June 17th, 2021

Freedom of expression is a foundational right of modern constitutional systems. It has been identified as the "cornerstone" of the democratic system and as a right beforehand, without which democracy cannot function. Like almost all rights, however, freedom of expression is strongly affected by the inequality that characterizes most Western societies, a central problem of our times that affects Latin American countries in a particularly acute way. . Freedom of expression is equal for everyone only from the formal point of view of equality before the law: not everyone enjoys this right under the same conditions. Those who have access to resources tend to be able to exercise their freedom of expression in a more robust and effective way, while those who do not face serious difficulties that on many occasions make this right a merely theoretical possibility.

The problem of how inequality affects freedom of expression is not new, and numerous doctrinal twists put this problem at the center of the discussion. Thus, the problem of concentration in media ownership has been identified as a serious problem from the point of view of equality. Article 13.5 of the American Convention considers indirect violations of freedom of expression as those that can be activated through the discretionary restriction of access to resources necessary for the exercise of this right, such as "newsprint ... radio frequencies, or ... household goods. and devices used in the dissemination of information ”. What it tries is to prevent state or private actors from using control over these resources to prevent certain actors from exercising their freedom of expression efficiently. Access to scarce resources has also been the object of constructions of law based on its “social” dimension, such as — for example — the fairness doctrine developed by Federal Communications Commission in the United States, which was validated by the Supreme Court of that country in the case Red Lion. On the other hand, public media — state and non-governmental — and community media have the potential to promote content and access to voices that the market excludes. Finally, universal access to the Internet is presented as a necessary condition for an inclusive digital agenda.

Inequality explains all the developments indicated in the previous paragraph by the inter-American system.

The problem can be stated in general terms as follows: freedom of expression is an unevenly distributed right, fully enjoyed only by the most privileged members of the political community concerned. The more resources available, the fuller the enjoyment of the right. The opposite of this reality is that the fewer resources people have at their disposal, the less effective or efficient is the exercise of this right. This reality has a direct impact on democratic citizenship, since freedom of expression is one of the central rights and prerogatives of that social and legal condition. The challenge then is to find efficient mechanisms capable of balance the playing field of the exercise of this right.

There are at least three strategies that can be used to face this problem, which we present by identifying the actors in a binary way between those who have more resources (+ R) and those who have less (-R).

  1. Prevent + R from controlling all expression pathways.
  2. Guarantee the access of -R to the ways of expression.
  3. Silence + R so that the -R can have an effective participation in the public debate.

The mechanisms explored by the IACHR — which represent more or less usual approaches, at least in Western democracies — are good representatives of options 1 and 2. Thus, the mandate to combat the concentration of media ownership clearly follows the logic (1), while universal access to the Internet or community media follows the logic (2). Strategy (3), however, has been considered up to now as incompatible with the American Convention, because it supposes a severe restriction on the freedom of expression of + R that would be incompatible with the dimension individually of freedom of expression. In this sense, it should be remembered that the Inter-American Court has said that both the dimension individually as social of freedom of expression they must be guarded simultaneously and one dimension cannot be invoked to undermine the other. Option (3) is, then and in principle, prohibited by the inter-American system.

This however does not stand up to written scrutiny. In a sense, option (3) is present in the restrictions on private spending on electoral matters, in force in most Western democracies, which sometimes even prohibit such spending and support public financing of campaigns. The objective of these restrictions is not only legitimate but imperative, because it seeks to prevent the most powerful interests — with access to more resources — from capturing the democratic political process. But while the action can be conceptualized under the paradigm (3), it is also true that it can be understood as a case of (1): an attempt to prevent the deliberation process that precedes the electoral acts from being captured by the + Rs.

A similar but more controversial proposal was developed by feminists in the 1990s against pornography. Thus, Andrea Dworkin and Cahterine MacKinnon argued that pornography has a harmful effect on women, because it represents them in conditions of submission, as victims of violence, and so on. According to these authors, this effect produces damage on the status of women in general as members of the democratic political community and affects their "egalitarian status" in that dimension. This argument was rejected by authors such as Ronald Dworkin and Owen Fiss, that although they see some kind of connection between that discourse and the effects it produces on the social consideration of women, they deny that it is powerful enough to justify departing from the general principle of safeguarding individual freedom of expression. A similar argument could be made regarding "hate speech" and its effects on racial or religious minorities who are victims of it.

In any case, behind that argument was a demand that it be the state that prohibits at least some forms of pornography or hate speech. In recent times, however, we have seen other non-state mechanisms at work to achieve similar results. Not only are they not based on a limitation to freedom of expression, but they are based on its robust exercise: criticism is used to exclude certain expressions or certain people from public debate. This complex social phenomenon has various expressions, from the decision to suspend Donald Trump's accounts of the main intermediary platforms in January 2021 to the decisions to socially sanction people for past or present views or behaviors considered reprehensible: exclusion of their academic or professional positions and the culmination of business ties are some of the effects that this type of criticism produces. There are dozens of examples in recent years, since comedian Louis CK's series dropped from HBO after he was exposed to harassment and abuse; the cancellation of the publishing contract for Woody Allen's biography; the loss of sponsors of Colin Kaeparnik or the boycott of music radios country to the Dixie Chics after they opposed the Iraq war.

This dynamic presents a dilemma in terms of freedom of expression that needs to be explored in depth. The exclusion from public debate and the search for "social" sanctions, is it a legitimate objective that can be pursued through the exercise of freedom of expression? In a sense, the answer is obviously positive, but at the same time that exclusion or those sanctions would seem to “impoverish” the public debate because (a) they would generate self-censorship and (b) it would lead to a less diverse public debate. If the objective of freedom of expression is to generate a debate open, robust and uninhibitedDon't the social mechanisms of control of public debate tend to produce inhibitions that impoverish the debate? On the other hand, isn't this the reality of any political community, governed not only by legal norms - which are out of the question here - but also by social, moral and decorum norms that have always identified certain discourses as acceptable and others as unacceptable? From the paradigm of freedom of expression, is it desirable to "combat" these social practices that have been called cancellation culture Or — on the contrary — this dynamic, however problematic it may seem, is protected precisely by the right that we say suffers as a consequence of its activation? Finally, does the exclusion of certain voices and expressions help to combat the political polarization that affects many Western societies or — on the contrary — feed it? This seems to be a relevant dilemma facing the immediate future of freedom of expression, especially in contexts of political polarization in which a "common" and inclusive debate between different social views seems increasingly elusive.