a.         Prior Censorship


312.      As previously noted, Article 13 of the American Convention contains a virtually complete ban on prior censorship, which is not found in other international human rights instruments and which indicates the high regard the drafters of the Convention had for the right to freedom of expression.  While there are no exceptions in this Article for national security or public order reasons, there could arise in the context of an emergency situation, validly declared under Article 27, some situations in which national security or public order arguably would permit limited censorship.  There is no jurisprudence in the inter-American system that specifically speaks to this issue, however, cases from the United States and from the European human rights system demonstrate the high level of scrutiny that any prior censorship must be given.


313.      The jurisprudence of the United States is of particular relevance to the present discussion mostly because, in addition to containing an abundant quantity of cases on the issue of prior censorship, it deals with principles that are similar to those provided for in Article 13 of the American Convention.  Notwithstanding the fact that the US Supreme Court has contemplated the possibility of prior restraint for national security reasons,[750] it has never upheld such an injunction on these grounds.  The high level of scrutiny given to prior restraints on expression is illustrated by the important "Pentagon Papers" case, where the Court struck down an injunction to prevent the publication of portions of a classified government report during the Vietnam War.[751]  In that case, one member of the Court considered that “absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result” would be acceptable.[752]  Other members considered that the government had not satisfied the heavy burden of showing that the publication would surely result in direct, immediate, and irreparable damage to the nation.[753]


314.      The case law of the European Human Rights system can serve as a relevant indicator of the application of the issue of prior censorship at the regional level, in particular considering its considerable number of cases dealing with freedom of expression.  Notwithstanding the fact that the European Human Rights System does not recognize the same absolute ban on prior censorship as in the inter-American system, its institutions have also been reluctant to allow prior restraints on dissemination of expression, as illustrated in the "Spycatcher cases." [754]  In those cases, the European Court of Human Rights rejected injunctions based on national security grounds as incompatible with freedom of expression, considering that the injunctions could not be deemed to be necessary to protect national security because the publication in question had been published in another state, destroying the confidentiality of the material.


          315.      Given these examples, it should be clear that even during a state of emergency, the interest of the public in having information generally outweighs the need to keep it secret.  Moreover, once the information becomes in any way public, the interest of the public in having access to the information is generally deemed to outweigh the need to prevent more widespread dissemination.


b.         Subsequent Penalties


316.      As stated previously, the imposition of subsequent penalties for the dissemination of expressions must 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 heath or morals.”[755]  These requirements apply in the context of addressing terrorism, unless a state of emergency has been lawfully declared.  There are several problems that are typically associated with subsequent penalties aimed at anti-terrorism, or those based generally on "public order" or "national security", the main rationales used to justify subsequent penalties for speech in the context of terrorism.  First, as noted earlier in this chapter, the requirement that any subsequent penalties must be established by law means that it must be foreseeable to the communicator that a particular expression may give rise to legal liability.  As noted by one author, “[o]ne problem with order and security laws is that they are often very broad and/or vague.  This means they can potentially be abused by governments to suppress legitimate criticism and that they exert a chilling effect as citizens steer well clear of the potential zone of application to avoid censure.  To some extent this is a function of the difficulty of defining with any degree of precision in a law of general application the exact parameters of the public order or national security threat in issue."[756]  An overly broad or vague provision may not fulfill the requirement of foreseeability and therefore may violate the terms of Article 13(2).


317.      More frequently, the problems presented by laws imposing subsequent liability on expressions in the context of fighting terrorism relate to the issue of proportionality of the penalties.  Too often, penalties are excessive in relation to the type of harm they are designed to prevent.


318.      The Inter-American Commission on Human Rights addressed this issue in a terrorism-related situation in the case of Rodolfo Robles Espinoza and sons.[757]  General Robles suffered numerous repercussions, including Court Martial proceedings against him for various crimes, including insubordination, insulting a superior, undermining the Nation and the Armed Forces, abusing his authority, making false statements, and dereliction of duty because he denounced abuses committed by the Peruvian army and intelligence services in the context of fighting terrorism.  The Inter-American Commission found that these repercussions constituted a serious violation of General Robles' right to freedom of expression.  The Commission noted that "undermining the Armed Forces or insulting a superior are appropriate terms when applied to the crimes for which they were created, in order to maintain a level of discipline suitable to the vertical command structure needed in a military environment, but that they are totally inappropriate when used to cover up allegations of crimes within the Armed Forces."[758]  The Commission further noted that the right to freedom of expression, although it may be subject to reasonable subsequent penalties in accordance with the terms of the Convention, is broader when the "statements made by a person deal with alleged violations of human rights."[759]  Thus, the requirement of proportionality of the penalty was not met.


