FREEDOM OF EXPRESSION IN THE
William M. Berenson1
Those of us who are fortunate to live in democracies are forever critical of our governments, our public officials, the use of our tax dollars, our foreign policy, and the availability of social security safety networks to provide for or children, our aged, our disabled, and those otherwise unable to provide themselves with the basic necessities of life. Yet for all our criticism of democracy and its failings, most of us are in agreement that of all the systems of government yet to be devised by us, it is the best of the imperfect lot. Thus, it is no coincidence that many of the human rights enshrined in our international conventions and treaties for the protection of human rights are political rights intricately related to democratic governance. Among the most important of those rights is the right of “freedom of expression.” 2
Democracy can only exist and thrive through open dialogue among the citizenry and the free flow of information of all types among them. Through the free flow of information, we are able to hold our public officials and servants accountable; we are able to evaluate and compare their suitability for public office and service; we are able to convince our fellow citizens to join our political parties and interest groups; we are able to explain the political choices of the day so that the people, who are sovereign in democracy, can choose the policy options most suitable to them and the representatives who will pursue the policies they select.
Yet notwithstanding its vitality for democracy, freedom of expression, like most human rights, is not an absolute right. Government, in the face of other interests of greater immediate concern, may restrict it. The grounds for imposing those restrictions are narrowly defined under international human rights conventions, the jurisprudence of international tribunals charged with the responsibility of enforcing compliance with those conventions, and the constitutions, statutory laws, and jurisprudence of the state parties. Those grounds include, among others: respect for the human right to reputation and honor; the right to privacy of individuals; the general welfare of the polity or society at large; public order: national security; morals, including protection against of children from pornography; prevention of violence against others; and public health. It is now generally accepted under international human rights law that democratic governments may impose such restrictions only for the purpose of achieving a compelling state interest, such as those described above, and only if the restriction imposed to achieve that interest is the least restrictive of freedom of expression when compared to all other reasonable alternatives.
The purpose of this discussion is to provide an overview of the provisions for freedom of expression in the Inter-American Human Rights system and the infrastructure for protecting that right and insuring compliance with the inter-American instruments in force for that purpose. First, we will address the origins of freedom of expression in the Americas and how early doctrine regarding the right developed in the United States of America as the basis for subsequent international treatment of the issue.
Next, we shall discuss the major legal instruments in the Inter-American System for recognizing and protecting freedom of expression. They include the Charter of the Organization of American States, the American Declaration of Rights and Duties of Man, the American Convention on Human Rights, the Democratic Charter, the Principles of Freedom of Expression promulgated by the Inter-American Human Rights Commission, and resolutions of the General Assembly of the Organization of American States (“OAS”).3
From there we move on to a discussion of the mechanisms for enforcing those instruments: national governments, through their legislatures, courts, and executive enforcement authorities; and international mechanisms. The International mechanisms include the Inter-American Human Rights Commission (“the Commission”); the Office of the Rapporteur for Freedom of Expression established by the Commission; the Inter-American Human Rights Court (“Court); and the OAS General Assembly, the supreme organ of the OAS.
We follow with a discussion of six major cases of the Inter-American Human Rights Court. Finally, we conclude with some general observations about the system and its effectiveness.
II. ORIGINS OF FREEDOM OF EXPRESSION
Freedom of expression as a human right in the Americas has been inextricably linked to the concept of democratic governance. The first formal recognition of the right to freedom of expression by a government was in the Bill of Rights of the United States Constitution (“U.S. Constitution”), the first written constitution of a democratic government. That was in 1791, just four years after the Constitution entered into force.
Freedom of expression is guaranteed under the first amendment of the ten amendments which compose the bill of rights – a position that speaks to its primacy. The text does not use the term freedom of expression as such. But it encompasses essential elements of freedom of expression as we know it today – freedom of speech, freedom of the press, freedom of association, and freedom of religion. It provides that the federal government of the United States may not abridge those freedoms. Through the fourteenth amendment to the U.S. Constitution, adopted some seventy-seven years later in 1868, the United States Supreme Court, in its jurisprudence, has characterized freedom of expression as a “fundamental right” essential to sustaining principles of ordered liberty in the United States and which cannot be abridged by the states either.
