The question is whether criminalizing speech because it is directed particularly at public officials, when there is no identifiable imminent danger of violence, is compatible with the right of freedom of thought and expression guaranteed in the American Convention.

          II.          "DESACATO" LAWS

          Desacato laws are a class of legislation that criminalizes expression which offends, insults, or threatens a public functionary in the performance of his or her official duties.  These laws have a long history, originally promulgated in Roman times to defend the honor of the emperor.  Today, the desacato laws which persist in many member States are justified as necessary to protect the proper functioning of the public administration.[6]

          Desacato laws are said to play a dual role.  First, by protecting public functionaries from offensive and/or critical speech, these functionaries are left unhindered to perform their duties and thus, the Government itself is allowed to run smoothly.  Second, desacato laws protect the public order because criticism of public functionaries may have a destabilizing effect on national government since, the argument goes, it reflects not only on the individual criticized but on the office he or she holds and the administration he or she serves.

          The application of desacato laws varies between OAS member states.  In certain countries, desacato laws penalize only insulting speech which is said in the presence of the public functionary or by direct communication, such as a letter or telephone call[7].  Other desacato laws penalize any speech which insults, offends or threatens a public functionary, whether made directly to the person in question or through an indirect medium, such as the press.[8]  In general, however, the protection of desacato laws only extends to public functionaries performing in their official capacity.  In addition, OAS member states differ as to defenses allowed in charges of desacato. In some countries, desacato laws require that defendants prove the veracity of their impugned statements as a defense.[9]  In others, the law does not allow the defense of truth to be introduced with regard to insulting or offensive language against public functionaries.[10]  Penalties for desacato range from fines to prison sentences.

          The Commission must determine whether the feature common to all desacato laws--the restraint on freedom of expression for the purposes of defending public officials, and ultimately the government in general, from criticism--is legitimate under Article 13 (2) and (3) of the American Convention.  Should desacato laws be incompatible with the guarantees of Article 13 of the Convention, their continued existence would also be in violation of Articles 1(1) and 2 of this same document.  Article 1(1) obligates each signatory country to respect and guarantee those rights enumerated within the Convention, while Article 2 requires each signatory country to adapt its legislation to guarantee these rights.

          III.      THE CONVENTION PROTECTS AND PROMOTES A BROAD CONCEPT OF FREEDOM OF EXPRESSION TO PRESERVE THE EXISTENCE OF DEMOCRATIC SOCIETIES IN OAS MEMBER STATES

          Freedom of expression is a cornerstone upon which the very existence of a democratic society rests.  It is indispensable for the formation of public opinion...It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed.  Consequently, it can be said that a society that is not well informed is not a society that is truly free.[11]

          The Inter-American Court on Human Rights ("Court") has stated that because freedom of expression and thought plays a crucial and central role in public debate, the American Convention places an "extremely high value" on this right and reduces to a minimum any restrictions on it.[12]  As the Court noted, it is in the interest of the "democratic public order inherent in the American Convention" that freedom of expression be "scrupulously respected."[13]

          Article 13 of the American Convention contains the most pertinent definition of freedom of expression.  It states:

          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.

          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 and reputation of others; or

         b. the protection of national security, public order, or public health and morals.

          3.       The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by an other means tending to impede the communication and circulation of ideas and opinions.[14]

          The Court has noted the broad "scope and character" of the right to freedom of expression under Article 13.[15]  Article 13 establishes two distinct aspects of the right to freedom of expression.  It includes not only the freedom to express thoughts and ideas, but also the right and freedom to seek and receive them.[16]  By simultaneously guaranteeing the rights to express and receive such expressions, the Convention enhances the free interchange of ideas needed for effective public debate within the political arena.[17]

          The Court has also concluded that the American Convention is more generous in its guarantee of freedom of expression and less restrictive of this right than relevant provisions in either the European Convention for the Protection of Human Rights and Fundamental Freedoms or the International Covenant on Civil and Political Rights.[18]  This is particularly significant considering that the European Court has repeatedly asserted that freedom of expression is one of the "essential foundations of a democratic society."[19]

          For example, in a decision finding that the applicant's conviction for defamation of a public official violated Article 10 of the European Convention, the European Court stated that the protection of freedom of expression must extend not only to information or ideas which are favorable, but also to those that "offend, shock or disturb."[20]  As the European Court noted, "Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society."[21]  The Human Rights Committee, interpreting the U.N. Covenant, has commented that restrictions on freedom of expression must not "perpetuate prejudice or promote intolerance."[22]  The same opinion underlined the special importance of protecting "freedom of expression as regards minority views, including those that offend, shock or disturb the majority."[23]

          The consensus among the American and European Human Rights bodies is evidence that the protection of freedom of expression is an indispensable element of democracy, well-grounded in international law.  By protecting this right as found within Article 13 of the Convention, the Court has simply reinforced the Convention's intent, which is to create a system of "personal liberty and social justice" within the "framework of democratic institutions."[24]  It is evident that the right to freedom of expression and thought guaranteed in the Convention is inextricably connected to the very existence of a democratic society.  Indeed, "[f]ull and free discussion keep a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart."[25]

          A society that is to be free both today and in the future must engage openly in rigorous public debate about itself.

