Argentina

By Christian Penichet-Paul

File:Flag of Argentina.svg

The Flag of Argentina, first raised on Feb. 27, 1812.

Argentina has a long tradition of free speech and free press rights. The two freedoms were first proclaimed in the Argentine Constitution of 1853. However, these rights have been persistently challenged by the political struggles and internal conflicts of the nation.

Today, Argentina continues to make gradual progress on the protection of free speech and free press rights.  The 2011-2012 Press Freedom Index by Reporters Without Borders rated Argentina as the 47th freest state in terms of free press, alongside the United States and Romania. The ranking represents a continual improvement from 2010 and 2007, when Argentina was rated 55th and 82nd, respectively.[1] The Human Rights Watch has also noted some improvements in Argentina. The organization declared that the recent effort to bring former members of the military and police to justice was an important step.[2] These members violated the free speech rights of the Argentine people during the country’s “dirty war” in the 1980s. Both organizations illustrate a positive trend in Argentina for free speech and free press rights.

However, the rights of free speech and free press are still challenged in Argentina. The protection of these rights is not always absolute.  As a result, the positive trend must be considered with caution.

Historical Background

Argentina is a democratic republic with universal and compulsory suffrage. The federal government is established by the Constitution of 1853, revised in 1994, and is separated into the executive, legislative and judicial branches. The president and vice president of the nation are directly elected by the people, as are the upper and lower chambers of the legislature. The president has the power to appoint Supreme Court members with the consent of the senate. Argentina consists of 23 provinces, each with its own government, and one autonomous city, Buenos Aires.[3] In these matters, the structure of the Argentine government resembles that of the United States. The freedom of the Argentine people is guaranteed by the Constitution of 1853, which also provides for the rights of free speech and free press.[4]

Argentina is situated in South America and has an estimated population of 42 million. In 2011, the Argentinean economy had a gross domestic product of $710 billion. Buenos Aires, the capital, is the nation’s economic and cultural hub.[5]

Argentina declared independence from Spain in 1816, but the new nation was soon fractured by conflicts between federalists and centralist groups. However, the establishment of the Argentinean Constitution in 1853, which instituted the liberal ideals of freedom and democracy, was followed by the creation of a unity government. In the late 19th century, foreign investment and modern agricultural techniques allowed the economy to expand and industrialize. The Great Depression stopped this economic progress and, combined with political tensions, led to a military coup in 1943. Juan Peron, an army colonel, became the leader of the new government. Peron’s government nationalized industry and showed little respect for the opposition’s free press rights. Peron’s removal by the military in 1955 was followed by political and economic distress. In 1973, Peron returned to the presidency, died a year later and was succeeded by his third wife, Isabel de Peron.  The military overthrew Isabel de Peron in 1976 and set up an authoritarian junta that lasted until Dec. 10, 1983. The junta applied harsh measures of control and limited the freedoms of expression. The result was Argentina’s “dirty war,” where about 9,000 people disappeared as a result of voicing opposition to the dictatorship.

The Argentinean defeat in the invasion of the Falkland Islands in 1982 brought down the military junta. In 1983, the democratic government reemerged and the rights of free speech and free press were restored. President Carlos Menem implemented a major privatization program, which resulted in economic growth. However, the Asian economic crisis of 1998 led to a four-year depression in Argentina, which brought down a number of governments. In 2003, Nestor Kirchner was elected president and succeeded in bolstering the economy. In 2007, Kirchner was replaced by his wife, Cristina Fernandez de Kirchner. In its history, Argentina shows the Latin American conflict of political and economic instability coupled with the desire to preserve important ideals, particularly free speech and free press.[6]

Free Speech

The issue of free speech in Argentina has played an important role in the development of the nation. Historical episodes related to expression impacted Argentina’s commitment to free speech. This commitment continues to be shaped by current events.