Despite the unambiguous language in the first amendment to the U.S. Constitution prohibiting abridgement of freedom of expression by governments, freedom of expression is not an absolute right. Rather, the United States Supreme Court has established that like any other fundamental human right recognized under the Constitution, it may be subordinated to compelling state interests, including the interest in protecting other rights of equal or greater importance. Furthermore, in its jurisprudence, the Supreme Court has developed a systematic methodology for determining the circumstances under which freedom of expression may be limited by a compelling state interest. All courts in the United States are subordinate to the U.S. Supreme Court with respect to questions of law arising out of the United States Constitution, and they are therefore bound to follow that methodology.
In simplistic terms, a U.S. count, in applying that methodology, first determines whether the governmental limitation on speech restricts content, or whether it restricts conduct by restricting the time and place where the expressive act is to take place. If the restriction is on content, then the court will require the government applying the restriction to prove that it has a compelling state interest that it will not be able to pursue unless the restriction is imposed. The defendant government also has the burden of proving to the Court that the restriction is the “least restrictive means.” That is, of all the mechanisms practicably available to the government for achieving its compelling state interest, the restriction must be means that restricts freedom of expression less than the others. If the restriction does not limit the message or content, but principally is intended to limit conduct and the time and place where it takes place, then the burden on the government is slightly less. It must show that it has an “important,” but not necessarily “compelling” interest, and that the measure is carefully tailored to realize that interest; however, it need not be the least restrictive means.
A brief discussion of several well-known Supreme Court cases serves to illustrate how the doctrine is applied. In New York Times v. Sullivan, 376 U.S. 254 (1964), the plaintiff questioned the constitutionality of an Alabama defamation statute as applied to limit criticism of local officials. The statute in question provided that the only defense to defamation was that the defaming statement was true “in all its particulars.” The Supreme Court accepted that the state of Alabama, through its defamation law, had a compelling state interest in protecting citizens from defamation; nonetheless, it held that the statute was not the least restrictive means of achieving that interest, particularly as applied to news and discussion involving public figures. It said that the requirement that a defendant to a charge of defamation brought by a public figure show that a statement about the public figure was true in all its particulars had the impact of chilling press and other public comment about those figures. Satisfying the burden of proof that a statement is true in all its particulars is difficult under most circumstances. Thus, if the press and other citizens were required to take the necessary efforts to be assured that they could satisfy that burden every time they published news about public officials, the free flow of information about those public officials would dry up. That would be prejudicial to democratic governance, which relies on the free flow of information on public officials for the purpose of holding them accountable, and for evaluating the suitability of candidates for public office.
In Sullivan, the court went on to suggest content for a “model” defamation statue that would, on one hand, recognize the state’s interest in curtailing defamation, but, on the other, would be less restrictive of freedom of expression, at least as it applies to comment about public officials. It held that such a statute should not place the burden of showing the truth of a defamatory statement about a public official on the defendant commentator or media. Rather, it should require the plaintiff public figure to show that the statement was issued with malice. Malice, for purposes of such a statute, is defined as acting with the intent to harm, or with reckless abandonment as to whether the statement is true or false. The Sullivan case is highly relevant to a discussion of freedom of expression in the Inter-American system because the doctrine established in that case with respect to the permissible limits of defamation laws as they apply to suits brought by public officials in defense of their honor and reputation has been emulated in the jurisprudence of the Inter-American Human Rights Court in applying the American Human Rights Convention.
Another case worthy of mention is Cohen v. California, 403 U.S. 15 (1971). In that case, plaintiff Cohen challenged the constitutionality of a California Statute prohibiting willful disruption of the peace by “offensive misconduct” under which he had been convicted of a misdemeanor for wearing a jacket in the halls of the Court House that had the words “Fuck the Draft” stenciled on the backside. The supreme Court held that the statue, as applied to Cohen, violated Cohen’s right to freedom of expression, and vacated the conviction. Notwithstanding California’s argument that the statute limited “conduct,” not “content, the Court concluded that the statute, as so applied, restricted the content of the message Cohen intended to convey with his jacket. It then proceeded to analyze whether the State of California had shown it had a compelling state interest in punishing Cohen for the content of his message.
The court reviewed its own jurisprudence and recounted that government has a compelling state interest in protecting the public from obscenity (child pornography, for instance)and from speech which immediately gives rise to individual or group violence against human life and property. But the facts in this case, concluded the Tribunal, showed that Cohen’s jacket neither was obscene nor provoked anyone to violence. For that reason, the California could not sustain its position that it had a compelling state interest in banning Cohen’s message. The court also suggested that even if the “offensive misconduct” statute was to be viewed more as limiting the time and place where Cohen could publish his message – that is as prohibiting unsavory speech in the courthouse – it could still not be sustained. The reason was that it prohibited “offensive misconduct” in all public places in the state, not just the courthouse, and was therefore overbroad and not sufficiently tailored to achieve its objective without unduly infringing upon freedom of expression.