319.      The European Court of Human Rights addressed a similar issue in the case of Sürek v. Turkey (Nº2),[760] dealing with the subsequent sanctions imposed for the publication of a document suggesting the misconduct of officials involved in counter-terrorism policies.  The Court determined that, given the terrorist threat present in a part of the country at the time, the said provision had the legitimate aim of protecting national security, territorial integrity, and the rights of others.[761]  However it found that that the sanction was not proportionate to the aims of the law because of the greater importance of bringing to light wrongdoings by public officials.[762]


320.      The analysis may be different in a case in which the party, who has a duty of confidentiality, reveals information for reasons other than exposing the wrongdoing of public officials.  In Hadjianastassiou v. Greece, [763] for example, a case dealing with the private sale by a military officer of arms-related data, the European Court, in assessing the reasonableness or propriety of the sanction at issue, considered that the disclosure of information that may reveal a state’s interest, technological knowledge, or progress in the manufacture of a weapon could cause considerable damage to national security.  It also noted that, while members of the military enjoy a right to freedom of expression, special conditions are attached to military life and specific 'duties' and 'responsibilities' are incumbent on members of the armed forces.  As a result, in this case the Court determined that the sanction was not unreasonable or improper.[764]


321.      Also pertinent to the issue of subsequent penalties are limitations on the dissemination of expressions that could be considered to be supportive of violence or of violent groups.  The European Court's approach to such cases has been to evaluate, in light of the circumstances, the likelihood that such statements will cause violence.  In Incal v. Turkey,[765] for example, the Court recognized the difficulties inherent in fighting terrorism, but nevertheless decided that a subsequent penalty based on anti-terrorism legislation violated the Convention, taking into account the sanction’s severity,[766] the fact that prior approval was sought, the importance of free speech to political parties, and the importance of greater openness to criticism with respect to the government.[767]  The Court also considered that the document, although containing strongly worded criticism, did not clearly incite "to the use of violence, hostility or hatred between citizens."[768]  In Zana v. Turkey,[769], in contrast, the Court found no violation of the right to freedom of expression because it considered that, in light of all of the circumstances of the case, the impugned statements could indicate support for violence and "had to be regarded as likely to exacerbate an already explosive situation[.]"[770]



322.      The United States Supreme Court has developed an even stricter test in cases dealing with expression deemed to be supportive of violence or of violent groups, requiring not only a showing of incitement to violence, but also a showing of a clear intent to do so.  This test resulted from several key decisions, including Schenck v. United States,[771] Abrams v. United States,[772] and Brandenburg v. Ohio.[773]  In the Brandenburg case, the Court rejected the holdings of various earlier cases that had upheld convictions based on mere advocacy of violence or unlawful activity, as opposed to actual incitement.[774]  It stated that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[775]  Thus, in order to impose subsequent liability for speech, the current U.S. approach specifically requires intent to incite lawless activity and a likelihood of success,[776] which accords more closely to the terms under the American Convention as opposed to other international human rights instruments.


323.      Article 13 of the American Convention clearly requires that "propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action" should be considered offenses punishable by law."[777]  However, laws that broadly criminalize the public defense (apologia) of terrorism or of persons who might have committed terrorist acts, without considering the element of incitement “to lawless violence or to any other similar action,”[778] are incompatible with the right to freedom of expression.[779]


324.      In addition to imposing subsequent sanctions on the author of a particular expression, states have in some cases imposed sanctions on journalists or others who transmit ideas and information that the state has determined are sanctionable.  On this issue, the European Court of Human Rights, in the "Greenjackets" case,[780] held that a penalty of this nature was disproportionate to the objective sought, and indicated further that "[t]he punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so." [781]