One prominent event connected to free speech in Argentina was the restriction of expression during the military junta. The authoritarian government silenced opposition, resulting in the disappearance of thousands of political dissidents. In turn, these tough restrictions led to the rise of Rock Nacional (“national rock”), a social movement that began to symbolically challenge the government. Through song lyrics, the musicians of the movements offered a new ideology that was based on the youth of the nation and differed from the ideology of the dictatorship. The new ideology highlighted the feeling of being “different” from the adults and the desire to emerge from the “darkness.” The movement of Rock Nacional manifested in heavily attended concerts. Political organizations had been banned in Argentina. The fear and repression of the dictatorship transformed the concerts into a place for the young to collectively unite without fear. The youth of Argentina were expressing their feelings through music, since the traditional space for political activity had been closed. During the harshest years of the dictatorship, Rock Nacional was the only mean of communication. The military regime at first responded by repressing the concerts. Eventually, as the economy started to falter, the military began to open a strategy of dialogue with the movement. Rock Nacional became a reactionary expression of free speech that played an important role in encouraging opposition to the dictatorship and the emergence of a democracy and commitment to free speech.[7]

The issue of obscenity, as related to free speech, also played a significant role. In 1965, the Argentine Supreme Court issued a ruling in the case of Muruzeta, which regarded film censorship due to obscenity. The court held that the film El Silencio had important “esthetic, representative or teleological” and artistic values, but the government could still censor the film. The court noted that those values were insufficient to save the film from censorship. The court also set the standard of “common people level” to define the appropriate morality of speech. However, “common people” was not defined in the case and, to this day, Argentine courts have been unable to produce an answer as to what can or can not be deemed obscene. The decision permitted the government to censor obscenity without regards to free speech value.[8]

The free speech issue of broadcasting allocation has also played an important role in Argentina. In 2009, President Fernandez de Kirchner sent a bill to the legislature that would apportion broadcasting frequencies. One third of the frequencies would go to the state, another third to nonprofit organizations, and the last third would remain with private companies. In regards to the allocation, Fernandez de Kirchner said that those with the most money had the most access to the media and, therefore, were able to “speak” the most. The public media, in this theory, is “fee speech” accessible only to those that can afford it. For “free speech,” the industry would have to be de-commercialized, so that even the most disenfranchised members of society could be able to access it. Dr. Allen D. Kanner, co-founder of the Campaign for a Commercial-Free Childhood, supports this view, stressing that freedom of speech does not mean freedom for press owners. The extension of media access to the disenfranchised shows a commitment to free speech. However, the issue is complicated by the fact that it would diminish the free speech rights of other people, perhaps at the benefit of the state.[9]

The current free speech issue of ‘the right to forget’ is playing a prominent role in Argentina. The issue centered on the case of Virginia da Cuhna, an Argentine celebrity who sued Google Inc. and Yahoo! for including her (sexual, but publicly unintended) images in websites that contained “sexual, erotic and pornographic content.”  The two corporations claimed that they could not be held liable, but da Cuhna still won the case. The ‘right to forget’ still remains in Argentina and can have significant effect on the right of free speech. Stanford Professor Jeffrey Rosen described the issue as the “biggest threat to free speech on the Internet,” because it would effectually erase images that would otherwise be the public’s right to know. Furthermore, it could affect the right of artists to appropriate images. A photographed person, under the protection of the ‘right to forget,’ could ask for the removal of the photograph. The ‘right to forget’ is still in effect in Argentina, potentially limiting the right of free speech.[10]

The debate of whether private or public media poses the biggest threat to free speech in Argentina is still continuing. The issue manifested in a planned speech by Mario Vargas Llosa, a Nobel-Prize winning author. He was set to deliver a keynote address in Argentina’s annual book fair, but had been pressured to withdraw by members of President Fernandez de Kirchner’s administration. Vargas Llosa had criticized many of Fernandez de Kirchner’s policies, including the nationalization of the media. However, the president intervened in the affair to allow Vargas Llosa to deliver his still-critical speech. The event highlighted the debate over media ownership, but also presented a small moment of solidarity in the commitment to free speech.[11]

Free Press

The issue of free press has a long and significant history in Argentina. The protection of the press has not always been assured, but the ideal has been an important part of the nation’s democratic history. Today, the commitment to a free press is still being shaped.

