El Salvador

By Colin Morris

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Flag of El Salvador.

I. Introduction

Noted as one of the world’s most dangerous countries, El Salvador ranks at 62 out of 180 in the world according to the 2017 World Press Freedom Index published by Reporters Without Borders. This ranking marks a decrease in four spots from 58 since just 2016 as El Salvador continues to struggle with an excess of structural and governmental violence [1]. Freedom House scores El Salvador as only “partly free” in speech and press terms and amongst the lower half of legal, political and economic environments as journalists and those within the media continue to see a rise in widespread violent gang activity and silencing political pressures directed toward them [2]. El Salvador’s challenged speech and press freedoms parallel that of a long history of unstable revolution and government corruption.

II. Historical Background

As the smallest country of Central America, El Salvador is home to a dense population of around seven million people. It sits in the middle of Central America along the Pacific Coast and is bordered by neighboring countries Honduras and Guatemala. Its “location as a geographical determinant of Salvadoran history has worked largely against the small nation”[3]. Territory and border disputes were consistent between the country and its neighbors and led to multiple wars between them. The Salvadoran climate favors commercial agriculture for the developing country. Although known for their coffee production, the country’s “overstressed soil coupled with a high population density” has influenced its hardships [3] and sparked the emergence of an expanding service industry within the nation. El Salvador’s societal makeup reflects that of its influences from colonial Spain and the indigenous people who occupied the land until claiming independence on Sept. 15, 1821. Because of this influence, the nation’s official languages are Spanish and Nahua, and about 86 percent of the country identifies as Roman Catholic, with Protestants and other religions claim the remaining 14 percent [4].

Political unrest and violence tend to be the backbone of El Salvador’s historical upbringing. Since its Spanish colonization in 1525, rebellions and resistance are common. Colonial El Salvador claimed independence from its European powers in 1821, and in 1822 El Salvador joined the United Provinces of Central America. This union only lasted until it broke apart in 1838, as “wars broke out between El Salvador and its neighbors several times. . . over the future of Central American politics” [3] and El Salvador was once again an independent republic. Like much of Central America, the country endured another series of frequent revolutions. The people of El Salvador were not unfamiliar with the overthrow of unrepresentative powers and oppression of individual freedoms and expression. Beginning in 1932, the country operated under the dictatorship of Maximiliano Hernandez Martinez, who approved a constitution establishing unprecedented dictatorial powers to the central government. Following the overthrow of Hernandez Martinez in 1944, a series of unstable military groups struggled for absolute control. This era was one of El Salvador’s darkest periods. Militant oppression and violence upon civilians began to grow tremendously as these groups gained momentum. El Salvador fell into a cyclic pattern of authoritative control in which the people were limited in their freedoms. By 1981, violence had reached its tipping point, where “official military massacres of whole villages were commonplace” [3]. It was also at this time the country operated under the “most rigid class structure and worst income equality in all of Latin America” [5]. Revolutionary groups began to resist oppressive governmental, military force, and thus the country entered a 12-year civil war.

El Salvador’s postwar era has endured a rollercoaster of ups and downs since the signing of the National Commission for the Consolidation of Peace (COPAZ) Peace Accords in 1992 that officially signified the end of the Civil War. Before this signing, El Salvador adopted its 1983 constitution and governmental structure that has led to improvements of political stability in the country [4]. El Salvador’s government structure is similar to that of the United States. As of 2014, President Salvador Sánchez Cerén holds the authority of the executive branch by popular vote, serving a five-year term with a cabinet of ministers and undersecretaries of the state operating below him. The National Assembly popularly selects the remaining 84-member unicameral legislative branch and the judicial branch composed of a Supreme Court of Justice. There is universal suffrage in the country, and all Salvadorans over the age of 18 may vote. From the war, two warring factions rose to form the primary political parties within the nation: the right-wing Nationalist Republican Alliance Party (ARENA) founded by death squad leader Colonel Roberto D’Abuisson, and the left-wing Farabundo Marti National Liberation Front (FMLN). The FMLN party formed from the four guerilla factions along with the Communist Party of El Salvador to oppose government forces that had killed innocent civilians.

