The level of democracy of any regime can be measured to a great extend
by the transparency of its institutions and the freedom of speech allowed to
its citizenry. Some governments grant a wide array of expression with almost no
restriction except in strictly defined cases of slander. Others also are very
open but with more limitations based on “time, place and manner.” An example of
this latter would be the prohibition on falsely shouting “fire” in a crowded theater,
to paraphrase Justice Oliver Wendell Holmes. However, on the other end of the
spectrum we encounter administrations that unabashedly squash any type of
communication that they believe threaten themselves or the society they purport
to represent. China’s current rigorous filtering of internet sites, especially
those of social media, is a prime example. Numerous regimes have instituted
quasi-Orwellian “thought police” to check what people communicate to one
another using tactics such as wiretaps, screening of mail, censoring of all
mass communications, and a vast array of informants whose objective was to
report anti-governmental behavior. Germany’s “Hilter Youth” were educated to
uphold a devotion to the State and the Führer
over all else. As part of Mao’s Cultural Revolution, children were isolated
from their parents for indoctrination that encouraged them to denounce their
parents for counter-revolutionary attitudes.
Two interesting incidents occurred recently in Latin America that
emphasize the different degrees to which supposedly democratic governments
curtail freedom of expression. Earlier this month in Brazilian state of Santa Catarina,
a 19 year-old man was cited for “contempt of authority” (desacato a autoridade) after posting angry comments on his Facebook
page about the way he was treated by police in a car stop. Although the next
day he apologized for his posting and admitted that he was driving with an
expired license, the issue as raised by his public defender, Ana Carolina Dihl
Cavalin, is the validity of Brazilian laws that violate the Inter-American
Commission on Human Rights, of which Brazil is a signatory. In 2012, the Brazilian Senate revised the
Penal Code changing “desacato a autoridade” from a crime in and of itself into
an aggravating factor for cases of slander. The original slander law, written
in 1940 during the Vargas regime, determined a sentence of from six months to
one year of prison for the crime of slander. Under the new modification, the
maximum sentence became from one to two years of prison for cases in which the
slanderous statement is directed toward a public official. This includes police
officers, judges, and any government official. A nuance of the law is that only
offenses directed at a specific individual should be considered “in contempt”;
in this case the accused directed his comments at the agency in general.
The Organization of American States actively opposes “desacato” laws
throughout the hemisphere, based on the principle that “the American Convention
on Human Rights enshrines the right of freedom of expression.”1 The Office
of the Special Rapporteur of the OAS has implemented a two-year cycle for
reviewing the status of such limitations on freedom of expression. In 2011,
that office published a special report indicating:
few countries have
taken purposeful steps to abolish the crime of desacato. In some states,
legislative reform processes have stalled or restrictive judicial
interpretations have been adopted. In other countries, the interpretations of
the courts have recognized the incompatibility of “desacato” with the
due guarantees of freedom of expression; however, those decisions have not been
echoed in legislative reforms. Nevertheless, while the successful abolition of desacato
laws may not have been the norm in the Hemisphere, in those countries where it
has come about, the elimination of this crime has entailed a very significant
stride toward the creation of a favorable climate for the full exercise of
freedom of expression.2
The report refers to Principle 10 of the Declaration of Principles on
Freedom of Expression, prepared by the Office of the Special Rapporteur and
adopted in 2000 by the Inter-American Commission on Human Rights which
clearly introduces
the so-called dual system of protection of honor, according to which, public
persons or private persons who have voluntarily exposed themselves to increased
scrutiny on the part of society must be more tolerant of criticism, in order
also to enable the social control necessary to ensure that the powers of
government are exercised in an efficient and appropriate manner. The protection
of a person’s honor in such cases should be invoked in a civil proceeding
because a criminal sanction could impede the control of public office necessary
in a democratic society. This principle also adopts the standard of the “actual
malice” doctrine, which considers that civil penalties should be imposed on
expressions about public officials and only when information is published in
the knowledge that it is false, there is express intent to cause injury, or
there is gross negligence in ascertaining the truth.3
The second recent incident that reflects on the lack of freedom of
expression is a crack-down on dissent from the office of Venezuelan President
Nicolás Maduro. In recent weeks, Maduro has ordered the arrest and impending
arrest of political opposition leaders who express criticism of Maduro’s administration.
In February, Maduro issued orders for the incarceration of former presidential candidate
Leopoldo López on charges of terrorism and murder stemming from confrontations
between riot police and anti-Maduro activists that left several protesters
dead. After initially hiding from federal officials, López turned himself in to
authorities as the culmination of a rallying event he organized through YouTube
and other social media.4 Then on March 19, 2014, the Los Angeles
Times reported that national assembly member Maria Corina Machado is to be
stripped of her legislative immunity and charged with criminal conspiracy,
homicide, and treason for also publicly criticizing President Maduro.5
These two incidents and numerous other arrests of less prominent political
figures and private individuals underscore the denial of freedom of expression
that now exists in Venezuela.
Strong-arm governments have long used repressive tactics in attempts to
stifle criticism from political opposition: the use of armed forces or police
agencies to prevent the lawful assembly of critics, reliance on laws that
systematically inhibit freedom of expression, manipulation of the means of
communication including censorship and dissemination of false information, misrepresentation
of critics as threats to the State, and a reliance on general political apathy
on the part the populace at large.
Notes:
1. “Special Rapporteurship for Freedom of Expression”: 7. Chapter VI -
''Desacato'' Laws and Criminal Defamation. B.1.5. http://www.oas.org/en/iachr/expression/showarticle.asp?artID=442&lID=1
2. “Special Rapporteurship for Freedom of Expression”: 7. Chapter VI -
''Desacato'' Laws and Criminal Defamation. A.2. http://www.oas.org/en/iachr/expression/showarticle.asp?artID=442&lID=1
3. Cf. IACHR, Annual Report 2000. Report of the Office of the
Special Rapporteur for Freedom of Expression. Chapter II, App. B.
