Freedom of Expression
Mandatory membership in a professional association for the practice of journalism
Many states in the Americas have historically had a national journalists' association, of which one must be a member in order to practice journalism professionally. Many argue that such associations are important because they allow the practice of journalism to be regulated, promoting professionalism and higher-quality journalism. At the same time, the practice of allowing states to control who practices journalism may be subject to abuse and may lead to the curtailment of freedom of expression.
In a 1984 case against Costa Rica, the Commission considered the issue of whether a requirement of membership in a professional association for the practice of journalism violated the right to freedom of expression.[1] Petitioner Stephen Schmidt worked as a technical adviser, translator, editor, and writer for The Tico Times, an English-language weekly in Costa Rica. At the time, Cost Rica had a law requiring that the practice of journalism was limited to those licensed by the Colegio de Periodistas, the national journalists' association, with criminal penalties for those practicing without a license. Mr. Schmidt was convicted of illegally practicing the profession of journalism due to the fact that he was not licensed by the Colgeio and was sentenced to three months of prison. The Commission determined that the State did not violate Article 13 of the American Convention. The Commission reasoned that journalists' associations like the Colegio protect the right to seek and impart information without controlling the dissemination of information and that they serve to regulate journalists’ activities, rather than restrict them. Further, the Commission considered that journalists' associations protect freedom of expression by providing services to members of the profession, such as regulation of journalistic ethics and discipline and encouragement of the professional and social development of its members. The Commission pointed out that just as the State enforces the regulations of other professional organizations, the State should be free to enforce the regulations of the journalists' association in ensuring that the profession is practiced responsibly and ethically.[2]
As a result of this opinion, the State of Costa Rica requested an advisory opinion from the Inter-American Court of Human Rights on the issue of mandatory membership in a professional organization for the practice of journalism.[3] The Court concluded the opposite of what the Commission had held, namely that laws mandating membership in a professional association for the practice of journalism do violate Article 13. The Court reasoned that "journalism cannot be equated to a profession that is merely granting a service to the public through the application of some knowledge or training acquired in a university or through those who are enrolled in a certain professional 'colegio.'”[4] It considered, rather, that "the professional journalist is not, nor can he be, anything but someone who has decided to exercise freedom of expression in a continuous, regular and paid manner."[5]
The Court rejected arguments that the compulsory licensing of journalists can be justified as a legitimate restriction on freedom of expression because it is essential to guarantee public order[6] or as a just demand of the general welfare in a democratic society.[7] With respect to the issue of public order, the Court noted:
If the notion of public order . . . is thought of . . . as the conditions that assure the normal and harmonious functioning of the institutions on the basis of a coherent system of values and principles, it is possible to conclude that the organization of the practice of professions is included in that order.
The Court also believes, however, that the same concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole.[8]
Therefore, the Court concluded:
[T]hat reasons of public order that may be valid to justify compulsory licensing of other professions cannot be invoked in the case of journalism because they would have the effect of permanently depriving those who are not members of the rights that Article 13 of the Convention grants to each individual. Hence it would violate the basic principles of a democratic public order on which the Convention itself is based.[9]
The Court also considered arguments that mandatory licensing of journalists is justified based on considerations of general welfare because it is a means of guaranteeing society objective and truthful information through codes of professional responsibility and ethics and because it is a means of guaranteeing the freedom and independence of journalists by strengthening the guild of professional journalists. With respect the first rationale, the Court noted that:
[I]n truth, as has been shown, general welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare. In principle, it would be a contradiction to invoke a restriction to freedom of expression as a means of guaranteeing it. Such an approach would ignore the primary and fundamental character of that right, which belongs to each and every individual as well as the public at large. A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violates the right to information that this same society has.[10]
With respect to the rationale that mandatory licensing is a means to guarantee the freedom and independence of journalists, the Court recognized that this needed to be guaranteed. However, it recalled that even legitimately-aimed restrictions on freedom of expression must also be “necessary to ensure”[11] that legitimate aim. This entails that there is no means to achieve that aim that would be less restrictive of freedom of expression. The Court found that the mandatory licensing requirement did not satisfy this requisite “because the establishment of a law that protects the freedom and independence of anyone who practices journalism is perfectly conceivable without the necessity of restricting that practice only to a limited group of the community.” [12]
This advisory opinion has become the prevailing standard on this issue in the inter-American system and the opinion is also frequently cited for its thorough analysis of the nature and scope of the right to freedom of expression in general.
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[1] Case 9178, Report Nº 17/84, Costa Rica, Stephen Schmidt, October 3, 1984.
[2] One member of the Commission dissented in the Schmidt case, arguing that regulation through the use of journalists' associations does improperly threaten journalists’ freedom of expression. The dissent warned that the regulation in question is a subtle restriction on the right of freedom of expression that has the potential to weaken the scope of the right. Additionally, the dissent argued that because the profession of journalism is so closely interrelated with the right to freedom of expression, regulation of the profession of journalism is fundamentally different from that of other professions, as any restriction on journalists’ ability to disseminate information may seriously limit the inalienable right to freedom of expression. To the contrary, the dissent argued, the professional activities of lawyers, doctors, or engineers do not concern basic human rights such as freedom of expression and information. Finally, the dissent added that the best manner in which to promote responsibility among journalists is to allow the free interchange of ideas without restriction. Consequently, journalists should enjoy full protection of their international right to freedom of expression without being subject to any other hierarchical structure designed to regulate their dissemination of information.
[3] OC 5/85, supra. It is interesting to note that the Schmidt case might have been submitted to the court as a contentious case, but the question was instead submitted as a request for an advisory opinion. Under Article 61 of the American Convention, only the Commission or a State party has the right to bring a case to the Inter-American Court. In this case there was no legal advantage to the State in submitting the case to the Commission, as the decision had been favorable to it. However, recognizing the importance of the issue due to the high incidence of similar laws in other Latin American countries, Costa Rica decided that an advisory opinion on the issue would be useful. Unlike a decision by the Court in a contentious case, advisory opinions are not binding, final, and enforceable. See id. paras. 16-28.
[4] Id. para. 71.
[5] Id. para. 74.
[6] American Convention on Human Rights, Article 13.2.b.
[7] American Convention on Human Rights, Article 32.2.
[8] OC 5/85, supra, paras. 68-69.
[9] Id. para. 76.
[10] Id. para. 77.
[11] See Id. para.79. See also American Convention on Human Rights, Article 13.2.
[12] Id. para. 79.