325.      Several important principles emerge from the foregoing discussion that are necessary for states to apply when constructing anti-terrorism legislation allowing subsequent penalties on expression.  First, the basis for subsequent liability must be defined with adequate precision.  Second, the states must apply a balancing test to determine the proportionality of the sanction in comparison with the harm sought to be prevented.  The case summaries illustrate the ways in which the proportionality test required by international human rights law may be applied in practice.  Factors that must be considered include: the dangers presented by the speech within the context of the situation (war, fighting terrorism, etc); the position of the individual making the speech (military, intelligence, official, private citizen, etc.) and the level of influence he or she may have on members of society; the severity of the sanction in relation to the type of harm caused or likely to be caused; the usefulness of the information to the public; and the type of media used.  A journalist or other third party who merely transmits statements made by another party should not be subject to sanctions except in very limited circumstances.  Additionally, statements that implicate the government in wrongdoing deserve a high level of protection, as public scrutiny of governmental actions is one of the most important democratic values.  Even in cases in which the person disclosing the information obtained it through a confidential disclosure, the person may not be punished if the public's interest in having the information is greater than the harm done from disclosing it.[782]  Finally, legislation that broadly criminalizes the public defense (apologia) of terrorism or of persons who might have committed terrorist acts without requiring an additional showing of incitement “to lawless violence or to any other similar action”[783] should be avoided.[784]


c.         Protection of sources


326.      In the context of fighting terrorism outside of a state of emergency, the confidentiality of sources is subject to the same level of protection that it is normally accorded.[785]  In order to compel disclosure, there must be "a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim."[786]  The disclosure must be "necessary" within the terms of Article 13(2) of the Convention.


d.         Access to Information and Habeas Data


327.      In the context of fighting terrorism, governments often attempt to restrict access to broad categories of information related to the investigation of suspected terrorists, the gathering of intelligence and the execution of police and military actions.  In some of these cases, the government may have a legitimate need to keep information secret in order to protect national security or public order.  At the same time, the public's need for information is greater than ever as anti-terrorism actions may be subject to abuse and the public and the press are among the most significant checks on abusive governmental behavior. 


328.      The Johannesburg Principles[787] provide guidance as to the balancing of these two competing interests.  Principle 1(2) states:


Any restriction on expression or information that a government seeks to justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest.


329.      The Johannesburg Principles define legitimate national security interests, stating:


(a)             A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose or demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.


(b)             In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.[788]


330.      Most access to information laws contain exemptions that allow the State to refuse to release information on the grounds that to do so would damage the State's national security or ability to maintain public order.  These exemptions should be applied only to information that clearly affects national security as defined by the foregoing.  Moreover, the restriction must not only serve to protect the national security or public order, it must also require that the information should be disclosed unless the harm to one of these legitimate interests would be substantial.[789]  Applying these principles, the following could be considered an appropriate restriction based on national security concerns, so long as the other guarantees required by access to information are in place[790]:


A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to the defence or national security of [insert name of State].[791]  


331.      The Johannesburg Principles acknowledge that, as a result of emergency situations, States may have to impose additional restrictions on access to information, but "only to the extent strictly required by the exigencies of the situation and only when and for so long as they are not inconsistent with the government's other obligations under international law."[792]  In such cases, States bear the burden of proof in showing that the restrictions are not excessive in light of the exigencies of the situation.  As stated earlier, States under lawfully declared emergency situations should take into account the importance of freedom of expression for the functioning of democracy and guaranteeing other fundamental rights when considering suspending any guarantees under Article 13 of the Convention.[793]  


332.      Like the general right to access to information in the hands of the government, the right to habeas data may be subject to restrictions that are necessary to protect national security or public order and are proportionate to the harm intended to be prevented by maintaining the secrecy of the information.  In states of emergency, the State may impose additional restrictions for the time and to the extent required by the exigencies of the situation.





[750] Near v Minnesota 283 U.S. 697 (1931). The U.S. Supreme Court noted in a hypothetical example that "[n]o one would question but that a government might prevent [. . .] the publication of the sailing dates of transports or the number and location of troops." See also Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) according to which, in the United States, the party wishing to impose a prior restraint, such as an injunction against publication, bears a "heavy burden of showing justification" for its imposition.

[751] See New York Times Co. v. United States, 403 U.S. 713 (1971) (the “Pentagon Papers” case). In the “Pentagon Papers” case, the Court struck down an injunction to prevent two major newspapers from printing portions of a classified government report entitled "History of U.S. Decision-Making Process on Vietnam Policy." The case arose at the height of the Vietnam War when domestic opposition to the war was at its peak [See Marc A. Franklin and David A. Anderson, Mass Media Law: Cases and Materials (5th ed. 1995), at 85].

[752] New York Times Co., 403 U.S., at 725-26 (Brennan, J., concurring).

