Sunday, July 28, 2013

FDA Talking Points Series--Freedom of Speech and Assembly

Edward Snowden, U.S. whistleblower, who recently released classified documents which prove large-scale international and domestic surveillance by the U.S. government and aided by U.S. media and communications companies such as Microsoft, Google, and Facebook. Snowden's release raises questions as to how free Americans really are, and how democratic is America when the U.S government has been denying and covering up its large-scale surveillance?
The Foundation for Democratic Advancement (FDA) holds the view that freedom of speech and assembly for all citizens within extremes is integral to democracy. However, the standard of freedom of speech and assembly is not simply citizens having rights to freedom of speech and assembly. The opportunities and means for freedom of speech and assembly are important as well, particularly during election periods. Also, there may be other factors such as large-scale civilian surveillance by government authorities and largely unregulated biased mainstream media which weaken overall freedom of expression and assembly. The FDA looks at freedom of expression and assembly from a broad perspective, taking into consideration variables which impact positively or negatively freedom of speech and assembly.

However, in its electoral fairness audits, the FDA evaluates the degree of freedom of speech and assembly from a narrow standpoint, because other audit variables such as media election coverage, candidate and party advertisement, and checks and balances on government bodies cover the broad aspects of freedom of speech and assembly. The narrow approach simply looks at whether or not there is a constitutional and/or legislative basis for freedom of speech and assembly for all citizens within extremes.

Country Comparison

CANADA

In Canada, freedom of speech and assembly is guaranteed through the Canadian Charter of Rights and Freedoms. However, Canadian freedom of speech and assembly is weakened by a largely unregulated mainstream media, particularly during election periods. In addition, the Canadian federal electoral system has for examples significant bias to large, established political parties and minimal checks and balances on the executive branch of government, and thereby directly and indirectly weakens civilian freedom of speech and assembly (FDA Electoral Fairness Report on Canada, 2013). Although Canadians have a right to vote and run as political candidates (which are forms of free speech), these rights are limited by electoral and media biases which impact electoral discourse and political choice and opportunity.

In addition, the federal government's surveillance of Canadians through the Criminal Intelligence Service Canada (CISC), Canadian Security Intelligence Service (CSIS), Communications Security Establishment Canada (CSEC) and other organizations weakens civilian privacy, and thereby impacts negatively freedom of speech and assembly. The FDA is in the amidst of a report to determine to what degree the federal government snoops on Canadian citizens. The Canadian Charter is vague on surveillance simply stating that Canadians have a right against unreasonable search and seizure (Constitution Act, 1982, Article 8).

Legislative Research

1) Constitutional

The Canadian Charter of Rights and Freedoms provides that everyone has the fundamental freedom of thought, belief, opinion and expression; including, freedom of the press and other media of communication (Constitution Act, 1982, Section 2(b)).

The Canadian Charter of Rights and Freedoms provides that everyone has the fundamental freedom of peaceful assembly and freedom of association (Constitution Act, 1982, Section 2(c), (d)).

Every citizen has a right to vote in elections of members to the House of Commons or other legislative assemblies, and to be qualified for membership in them (Constitution Act, 1982, Section 3).

2) Election Law

Every elector who qualifies is entitled to one vote (Elections Act, Article 6).

The Elections Act provides a blackout period for election advertising to the public. The blackout begins on polling day and lasts until the close of all the polling stations in the electoral district (Elections Act, 323(1)).


UNITED STATES

In the United States, freedom of expression and assembly is guaranteed through the U.S. Constitution. However, in a broad context, there are minimal checks and balances between the U.S. mainstream media and the U.S. government, and minimal regulation of U.S. media election coverage. Therefore, U.S. freedom of speech and assembly is likely weakened by the major media's dominance of political discourse, which in turn helps to shape what Americans speak and when and why they assemble (FDA Media Report on the 2012 U.S. Presidential Election, 2012).

In addition, the recent evidence of large-scale government surveillance of U.S. citizens weakens freedom of speech and assembly by denying Americans privacy, which may in turn limit what Americans say and when and why they assemble. See this FDA article for further explanation of the democratic implications of surveillance on free speech:  U.S. in State of Tyranny or Already in an Early Stage?