The Freedom House notes that relative freedoms of the citizens in 2017 to be quite poor. Although El Salvador’s constitution provides freedom of the press, harassment and gang violence target journalists within the media. Also, the government widely respects religion and academic freedoms, and public protests are allowed without obstruction. Minority groups are consistently victims of discrimination within El Salvador, although the constitution grants these communities like women and LGBT equal rights. Freedom House describes a weak judicial and criminal system, as often judges are affiliated with political parties and subject to a gang and government influence [6]. Advancements in this area have been made, as in the criminalization of gang membership and affiliation, although their success has staggered.

III. Free Speech

Freedom of expression and speech in El Salvador are protected as guaranteed rights to the people. Although provided for by their constitution, Article 19 provided that “in practice, it is regularly flouted” [7], and that elected officials continue to seek out alternate paths to breach the rights of their citizens.

Protests are not unfamiliar to the people of El Salvador. Since its conquering in 1525, oppressed and discriminated groups used protests and rebellions to incite change amongst its societies. When the country adopted the 1983 Constitution, it provided for the protection of the right to assembly and association. Usually, these rights have been respected by the government, although “there were occasions where the government used intimidation tactics to discourage assembly” [8]. Well known LGBT activist Bessy Rios experienced these tactics when she protested a proposed electricity price increase. On June 29, 2016, she acted peacefully as a single protester outside the president’s office until riot police arrested and assaulted her, “leaving bruises and scrapes on her body” [9]. Although charges were dropped, Rios’ rights appear to have been infringed upon.

In other instances, arrests and prosecutions have gone as far as to label demonstrators as terrorists to the community to silence their expression. In 2007, 14 protesters were charged with terrorism after a disruptive demonstration. The demonstration was a response to the plan to decentralize water distribution, where protesters blocked the roads and threw rocks at police. The police responded by firing tear gas and rubber bullets at the protesters before arrests were made. The Human Rights Watch acknowledges the laws broken by protesters who disrupted public order outlined in the constitution but notes the government’s action to criminalize all forms of speech against it. They highlight that the terrorism charges brought forth by El Salvador “for less serious crimes allegedly committed during a political protest is inappropriate and represents a misuse of counterterrorism legislation” [10]. With the use of this charge against protesters, the government has attempted to provide a “chilling effect” upon its people, as the citizens of El Salvador may refrain from protesting and expressing belief for fear of excessive punishment. It is not an uncommon practice for the government to pursue loopholes to limit the speech that opposes it.

This reach has expanded to the protection of association as well. El Salvador is known primarily for its gang epidemic that plagues the country. In more recent years, the Salvadoran government has begun to make attempts to diminish this epidemic but has done so at the sacrifice of the right of expression. In 2010, the primary gangs that plagued El Salvador were the Mara Salvatrucha and the Barrio. These gangs provided a significant threat to the security of the nation. To reassess security practices, the Salvadoran government responded by targeting and arresting “thousands of youth based on their appearance, associations or address” [11] rather than for actual criminal activity. Insight Crime, a foundation dedicated to analyzing and informing the debate about organized crime, noted the majority of these arrests and prosecutions had no tangible credibility to them and did not hold up in court. They stated these attempts to criminalize mere association and expression “served to further stigmatize already marginal communities” [11] and the people of El Salvador. In this instance, the government relied on the vague definition of what constituted gang affiliation and expanded this definition to prosecute anyone their blanket term deemed appropriate. These acts pose a serious threat to the ideas of expression, as this precedent could allow the government to manipulate this definition and suppress any expression inconsistent with its agenda. The unjust arrests based on the way people chose to express themselves rather than committing legitimate crimes is an unlawful attempt to control expression and only deepens the “chilling effect” already instilled within El Salvador’s people.

