DUE CENSORSHIP

Carlos Manuel Rosales1

Abstract

Freedom of expression is the primary source for the exchange of ideas and for public
debate in a liberal democracy. Censorship has operated and served as an instrument to
limit freedom of expression, because it is considered to have caused or may cause
damage. But there are occasions where censorship is necessary to safeguard public
order, state security, or the public interest. This paper presents the arguments for
censorship, and some cases in which due censorship has been validated as an instrument
for the control of public information.

Keywords

Democracy, freedom of expression, censorship, limits to rights.

INTRODUCTION

Freedom of expression is a fundamental right that allows people to make known what
they think, do and/or feel. However, its exercise should be limited by the protection of
the rights of third parties, the preservation of public order, and the protection of national
security and/or social interest.

I would like to explain this: for example, in the case of censorship for reasons of
public order, it is logical to prohibit nudity in the street or shouting atheistic slogans
outside a religious temple. In these cases, the freedom of expression produced an injury,
so the act is interrupted and the perpetrator is punished. Although he is protected by his
right to freedom of expression, he must be told that this freedom is not absolute and that
he must be punished.

In the case of censorship for reasons of national security, let’s imagine a person
who wants to edit a guerrilla manual, and wants to distribute it freely. The point of
banning certain literature is its impact and ensuring that it is not permitted to go against
a certain morality or, in this case, that people can not acquire knowledge that could
cause harm against citizens, security agents, and or the State itself.

1
Yale Law School.
 In the matter of censorship due to social interest, it could be exemplified when
cigarette advertising is prohibited in mass media, such as television, or even forbidding
the display of tobacco products, as a means to avoiding consumption, purchase or even
self-justification, for health reasons.

So censorship in these cases is justified as protection, but it is no less true that

the control of information must be founded on and motivated by the construction of the
collective good. To exercise censorship without a legal argument becomes a dictatorial
act that imposes the will or the materialization of a militant ideology. For example,
when the Nazis came to power in 1933, the German constitution guaranteed freedom of
expression and freedom of the press. However, through decrees and laws, the Nazis
abolished these civil rights and destroyed democracy. From 1934, it became illegal to
criticize the Nazi government. Even telling a joke about Hitler was considered treason.
In Nazi Germany, people could not say or write what they wanted. 2 These are some
examples of Nazi censorship:

• Close or take control of anti-Nazi newspapers.

• Control news appearing in newspapers, radio and film news.

• Ban and burn books that the Nazis classified as anti-German.

• Control what soldiers wrote home during World War II.

Our work is divided into two sections. In the first scenario, the nature, objective and
functions of the bases of censorship will be described, and we discuss which
normativity is the means for its implementation and execution. The next item to be
discussed is the question of when censorship must be absolute and forbid certain kinds
of information completely, for example, pedophilia. Finally, a set of conclusions and
proposals will be presented that will reflect the most important ideas and those which
deserve special attention.

This research does not attempt to make an apology for censorship, but to observe
its teleological value when it is deployed as an administrative act that seeks the
protection of an individual, society or the State, for it must be understood that freedom
of expression is not absolute, nor must all information be public. For this reason, its
limits must be protected and pointed out, along with the liability in the exercise of

2
https://encyclopedia.ushmm.org/content/es/article/nazi-propaganda-and-censorship
guarantees and for any damage that could be caused through the misuse, illegal, illicit or
inappropriate, of these fundamental rights.

We would like to clarify that this work relates to liberal democracies, where the
political context allows the exercise of the people’s constitutional rights, and puts limits
on public authority. For example, in many countries and in other times, sodomy was
classified as a crime, a situation that has changed with the changing mentality of
society. However, in Saudi Arabia, Iran, Syria, Iraq, Afghanistan, Sudan, Somalia,
Qatar, Pakistan, Mauritania, and Nigeria there is the death penalty for homosexuals,
which makes them places of high risk for the LGBT community.3

1. LEGAL CENSORSHIP/RESTRICTIONS ON FREEDOM OF EXPRESSION

Censorship is an administrative act that empowers the authority to suspend or deny a

right of a third party that has caused or may cause harm to public order.

The concept of public policy has changed over time, since, although the term
continues to be used as a guarantee of public security, its content has evolved from
warning citizens to compy with a rule, to a guarantee of their quality of life. In this way,
it is not a concept that can be invoked arbitrarily by the administration, but rather is
subject to constitutional limits, which are designed to prevent a certain discretion from
becoming arbitrary.

Public order was born in the context of Absolute Monarchy as a general clause
enabling administrative action which restricted the rights of subjects, in such a way that
the invocation of public order became a permit for intervention under which the
administrative authority could limit or restrict the private sphere of citizens, on the
pretext of preserving tranquillity and social peace. Public order appears on the scene, as
well as an administrative right to the exercise of police activity, on the understanding
that the concept can be broken down into three dimensions: public safety, public health
and tranquility.

In the contemporary constitutional state, the notion of public order has lost its
connotation initially linked to the defense of an indeterminate social peace and has been
directly related to the protection of the free exercise of fundamental rights and public
freedoms recognized in the Constitution. On the other hand, public policy has also lost

3
https://www.elmundo.es/viajes/el-baul/2018/06/28/5b054b4ce5fdeaa5738b4648.html
its potential as a generic entitlement to intervention, so that all administrative actions
likely to result in the restriction of the rights of the persons concerned must be subject to
the principle of legality, which cannot be bypassed by a generic invocation of public
policy.