Furthermore, the significant electoral unfairness in the U.S. federal electoral system weakens U.S. freedom of speech by weakening the political say of the American electorate. See this FDA report on the U.S. federal electoral system: 2012 FDA Electoral Fairness Report on the United States 

Legislative Research

Paid political statements through any broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any other type of general public political advertising must clearly state which authorized political committee paid for communication or other persons and who authorized the other persons, such as a candidate or authorized political committee. If transmitted by television, the statements must include either an unobscured, full-screen views of the candidate or agent of the candidate making the statement, a voice-over, or both, and shall also appear in a readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds. If the political statement is not authorized by a candidate or political committee, the communication must state the name and permanent street address, telephone number or World Wide Web address of the person who paid for the communication and state that it is not authorized by a candidate or political committee (Code Federal Regulations, Section 441d).

No person shall sell space in a newspaper or magazine to a candidate or agent of a candidate for amount that exceeds charges for comparable spaces (Code Federal Regulations, Section 441d).

The U.S. Congress has legislative power (U.S. Constitution, 2012, Article I, Section 1), and the U.S. Congress must not make laws which prohibit or abridge freedom of speech, freedom of the press, or the right of the people peaceably to assemble (U.S. Constitution, 2012, First Amendment).

Citizens of the United States cannot be denied life, liberty, or property without due process of law, and equal protection of the laws (U.S. Constitution, 2012, Fourteenth Amendment, Section 1).

All persons born or naturalized in the United States are citizens of the United States (U.S. Constitution, 2012, Fourteenth Amendment, Section 1).


VENEZUELA

In its constitutional and electoral laws, Venezuela guarantees freedom of speech and assembly within extremes such as slander against elected officials or encouraging domestic violence and religious intolerance. In addition, unlike in the United States and Canada, Venezuela expands freedom of speech by allowing for citizen-initiated referendum and recall of any elected official including the Venezuelan President. Further, Venezuelan election law supports broad and balanced election coverage, and thereby placing a reasonable limit on freedom of expression in order to encourage broad political say and a fully informed electorate. However, Venezuela's lack of electoral finance transparency may impact indirectly freedom of speech and assembly through illegal electoral finances directed to pro-government parties and/or anti-government parties being singled out for their electoral finances.

Unlike in the United States' or Canada's constitutional documents, the Venezuelan federal government is prohibited from conducting surveillance of Venezuelan's personal communications unless the surveillance is an order of the court (Bolivarian Republic of Venezuela Constitution, 2012, Article 48). 

Legislative Research

The state allows for freedom of political thought and expression (Election Law, Principles and Rights, Article 72(2)).

The state allows communication and information on elections to be free, diverse, plural, accurate, and timely (Election Law, Principles and Rights, Article 72(3)).

The state supports respect for different ideas, and promotion of tolerance, transparency, and peaceful coexistence (Election Law, Principles and Rights, Article 72(8)).

Every Venezuelan has to right to freedom of thought and expression by any means of communication and diffusion. The law does not tolerate non-anonymity, war propaganda, discriminatory messages or those promoting religious intolerance (Bolivarian Republic of Venezuela Constitution, 2012, Article 57).

Communication is free and plural and comes with rights and responsibilities. Every citizen has the right to timely, accurate, and impartial information (Bolivarian Republic of Venezuela Constitution, 2012, Article 58).

The Bolivarian Republic of Venezuela is irrevocably free and independent, basing its values on freedom, equality, justice, and international peace (Bolivarian Republic of Venezuela Constitution, 2012, Fundamental Principles, Article 1).

Freedom is an inherent right of Venezuela (Bolivarian Republic of Venezuela Constitution, 2012,  Fundamental Principles, Article 1).

Venezuela holds political pluralism, liberty, justice, social responsibility, and democracy as some its superior values (Bolivarian Republic of Venezuela Constitution, Fundamental Principles, Article 2).

The state permits meetings and demonstrations in public places. Organizers must give 24-hour notice for the meeting or demonstration. An alternative day and time may be established if there is a simultaneous meeting or demonstration taking place. The state does not regulate private meetings (Law on Political Parties, Public Meetings and Demonstrations, Articles 36-46).