IV. Free Press

El Salvador’s Constitution clearly outlines the protections afforded to the press within the country, claiming that publication and expression “shall not be subject to previous examination, censorship or bond; but those who infringe on the laws [while] making use of this right, shall respond for the offense they commit” [8]. Even with the Constitution’s clear outlining of this right, the country has struggled to protect and actively enforce the safety of their journalists. Despite harassment and intimidation brought upon them, the journalism community is still alive and prominent.

The political instability in El Salvador has developed a less than favorable environment for freedom of the press. Investigative journalism and critical coverage of political figures are often the subjects of criticism, threats and – in multiple instances – violence and homicide. It’s important to note that very little publicly owned media companies exist in the country and have the support of the government and that most are privately owned and operated. Because of this factor, along with pressure from outside influences, attempts of censorship and self-censorship are not uncommon. Investigative journalism is often subject to informal suppression. In March 2016, 23-year-old radio journalist Nicolás García was gruesomely murdered by gang members after refusing to suspend a radio show he hosted, produced and aired. The Mara Salvatrucha gang threatened García to discontinue his show Expressa, voces al aire, where he highlighted criminal activity and means of security. García refused, and it ultimately cost him his life. Occurrences like this are frequent, and little to no effort is made to protect journalists from these acts of violence. In fact, the government is “hostile towards the media and neither protects journalists nor promotes their work” [12] according to Reporters Without Borders, and is especially so under the presidency of Sánchez Cerén beginning in 2014. No prosecution has been made in connection with García’s murder.

More formal attempts to censor by government officials have also been made. Head of the Financial Investigation Unit Tovías Armando Menjívar ordered the newspaper La Página to remove and cease further publication about former President Francisco Flores in 2015, which included a controversial investigation about the former president. When challenged, however, Menjívar “denied that any attempt was being made to suppress information” [13] although this was a clear effort to prior restraint. In another instance that occurred later that year, the PNC Chief of Police Investigations Joaquin Hernandez filed complaints against the newspaper El Diario de Hoy for publishing information alluding to gang activity and charged the editor with advocating terrorism and inciting crimes because of this content. The editor was not prosecuted, and it was clear Hernandez acted to “compel self-censorship by journalists” with his charges. Salvadoran Association of Journalists (APES) claimed these practices pressure the media, who ultimately “practiced self-censorship, especially in its reporting on gangs and narcotics trafficking” [9].

Libel, slander, and defamation are also protections afforded to citizens which have received unreliable support from the government. Ricardo Alfaro, a doctor and head of the Salvadoran Social Security Institute (ISSS) was charged with defamation by the attorney general in 2003. In a televised interview, Alfaro claimed ISSS Director Mauricio Ramos exploited his power to grant advertising contracts to personal connections without evidence. Alfaro was then prosecuted with libel which, during this time, was criminalized and punishable by prison time. Salvadoran government requires that comment on public officials be accompanied by evidence, especially when the comment is that of criticism. When comments are not supported by evidence, they become punishable with libel. The consequences of “insult-crimes” like with Alfaro “have a debilitating effect on the debate that is characteristic of democratic societies” and the “threat of legal sanctions inhibits citizens from voicing criticism and accusations” [14]. Later, in 2011, legislation was passed to decriminalize “insult-crimes” and remove prison sentences, although the parameters practically remained unchanged.

Further, the availability of “breathing space” allowed to publications in libel and defamation cases continue to wear away with the passage of the Special Law for the Right to Rectification or Response in 2013, where journalists are required to broadcast word-for-word “responses” for those who feel wrongly reported on. This law was immediately exercised in 2014, where former president Mauricio Funes sought out newspapers’ sources that provided information on legal complaints filed against him and again when the president of the Legislative Assembly called for the newspaper La Prensa Gráfica to grant him space for response although they were both unsuccessful. Freedom House notes that “few demands for responses under the law were made” [15]. The right of authority to access what may be confidential and private information of sources brings forth an interesting debate and provides a potential threat to the free press process as individuals feel less secure in disclosing information, criticisms, and beliefs crucial to the open discussion democratic societies need to properly flourish.