The freedom of expression was established by the Argentine Constitution of 1853. This freedom was guaranteed by the prevention of the federal government to assert jurisdiction over the press. However, in the case of Bertotto (1933), the Supreme Court of Argentina held that the federal government could intervene, because the freedom of the press was not absolute. The case of Bertotto centered on the refusal of the chief postmaster to distribute a newspaper that contained alleged apologies of crimes. The court held that the employment of total freedom for the press was “irreconcilable with ends contrary…to public morality and the good customs of the land.” The decision allowed the government to intervene in particular instances, like in matters where the state was affected. Bertotto was an important decision because it limited the right of the press, weakening an important safeguard of the constitution.[12]

The presidency of Juan Peron was backed by popular support, but it was not open to opposition parties or a critical press. In 1951, the critical newspaper La Prensa was expropriated by a Congressional committee supportive of Peron. The newspaper’s editor, Dr. Alberto Gainza Paz, was barred from the newspaper’s offices and charged, by the judiciary, with carrying on “activities against the state.” The suppression of La Prensa highlighted the authoritarian characteristics of Peron’s government, which was not truly democratic. It also incited foreign pleas for the reestablishment of the newspaper. Edward G. Miller, Jr., then the United States Assistant Secretary of State, visited Argentina and raised hopes that La Prensa might be restored. The government suppression of La Prensa, an anti-Peronist newspaper with a circulation of almost 500,000, became a major event. While the newspaper was returned to Gainza Paz in 1956, the action manifested the consistent lack of commitment by the government to free press, particularly critical press.[13]

After the military junta, the Argentine ideal of a free press was reintroduced. But, in 1995, the administration of President Carlos Menem proposed three bills to Congress that dealt with press restrictions. The bills increased the penalties for libel and slander, making it a crime to offend the memory of the dead, and requiring that news companies attain expensive libel insurance. The bills were sent to Congress in an election year, provoking calls of an intention to intimidate the press and derail corruption investigations into the Menem administration. For opponents of the bill, this was a government attempt to silence the press through the fear of severe penalties. Defamation could result in up to three years in jail and a fine of $100,000. The penalties for libel were harsher. Journalists could face up to six years in prison and a $200,000 fine. The bills also required that news organizations obtain a $500,000 insurance policy to protect against libel. For many small newspapers, the cost of insurance would cause them to shy away from government criticism, because it could lead to lawsuits. The Menem bills constrained the rights of the press through the implementation of harsh libel and slander penalties.[14]

The right of free press in Argentina continues to be transformed. In 2011, the Supreme Court of Argentina held that the federal government should show “reasonable balance” in the allocation of state advertising. The decision concerned Editorial Perfil, Argentina’s largest magazine publisher.  Editorial Perfil claimed that the government was arbitrary allocating state advertising.  The claim appeared to be true.  The administration of President Fernandez de Kirchner seemed to have manipulated official advertising to reward supportive media and sanction critical media. The court pronounced that, to secure the freedom of expression, the government could not arbitrarily allocate official advertising. The ruling was a statement of strong support for the free press in Argentina. The misappropriation of funds resulted in government censorship through finances, which was ruled to be unconstitutional by the Supreme Court. The court’s decision expands the Argentine commitment to the free press by removing governmental favoritism towards positive coverage and supportive media.[15]

Critical Comparison

The United States is often stated to be the freest country in the world. However, in the Press Freedom Index of 2011/2012, Argentina and the United States were both tied in 47th place. To test the statement, it is important to analyze and compare the countries and their similarities and differences in terms of free speech and free press issues.

The emergence of the Rock Nacional movement was a unique part of Argentinean free speech history.  The movement provided a form of opposition and communication against the military dictatorship. The lack of military dictatorships in United States history makes it difficult to discuss how a similar situation would have been resolved. However, the United States civil rights movement of the 1950s and 1960s provides an adequate analogy. Songs played an important role in the civil rights movement. To the activists, songs were a critical part of the movement, because they energized the field and provided moments of celebration in the struggle. The music also emulated the growing demand for political change in the position of African Americans in the country. The civil rights movement eventually resulted in the passage of the Civil Rights Act of 1964, which guaranteed the American freedoms regardless of race. In a similar manner, the Rock Nacional movement helped to bring the return of democracy and the liberation of the youth. In this issue of free speech, both Argentina and the United States concluded in a similar manner.[16]

The issue of obscenity between the countries in regards to free speech is different. Argentina allows the prohibition of artistic work, even one of value, if it is considered to be obscene. The United States Supreme Court decision of Burstyn v. Wilson in 1952 established that films were a source of communication for ideas protected under the First Amendment.[17]  The United States Supreme Court  ruled in Miller v. California (1973) that obscenity does not fall under the free speech protection of the First Amendment. But, as long as speech has a redeeming social value and does not interfere with other, more important interests, it is protected.[18] In the issue of obscenity, the United States appears to have a more open method to speech regarded as obscene.