Every citizen has the right to demonstrate peacefully and unarmed (Bolivarian Republic of Venezuela Constitution, 2012, Article 68).

Venezuelan people have the power to submit referendum bills to the National Assembly if the people in favor of the bill represent at least twenty-five percent of the electors registered. Treaties, conventions or agreements that could compromise national sovereignty or transfer power to supranational bodies, may be submitted to a referendum on the initiative of the President of the Republic in Council of Ministers, by the vote of two-thirds or the members of the Assembly, or fifteen percent of the voters registered and entered in the civil and voter registration (Bolivarian Republic of Venezuela Constitution, 2012, Article 73).

Venezuelan people have to power to submit referendum bills to wholly or partially repeal existing laws if the people in favor of the referendum have support from at least 10 percent of the registered electors (Bolivarian Republic of Venezuela Constitution, 2012, Article 74).

Venezuelan people have to power to submit referendum bills to abrogate laws issued by the President of the Republic under Article 236 if those in favor of the referendum have the support of at least 5 percent of the registered electors. The validity of referendum requires at least 40 percent support from registered electors (Bolivarian Republic of Venezuela Constitution, Article 74).

Budget laws including taxation are not subject to referendum nor are laws for protecting, guaranteeing, and developing human rights (Bolivarian Republic of Venezuela Constitution, 2012, Article 74).

Under the Election Law, the state forbids any citizen from insulting public officials (Walser, 2012). Article 72 states that citizens are required to respect the honor, privacy, intimacy, self-image, confidence and reputations of individuals. Article 75 states that election propaganda must respect the honor, privacy, intimacy, self-image, confidence and reputations of individuals and direct obscenities and derogatory statements against the agencies and entities of public power, institutions and public officials or public servants.

References

Bolivarian Republic of Venezuela Constitution. (2012). National Electoral Council. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/constitucion/indice.php

Code of Federal Regulations. (2009, January 1). Federal Registry. Retrieved from http://www.fec.gov/law/cfr/cfr_2009.pdf

Constitution Act. (1982, April 17). Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38

Elections Act. (2000, May 31). Elections Canada. Retrieved from http://www.elections.ca/content.aspx?section=res&dir=loi/fel/cea&document=part00&lang=

Election Law. (2012). National Electoral Council. 2012. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/ley_organica_procesos_electorales/indice.php

FDA Global Electoral Fairness Report on the Canada. (2013). Foundation for Democratic Retrieved from http://www.slideshare.net/FDAdvancement/2013-can-fed-audit

FDA Global Electoral Fairness Report on the United States. (2012). Foundation for Democratic Retrieved from http://www.slideshare.net/FDAdvancement/united-statesfda-global-electoral-fairness-report

FDA Global Electoral Fairness Report on the Venezuela. (2012). Foundation for Democratic Retrieved fromhttp://www.slideshare.net/FDAdvancement/2012-fda-global-electoral-fairness-audit-of-the-venezuelan-presidential-electoral-system

FDA Media Report on the 2012 U.S. Presidential Election. (2012). Foundation for Democratic Advancement. Retrieved from http://www.slideshare.net/FDAdvancement/united-states2012-fda-presidential-election-media-study

Garvey, s. (2013). "Edward Snowden--U.S. Headed for Tyranny or Already in an Early Stage?" Foundation for Democratic Advancement. Retrieved from http://foundationfordemocraticadvancement.blogspot.ca/2013/06/edward-snowden-us-headed-for-tyranny-or.html

Media Election Content. (2013). Foundation for Democratic Advancement. Retrieved from http://foundationfordemocraticadvancement.blogspot.ca/2013/03/fda-talking-points-series-media.html

U.S. Constitution. (2012). Cornell University Law School. Retrieved from http://www.law.cornell.edu/constitution/

Walser, R. (2012). "The Chávez Plan to Steal Venezuela's Presidential Election: What Obama Should Do." September 19, 2012. The Heritage Foundation.







Mr. Stephen Garvey Executive Director Foundation for Democratic Advancement

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