Chile
Pinochet’s Tribute and Free Speech Limits
A. Pinochet - Source: saladehistoria.com
by Pablo Contreras
The screening of a documentary supporting Augusto Pinochet’s dictatorship has resurrected the debate on free speech limits in Chile. The premiere of the film cut deep into Chileans’ political fiber, exposing the profound division that the dictatorship still causes among the people of my country: should Chileans curtail freedom of expression in some instances and not others?
The issue is not entirely new. Previously, an important city major supported a tribute to Miguel Krassnoff, a former state agent that commanded forced disappearances and acts of torture. The political reaction was almost immediate, with congressmen introducing a bill to criminally punish “those who deny, justify or minimize crimes against humanity committed in Chile.” Although the bill has not gained political support, it provides the opportunity, like the screening of the Pinochet documentary, to think about the limits on free speech.
Restrictions on freedom of expression are particularly critical in a democratic society. In the Chilean case, should society protect the dictator’s tribute, even if he led a cruel and bloody military regime? Or, on the contrary, should Chileans criminalize any conduct that may undermine the pillars of their political community? There is no easy answer to these questions and it may depend on the free speech conception that one may adopt.
For a better understanding of the issue, I offer two conceptions of free speech. These conceptions are options along a continuum of speech protection and serve only a pedagogical role to show how different democratic nations may understand limits on free speech. The first free speech conception is the “United States” libertarian model. Under this conception, speech (generally) cannot be restrained unless there is a direct incitement to break the law or there is an imminent threat to the constitutional regime. The model maximizes the amount of political speech and expression available and is only willing to neutralize speech when the speech severely threatens to undermine public order.. In this model, both Pinochet’s documentary and Krassnoff’s tribute are protected speech.
The US model also works the other way: it protects not only dictators’ apologists but also counter-demonstrations. Counter-demonstrations are the answer provided by the libertarian conception on free speech, against what many may consider “unwanted” speech. As long as the counter-demonstration does not directly incite the commission of an act of violence, it is also protected under freedom of expression.
The second free speech conception might be labelled as the “European” model. This conception is based upon a communitarian rationale: free speech finds its limits in the expression of democracy’s enemies, those that do not respect the basic pillars of our mutual coexistence. Under this model, some European countries have criminalized praising the Nazi holocaust or have prohibited political parties that support an ideology incompatible with democratic standards and the rule of law’s foundations. The European conception assumes the cost of limiting the amount of political speech available for the purposes of strengthening social coexistence. The model has its origins in societies with deep political traumas, were massive and gross human rights violations have occurred. Under that particular context, democracy does not have to wait for public safety to be threatened; the historical salience of certain invidious ideas is itself enough for them to be criminalized.
The European model has configured domestic legal systems to prevent the horror of authoritarian regimes and to protect human dignity. Human rights treaties have supported this conception of free speech in different ways. For example, the International Covenant on Civil and Political Rights establishes that “[a]ny propaganda for war” and “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (Article 20). The American Convention on Human Rights has a similar provision (Article 13(5)). Chile has ratified both treaties and they are part of the domestic legal system.
The issue that Chile now faces is to define the limits on free speech. The models presented here offer two options that happen to have different outcomes. Hopefuly, they also help to expose just how superficial some views on free speech truly are. Consolidated democracies, such as the US or Germany, have different understandings on how to regulate freedom of expression. One model is not “more” democratic than the other, but they both take seriously the philosophical underpinnings of banning certain speech.
For Chile, the bill recently introduced to Congress—despite its technical defects—represents a unique opportunity to think about our national conception on free speech. As long as there is no specific regulation on the subject matter, counter-demonstrations should be an adequate remedy for these horrific tributes. And for those of us who consider these tributes an affront to the dictatorship’s victims, counter-demonstrations also constitute an unavoidable moral duty.
The screening of a documentary supporting Augusto Pinochet’s dictatorship has resurrected the debate on free speech limits in Chile. The premiere of the film cut deep into Chileans’ political fiber, exposing the profound division that the dictatorship still causes among the people of my country: should Chileans curtail freedom of expression in some instances and not others?
The issue is not entirely new. Previously, an important city major supported a tribute to Miguel Krassnoff, a former state agent that commanded forced disappearances and acts of torture. The political reaction was almost immediate, with congressmen introducing a bill to criminally punish “those who deny, justify or minimize crimes against humanity committed in Chile.” Although the bill has not gained political support, it provides the opportunity, like the screening of the Pinochet documentary, to think about the limits on free speech.
Restrictions on freedom of expression are particularly critical in a democratic society. In the Chilean case, should society protect the dictator’s tribute, even if he led a cruel and bloody military regime? Or, on the contrary, should Chileans criminalize any conduct that may undermine the pillars of their political community? There is no easy answer to these questions and it may depend on the free speech conception that one may adopt.
For a better understanding of the issue, I offer two conceptions of free speech. These conceptions are options along a continuum of speech protection and serve only a pedagogical role to show how different democratic nations may understand limits on free speech. The first free speech conception is the “United States” libertarian model. Under this conception, speech (generally) cannot be restrained unless there is a direct incitement to break the law or there is an imminent threat to the constitutional regime. The model maximizes the amount of political speech and expression available and is only willing to neutralize speech when the speech severely threatens to undermine public order.. In this model, both Pinochet’s documentary and Krassnoff’s tribute are protected speech.
The US model also works the other way: it protects not only dictators’ apologists but also counter-demonstrations. Counter-demonstrations are the answer provided by the libertarian conception on free speech, against what many may consider “unwanted” speech. As long as the counter-demonstration does not directly incite the commission of an act of violence, it is also protected under freedom of expression.
The second free speech conception might be labelled as the “European” model. This conception is based upon a communitarian rationale: free speech finds its limits in the expression of democracy’s enemies, those that do not respect the basic pillars of our mutual coexistence. Under this model, some European countries have criminalized praising the Nazi holocaust or have prohibited political parties that support an ideology incompatible with democratic standards and the rule of law’s foundations. The European conception assumes the cost of limiting the amount of political speech available for the purposes of strengthening social coexistence. The model has its origins in societies with deep political traumas, were massive and gross human rights violations have occurred. Under that particular context, democracy does not have to wait for public safety to be threatened; the historical salience of certain invidious ideas is itself enough for them to be criminalized.
The European model has configured domestic legal systems to prevent the horror of authoritarian regimes and to protect human dignity. Human rights treaties have supported this conception of free speech in different ways. For example, the International Covenant on Civil and Political Rights establishes that “[a]ny propaganda for war” and “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (Article 20). The American Convention on Human Rights has a similar provision (Article 13(5)). Chile has ratified both treaties and they are part of the domestic legal system.
The issue that Chile now faces is to define the limits on free speech. The models presented here offer two options that happen to have different outcomes. Hopefuly, they also help to expose just how superficial some views on free speech truly are. Consolidated democracies, such as the US or Germany, have different understandings on how to regulate freedom of expression. One model is not “more” democratic than the other, but they both take seriously the philosophical underpinnings of banning certain speech.
For Chile, the bill recently introduced to Congress—despite its technical defects—represents a unique opportunity to think about our national conception on free speech. As long as there is no specific regulation on the subject matter, counter-demonstrations should be an adequate remedy for these horrific tributes. And for those of us who consider these tributes an affront to the dictatorship’s victims, counter-demonstrations also constitute an unavoidable moral duty.