The media broadcasting bill introduced by President Fernandez de Kirchner presents another stark difference between Argentina and the United States. The idea of transforming the American media from a commercial to a noncommercial basis appears, in the viewpoint of many U.S. residents, a violation of corporate free speech. In Argentina, the goal of the transformation is to provide media access to the poor and disenfranchised.[19] But, in the United States, a similar situation would likely be declared unconstitutional by the Supreme Court. In Citizens United v. Federal Election Commission (2010), the United States Supreme Court held that corporations are allowed to provide political expenditures during campaigns under the protection of free speech.[20] In this manner, it is unlikely that a bill that reduces corporate speech by two thirds would be found constitutional.

The current event issues of Argentina would also be resolved differently.  The concept of the ‘right to forget’ is not entertained in the constitutional thought of the United States.  In Argentina, this law could be used to remove embarrassing information from the web. The right to privacy in the United States was implied in Eisenstadt v. Baird (1972). The court held that the First and Fourteenth Amendments combined to form the right of privacy, which in the case meant allowing contraceptives for single people.[21] However, that right was not extend in this case, or in consequent ones, into the ability to form the ‘right to forget.’ In the United States, public photographs in the web would not fall into the category of privacy and major web corporations would certainly not be liable for the photograph’s distribution.[22]  The current event issue of the Vargas Llosa keynote address at the Argentine book fair would have likely concluded in the same way. The freedom of speech in the United States allows people to publicly criticize the government, as Vargas Llosa did in Argentina.

The issues of free press in Argentina have some similarities and many differences with the United States. The Argentine Supreme Court case of Bertotto proclaimed that the government could intervene in the press, because the freedom of the press was not absolute. In essence, the government was given the ability to issue prior restraint. The chief postmaster disagreed with the newspaper’s message, and refused to distribute it. He executed a form of prior restraint, which the Argentine Supreme Court legitimized. The same concept was tested in the United States with the case of the ‘Pentagon Papers’. In New York Times Co. v. United States (1971), the U.S. Supreme Court found that President Nixon, as the head of the executive branch, did not have the authority to force the New York Times to suspend the publication of classified information. The court invalidated prior restraint, except in exceptional circumstances.[23] As the United States extended the protection, Argentina opened the door to government intervention of the press.

The suppression of the La Prensa newspaper by Juan Peron’s administration equally and most closely resembled the New York Times Co. v. United States (1971) case. However, Peron’s administration continually suppressed and eventually expropriated the newspaper. This main event was an attack on free press that has no real equivalent in the United States. The act was a major obtrusion on the right of free press in Argentina.

The three bills introduced by the Menem administration to the Argentine legislature greatly increased the penalties for libel and slander. In the United States, the case of New York v. Sullivan (1964)[24], set the standards of libel. The court imposed a heavy pain to prove cases of libel and slander, because of the traditional and necessary high protection given to political speech. For public officials, actual malice needed to be proven. In the Argentine bills, cases of slanders and libel could be introduced for simply defaming the dead. The introduction of these bills limited the right of the free press through intimidation of lawsuits.

The current events issue of proper allocation of state advertisements in Argentina resulted in the expansion of the free press right. A similar situation in the United States would have likely been resolved in a similar manner. Conceivably, the Supreme Court would deliver an opinion that proclaimed the need for balance in official advertisement to protect the free press. Just as the government cannot prefer one religion, it is unable to prefer one news press. In this current issue, Argentina has taken a path that would probably be equivalent to that of the United States.

Conclusion

The rights of free speech and free press in Argentina have been simultaneously cemented and challenged. Argentina has a complicated history on the rights of free expression. While Argentina’s commitments resemble the values of the United States, its free speech and free press rights have been impacted by political instability. In comparison with the United States, Argentina formulates a decent showing, but not one good enough to overtake the American commitment to these rights. Argentina still features s several free expression quandaries, particularly in its protection of the press. Argentina will continue to improve its free speech and free press rights and perhaps one day match the United States.


