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Written By: Carlos José Laplacette
Badeni, Cantilo, Laplacette & Carricart
Buenos Aires, Argentina

In the nineties, American scholar Cass Sunstein asked for a “new deal for speech”; where government increases his regulatory powers in speech to enforce a system of deliberative democracy, which implies political equality, even at the time of take part of public debates. This blissful dream became nightmares further south.

In the XXI century, Venezuela, Argentina, Ecuador and Bolivia passed new media legislation. They’re not broadcasting laws, i.e., laws which aim to regulate the use of the radioelectric spectrum. Rather, all of them aim to regulate the content of communication, regardless of the transmission source.

The Argentinean law recognizes this declaring that the audiovisual media, in any medium, is an activity of public interest. It also states that similar audiovisual content should be regulated by the same regulatory framework, regardless of the transmission technology. In a similar way, recent Ecuadorian law considers the media as a public service, even the traditional press.

Besides being laws of communication (not merely broadcasting), all have in common a clear guiding principle: Governments should determine who, and for how long, can occur to public debate.

The argument uses the claim, sometimes postulated by genuinely democratic sectors, to ensure that all views can be heard, even at the cost of silencing someone. Alexander Meikeljohn explained it clearly: "What is essential is not that everyone shall speak, but that everything worth saying shall be said."

In an ideal running of these theories, Government should intervene in the public debate so that any citizen may receive all messages and can make the best decision when he have to choose their representatives or influence the design of public policies.

This idyllic image has several problems. One of them is that it is wrong to claim that all of us participate simultaneously in the same debate. Our diverse concerns lead us to intervene in various forums whit also different themes. And all this forums can coexist simultaneously, so it is usually not necessary to silence someone to allow another one speaks in a different forum.

But the most serious problem is that this doctrine requires a high degree of neutrality in the rule makers, which is rarely present, since they are the main stakeholders in the result of the public debate that they would should govern in a neutrality way. In Latin American, experience shows that the intervention of the authorities in the public debate becomes a tool to remain in power.

Such attribution of power to the authorities maybe can work with some success in countries with strong institutions and state bureaucracies that subsist to periodic political changes. But in countries with institutional weakness, where those who assume power consider that State and Government are the same thing and also belongs to them, allowing them to control the public debate does not seem an act of wisdom.

The attacks and persecutions of the critical press in Venezuela, with loss of broadcast licenses or criminal penalties provided for those who communicate the value of the dollar at the unofficial market, are just some of the ways in which state intervention ends up manifest. In Argentina, the arbitrary assignation of huge public funds for government advertising in media addicted, it is a fact easily verified both in the federal government and in most local authorities. And they’re just a very few examples.

To seek that the authorities democratically distribute quotas in the public debate, is not only against the Latin American experience, but is to forget that while the market may produce insufficient information, the political system tends, even strongly, to over-regulate the information.

In 1860, at the time to incorporate an constitutional amendment similar to the First Amendment of the United States, the Argentina’s constituent warned that in this subject, “no nation in the world had arrived to establish regular principles, thus leaving their legislators the power to regulate freedom of the press had failed to stop at the fatal slope leading to suppress it.”

Freedom of expression and the press should not be justified on the basis of the political system, just as individuals should not justify its existence as the great Leviathan cells. The State and institutions make sense and are morally justified if they ensure to each person freedom of thought and criticism.

In view of their results, the new media laws of Latin America are far from bring an expansion of the possibilities of expression and communication of information and ideas, but involved a significant transfer of power from the civil society to the authorities. Under the pretense of a new deal, all that we got is the old prince's attempts to control the expressions of his subjects.

For more information about Badeni, Cantilo, Laplacette & Carricart or to contact Argentina Media Law attorney, Carlos José Laplacette, please visit the International Society of Primerus Law Firms.