[753] Justice Stewart voted for allowing disclosure, stating, "I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people." [New York Times Co., 403 U.S. at 728, 730 (Stewart, J. concurring)]. Justice White took a similar position, stating that he did not doubt that the disclosure of the documents would cause harm to the national interest, but that "the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases" [New York Times Co., 403 U.S. at 730, 731 (White, J., concurring)].  But See United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), dismissed as moot 610 F.2d 819 (7th Cir. 1979). In that case, The Progressive, a magazine, was enjoined for six months from publishing an article entitled "The H Bomb Secret: How We Got It, Why We're Telling It." The article contained information on the design and manufacture of the H-bomb.  The magazine claimed, however, that the information was gathered from a number of publicly available sources.  Nevertheless, the judge in the Federal District Court (first instance) found that the government had "met the test enunciated by two Justices in the New York Times case, namely grave, direct, immediate and irreparable harm to the United States" [Progressive, Inc., 467 F. Supp. at 996].  This was due to the fact that the magazine had gathered the information related to making the bomb in a format that would make it possible for other countries to expedite their manufacturing of the bomb.  The judge found that this was analogous to the hypothetical situation posed in Near v. Minnesota [supra  note 750].  The case was ultimately dismissed, however, when a newspaper in Madison, Wisconsin published essentially the same information [see Franklin and Anderson, supra note 751, at 95.].

[754] Eur. Court H.R., Observer and Guardian v. the United Kingdom, Judgment of November 26, 1991, Ser. A Nº 216, and Eur. Court H.R., Sunday Times v. United Kingdom (Nº 2), Judgment of October 24, 1991, Ser. A Nº 217 [the "Spycatcher cases"]. "Spycatcher" was a book containing the memoirs of a former senior member of the British Security Service (M15). It dealt with "the operational organisation, methods and personnel of M15 and also included an account of alleged illegal activities by the Security Service" [Observer and Guardian, supra, para. 11]. The applicant newspapers complained that a temporary injunction on the publication of information obtained from the book was a restriction that was incompatible with freedom of expression. The European Court found that because the book had been published in the United States, the confidentiality of the material was essentially destroyed and the injunction could not be deemed to be necessary to protect national security. In the Observer and Guardian case, the Court found that a temporary injunction was valid up until the time of the publication abroad. Id. at para. 65.

[755] American Convention on Human Rights, supra note 61, Article 13(2).

[756] Toby Mendel, Criminal Content Restrictions, (January 1999), available at http://www.article19.org/docimages/629.htm.

[757] Case 11.317, Report No 20/99, Rodolfo Robles Espinoza and sons (Peru), Annual Report of the IACHR 1998. General Robles was the head of the Army Instruction School (COINDE) and former commander of the Third Military Region based in Arequipa, and was technically the third most senior officer in the Peruvian army in 1993. In May of 1993, he publicly revealed, by means of an open letter, the existence of a "death squad," known as the "Colina Group," set up by Peru’s National Intelligence Service (SIN) and comprising members of the SIN and the Armed Forces. The "Colina Group" was aimed at physically eliminating terrorists.

[758] Robles Espinoza Case, supra note 757, para. 151.

[759] Robles Espinoza Case, supra note 757, para. 146.

[760] Eur. Court H.R., Sürek v. Turkey (Nº 2), Judgment of July 8, 1999, Application
Nº 24122/94.

[761] Sürek Case (Nº 2), supra note 760, para. 29.

[762] Sürek Case (Nº 2), supra note 760, para. 39. While the Court recognized the importance of protecting the officials from reprisals by keeping their identities secret, it also recognized that the public has a right to know about misconduct of officials. As some of the information at issue had already been disclosed in other sources, the Court found that the likelihood of the officials receiving adequate protection as a result of the imposition of this sanction was outweighed by the public's interest in having the information. Id. at para 40.

[763] Eur. Court H.R., Hadjianastassiou v. Greece, Judgment of November 23, 1992, Ser. A Nº 252. The applicant was a captain in the air force and an officer in charge of a project for the design and production of a guided missile. He provided a technical study that he had written on the guided missile to a private company. He was convicted of disclosing military secrets and sentenced to two-and-a-half years of prison, which was reduced on appeal.