[1] “Press Freedom Index 2011-2012”, Reporters Without Borders, http://en.rsf.org/press-freedom-index-2011-2012,1043.html (accessed April 2, 2012).

[2] “Argentina”, Humans Right Watch, http://www.hrw.org/sites/default/files/related_material/argentina.pdf (accessed April 2, 2012).

[3] “South America: Argentina”, Central Intelligence Agency: The World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/ar.html (accessed April 3, 2012).

[4] “Argentina”, U.S. Department of State, http://www.state.gov/j/drl/rls/hrrpt/2006/78877.htm (accessed April 3, 2012).

[5] “South America: Argentina”, Central Intelligence Agency: The World Factbook.

[6] “Background Note: Argentina”, U.S. Department of State, http://www.state.gov/r/pa/ei/bgn/26516.htm (accessed April 4, 2012).

[7] Pablo Vila, “Rock Nacional and the dictatorship in Argentina”, in Rockin’ the Boat, ed. Reebee Garofalo (Boston, MA: South End Press, 1992), 209-220.

[8] Susana N. Vittadini Andres, “First Amendment influence in argentine public law and jurisprudence”, Communication Law and Policiy 4, no. 2 (Spring 1999), http://www.tandfonline.com.libproxy.txstate.edu/doi/pdf /10.1080/10811689909368673 (accessed April 4, 2012).

[9] Allen D. Kanner, “Free Speech of Fee Speech: Progress in Latin America; Confusion in the United States”, Institute for Labor & Mental Health 24, is. 6 http://ehis.ebscohost.com/eds/detail?vid=2&hid (accessed March 31, 2012).

[10] Julieta Andrea Grinffiel, “Don’t Shoot the Messenger: Civil Liability for ISPs after Virginia da Cuhna v. Yahoo! Argentina and Google Inc.” (Winter 2011), http://www.lexisnexis.com.libproxy.txstate.edu/hottopics/lnacademic (accessed April 4, 2011).

[11] Debora Rey, “Vargas Llosa insists on free speech in Argentina”, Associated Press, April 24, 2011, final edition.

[12] Carlos S. Nino, “On the Exercise of Judicial Review in Argentina”, in Transition to Democracy in Latin America: The Role of the Judiciary, ed. Irwin P. Stotzky (Oxford: Westview Press, 1993), 320-321.

[13] James H. Scheuer, “Peron vs. a Free Press”, Nation, March 31, 1951, http://ehis.ebscohost.com.libproxy. txstate.edu/ eds/pdfviewer/pdfviewer, (accessed: April 4, 2012).

[14] Calvin Sims, “Press Protest ‘Gag’ Bills In Argentina”, The New York Times, February 19, 1995, final edition, in NYTimes.com (accessed: March 31, 2012).

[15] Committee to Protect Journalists, March 4, 2011, http://cpj.org/2011/03/supreme-court-urges-argentina-to-avoid-bias-in-all.php (accessed April 2, 2012).

[16] Reebee Garofalo, “Popular Music and the Civil Rights Movement”, in Rockin’ the Boat, ed. Reebee Garofalo (Boston, MA: South End Press, 1992), 230-235.

[17] Vittadini Andres, “First Amendment influence in argentine public law and jurisprudence”.

[18] Roth v. United States 354 U.S. 476, 479-490, (1957).

[19] Kanner, “Free Speech of Fee Speech: Progress in Latin America; Confusion in the United States”

[20] Citizens United v. Federal Election Committee, 558 U.S. –, (2010).

[21] Eisenstadt v. Baird, 405 U.S. 432, (1972).

[22] Robert Krulwich, “Is the Right to be Forgotten‘ The ‘Biggest Threat to Free Speech in the Internet’?”, NPR.org, February 24, 2012, http://www.npr.org/blogs/krulwich/2012/02/23/147289169/is-the-right-to-be-forgotten-the-biggest-threat-to-free-speech-on-the-internet (accessed April 4, 2012).

[23] New York Times Co. v. United States, 403 U.S. 713, (1971).

[24] New York Times v. Sullivan, 376 U.S. 254, (1964).

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