That, at least, is what I read.
I didn’t see the program. But as the saying goes: I condemn it,
anyway. To take Vladimir Putin’s side in a country where his war
kills and maims soldiers and civilians every day is, at the very
least, disloyal – if not quite treacherous, at least in the context
of a song and dance extravaganza.
But is it a reason to call a meeting of
Ukraine’s broadcasting regulator, or to compile a “persona non
grata” list of forbidden celebrities, or to pull the channel’s
license on one grounds or another? All of these have been proposed by
government ministers as well scores of Facebook users, including many
representatives of Ukraine’s media defense watchdogs.
Having spent 2014 riveted to my
computer, watching Ukrainian events unfold, I sympathize with the
negative reactions over Inter’s programming – and not only
on New Year’s Eve. War does change everything, especially a hybrid
war, when information is a weapon, too.
National security has always posed
challenges to freedom of speech. In the U.S., First Amendment law was
born on the domestic battlefields of World War I, which was bitterly
opposed on the American left and among German and Irish immigrants.
In that atmosphere, when an anti-war leaflet landed a Philadelphia
socialist in jail for violating the Espionage Act – the Supreme
Court upheld it.
Free speech rights have expanded vastly
since then, especially after World War II. But in that time, none of
the world’s leading democracies – which forged the best practices
— have been invaded by a foreign military or its proxies. None have
had to contend with hostile propaganda on the scale that Russia’s
has penetrated into Ukraine – including through ownership in
channels like Inter. How should a democratic society balance
its national security with freedom of expression under those
circumstances?
The short answer is: nobody knows. The
situation poses novel legal and policy challenges that require
thought and analysis. But the initial reaction in Ukraine has been a
groundswell of calls to ban Inter and other pro-Kremlin media.
While the Ukrainian government’s instinct to do so isn’t
unexpected, civil society’s support for it is. Take Vesti, a
free pro-Russian tabloid. Recently, a prominent media lawyer argued
that the newspaper should be criminally prosecuted for “inciting
ethnic antagonism”. This is what Turkey prosecutes Kurdish
newspapers for – and routinely gets slammed for it in the European
Court for Human Rights.
Since New Years Eve, other media
activists have been thinking up ways to ban Inter, such as
charging it with licensing or anti-monopoly violations. But if
Ukraine were to rescind Inter’s license on those grounds, it
would open itself to claims of selective prosecution intended to
punish the channel because of its content – a clear violation of
press freedom. Not even terribly clever lawyers would be needed to
challenge such actions and win – if not in national courts, then in
the ECHR.
Since New Years Eve, other media activists have been thinking up ways to ban Inter, such as charging it with licensing or anti-monopoly violations. But if Ukraine were to rescind Interâs license on those grounds, it would open itself to claims of selective prosecution intended to punish the channel because of its content â a clear violation of press freedom.
Instead of devising inventive ways of
banning or punishing Inter (or any media outlet) by pretending
to be doing something else, perhaps the issue needs to be faced
directly? Having worked on press freedom in Ukraine for more than two
decades, it is not easy to even pose such questions. But are there
circumstances under which the country could legitimately ban a media
outlet (or certain content) on the grounds of national security?
What other legal and policy recourses does it have in contending with
hostile information wars and propaganda?
Press freedom is not absolute. In the
U.S., it can be abridged if it poses a “clear and present danger”.
In the ECHR, it can be restricted for a variety of reasons if it is
based on law and “necessary in a democratic society”. The classic
example is not revealing troop movements during wartime. But other
than that, there are few clearly enunciated, democratic best
practices adequate to Ukraine’s situation.
That said, ECHR cases involving
domestic terrorism and separatism in countries like Spain and Turkey
can provide guidance. These and other sources of law and policy can
be used to formulate recommendations for informed public discussion
about whether freedom of speech in Ukraine can or should be
restricted for reasons of national security. Perhaps the right answer
is: “No”. Absent the rule of law, such restrictions could be
easily abused. But the discussion is critically needed.
Not liking something is never reason
enough to ban it in a democracy. Even lies are usually protected
speech unless they are defamatory or fraudulent. But during war, and
especially hybrid war, an adversary’s lies are more than mere
speech. If those are the grounds for considering bans on certain
media outlets or content, it must be done on the basis of law,
narrowly construed, and with the clearest of standards.
As for Inter, broadcasting a
frothy New Year’s Eve show with mothballed Soviet-era celebrities
was not illegal based on current law and should not be punished –
by the government. But if civil society expresses its opinion with
mountains of criticism, boycotts or demands that Inter change
its programming – that’s a far different matter.
Mary Mycio is a media lawyer and a book author. Her blogs can be found at Open Salon.
