Medios y Libertad de Expresion: Una agenda de reforma

Media and Governance: A Reform Agenda in Latin America and the Caribbean
By Inter-American Dialogue
February 1, 2009

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En este informe se publicó un resumen de mi presentación en la reunión que le dio origen... acá va.

Excerpt from:

“Indirect Censorship, Public Advertising and Diversity”
by Roberto Saba

Professor of Constitutional Law and Human Rights at the University of Buenos Aires and the University of Palermo

Fortunately, the work of activists in improving the situation of freedom of expression in the Americas has
been relatively successful. Although the situation is far from ideal, direct threats and direct censorship have decreased.

However, new threats rooted in government initiatives have begun to appear. These indirect threats are more subtle, but nevertheless highly efficient. Governments make decisions and pursue actions that positively or negatively affect freedom of expression. The idea that a government should be neutral and absent in order to achieve greater respect for freedom of expression is a myth rooted in the concept that free speech can take place only if all obstacles originated in state action are removed. However, this idea of negative freedom, in Berlin’s words, is no longer accepted by most people1. No right can be enjoyed, not even the most classic political and civil rights, without some level of state action.2 In order to guarantee freedom of expression, a right often considered a precondition for democracy, states must take action to assure a diversity of voices in the media, and at the very least, state actors should be cautious not to prevent diversity by their actions and decisions. The state has two roles through which it can enhance or weaken the diversity of voices, thus negatively or positively affecting freedom of expression. On the one hand, it performs a regulatory function. On the other, it allocates resources. I would like to call attention to this second role and the possibility of enhancing diversity through the protection of freedom of expression.

Government allocation of resources can either foster or impede freedom of expression and freedom of information. Governments can choose to fund research, public museums, public media, scholarships, subsidies for fi lmmaking, and so on. All of these resources are limited, and in order to support these initiatives, governments must make hard choices based on constitutional mandates. For example, these resources cannot be denied to those opposing the government or who are critical of it, just because of their position or opinion. The principles behind the Joint Declaration mentioned above, the Court’s
Opinion CO-5 and the American Convention for human rights provide the legitimate justifi cation necessary to guide these difficult decisions. The allocation of those resources should be grounded in the understanding that freedom of expression is necessary for a robust democracy and diverse public debate. Nobody has an unlimited right to receive those resources— which are indeed scarce—but no one can be deprived of them because of the content of her opinions. To deny these resources to a person because of the content of her thinking is a violation of freedom of expression. Moreover, three specifi c rights are being violated: the right of the person who is denied access to those resources and is being silenced, the right of freedom of expression of all others who are in a similar situation and who will suffer a chilling effect, and the right to know of the public, who is deprived the ability to access those silenced opinions. The American Convention for Human Rights refers to this form of indirect censorship in article 13.3. According to the notion of freedom of expression as a precondition of democracy, and different from what happens when we understand it only as an individual right, censorship can take place not only through state action (direct censorship), but also through indirect means and state omission. If the government does not establish limits to discretion in the allocation of those scarce resources and provides public offi cials with complete discretion to allocate them, then the government is affecting freedom of expression by not doing what it is supposed to do. 3


1 Isaiah Berlin, “Dos conceptos de libertad”, en Cuatro ensayos sobre la libertad, Alianza, Universidad, Madrid, 1988, pp. 187-243.
2 Abramovich, Víctor y Courtis, Christian, “Hacia la exigibilidad de los derechos económicos sociales y culturales”, en Martin Abregú y Christian Courtis (comps.), La aplicación de los tratados sobre derechos humanos por los tribunales locales, CELS, 1997.
3 Christian Courtis y Victor Abramovich, “Hacia la exigibilidad de los derechos económicos, sociales y culturales”, en Martín Abregu y Christian Courtis (compiladores) “La aplicación de los derechos humanos por los tribunales locales”, CELS, Editorial del Puerto, 1998.