Another significant case from the U.S Supreme Court is Barnes v. Glen Theatre, 501 U.S. 560 (1991). The plaintiff in Barnes, a striptease dancer challenged an Indiana statute which banned public nudity. She claimed that the application of the statute to shut down the place of business where she danced, the Glen Theatre, restricted her ability to express herself fully through nude dancing. The Court asked whether the law was directed at limiting the content of the plaintiff’s message or her conduct. It concluded it primarily intended to limit conduct ,and then went on to determine whether the state of Indiana had met its burden of showing that it had an important state interest. It concluded that the laws was one designed and promoting public morality and that such an interest was indeed important. As to whether the statute was sufficiently narrowly tailored to achieve the State’s interest while still allowing for a maximum of expression, the Court concluded that it was. It reached its conclusion based on the fact that the statute was “carefully tailored” to allow the persons in public to show must of their flesh, provided minimal clothing was used so as not to expose the dancer’s most intimate privates.
It becomes evident from these cases that in their adjudication of disputes involving freedom of expression, courts are called upon to balance carefully the right of freedom of expression against other significant governmental interests and citizen rights. In that balancing exercise, there is a strong bias towards freedom of expression due to the universal recognition of its vital importance to democracy. The remainder of this discussion focuses on how the balance has been achieved in the Inter-American Human Rights System and the institutions charged with achieving it.
III. LEGAL INSTRUMENTS WITHIN THE INTER-AMERICAN
HUMAN RIGHTS SYSTEM
A. The OAS Charter
An international multilateral treaty, the OAS Charter reflects the strong commitment of the OAS Member States to promoting and sustaining representative democracy in the region. Insofar as freedom of expression is an “essential component” for democracy, the commitment to democracy is also a commitment to the right of freedom of expression.4 First adopted in 1948, the Charter has been amended four times since.
The third paragraph of the Charter’s Preamble states that “representative democracy is an indispensable condition for the stability, peace, and development of the region.” Article 2 lists as among the “essential purposes” of the OAS “to promote and consolidate representative democracy, with due respect for the principle of nonintervention” and “to eradicate extreme poverty, which constitutes an obstacle to full democratic development of the peoples of the hemisphere.” Article 3 includes as one of the several principles reaffirmed by the OAS as: “The solidarity of the American States and aims which are sought through it require the political organization of those States on the basis of their effective exercise of representative democracy.”
B. Declaration of Rights and Duties of Man
Adopted at the same inter-American conference in 1948 in which the OAS Member States created the modern OAS and approved the OAS Charter, the American Declaration of Rights and Duties of Man (“Declaration”) antedates the more well known UN Universal Declaration on human rights by some six months. The Declaration is not a treaty and does not have the same binding force as a treaty under international law. Nonetheless, the Inter-American Human Rights Court and the Inter-American Human Rights Commission have held those Member States that are not State Parties to the Inter-American Human Rights Commission accountable for complying with the Declaration’s terms.
The Declaration recognizes two rights which often must be balanced against each other, particularly in state efforts to penalize and create civil liability for defamation. One is freedom of expression, and in that regard Article IV of the Declaration states “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.” The other is the right to privacy, honor, and reputation. Article V of the Convention states: “Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.
C. American Human Rights Convention
Although the OAS member states adopted the American Human Rights Convention in 1969, it did not enter into force until some nine years later in 1978. Only twenty-four of the 35 OAS member states are state parties to the Convention. Indeed, two of the largest players in the inter-American system, Canada and the United States, plus most of the Caribbean OAS members have not ratified the Convention. As a result, some have referred to the Inter-American Convention as “the Latin American Convention.”5
1. General Provisions for Implementation and Interpretation
Before moving directly to a discussion of the substantive dimensions of Freedom of Expression as a human right under the Convention, it is useful to highlight the provisions in the Convention which obligate the state parties to respect that right and the general provisions which apply to interpreting and respecting the right of freedom of expression.
