Dissent Into Darkness: The Misuse of Law to Stifle Criticism – Oliver O’Callaghan

25 08 2013

silencing-dissentDissent is one of the key functions of a free press. Even above the provision of information, the provocation of democratic debate, or the search for truth; the ability to openly and freely criticise government is perhaps the paramount reason why we as a society enshrine the protection of the press and of speech.

The European Court of Human Rights has repeated highlighted the “watchdog” role of journalists, and the US Supreme Court has traditionally placed much stock in dissent as a rationale underpinning the First Amendment. It should therefore be not merely protected but encouraged as fundamental and indispensable aspect of collective self-government.

Of course one need not be a professional journalist to engage in this activity, every citizen has the right and the duty to question those in power. However, those people most likely to do so in a public forum, with access to a wide audience, and most often those best skilled and equipped for the task, are members of the press. The converse aspect of this fact is that journalists will most often draw the attention of those who would seek to curtail such criticism; thus the press serves as a lightning rod for those who would not tolerate dissent.

When we use the phrase “the chilling effect” it usually evokes the idea of laws that curtail freedom of the press – such as libel, privacy, contempt – by directly impacting upon the right or ability of a journalist to publish a story; this creates a residual effect by giving that same journalist pause, next time he writes, in the hope of avoiding the punitive elements of the restriction.

However, there is another way to invoke a chilling effect should one dislike what a section of the press is doing or pursuing, and that is to utilise and aim other (non-speech focussed) legal instruments at journalists in order to harass them and create an environment of hostility. The rationale is a fairly simple one, criticise those in power, undermine their authority, and there will be consequences for you and yours.

Action by governments in this vein has been occurring since time immemorial, at various levels of severity and oppression. A brief and rudimentary scan reveals a very large number of examples yielded by history and in every corner of the world.

In June, at the European Parliament, the Cuban dissident Guillemo Fariñas was finally able to accept his Sakharov Prize for freedom of thought originally awarded in 2010. An outspoken critic of Cuban internet censorship, Fariñas has been repeatedly detained on grounds that the Cuban government has described as “not political”.

In Russia selective use of prosecutions under espionage laws are used against those that expose malfeasance by authorities and industry. In Bangladesh religious laws are used to target critics of the government. And in Saudi Arabia persistent threats of arrest against journalists and their families have led to the silencing of rare independent news outlets. This pattern is wearily familiar in societies where the rule of law is flexible and free speech is less embedded in the fabric of society. The above is just a tiny cross section but in each case the message is abundantly clear: dissent will not be tolerated.

A number of recent events have thrown this issue into focus in the ostensibly ‘liberal’ West where governments love nothing more than to pay lip service to the notion of protecting freedom of the press. The treatment of Bradley Manning, detained on espionage charges for three years before trial and badly mistreated during that time, is an obvious example. Linked to this is the pursuance of Julian Assange on sexual assault charges which, whether ultimately justified or not, arrived just on time to stop his exposure of US government misdeeds dead in its tracks. The message again appears to be: dissent will not be tolerated.

One could argue about the legitimacy of those actions, and indeed the debate rages, but it is very difficult to defend the recent actions of the US Department of Justice in its targeting of the Associated Press under the 1917 Espionage Act. Equally concerning is the depressing and oft recited statistic that, despite lofty campaign rhetoric directly to the contrary, the Obama administration has prosecuted more government whistleblowers than all of its predecessors combined. These incidents appear not to be isolated, but part of a concerted campaign to send a message to both journalists and their sources: dissent will not be tolerated.

This brings us the latest chapter in this increasingly joined up saga of global intimidation; the detention for nine hours in Heathrow Airport of David Miranda under Schedule 7 of the 2000 Prevention of Terrorism Act. Miranda is of course the partner of Glenn Greenwald, the campaigning journalist who has repeatedly embarrassed the US and UK governments with revelations about vast spying networks targeted at their own citizens. Greenwald has been the foremost practitioner over last few years of that most important of journalistic values: dissent. He has been tireless in his questioning of official information and government statements particularly regarding the pursuit of foreign policy by the US and UK authorities. Then suddenly his partner is detained under terrorism legislation.

This type of activity could be described as insidious if it wasn’t so plainly obvious. The highly unusual and indeed questionable nature of Miranda’s detention has been well documented elsewhere. But the instinct of most commentators was that a message was being sent: dissent will not be tolerated.

