The free press in not-so-free nations: Q&A with Adrien Wing

In late October, Reporters Without Borders released its annual global survey of press freedom, identifying such countries as North Korea, Turkmenistan and Eritrea as major violators’ of the right to free expression. Paradoxically, many of the countries that habitually appear on the human rights’ group list of worst violators have constitutions that guarantee the right to freedom of speech and association. To understand this paradox, we consulted Professor Adrien Wing, a professor of comparative constitutional law at the University of Iowa College of Law. Professor Wing’s expertise in constitutional law comes from practical experience, not just study: she advised the “founding fathers and mothers” responsible for crafting the constitutions of post-apartheid South Africa, the Palestinian Territory and post-genocide Rwanda. She also blogs on human rights issues at Blackprof.com

OJR: I noticed that a lot of the countries where we hear about repression of free speech have in their constitutions varying degrees of protection of free speech. So is there a different concept of free speech and a free press in these countries? Can you help me understand that?

AW: Yes, well, almost every constitution in the world is going to have some type of a clause that says that the country supports free speech or free association, et cetera. And they’ll be pretty much the same. In other words, what we call the legal rule is pretty much the same in terms of the words.

However, what we call the legal penetration of the rule or the enforcement of the rule is different in every country. Now, maybe in our media, you know they will focus on countries that our media believes are backward or primitive or cruel or whatever; but you have these issues of differences in legal penetration even in countries that are our closest allies, whether it’s in Canada or in England or France or Germany, much less any of the developing world countries. In every country, no matter how they define it on paper, in terms of freedom of speech and expression, there will be limitations on that expression.

Some of those limitations may be in the actual constitution, or either in that clause or in some clause at the very beginning or end of the human rights section. It’ll say ‘this section is limited according to the law’ or some other phrase that means basically if the government decides to limit speech in some way for some reason, it’s going to be allowed to do so.

Now, in some constitutions, there’s not any limitation that you can see in the words, but in the actual penetration of the section through different statutes that have been adopted. In the case of countries that are commonwealth countries like the US and Great Britain and all of the former colonies of Great Britain, the case law, you know, the courts will interpret that freedom of speech clause very differently with limitations.

So for instance, in the US, one of the well known examples is you can’t yell ‘fire’ in a crowded theater, even though normally you’d think ‘well, what does it matter what I yell?’ Well, because people know it’s a stampede and the courts will uphold that you just can’t say whatever you want. You can’t, when you go up to a security counter in the airport, joke about the president or bombs or anything like that and those are just easy-to- understand examples in our country.

So in every country, either through case law or through statutes that have been passed pursuant to the constitution there will be limits. There will be very great limits perhaps. Especially, every country, when there is war or times of rebellion or whatever they consider are national security concerns, they will generally not abide by the same principles that they do when there is no war or no uprising.

OJR: So basically, you’re talking about restrictions that have to do with the maintenance of public safety and stability.

AW: Yes, you could have those sorts of restrictions. You could have time, place, and manner restrictions. So in other words, you can march, but you can’t march early in the morning or late at night or in front of the abortion clinic within so many feet. But there can also be restrictions that have nothing to do with these sorts of issues, but have to do with issues that are unique for that culture. So, for example, in Germany there’s a freedom of speech clause, but in Germany they do not permit advocating returning to Nazism. In South Africa, there’s a freedom of speech clause, but you cannot advocate for Apartheid, the return of legal segregation. So those have to do with unique historical aspects of those countries.

And the fear, the very real fear in those countries that those who would spout such things of the past are still around and might come to power and they don’t want the populace getting riled up by people advocating these sorts of ‘-isms’, which in the case of Nazism led to a whole world war that left millions of people dead all over the world.

OJR: The kinds of restrictions that tend to worry a lot of journalists and human rights activists are the restrictions that are seen as having the intent of crushing legitimate dissent.

AW: Yes, that’s true, and that is one of the big problems. Our government will say whatever that journalist is saying or that blogger, it could be a blogger, that these are things that threaten the security of the nation. And so [they]’ll arrest people who they’ve caught on the Internet even, accessing certain types of websites or doing their own little personal blog, much less a journalist for a newspaper, reporter, or author or something like that.

The Internet is new area in which we’re seeing a lot of restrictions by many governments. I took this as an example, for instance, in France, you cannot buy Nazi paraphernalia. So they restrict their websites that comes in and out of their country involving that topic. And you would think ‘oh, France, why are they worrying? They’re a great democracy’, well, they were also under Nazism. They were occupied.