The Access to Public Information Law was passed in El Salvador in 2012, which reserves the media and the public access to official information including financial reports and non-sensitive government documents. This law has been under criticism of journalists, as it has not been properly enforced. In 2014 the Supreme Court of Justice failed to supply legal information requested by citizens regarding the dismissal of court employees, and APES noted that the government had consistently refused to disclose information about former president Francisco Guillermo Flores Pérez’s travel and publicity expenses in the same year. As journalists are continually denied this information legally granted to them, censorship remains an ever-present force within El Salvador’s borders.

V. Critical Comparison

From these examples, it’s safe to claim that El Salvador does not celebrate the freedoms of speech and press in the same ways the United States has. The World Press Freedom Index ranks the United States as 43 in the world for 2017, which is not far from El Salvador [16]. Historically, both countries have participated in cases that bring these rights into question. How these were handled, however, show a stark contrast in the respects each governmental entity pays for these protections.

El Salvador’s blanket laws (and faulty attempt) to criminalize speech by targeting gang membership and affiliation and association would not hold validity under the modern United States’ understanding of free speech. Although neither country protects the right to criminal activity, El Salvador’s approach goes a step further to suppress any form of speech it chooses to. The United States hosts hundreds of groups that may foster the same controversial speech one may find in a Salvadoran gang, and yet these groups are protected in the United States. In the Brandenburg v. Ohio case decided in 1969, the Supreme Court defined the protections of this speech as invulnerable so long as it does not incite imminent lawless action. Brandenburg was convicted for advocating for the “necessity. . . of crime, sabotage, violence, or unlawful methods of terrorism” [17] to achieve goals of the KKK spell out on first reference under the Ohio Criminal Syndicalism statute. These charges materialized at the publication of a video explicitly showing Brandenburg engaging in speech that encouraged the theoretical use of violence to portray the KKK’s political agenda. Upon consideration, the United States Supreme Court ruled in favor of Brandenburg and that the State may not forbid or enforce a law against this type of speech, “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action” [17]. In El Salvador’s approach, legislation pass granted authority to prosecute any whose expression – whether that be symbolic expression through clothing, general verbal speech, etc. – could be considered threatening.

There is a stark contrast in the prosecution of libel and defamation cases in El Salvador and the United States. In the United States, libel and defamation cases are challenging to win for plaintiffs, especially public figure and public official plaintiffs. The protections afforded to the people by the United States allow them to go as far as expressing entirely false statements and criticisms of public officials without repercussions. In the New York Times Company v. Sullivan case, defamation charges were brought upon the New York Times when an advertorial addressing discriminations against the black community in the Civil Rights Era was published. The organization which purchased the published piece listed the violations of their right to vote and made claims of police brutality. Commissioner of Public Affairs L.B. Sullivan perceived these claims to be an assault on his reputation and therefore filed his complaints against the New York Times. In the Supreme Court’s decision in 1964, Justice Brennan disregarded the claims made by Sullivan and ruled in favor of the New York Times, highlighting that “erroneous statement is inevitable in free debate” and that libel and defamation cannot hold in court “unless he proves that the statement was made with ‘actual malice” [18]. El Salvador operates almost in the exact opposite fashion. In El Salvador, those who choose to make criticisms and comments on another are required to supply evidence to back their claims beforehand or are subject to punishment and fines, regardless if these claims hold credibility and truth.

In general, both the United States and El Salvador have had similar histories with attempted censorship and prior restraint. Both of these countries have seen freedoms of press challenged with the call for suspended publication by elected officials, particularly by controversial content and for the security of the state. Decided in 1931, Near v. Minnesota was one of the first major cases to address these concerns. After The Saturday Press published an issue in which portions of the publication were “largely devoted to malicious, scandalous and defamatory articles” concerning government authority’s involvement with organized crime and gang-related activity, they became subject to prior restraint advancements by the State of Minnesota. The Supreme Court ruled on this case in 1931 in favor of publisher J.M. Near that any attempt to prior restraint is unquestionably unconstitutional, with exception to dire circumstances, which the modern United States has yet to see to this day. El Salvador’s state censorship and prior restraint cases have been consistent with the United States’ practices thus far, although informal censorship continues to be a prominent issue for its people [19].