Article 1 of the Convention obligates the state parties to respect and “ensure the free exercise of” the twenty-six substantive rights defined in the Convention, of which Freedom of Expression is one. Together with Article 2 it binds those states, to guaranty to all persons within their territory the full and free use of those rights, and to adopt internal legislation, including constitutional reform, if necessary to implement the recognition and free exercise of those rights.6
Article 32 recognizes that the rights in the Convention are not absolute rights and that, under certain circumstances, they may be limited by state action. Specifically it states that some rights may be compromised by efforts to protect others. It also establishes that governments may impose limitations on rights in the interest of public security and the exigencies of “general welfare, in a democratic society.”7 Similarly, Article 30 affirmatively permits states to limit those rights, as long as the limitations are enacted in the general interest and, as required under universally accepted notions of due process, consistent with their stated purpose.
Finally, article 29 sets out four rules for applying and interpreting the Convention. Those rules require the state parties, and in particular, their courts, to interpret the scope of some rights in such a way so as not to limit rights derived from representative democracy – e.g., freedom of expression. They also require that the rights not be applied in any way that restricts the rights guaranteed under the Declaration. Specifically, Article 29 states:
Article 29. Restrictions Regarding Interpretation
No provision of this Convention shall be interpreted as:
a. permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;
b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party;
c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or
d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.
The clear message imparted by articles 29, 30, and 32, is that there are a number of reasons a state party can advance to justify any actions it might take in limiting the rights recognized under the Convention. They include the need to restrict one right for the purpose of giving recognition and protection to other rights. What is obvious is that there is a pecking order of rights. Some are more precious than others, and they include those rights associated with freedom which advance the general interests of democratic society. Those rights that are integral to democracy, like freedom of expression, have a preference over other rights in the balancing of competing interests courts must consider in adjudicating adverse claims against state parties accused of not protecting or of restricting the free exercise of those rights.
2. The Scope of Freedom of Expression as a Substantive Right
Article 13 of the Convention establishes and defines the right to freedom of expression, as well as its limitations. It consists of five separate sections. The first, defines the basic elements of freedom of expression; the remaining sections, in general, outline the conditions under which freedom of expression may be limited.8
Section 1 states:
Article 13. Freedom of Thought and Expression
1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
As the plain meaning of Section 1 states, the right of freedom of expression includes not only the right to transmit information and ideas of all kinds, but also the right to seek and receive information and ideas from others. The Court, in its jurisprudence has referred to the right to impart information and ideas as an individual right and the right to seek and receive it as a collective right of all citizens in a free democratic society.9 Freedom of expression is not just limited to the expression of political ideas. Rather it covers “ideas of all kinds.” That includes art and all other intellectual property. The right to seek and receive government held information pertains to the relationship between a citizen and his/her government and is essential to assure governmental accountability and transparency. A number of the states have adopted freedom of information statutes, pursuant to their obligation under Article 2 of the Convention to adopt implementing legislation to protect the rights guaranteed under the Convention.10 More must do the same.
Section 2, in conjunction with Section 4, expressly prohibits all forms of state censorship except censorship of entertainment for the purpose of protecting children and adolescents from pornography. Those Sections state:
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a. respect for the rights or reputations of others; or
b. the protection of national security, public order, or public health or morals.
4. Notwithstanding the provisions of paragraph 2 above, public entertainment may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
Censorship is generally conceived of as any process by which a government reviews information and ideas prior to their publication and dissemination for the purpose of preventing the publication and distribution of all or any part of that information and those ideas. Although Section 2 prohibits censorship in general, it does permit, under limited conditions, the imposition of laws which penalize or establish civil liability for certain kinds of communications after they have been published. Those kinds of laws may, however, have the same net effect as censorship because they operate as self-imposed limitations on the authors of ideas. They are often referred to as “prior restraints”. Prior restraints can chill the free flow of information in a democratic society. An example of a prior restraints is the Alabama defamation law struck down by the United States Supreme Court in the Sullivan case.
Section 2 expressly permits restraints on freedom of expression, provided, however, that they are “expressly established by way of law” and that the are “necessary” to ensure respect for other human rights, like the right to reputation, or to protect national security, public order, public health, and morals. The list of specific other rights and other interests established in Section 2 of Article 13 that might, under special circumstances, justify the restriction of freedom of expression are mentioned in other parts of the Convention. For Example, Article 11 of the Convention establishes a right to privacy, which includes rights to honor and dignity and right not to have private information freely disclosed. It states: