Fake News and the Freedom of Speech
“People have lost their residency”
On April 4th, CRHoy an online news outlet, published an article stating that 577 foreign nationals lost their residency for leaving the country during the travel restriction. This was not the case.
This false information may send the message that if you leave the country, you will lose the residency. The cases of people losing their residency are related to crossing the border illegally, which is a violation of the CR Immigration laws. These people did not lose their residency because they travel during the times of COVID. They lost their residency because they crossed the border illegally.
We reckoned that CRHoy misspoke. They did not know what they were talking about.
“You cannot shout fire in a theater”
In mid-August on 1917, Charles T. Schenck and Elizabeth Baer, were distributing mail to men drafted to the armed forces to participate in World War I. The fliers sent by mail stated: “Do not submit to intimidation”, “Assert your rights”. The intention was to prevent men from complying with the Draft.
In May of 1917, the US Congress passed a law called the Selective Draft Act, whose purpose was to allow the US Government to draft men into the army. At the time, the Woodrow Wilson administration deemed it in the interest of National Security to join the war efforts against Germany in Europe, pursuant to the attack in the RMS Lusitania and Zimmerman Note.
As a result of mailing the flyers, Schenck and Baer were prosecuted and convicted of violating of the Espionage Act of 1917. The case was brought to the US Supreme Court (Schenck v. US) on the grounds that prosecution for mailing the flyers was a violation of free speech.
Justice Oliver Wendell Holmes Jr. issued an opinion stating that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic”.
With this, Justice Holmes establishes that freedom of speech is not absolute. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”.
Within the context of World War I, the primary intention of the Wilson Administration was to invest in the war effort, and in this case, speech against the war effort was against the public interest. In this case, the evil that Congress was trying to prevent is not winning the war, which could be the result of people did not support the war efforts, and in the case at hand, propaganda against complying with the draft created a clear and present danger to war effort. Thus, freedom of speech is suppressed.
What we can learn from this is that indeed, freedom of speech is not absolute and unrestricted. What you say can cause harm to the people at large. So, you must be careful of what you say.
In a press conference, President Alvarado stated that foreign nationals with immigration status in Costa Rica will lose their immigration benefits if they were to leave the country during the time of the quarantine.
This statement created panic. Costa Rica is home to half a million foreign nationals who hold valid legal immigration status in Costa Rica (residency and many other categories). At our firm, we received thousands of queries about whether the statements by the president were true.
This situation generated some concern even from a legal standpoint. Is the President legally authorized to do that? While the emergency powers are granted to the Executive Office in the CR Constitution, those powers are also limited.
While it was just a statement, it did not have legal effect. You cannot rule by decree on national television. It is like governing by a Twitter account. There are certain formalities that must be followed for an executive order to be official and enforceable. One formality requires for the order to be signed by the President and published in the national paper La Gaceta (this formality of publication, while it is applicable in many countries, it is not applied in all countries).
Until it was published, the words of the President were only an “informal statement” with no legal validity, but the cat was already out of the bag. Hundreds of thousands of people were already afraid of losing their residency for traveling abroad. Many people were planning to travel abroad to reunite with their families in moments of need; other people needed to travel abroad to receive critical medical treatment. There is a myriad of valid reasons why people needed to travel abroad, but now, they were at risk of losing their immigration status due to a statement by the President.
While we understand the intention of the President was to restrict travel and to stop the spread of the COVID-19 virus, the measure stated by the president could affect negatively the lives of hundreds of thousands of people.
Again, free speech would not protect a man falsely shouting fire in a theater and causing panic.
In later days, the decree was published in La Gaceta, and it did not mention that people would lose their residency if they travel during the restrictions. We reckoned that the President misspoke. He did not know what he was talking about.
“We are prepared, we are doing a great job”
Between late February and mid-March of 2020, the US President Donald Trump stated that the Virus was being politicized by the opposition, and that it was under control, “we are prepared, we are doing a great job”
The statements by the US President sent the wrong message to people. Everything is fine, and everything will be fine. This misstatement of fact prompted people to not take the appropriate measures to prevent the spread of the decease at a rapid pace.
By March 1st, the US only had 98 confirmed cases. By March 31st, the number had increased to 213,400 cases. As of today April 8th, 2020, the casualties in the US at up to 12,911. Irresponsible statements are costing too many lives in the US.
We reckoned that the US President misspoke. He did not know what he was talking about.
My Two Colones
While censorship of a news outlet or a president is a whole subject on itself, it is not my intention do develop an argument to support that case. More so than a legal argument, I like the case of Schenck v. United States as a matter judgement between right and wrong. What is the right thing to say and what is the wrong thing to say.
Sometimes, Supreme Court cases from the US hit a home run (just sometimes) establishing a theory or principle which can be applicable not only to the realm of the law, but to everyday life. In this case, Holmes simple establishes a distinction between right and wrong, applicable to the things we say.
We, the people, are use to taking some things for granted, and one of them is the use of our freedoms, including that of speech. Sometimes people believe they can say whatever they want without repercussion as if words were meaningless.
What we say matters. What we say to our parents, to our children, our brothers and sisters, our friends, coworkers, the person at the store, the bus driver, the bystander, it all matters. Now more than ever, when people are looking for comfort, safety and solace, what we say and do matters.
Freedom of speech is one of our most valuable rights. Holmes helps us establish that there are things that should not be said. While we are not in a position to censor our leaders or the media, we can measure their moral fiber by the content of their statements, which also allows us to see whether they a part of the problem or part of the solution.
For the sake of our species, some people should remain quiet.