Shackling the Media to “Protect” Free Speech

Argentine Vice President performs at a concert wearing a shirt that says "Clarín miente (Clarín lies).

Argentine Vice President, Amado Boudou (left) performs at a concert wearing a shirt that says “Clarín miente (Clarín lies)”.

In preparation for next year’s presidential election, Ecuador’s Consejo Nacional de Elecciones (CNE) is set to release guidelines for how the media is allowed to report about the candidates pursuant a law passed last year with the intention of limiting the ability of the media to influence voters. According to the president of the CNE, the rules are a “call to neutrality, impartiality and a real independence from the media so that citizens can have the direct, objective information as presented by the political organizations.”* Specifically, during the campaign, media outlets should refrain from making any sort of value judgments or presenting opinions that are favorable to one candidate over another.

This sort of law is absolutely horrifying from a free speech perspective. The idea that the state gets to decide whether the coverage presented about a candidate is impartial or not opens the door to so many avenues for abuse and intimidation that it’s essentially a de facto ban on any sort of journalistic coverage of the election. What constitutes favoring a candidate is exceptionally vague. Even simply presenting the facts about the candidates platforms could be interpreted as favoring one candidate over another and essentially gives the government the ability to define what gets reported and how.

The electoral coverage law is hardly the only recent example of a sitting government in Latin America trying to defang a feisty opposition media. Venezuela has been systematically breaking down private, opposition media outlets through the Chávez era and Hugo Chávez and other officials openly speak about seeking an information hegemony. Right now, in Argentina, there is a similar debate going on about the Ley de Medios, which while passed three years ago, has not yet been implemented due to challenges in the courts. The controversy revolves mainly around a provision that limits holdings by a single firm across different platforms (i.e. print and television). This provision is widely perceived as being directly aimed at the Clarín group; a massive media conglomerate that shifted from being a strong supporter of Néstor and then Cristina Kirchner to being its most ardent foe. Cristina Kirchner defends breaking up Clarín as a means of democratizing access to information that, in her view, is monopolized and distorted by Clarín.

While this sounds like an ideal goal, the practical effect of “democratizing the media” as such in Latin America, is to shift the balance in favor of official media outlets. Whereas in the United States, laws limiting the size or scope of media outlets simply means a lot of smaller, competing voices, in Latin America, where official media is larger and more prevalent, it simply increases the ability of the sitting government to control the message. It is not good for Argentina that Clarín is so dominant, but breaking it up won’t open up the market to competitors so much as it will make the web of state media outlets more pervasive and dominant. Similarly, while the large private media outlets in Ecuador are rabidly opposed to the Correa government and far from objective, mandating that they refrain from any sort of endorsement of a candidate at all, especially in such vague terms, gives the incumbent a massive communication advantage beyond the one they naturally enjoy simply by being in the public eye. And that is before one considers the potential for abuse (anti-government media being sanctioned while pro-government, and public media are not).

There is certainly a lot of room to improve the quality and variety of media in most countries in Latin America. Unfortunately, most laws passed with purported aim of doing that are really ploys by sitting governments to limit the ability of critical or dissenting voices to be heard. And in a region where incumbency is a better electoral predictor than any other factor, a closed media is a major step backward.

* un llamado a la neutralidad, a la imparcialidad y a la real independencia de los medios para que los ciudadanos tengan la información objetiva, directa de lo que plantean las organizaciones políticas

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How Protected is Latin American Democracy?

With the potential for another presidential election looking likely in the near future in Venezuela, looming elections in Ecuador, a recently completed election in Mexico and the contested impeachment of Fernando Lugo in Paraguay earlier in the year, the potential for a contested result and fraud or some other constitutional irregularity is always a possibility. The question for many is: what could be done if something along those lines were to happen?

In theory, the Organization of American States (OAS) has a mechanism for dealing with extra-constitutional events in member states through the Inter-American Democratic Charter. Article 20 authorizes any member state to request the convocation of the Permanent Council “in the event of an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.” The Permanent Council, if unable to resolve the situation diplomatically can then suspend the member state according to Article 21.

In practice, this really only can work in the event of a coup, and even then only with limited success and requiring a lot of coordination outside of the OAS regarding sanctions and other mechanisms. Even then deposed presidents have not even been considered by the OAS (Bucaram in Ecuador), were returned to power before the Permanent Council could convene (Chávez in Venezuela) or were never returned to power despite the state being suspended due to a determined de facto leadership (Zelaya in Honduras).

Moreover, this process is really only effective in dealing with unconstitutional removals of sitting presidents and is virtually powerless to deal with constitutional overreach by the presidents themselves. This is largely because the OAS is an executive-centric organization. The legislative and judicial branches have little recourse to petition before the General Assembly or Permanent Council, much less individual citizens or opposition groups within member states. In this way, situations of erosions of the constitutional authority by the executive are only indirectly by the OAS. Good examples of this can be seen in Venezuela, where the constitution that Hugo Chávez’s supporters and ratified in 1999 is routinely violated by the president in ways both subtle and overt. Similarly, it was widely believed that municipal elections in Nicaragua in 2009 were rigged in favor of the Sandinistas, but little was done and Daniel Ortega comfortably won reelection early this year.

In these cases, and others, the executive responsible is the only one from his or her country with the ability to bring these abuses before the OAS. Even if another member state attempts to bring these issues to the forefront, the climate of the OAS has become so polarized that it is nearly impossible to get the kind of mobilization necessary to initiate diplomatic attempts at restoring constitutional boundaries, let alone mustering the two thirds majority necessary for any member state to be suspended.