VI. Conclusion

It is clear that El Salvador’s largest fault with freedom of speech and press is its inability to enforce the protection of them. The protections exist, as defined in their constitution, and there is a clear effort from its people to practice them. However, there is little restitution for those whose rights have been abused. Although El Salvador has made respectable attempts to reforming its enforcement of free speech and press protections, if the political climate continues on its current path, increased public pushback and possible resistance against governmental authorities can be expected.

It is crucial to protect journalists and expression to facilitate constructive debate and progress, especially in countries like El Salvador that are plagued with gang violence and intimidation tactics that seek to censor speech. Merely establishing these rights in a constitution or legal doctrine is not enough, as seen in El Salvador. Judge Learned Hand’s The Spirit of Liberty speech resounds this thought, stating “Liberty lies in the hearts of men and women” and “a society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few” [20]. If the Salvadoran state hopes to see the country progress, it must actively encourage and support open debate and expression.

This essay was last updated on April 30, 2018.

Bibliography

[1]       RSF, “El Salvador : Structural violence and government control | Reporters without borders,” RSF. [Online]. Available: https://rsf.org/en/el-salvador.

[2]       “El Salvador,” 27-Apr-2017. [Online]. Available: https://freedomhouse.org/report/freedom-press/2017/el-salvador.

[3]       C. M. White, The History of El Salvador. Greenwood Publishing Group, 2009.

[4]       “Country Reviews – Country Watch.” [Online]. Available: http://www.countrywatch.com/Intelligence/CountryReviews?CountryID=53.

[5]       W. LeoGrande and C. A. Robbins, Oligarchs and Officers: The Crisis in El Salvador. 1980.

[6]       “El Salvador,” 23-Jan-2017. [Online]. Available: https://freedomhouse.org/report/freedom-world/2017/el-salvador.

[7]       “ARTICLE 19 submits report on freedom of expression in El Salvador to UNHRC,” IFEX. [Online]. Available: http://www.ifex.org/el_salvador/2003/07/07/article_19_submits_report_on_freedom/.

[8]       E. Salvador, “TITLE I SOLE CHAPTER THE HUMAN PERSON AND THE ENDS OF THE STATE,” p. 76.

[9]       “EL SALVADOR 2016 HUMAN RIGHTS REPORT,” El Salv., p. 35, 2016.

[10]     H. R. W. | 350 F. Avenue, 34th Floor | New York, and N. 10118-3299 U. | t 1.212.290.4700, “El Salvador: Terrorism Law Misused Against Protesters,” Human Rights Watch, 30-Jul-2007. [Online]. Available: https://www.hrw.org/news/2007/07/30/el-salvador-terrorism-law-misused-against-protesters.

[11]     S. Dudley, “How ‘Mano Dura’ is Strengthening Gangs,” InSight Crime, 22-Nov-2010.

[12]     “Gang members kill 23-year-old radio journalist | Reporters without borders,” RSF, 23-Mar-2016. [Online]. Available: https://rsf.org/en/news/gang-members-kill-23-year-old-radio-journalist.

[13]     “In El Salvador, freedom of information diminishes during president’s first year,” IFEX. [Online]. Available: http://www.ifex.org/el_salvador/2015/06/08/ceren_president_one_year/.

[14]     “Defamation complaint filed against doctor,” IFEX. [Online]. Available: http://www.ifex.org/el_salvador/2003/04/04/defamation_complaint_filed_against/.

[15]     “El Salvador,” 21-Apr-2015. [Online]. Available: https://freedomhouse.org/report/freedom-press/2015/el-salvador.

[16]     “United States : First Amendment under increasing attack | Reporters without borders,” RSF. [Online]. Available: https://rsf.org/en/united-states.

[17]     Brandenburg v. Ohio. 1969.

[18]     New York Times Co. v. Sullivan. 1964.

[19]     Near v. State of Minnesota ex rel. Olson. 1931.

[20]     The Spirit of Liberty. 1944.

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