          IV.     DESACATO LAWS ARE INCOMPATIBLE WITH ARTICLE 13 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS BECAUSE THEY SUPPRESS THE FREEDOM OF EXPRESSION NECESSARY FOR THE PROPER FUNCTIONING OF A DEMOCRATIC SOCIETY

          A.      Restrictions on freedom of expression must incorporate the just demands of a democratic society

          Although freedom of expression is essential to any democratic form of government, it is not an absolute right. Article 13(2) defines the permissible restrictions to freedom of expression:

          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 and reputations of others; or

b. the protection of national security, public order, or public health and morals.

          The norms under which these restrictions are interpreted must be compatible with the preservation and development of democratic societies as articulated in Articles 29 and 32 of the Convention.

          In interpreting these articles, the Court stated that Article 29(c) indicates that no provision of the Convention should be interpreted as "precluding other rights or guarantees....derived from representative democracy as a form of government." In addition, Article 29(d) guarantees that no provision shall be interpreted as excluding or limiting the effect of the American Declaration of the Rights and Duties of Man,[26] which provides that the "rights of man are limited....by the just demands of the general welfare and the advancement of democracy."[27] 

          Article 32(2) states that all rights delineated in the Convention may be restricted by the "rights of others, by the security of all, and by the just demands of the general welfare in a democratic society."[28]  As the Court asserted, this constant reference to democracy in Article 29 and 32 indicates that when provisions of the Convention are critical to the "preservation and functioning of democratic institutions," the "just demands of democracy must guide their interpretation."[29]  Thus, interpretation of the Article 13(2) restrictions on freedom of expression must be "judged by reference to the legitimate needs of democratic societies and institutions," precisely because freedom of expression is essential to democratic forms of governance.[30]

          Prior restraint is absolutely prohibited.  The only legitimate restrictions to the right to freedom of expression are through subsequent liability in the case of abuse of that right.[31] But imposition of such liability must meet four requirements to be valid under Article 13(2): 1) grounds for liability must be previously established; 2) these grounds must be express and precise within the law; 3) the ends sought to be achieved must be legitimate; and, 4) the grounds for liability must be necessary to ensure the legitimate end pursued.[32]  Assuming arguendo that the desacato laws in question are well established, express and precise within the penal codes of their respective countries, the question remains whether these laws meet requirements 3 and 4 in order to be compatible with Article 13(2).  Ultimately, this determination rests on the mandate of Articles 29 and 32 that any restriction of a guaranteed right must take into account the legitimate needs of democracy.[33]

          B.       Desacato laws are not a legitimate restriction of freedom of expression

          The use of desacato laws to protect the honor of public functionaries acting in their official capacities unjustifiably grants a right to protection to public officials that is not available to other members of society. This distinction inverts the fundamental principle in a democratic system that holds the Government subject to controls, such as public scrutiny, in order to preclude or control abuse of its coercive powers. If we consider that public functionaries acting in their official capacity are the Government for all intents and purposes, then it must be the individual and the public's right to criticize and scrutinize the officials' actions and attitudes in so far as they relate to the public office.

          As mentioned above, the right to freedom of expression is precisely the right of the individual and the entire community to engage in active, challenging and robust debate about all issues pertaining to the "normal and harmonious functioning of society."  The sort of political debate encouraged by the right to free expression will inevitably generate some speech that is critical of, and even offensive to those who hold public office or are intimately involved in the formation of public policy.  A law that targets speech that is considered critical of the public administration by virtue of the individual who is the object of the expression, strikes at the very essence and content of freedom of expression.  Such limitations on speech may affect not only those directly silenced, but society as a whole.  In the words of John Stuart Mill,

          It is not the minds of heretics that are deteriorated most by the ban... The greatest harm is done to those who are not heretics and whose whole mental development is cramped and their reason cowed by the fear of heresy.  No man can be a great thinker who does not recognize that as a thinker it is his first duty to follow his intellect to whatever conclusions it may lead.  Truth gains more even by the errors of one who, with due study and preparations thinks for himself than by the true opinions of those who hold them only because they do not suffer themselves to think.[34]

          Desacato laws restrict freedom of expression because they carry with them the threat of imprisonment and/or fines for those who insult or offend a public official. In this regard, the European Court has stated that although the subsequent penalties of a fine and revocation of a published article did not prevent the petitioner from expressing himself, "they nonetheless amounted to a censure, which would be likely to discourage him from making criticisms of that kind again in the future."[35]  The fear of criminal sanctions necessarily discourages people from voicing their opinions on issues of public concern particularly when the legislation fails to distinguish between facts and value judgments.  Political criticism often involves value judgements.