Now, a human rights activist who favors the broader understanding of freedom of speech might see the repression of someone who has a blog that talks about repression or corruption as a free speech issue. Yet governments around the world, whether they call themselves democracies, monarchies, dictatorships may determine that those same words or that same blog is somehow a threat to the security of their nation and then round up a whole bunch of people. Only a few of those people will be brought to international attention.

OJR: Why is that countries such as South Africa have press systems that resemble our own while others such as Zimbabwe are notoriously repressive? Are the differences constitutional, political, or cultural?

AW: I really think the differences have to do with leadership. Just as the example of the difference between Zimbabwe and South Africa. Zimbabwe, I was involved in that movement to help get Zimbabwe independence when it was Rhodesia, and we were all very hopeful that Robert Mugabe, the head of one of the movements, ZANU was going to be a great leader, a great socialist. Well, he’s been in power since 1980, right? So he’s basically a president for life and he’s turned into a very repressive person, who doesn’t believe in freedom of speech, who imprisons people all the time, terrorizes people, throws journalists in jail, believes homosexuality is a sin, et cetera, and arrests people who exhibit any talk about homosexuality. And so there you have a kind of classic example of someone who started out, what many people thought he would be good, thought he would be in favor of human rights and freedom of speech, especially since he had been victimized by the British, by the white Rhodesians in the liberation struggle.

On the other hand, Nelson Mandela, who spent all those years in jail, he became the first president of a democratic South Africa and he only stayed in one term, one five year term, and he was a very conciliatory individual, where he did not retaliate militarily against those who had been in favor of Apartheid. And so that whole culture, legal culture we call it, that developed in South Africa under his leadership was totally different from the legal culture that developed in Zimbabwe under 30 years almost of dictatorship by Robert Mugabe.

As a result, the realities of the two countries are totally different and yet could have turned out the same if maybe Mandela stayed in two or three terms and then became dictatorial or get other members of the party, the [African National Congress] party, to be very dictatorial. But those are two good examples where the countries are next to each other and have some overlap in terms of what ethnic groups are there and their history, and yet their realities are different. Some would say that South Africa is unique, that there are many more countries like Zimbabwe that have had dictatorial leadership, no matter how nicely they started out.

Some would say the same about Cuba: it started out well, the revolution was great, but hey if you’ve been in power 40 years there’s no way you can attempt to say what you’re doing is appropriate including repression of freedom of speech. In Cuba, people feel Fidel has been in too long or that his government now led by his brother, temporarily or permanently, has been very dictatorial in terms of these human rights issues, even though it’s been great on other human rights issues like provision of healthcare and education and race discrimination. Is that the price you have to pay? You know, give up the freedom of speech or criticism of the government in order to have advances in these other areas.

OJR: In some countries, websites are banned and communications are monitored and people are in prison for disseminating banned material online. Has international law tried to grapple with these issues at all?

AW: International human rights law looks at these kinds of issues, but basically international human rights law is kind of has to be culturally specific. So there is not one answer. If you are what we call a cultural relativist of some type, meaning that you believe that human rights need to be seen in cultural context, then you have to have a more nuanced view on an issue like freedom of speech. And if you are what we call a universalist, meaning that in its most extreme form, everybody everywhere around the world should treat freedom of speech the same way.

I lean more towards cultural relativism. In other words, I believe that the reality in Germany and South Africa about what they might permit for freedom of speech is not going to be the same as for the United States, which was never in jeopardy from being taken over by Nazis. And so we in the US could not just say ‘well, Germany you’re just wrong if you decide freedom of speech will not permit Nazis to march through Berlin.’ So I kind of lean that way.

Human rights organizations and activists will be all along the spectrum. And that spectrum can be both in terms, it can be in terms of country, what they think countries should do, or it can be an issue. People may say ‘yeah, we need to permit as much freedom of speech as possible, but it could differ from country to country.’

But when we talk about a right against torture, we should not say that the right against torture should be different in Zimbabwe than in France. You know there should be some universal standard on the right against torture, that means I don’t care where you are, you should not hang up people by their nipples and use electric prods on them.

OJR: On that topic, are you concerned about some of the measures that the United States has been taking as part of this anti-terrorist efforts? For example, our government has detained people without charges, including one journalist who works for an American news organization.

AW: I haven’t even heard about this. Who does this person work for?

OJR: There is an AP photographer [Bilal Hussein], working in Iraq, whose been detained without charge for the last several of months. The Associated Press has been trying to get the United States to either charge him or release him.

AW: It doesn’t surprise me because under the USA Patriot Act, a lot of rights we thought we had, we don’t. So the U.S. government has felt free to round up mainly foreigners, but also some U.S. people and you know some of the cases have made it to the Supreme Court and many others haven’t. But it’s not very surprising.