[764] Hadjianastassiou v. Greece, supra note 763, paras. 45-47.  For a U.S. case dealing with subsequent liability for revealing government information in breach of fiduciary duty, see Snepp v. United States, 444 U.S. 507 (1980). Snepp was a former employee of the Central Intelligence Agency (CIA) who had signed an agreement that he would not publish any information relating to the CIA without prepublication clearance. Without receiving prior authorization from the CIA, he published a book about CIA activities in Vietnam. The government did not contend that the information contained in the book was classified or that Snepp did not have a right to publish it. Rather it claimed that "in light of the special trust reposed in him and the agreement that he signed, Snepp should have given the CIA an opportunity to determine whether the material he proposed to publish would compromise classified information or sources." Id. at 511. The Supreme Court recognized that the requirement of prepublication clearance was essential to the CIA for guaranteeing its intelligence sources that any confidential information that they provide will remain secret. In the absence of such a guarantee, the CIA's ability to obtain information from such sources would be seriously impaired, causing irreparable damage to American intelligence operations and, as a result, the U.S. Government as a whole. Thus, the Court allowed a constructive trust on the profits from the book.

[765] Incal v. Turkey, supra note 574, at 1547. In this case, the applicant was a member of the executive committee of the People's Labour Party (HEP), which printed leaflets denouncing the government's treatment of Kurds and called upon Turkish and Kurdish "democratic patriots" to take action against this situation by forming "neighbourhood committees based on the people's own strength." Id., para. 10. A sample of the leaflets was submitted to the Izmir security police, who considered that the leaflet "contained separatist propaganda capable of inciting the people to resist the government and commit criminal offenses" Id., para. 12. The leaflets were seized and criminal proceeding were instituted against the applicant and others involved in the printing for "attempting to incite hatred and hostility through racist words" in violation of provisions of the Criminal Code, the Prevention of Terrorism Act and the Press Act. Id., para. 15.

[766] Incal Case, supra note 574, para. 56. In addition to a prison sentence of 6 months, 20 days, the applicant was fined, his drivers' license was temporarily revoked and he was barred from the civil service, among other consequences.

[767] Incal Case, supra note 574, paras. 46-59.

[768] Incal Case, supra note 574, para. 50.

[769] Eur. Court H.R., Zana v. Turkey, Judgment of November 25, 1997, Reports of Judgments and Decisions Nº 57 1997-VII, p. 2533. The case dealt with the conviction and 12-month sentence of a locally-known political figure for violating a provision of the criminal code against defending "an act punishable by law as a serious crime" and "endangering public safety" [Id. at para. 26]. At the time, serious disturbances were occurring in Southeast Turkey between security forces and the Workers' Party of Kurdistan (PKK) and ten of eleven provinces in that area were under military rule. The applicant had stated in an interview that was later published, "I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK can kill women and children by mistake […]”
[Id. at para. 12].

[770] Zana Case, supra note 769, para. 60. The court also noted that the applicant had only served 1/5 of his sentence, creating a further argument for proportionality.

[771] 249 U.S. 47 (1919). This case dealt with convictions under the Espionage Act of June 15, 1917 for the distribution of leaflets that were said to attempt to cause and to cause in fact insubordination in the military and to obstruct recruiting and enlistment of troops during war against Germany. In enunciating its rule, the Supreme Court stated: “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced”. Id. at 52, footnotes omitted, emphasis added. While this case provided an important standard for protecting freedom of expression in the face of restrictions based on national security or public order, it was unclear and the courts often used it to uphold restrictions on freedom of expression on these grounds. See, e.g., Frohwerk v. United States, 249 U.S. 204 (1919) and Debs v. United States, 249 U.S. 211 (1919).

[772] 250 U.S. 616 (1919). Justice Holmes, in his famous dissent in the case of Abrams v. United States argued for a narrower interpretation of the rule that would apply equally in situations of war or emergency, taking into account the specific dangers raised by those situations. He stated that “the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” Id. at 627-28 (Holmes, J., dissenting)] He continued, ”I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country”. Id. at 630. 

[773] 395 U.S. 444 (1969). The defendant in Brandenburg was the leader of a Ku Klux Klan group who was convicted under the Ohio Criminal Syndicalism law of "'advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform' and for 'voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.'" Id. at 444-45. The defendant spoke at a Ku Klux Klan rally that was filmed and broadcast on local and national television. The film showed clips of the rally participants burning a cross and making racist and anti-Semitic statements. Some of the participants, but not the defendant, were carrying firearms. At one point, the defendant made a speech, in which he talked about the size of the Klan and planned marches on Washington, DC, St. Augustine, Florida and Mississippi. He also stated "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengence taken." Id. at 447.

