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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.
[ TABLE OF CONTENTS | PREVIOUS | NEXT ]
[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 [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 […]” [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 [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 Nº 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 Nº
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.
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