          The Commission also notes that the burden desacato laws place on persons wishing to participate in debate over the proper functioning of the public administration is not lessened by the possibility to prove truth as a defense.  Even those laws which allow truth as a defense inevitably inhibit the free flow of ideas and opinions by shifting the burden of proof onto the speaker.  This is particularly the case in the political arena where political criticism is often based on value judgements, rather than purely fact-based statements.[36]  Proving the veracity of these statements may be impossible, since value judgements are not susceptible of proof.[37] Thus, a rule compelling the critic of public officials to guarantee the factual assertions has disquieting implications for criticism of governmental conduct.  It raises the possibility that a good-faith critic of government will be penalized for his or her criticism.   Moreover, the threat of criminal liability for dishonoring the reputation of a public functionary even as an expression of a value judgment or an opinion, can be used as a method to suppress criticism and political adversaries.  By shielding officials from libelous expression, desacato laws set up a structure that, in the final analysis, shields the Government itself from criticism.

          Finally and most importantly, the Commission notes that the rationale behind desacato laws reverses the principle that a properly functioning democracy is indeed the greatest guarantee of public order. These laws pretend to preserve public order precisely by restricting a fundamental human right which is recognized internationally as a cornerstone upon which democratic society rests.  Desacato laws, when applied, have a direct impact on the open and rigorous debate about public policy that Article 13 guarantees and which is essential to the existence of a democratic society.  In this respect, invoking the concept of "public order" to justify desacato laws directly inverts the logic underlying the guarantee of freedom of expression and thought guaranteed in the Convention. 

          C.      Desacato laws are not "necessary to ensure" public order in a democratic society

          Even assuming arguendo that protecting public officials from offensive and critical expression is a legitimate protection of public order within a democratic society, any law which restricts freedom of expression must also be "necessary to ensure" this legitimate purpose.[38]   The term "necessary" as used in Article 13(2), must be something more than "useful," "reasonable" or "desirable."  For a restriction to be "necessary," there must be a showing that the legitimate purpose cannot reasonably be achieved through a means less restrictive to freedom of expression.[39]  Moreover, the Court stated that for such a showing, the restrictions must be proportionate and closely tailored to the achievement of the proffered government objective.[40]  Necessity implies the existence of a "pressing social need."[41]  Thus, governments may not invoke one of the lawful restrictions of freedom of expression, such as the maintenance of "public order," as a means to deny a right guaranteed by the Convention or to impair it of its true content.[42]  If this occurs, the restriction, as applied, is not lawful.

          The special protection desacato laws afford public functionaries from insulting or offensive language is not congruent with the objective of a democratic society to foster public debate.[43]  This is particularly so in light of a Government's dominant role in society, and particularly where other means are available to reply to unjustified attacks through the government's access to the media or individual civil actions of libel and slander.[44]  Any criticism that is not related to the officials' position may be subject, as is the case for all private individuals, to ordinary libel, slander and defamation actions.  In this sense, the Government's prosecution of a person who criticizes a public official acting in his or her official capacity does not comply with the requirements of Article 13(2) because the protection of honor in this context is conceivable without restricting criticism of the public administration.  As such, these laws are also an unjustified means to limit certain speech that is already restricted by laws that all persons, regardless of their status, may invoke.

          Moreover, the Commission notes that, contrary to the rationale underlying desacato laws, in democratic societies political and public figures must be more, not less, open to public scrutiny and criticism. The open and wide-ranging public debate, which is at the core of democratic society necessarily involves those persons who are involved in devising and implementing public policy.[45]  Since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance for criticism.[46]

          V.      CONCLUSION

          Articles 13(2) and (3) recognize that the zone of legitimate State intervention begins at the point where the expression of an opinion or idea interferes directly with the rights of others or constitutes a direct and obvious threat to life in society. However, particularly in the political arena, the threshold of State intervention with respect to freedom of expression is necessarily higher because of the critical role political dialogue plays in a democratic society.  The Convention requires that this threshold be raised even higher when the State brings to bear the coercive power of its criminal justice system to curtail expression. Considering the consequences of criminal sanctions and the inevitable chilling effect they have on freedom of expression, criminalization of speech can only apply in those exceptional circumstances when there is an obvious and direct threat of lawless violence.  Article 13(5) stipulates that:

          any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or any similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

          The Commission considers that the State's obligation to protect the rights of others is served by providing statutory protection against intentional infringement on honor and reputation through civil actions and by implementing laws that guarantee the right of reply.  In this sense, the State guarantees protection of all individual's privacy without abusing its coercive powers to repress individual freedom to form opinions and express them. 

          In conclusion, the Commission finds that the State's use of its coercive powers to restrict speech lends itself to abuse as a means to silence unpopular ideas and opinions, thereby repressing the debate that is critical to the effective functioning of democratic institutions.  Laws that criminalize speech which does not incite lawless violence are incompatible with freedom of expression and thought guaranteed in Article 13, and with the fundamental purpose of the American Convention of allowing and protecting the pluralistic, democratic way of life.