[774] Brandenburg specifically overruled the decision in Whitney v. California, 274 U.S. 357 (1927). In that case, the Court considered the legitimacy of a conviction under California's Criminal Syndicalism Act, similar to the statute in Brandenburg. It was found in the lower court that the defendant organized and assisted in "'organizing, and was, is, and knowingly became a member of an organization, society, group and assemblage of persons organized to advocate, teach, aid and abet criminal syndicalism.'" Id. at 360. The charges arose from the defendant's membership in a "radical" branch of the Socialist party. She attended the Socialist Party's national convention in 1919, where the "radical" group, of which she was a member, formed the Communist Labor Party (CLP). The CLP adopted a national Platform and Program advocating "a unified revolutionary working class movement" for the "overthrow of capitalist rule." Id. at 363. It primarily advocated the use of strikes to achieve these ends. At a later convention to organize a local chapter of the CLP, the defendant was a member of the resolutions committee and in that capacity, she supported a resolution that would seek to attain the CLP's goals through traditional political means. The proposed resolution was rejected in favor of the national Platform and Program. Whitney remained a member of the Party and testified at the trial "that it was not her intention that the Communist Labor Party of California should be an instrument of terrorism or violence." Id. at 366. The Court, in upholding the conviction, did not review the facts, but held that the statute was constitutional as applied, giving great weight to the determination of the legislature that the acts prohibited posed great danger to the peace and security of the state.

[775] Brandenburg, 395 U.S. at 447.

[776] A U.S. doctrine related to the "clear and present danger" doctrine is the "fighting words" doctrine, set forth in the case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). "Fighting words" were defined by the Court as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."  Id. at 572. In this case, Chaplinsky was confronted by a City Marshal while distributing leaflets. During the course of the argument that ensued, Chaplinsky called the Marshall a "God damned racketeer" and a "damned Fascist." Id. at 569. The "fighting words" doctrine continues to be valid, but has not been used to sustain a conviction since Chaplinsky.

[777] American Convention on Human Rights, supra note 61, Article 13(5).

[778] Id.

[779] See, e.g., Report of the Commission of International Jurists on the Administration of Justice in Peru, supra note 561, at 24.

[780] Eur. Court H.R., Jersild v. Denmark, Judgment of September 23, 1994, Ser. A
Nº 298. In that case, the applicant, a journalist, transmitted a television interview with several youths who were members of the Greenjackets, a racist and anti-immigrant group. During the course of the interview the youths made a number of abusive and derogatory statements about immigrants and ethnic groups in Denmark.  The applicant was found guilty of aiding and abetting the Greenjackets to disseminate insulting or degrading speech about a racial or ethnic group, an offense under the Penal Code.

