or do not wish to compile with it". (Quotes omitted)." (Underlining ours).
To recapitulate, it is an imperative public interest of the Government of Puerto Rico, to offer information of its actions to the citizens and the press, which is why any exception to such general rule, must be carefully evaluated so as not to infringe important constitutional principles.
I. Conclusion
There is no doubt that it is the State's legitimate interest to preserve economic parity of the political parties in election years, which is why Article 8.001 of the Electoral Law is presented as a wise statutory initiative in order to enable said public policy principle.
Nevertheless, the sources that our Legislature has wanted to subject to scrutiny of the above cited article are those that can be cataloged as invasive, due to its diffusion and ample scope without the need of great efforts by the receiver to receive the message originating therefrom. The Internet is not comprised among said invasive means, since, active and deliberate steps are needed to access the information that it provides.
For the special characteristics that convert it in a unique communication means, the Internet is seen as an important vehicle of the flow of ideas in interstate commerce which should be free from hindrance in to develop its maximum potential. This is an important public policy principle that should not be injured, so that the constitutional clauses of Freedom of Speech and Interstate Commerce are not transgressed.
As a derivative of the Right to Freedom of Speech, the State must procure for citizens and the press the widest access to information in its control, limiting impeding it only in cases of critical public interest, such as that configured in Article 8.001 of the Electoral Law, which for equally imperative reasons, excludes non-invasive media such as the Internet.
I trust that the juridical opinion developed herein will be useful with regard to matter consulted.
Cordially,
Angel E. Roger Sabat
Secretary of the Department of Justice
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