And yes, I’m very concerned that since we in the United States hold ourselves up as a democracy and we are the only global superpower, that we should hold ourselves to a higher standard in terms of our conduct when maybe some other countries are going to be under. I don’t expect one of the poorest developing countries in the world to necessarily have the ability to give human rights protection to offer citizens, where they can go to court and have lawyers and do certain things if you have a very, very poor country.
I hold my own country to the highest standards because we do have resources at our disposal, more so than almost any other country in the world. And especially, if we’re going to be a so-called global leader, then we should set a standard for the application of human rights like freedom of speech.

OJR: I don’t know whether you are familiar with this, but Rep. Chris Smith has sponsored a bill that would make it illegal for Internet companies such as Google to accede to the demands of governments for private information on Internet users or for the censorship of websites. It would also require Internet companies to turn over information on banned search terms and sites and queries to an office of global internet freedom that would be created. And it would also give individuals the right to sue if privacy was violated. Critics say that this bill would unfairly restrict the ability of U.S. Internet firms to compete in international markets. I wonder what you think of a measure like this from an international law perspective.

AW: Well, to me, this is like, the U.S. can pass a statute that bans the sale of cattle prods for torturing animals and so some company that makes prods can say ‘but look we can’t compete globally.’ Well, there’s certain areas of competition we don’t need to be in. If it’s something that’s so heinous, the product, or if it’s going to directly support blatant dictatorships like China, well then Google doesn’t need to be in that market. Yeah, I know it’s a big market. There was a big market for slavery. So does that mean we still need to have it today? There could be certain things that morally we would say ‘I’m not going to be permitted or not be encouraged even if that means a company loses its profit.’

Profiteering should not be the standard by which we would judge the provison of internationally human rights. And yeah, that would mean some other Chinese company will be more than happy to invent a mechanism that its government can use to censor as they do the words and the searches of all the people here.

In my travels to various countries, I have had experiences browsing the internet where I’m doing something that seems very innocuous to me, but all of a sudden some site won’t work, at all or some little sign will come up about restricted access or unavailable. This is from all kinds of countries. The fact that somebody must be monitoring every website that I was trying to go to, you know, is a pretty scary thing.

OJR: As you look at the evolving situation in terms of press freedom, especially online, are there things that cause you particular concern or give you particular reason for optimism?

AW: I’m not optimistic at all because I think the ongoing war on terror, is only going to get worse. The more we do these actions, the more future terror we create, and so then the more desire or need the governments will feel to repress those people. So I think we’re going to see even harsher standards of censorship than what we see now. We may very well get to a total Big Brother situation where all of our email and all of our mail and phones calls are just monitored electronically on a regular basis.

These little GPS devices that not only are in cars, but now are in the cell phones, people can track you where ever you are. It’s nice if you’re lost and your car goes in a ditch, but we get really toward a science fiction nightmare. We all could be tracked at every minute where ever we are, that there’d be no privacy. I’m not in favor of terrorism, whether terrorism is done by government bombing villages or terrorism that is done by an individual suicide bomber. I’m not in favor of that, but I’m also not in favor of a total loss of all kinds of freedom of speech, an assembly, an association.

OJR: And what do you think then that citizens and particularly journalists can do? And do you think journalists have an obligation in this or an opportunity in this situation?

AW: Well, I think all of us, regardless of profession, have an obligation. I know there are several prominent national and international journalists’ groups that advocate for human rights and blow up the cases of journalists all around the world who are victimized by governments or private individuals. So I think those organizations, which already exist, need to be supported to a greater degree even by not only journalists, but by the public, so that the word can get out. Because the only way we know what’s going on in a lot of countries is because of brave journalists, who dare to speak out or who dare to go into horrible situations and risk their lives and report out. If those journalists are removed then the rest of us will have no idea what is going on in a lot of countries.

And I realize a lot of journalists will be self-editing on a lot of issues. Whenever you do a story you have to decide what’s important and not important, what’s going to sidetrack you, and what is going to be some kind of problem. So I think it’s important, for the public, to support responsible journalism that will help us see how human rights, including human rights for journalists who are reporting, are being restricted.

OJR: Any final thoughts, particularly from a constitutional lawyer’s perspectives?

AW: No, I just think that it’s important for people to realize that words on paper in any constitution, including the U.S., are only a starting point. It really takes very careful study of cases or statutes or other parts of an entire culture to get a good grip on whether or not very bold or noble statements about human rights have any basis in the day-to-day reality in a particular country. So I hope this is the beginning of everyone deciding that they want to get more involved in trying to understand how do rights actually operate.