Censorship, Violence & Press Freedom What we do Article 19

Censorship in all its forms is often unjustifiable and is used simply to stop truths or ideas emerge which draw attention to powerful people or governments, or undermine ideology. This is inexcusable.

When the exercise of the right to free expression clashes with the rights of others or threatens the safety of the nation, legislators face a difficult exercise of drawing lines; is a restriction necessary and how far should it go?

As James Madison, who framed the US Constitutions protection of freedom of expression, wrote, it is often prudent to permit some abuse of freedom of expression in order to ensure that legitimate use of the right is not discouraged:

Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press. It ... is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding the proper fruits.

One of the main arguments advanced against licensing of journalists and publications was its indiscriminate nature: denial of a licence is tantamount to a ban on all future articles, without regard to their content.

But what about a statement, whether written or audiovisual, which has already been completed but not yet made public? Should the authorities only impose sanctions after publication, where justified, or should they, in appropriate circumstances, be able to prevent its release?

Prior censorship poses special dangers to freedom of expression. If the authorities are able to suppress publications which nobody has seen, it becomes impossible for others to verify whether the suppression was indeed justified; it is a question of time before such an unchecked power is abused to prevent criticism of government. One partial solution is to make the authorities decision subject to court appeal. But this creates a different problem; control by the authorities of the timing of the flow of information is a considerable power. Challenging a decision to censor information will be an expensive and slow process, which many may not even use. Furthermore, news is a perishable commodity, so that success in court after lengthy proceedings will often prove a pyrrhic victory.

Because of the risk of abuse compared to sanctions after the fact, the American Convention on Human Rights prohibits prior censorship altogether, except to protect children. Article 13(2) of the ACHR states:

The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship

Nevertheless, some courts have been reluctant to rule prior restraints out categorically, mainly because the damage done by a publication may not in all cases be reparable through subsequent sanctions. This dilemma was posed starkly in one American case, after a magazine, The Progressive, had attempted to publish an article explaining in some detail how to construct a hydrogen bomb. The author and publisher argued that they were merely synthesising publicly available documents, with the purpose of raising awareness of the threat of nuclear weapons. The District Judge held:

A mistake in ruling against The Progressive [will] curtail defendants [right to freedom of expression] in a drastic and substantial fashion. [But a] mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.

The case did not reach the US Supreme Court. In other disputes, however, the Supreme Court has repeatedly stated the following position: Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.

International bodies have echoed this point of view. In a report on the Republic of Korea, the UN Special Rapporteur on Freedom of Opinion and Expression stated that any system of prior restraint on freedom of expression carries with it a heavy presumption of invalidity under international human rights law. The ECtHR ruled that the dangers inherent in prior restraints are such that they call for the most careful scrutiny.

This last case involved the ad hoc application of prior restraint to a specific harmful expression the authorities had gotten wind of the upcoming publication, and had applied to a court to prevent it. Systems of prior restraint whereby publications must be submitted to censors for clearance before being distributed can never be justified for the media, and have for some time now been unknown among democracies.

The position in international law can be summarised as follows: Although the right to freedom of expression does not require an absolute ban on prior censorship, this should be a highly exceptional measure, taken only when a publication threatens grave harm, such as loss of life or serious harm to health, safety or the environment. An article deemed defamatory, blasphemous, obscene or overly critical of the government would rarely if ever meet this threshold. Moreover, a system whereby media content must be officially cleared before it can be released would be unacceptable; its harm to freedom of expression would plainly far outweigh the benefit to its goals.

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Censorship, Violence & Press Freedom What we do Article 19