Since the end of the Cold War, other regional organizations have begun making democracy an important factor in determining membership, including Mercosur (Mercado Común del Sur) and the newly formed Unasur (Unión de Naciones Suramericanas). In theory, these groups might be able to twist arms better than the OAS either because of the economic benefits that come with being a member (Mercosur) or due to the lack of stigma associated with US domination (Unasur). Unfortunately, the recent impeachment of Fernando Lugo in Paraguay in a hasty process that, while within the letter of the law was certainly not done within its spirit, bodes poorly for the effectiveness of these organizations. Despite being suspended from Mercosur and diplomatic efforts followed by suspension from Unasur, the decision was upheld domestically and Lugo remains out of power. Moreover, the suspension of Paraguay removed the lone obstacle to Venezuelan ascension into Mercosur. Notwithstanding the fact that Venezuela is actively in opposition to the stated economic goals of Merocsur, it further indicated that respect for democracy refers only to having elections and an elected, if not democratically governing executive.

The unfortunate reality in Latin America these days is that there is little in the way of regional institutions that can protect and strengthen democracy. There is no framework that can address threats to democracy from over-powerful executives and, even in clear situations such as coups like in Honduras, there is little that the OAS or any other regional organization can do if the new government is committed enough. Compared to the past, Latin America has never been more democratic, but the preservation and strengthening of those democracies against real domestic threats will have to be done by the citizens of those countries except in the most grievous instances.

A Small Quibble

I just wanted to comment briefly on Javier Corrales’ piece on Nicolás Maduro, the man Hugo Chávez has named as the PSUV candidate for president if he is forced to step down and elections become necessary. In general, I think he captures extremely well how Maduro would be different as a leader than Chávez and the challenges that he would face. What is striking about the piece, however, is the complete absence of any discussion of Maduro’s relationship with Cuba and the importance of those ties to him being named successor.

It’s hardly a secret that the Venezuelan government under Hugo Chávez has become extremely close to its Cuban counterpart over the past 13 years. Venezuela is often considered the new benefactor that, after a bit of delay, replaced the Soviet Union in supporting the Cuban state. Venezuela’s famous Barrio Adentro social program is essentially staffed by Cuban doctors paid for in kind by Venezuelan oil which the Cuban government is able to sell on the open market for a huge profit. Additionally, ALBA the economic integration club created in opposition to the Free Trade Area of the Americas was formed in Havana by Venezuela and Cuba before being joined by like-minded governments elsewhere in the region. Since Chávez was diagnosed with cancer, he has received treatment in Cuba despite having access to what is considered to be better quality care in Brazil. In this relationship, Maduro—who has been Foreign Minister since 2006—has long been believed to be the preferred choice of the Cubans, perhaps due to his civilian background and beginnings as a radical labor leader as opposed to the more nationalist chavistas who have come from the military like Diosdado Cabello. It is, therefore, striking for there to be such a large omission in Corrales’ piece since his relationship with Cuba likely played at least some role in his selection by Chávez and would certainly play a large role in his actions as president should he win election. As Francisco Toro explains, besides being great at staying in Chávez’s good graces, being part of the pro-Cuba faction of chavismo is among the only things anyone really knows about him.

A General Drug Problem

As it now appears a near certainty that Hugo Chávez will either soon resign the presidency or die as a consequence of his second recurrence of an unspecified pelvic cancer, it seems like a good time to give my two cents on the situation. I have already mused on this topic before, back when Chávez was first being treated, and I largely think things will play out in the way that I predicted; chavismo will certainly outlast Chávez and chavismo sin Chávez will have difficulty staying unified in much the same way that peronismo has splintered over the past five decades. I am certainly not the only person who has made that analysis of this situation but I have noticed that few people are discussing the impact of the military in this whole process, particularly in a situation where Chávez dies before an election for his successor can take place and the opposition wins that election.

In that situation, I see a chance of instability coming from the military because of the reported close ties between high ranking chavista officers and the rampant and growing drug trade flowing from Colombia through Venezuela en route to the US and Europe. In this context, the election of an opposition president in what amounts to a snap election (it would have to occur within 30 of Chávez permanently leaving office of dying) would put these officers in a serious predicament. Corruption is bad enough, but is so pervasive in Venezuela at this point that it would be nearly impossible for an incoming government to deal with even a fraction of those involved amid the other problems it would be facing in its first chance at governing in half a generation. Involvement in drug trafficking, on the other hand, is a much more serious type of corruption than skimming money from government contracts or the oil sector. These officers have far more to lose from the end of chavismo than many of its other beneficiaries, and in the short span between Chávez leaving, the election and a hypothetical president from the opposition taking office, they would have very little opportunity to cover their tracks or escape with what they can (particularly since fewer foreign governments would look sympathetically toward them). In such a situation, it’s not difficult to imagine how a few might attempt to block the new government as a form of self-protection, perhaps while claiming to be defending the revolution from the opposition and the incompetent civilian wing of chavismo that had just betrayed it by losing.

All that said, I don’t see this situation playing out. By naming a successor and so pointedly stipulating that the letter of the constitution should be followed, Chávez has indicated that he is more concerned with prolonging his movement than remaining completely in control until the moment he dies. It seems likely to me that he will, to the extent his health allows, step down with time enough to ensure that Nicolás Maduro—his anointed successor—gets elected. Even if he does die before then, I still believe that chavismo has the resources of the state behind it to a degree that it can win a fair enough election (i.e. not blatantly fraudulent enough to risk more than condemnation from a bunch of countries that chavismo disdains anyway) even without Chávez there to campaign. Beyond that point, with the economy on the brink, crime pervasive and the general unpopularity of non-Chávez chavistas, I see little chance that chavismo can win a subsequent election without becoming increasingly overtly authoritarian. By that next election, at least, those with the really dirty hands will have had time to prepare.