Of course it is possible that there could be a perfectly legitimate reason for Mr Miranda’s detention, but we are unlikely to ever find out given the secretive nature of such procedures. There were many strong arguments made against the establishment of secret courts during the parliamentary consultation process on the Justice and Security Bill, but this one example is a pure distillation of the problems when the authorities become unanswerable to the citizenry and their representatives.

One of the fundamental principles underpinning the notion of open justice is that the right to freedom cannot be abridged except under exceptional circumstances that can be transparently understood and openly contested. It is with a thudding sense of irony that the very secrecy Greenwald has campaigned to end is being used now to protect the transgressors of his partner’s rights. But the necessity of open justice is another debate for another day.

Nobody would claim that the actions of our governments have reached the level of the global examples above, nor indeed the historical examples below, but that is how the erosion of rights works: it is an incremental process. If the recent revelations about the NSA and GCHQ teach us nothing else it is that those in charge cannot be trusted to protect our rights, abuses will inevitably occur and acquiescence to security demands merely encourages further expropriation.  As such it is our job to protect our liberties to their fullest possible extent and not merely count ourselves lucky we aren’t winning the race to the bottom.

In the 1930s, 40s and 50s various countries of the Eastern Bloc undertook a sporadic series of ‘purges’ in order to root out dissidents and silence dissent. One of the questions most often asked is why did these regimes bother with the charade of show trials? After all Stalin and his cohorts proved themselves on many occasions to not be above murder, massacre, and even genocide to punish enemies and crush opposition.

The answer was at least twofold. Firstly, it gave the process a veneer of legitimacy, no matter how thin and transparent, and this allowed the apologists for the party, both at home and abroad, a hook upon which to hang their contorted justifications. (This process has already been echoed with weary predictably by those modern day defenders of government abuse. It would be interesting to see if their commitment to legal positivism extends to the various other examples cited in this article).

The second reason was marginally more subtle and had to do with the psychological impact upon the populace of the spectacle of the show trial. Ideally the defendant would break and renounce their ‘crimes’, but ultimately that was of incidental importance; what was crucial was to make it abundantly clear,  to those who might be next to stand up and openly question the legitimacy of the regime, just what their fate would be if they so dared. The message was unmistakable: dissent will not be tolerated.

Oliver O’Callaghan is a PhD researcher in Press Freedom and Privacy at the Centre for Law, Justice and Journalism, City University London


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2 responses

25 08 2013
SILENCING DISSENT: a Joined Up Saga of Global Intimidation | We Who Oppose Deception

[…] morning in peaceful Havelland, the former DDR or East Germany, it’s sort of soothing to read Dissent into Darkness: The Misuse of Law to Stifle Criticism. For I watch a wonderful documentary about ‘the new Indonesia’, listen to Whisperings, […]

25 08 2013
Andy J

While I entirely agree with the central point that dissent and the freedom to exercise it are vital in a healthy democracy, and that there have been many examples of regimes who will try to chill the exercise, I would contend that Mr O’Callaghan’s hyperbole is not the best way to highlight this issue.
By holding up Assange as an example of state intimidation designed to rein in Wikileaks, he strays too far from the established facts. While Assange has many supporters who feel his current plight as part of a US plot to deport him to the USA to face trial, a very much larger proportion of society would support the due process of the law, which is ultimately what the British Government has tried to do in his case.
Secondly, Mr O’Callaghan seeks to prejudge the Miranda case with the assertion that “we are unlikely to ever find out given the secretive nature of such procedures”. In both instances – the Assange and the Miranda cases – he is indirectly impugning the judicial system and implying that they are part of the government’s master plan to suppress free speech. There is absolutely no reason to believe this is so.
When the judicial review of the decision to use Schedule 7 powers to stop Mr Miranda gets underway, we stand a very good chance of finding out the MPS’s (and by Mr O’Callaghan reasoning, the government’s) motives. Even if the closed material process is invoked (using s6 of the Justice and Security Act 2013 he mentions), this is not the same as a “secret court” and would only apply to such evidence as the Secretary of State (presumably Teresa May MP) wished the court to examine in private. The overall proceedings and findings of the court will be made public and so there is a very good chance we will find out the MPS/government’s stated reasons for their actions. I concede that the stated reasons may well mask the actual reasons and that these actual reasons may well include wishing to chill this sort of investigative journalism. Nonetheless, an independent judicial system is also a cornerstone of a healthy democracy and one which is vital to support lawful acts of dissent.

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