[781] Jersild Case, supra note 780, para. 35.  See also, Johannesburg Principles, supra note 662, Principle 8, which states "Expression may not be prevented or punished merely because it transmits information issued by or about an organization that a government has declared threatens national security or a related interest." This case should be contrasted with an earlier group of cases declared inadmissible by the European Commission of Human Rights for failure to state a claim under the European Convention. At issue in the cases of Purcell v. Ireland [Eur. Commission H.R, Purcell et al. v. Ireland, Admissibility, Application Nº 15404/89, 70 Dec. & Rep., 262 (1991)], Brind and others v. the United Kingdom [Eur. Commission H.R., Brind and others v. United Kingdom, Admissibility, Application Nº 18714/91, 77A Dec. & Rep. 42 (1994)], and McLaughlin v. the United Kingdom [Eur. Commission H.R., McLaughlin v. United Kingdom, Admissibility, Application 18759/91 (1994) (referred to in Brind Case, supra, at 262 and available at http://www.hudoc.echr.coe.int)], were restrictions on broadcasters in the United Kingdom that prevented them from airing interviews with anyone linked to a proscribed organization (i.e., terrorist organization), or with anyone linked to Sinn Fein, a legally constituted political party that supports the Irish Republican Army and a proscribed organization. In Purcell, the broadcasters were also prohibited from reporting on any such interview [Purcell, supra, p. 265]. In the other cases, the law applied only to directly transmitting such interviews, not to reporting the contents of such interviews [Brind Case, supra, p. 43-44;  McLaughlin Case, supra.]. The Government claimed that these restrictions prevented the possibility of terrorists or terrorist groups using broadcast media to affirm the legitimacy of their actions, to encourage support, and to transmit coded messages. The Commission noted in the Purcell case, "In a situation where politically motivated violence poses a constant threat to the lives and security of the population and where the advocates of this violence seek access to the mass media for publicity purposes, it is particularly difficult to strike a fair balance between the requirements of protecting freedom of information and the imperatives of protecting the State and the public against armed conspiracies seeking to overthrow the democratic order which guarantees this freedom and other human rights" [Purcell Case, supra, p. 279]. It found that the restrictions were acceptable under the Convention because of the seriousness of the terrorist threat and because the limitations did not actually limit the information that was available to the public, but rather they limited the format in which the information was transmitted. It should be noted first of all that in many of the foregoing cases, the distinction between subsequent liability, which may be permissible in some circumstances under Article 13 of the American Convention, and prior censorship, which is not permissible, is not clear. The provisions challenged in the Purcell, Brind, and McLaughlin cases seem to have the same effect as a prior restraint. Additionally, it should be noted once again, that although the cases of the European Human Rights system are used here for illustrative purposes, the provisions of the inter-American human rights system with respect to freedom of expression were intended to provide a higher level protection for freedom of expression than those of the European system, as explained by the Inter-American Court of Human Rights which stated that “[a] comparison of Article 13 [of the American Convention] with the relevant provisions of the European Convention (Article 10) and the Covenant (Article 19) indicates clearly that the guarantees contained in the American Convention regarding freedom of expression were designed to be more generous and to reduce to a bare minimum restrictions impeding the free circulation of ideas.” Advisory Opinion OC-5/85, supra note 152, para. 50. Some of these cases, had they arisen in the inter-American system, might well have been decided more favorably for freedom of expression.

[782] Johannesburg Principles, supra note 662, Principle 15.

[783] American Convention on Human Rights, supra note 61, Article 13(5).

[784] See supra, para. 323.

[785] See discussion supra paras. 279, 280, discussing the protection of sources. See also, Johannesburg Principles, supra note 662, Principle 18, which states "Protection of national security may not be used to compel a journalist to reveal a confidential source."

[786] Goodwin Case, supra note 668, para. 46.

[787] Johannesburg Principles, supra note 662. For a discussion of the authoritative value of the Johannesburg Principles in interpreting the right to freedom of expression under inter-American human rights instruments, see supra, para 288.

[788] Johannesburg Principles, supra note 662, Principle 2.

[789] Freedom of Information Principles, supra note 676, Principle 4.

[790] See supra paras. 285-286 of this report for discussion of requirements for guaranteeing access to information, for example, time limitations on restrictions, independent review of decisions denying access, and severability of non-restricted information from documents containing restricted information.

[791]A Model Freedom of Information Law (July 2001), available in http://www.article19.org/docimages/1112.htm (emphasis added), Section 30. The Model Law was drafted by Article 19 in consultation with a large group of international experts and others committed to promoting freedom of information. Compare with the following provisions on national security from the domestic access to information laws of various OAS members states. For example, the Mexican Federal Transparency and Access to Public Government Information Law, signed into law on June 10, 2002, states:

Article 3. For purposes of this law the following definitions will apply:


[ . . . ]


Section VI. Classified Information: That information temporarily covered by one of the exemptions outlined in Articles 13 and 14 of this Law;


[ . . . ]


Section XII. National Security: Actions designed to protect the integrity, stability and permanence of the Mexican State, the democratic governability, external defense and internal security of the Federation, and which are aimed at promoting the general well-being of society and furthering the goals of the constitutional State;


[ . . . ]


Article 13. Information is categorized as classified if its disclosure could:


I.              Compromise national security, public security or national defense;



The United States Freedom of Information Act, 5 USC § 552, states:


(b)           This section does not apply to matters that are


(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;




(c) (3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.


The Panamanian Law 6 of January 22, 2002, establishing norms for transparency in public administration, the action of habeas data and other dispositions (Gaceta Oficial 24.476, January 23, 2002) provides:


Article 14. The information defined by this law as restricted cannot be divulged for a period of 10 years, starting from the date of its classification as such, except when the reasons that justified the restriction cease to exist before the end of this period. The following information will be considered restricted when it is declared as such by a competent official in accordance with the present law:


1.             Information related to national security, in the hands of the security agencies;

[792] Johannesburg Principles, supra note 662, Principle 3.

[793] See discussion, see supra, para. 310.