The fact that "Public Order" is now conceived of as a relatively undetermined

legal principle would not be a problem if we were not talking about an element that
plays a clear leading role in the activity of any modern democratic administration. This
legal and social paradigm makes it impossible to close the ongoing debate on the
coincidence between the ultimate aims of the State and the welfare of the community.

In this way, the main issue to be addressed is focused on what any ordinary
citizen understands by "Public Order", what is its essential content or component, and
how this figure can legitimately influence the development and enjoyment of the rights
conferred on it by the Constitution.

We must take into account that the origin of the principle of strict law occurs in
a positivist system and at a given historical moment, under the rule of a formalistic legal
system where a precise and technical argumentation is required for the plaintiff in the
elaboration of grievances and violations of the writ of habeas corpus.

Similarly, the origin already mentioned should be noted, inasmuch as its

inclusion in the Mexican legal system is concerned, as a procedural obstacle to the relief
of judicial delay, a legal limitation that involves the judge in establishing an analysis,
with the experience of his expertise and legal knowledge, whereby the individual is
protected in case of any violation or grievance being observed that was not provided for
in a convenient manner in the writ of habeas corpus, or which is absent from it.4

The principle of strict law is that the authority must be made concrete to
examine the constitutionality of the act in the light of the arguments expressed in the
"concepts of violation". If it is a question of resolving an appeal lodged against the
decision rendered, the reviewer confines himself to assessing that decision on the sole
ground of "grievances".5

4
https://www.corteidh.or.cr/tablas/r37603.pdf
5
http://diccionariojuridico.mx/definicion/principio-de-estricto-derecho/
 For these principles to have intrinsic value and weight they must be incorporated
into the Constitution, because otherwise they would only be mere moral principles and
the need for weighting would not be a legal postulate, but extra-legal.6

The principle of constitutionality consists of "recognizing the existence of a rule

of law, a state in which the acts of public authority are always and necessarily subject to
the Constitution; it also requires the existence of a democratic system from which the
decisions taken, and the legitimacy of the decisions taken, are democratically based; it
requires full respect for fundamental rights; it requires the existence of various methods
or possibilities of granting material benefits to individuals, and an understanding that
the Constitution must govern with respect to the totality of the accusations against the
public power".7

Legality is a term derived from the word "legal": "which has the quality of legal
or of part of the current legal system". Thus, the principle of legality is defined as: "the
legal principle by which citizens and all public authorities are subject to the law".

When considering the principle of legality, it logically entails its material

manifestation, the so-called rule of law.8

In general, the "rule of law"9 means basically the state, whose various organs and
members are governed by and subject to the law; this means that "power and activity are
regulated and controlled by the law.10

In this sense, the rule of law contrasts with any arbitrary power and, in turn, is
opposed to any form of absolute or totalitarian state".

6
The model of the Democratic State of Law is one of the historical-political evolutions of the rule of Law .
These values must not only direct administrative organisation and/or its decisions, but
also be taken into account for the diverse spheres of public power.
7
Cossío Díaz, José Ramón, “Problemas de la Justicia Constitucional”, in Sistemas de Justicia electoral:
Evaluación y perspectivas, op. cit., p.397.
8
For Carl Schmitt, the rule of law is a feature of every State which unconditionally respects current
objective law and the subjective rights which may exist. Teoría de la Constitución, Ed. Nacional, México,
1966, p.150.
9
Dicey introduced English common law inglés, the model of subordinating the adminstration to the law,
calling it rule of law, in his work Introduction of the study of the law of the Constitution published in
1855. In his opinion, the rule of law expresses, among other things, the idea of formal equality before the
law, and the negation of any privilege reagarding the law. Escuin Palop, Catalina, Curso de derecho
administrativo, Ed. Tirant, Valencia, 2004, pp. 25 and 26.
Orozco Henríquez, José de Jesús; Voz “Estado de Derecho”, in Enciclopedia Jurídica
10

Mexicana; Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma

de México-Ed. Porrúa, S. A., México, 2002. Vol. III, D-E; pp. 830-832.
 The rule of law model is made up of several elements, including: "popular
sovereignty; the division of powers; the principle of legality and the recognition of the
fundamental rights of the citizen".11

The principle of legality limits the action of the authorities in a constitutional

government and, at the same time, should serve as a foundation for the entire structure
of the State.12

The concept of law proper to the rule of law, which transforms the rule of law,
requires that the government be the one who is subject to the law, before the law is
submitted by the government.13 Legality will be the crux for all activity of the public
power and, therefore, its action must be founded and motivated in the legal system.

The history of the rule of law can be read as the history of a progressive
minimization of power through its legal regulation.14

The action of the authority should always be based on the law or what others
have called the rule of legality, where the legal norm represents the basis of institutions.

In this form, legality is based on the fact that the authority is only empowered to
act as prescribed by the legal norm and to comply fully with the laws. Legality implies
that: "any act of authority must be motivated by and based on a norm in the material
sense, that is, general, abstract and impersonal, issued prior to the facts subject to study.
In this regard, in order to exercise the powers and perform the functions entrusted to the
authorities, the constitutional mandate that defines them must be scrupulously observed,
as well as international treaties applicable to the subject matter and the legal provisions
regulating them".15

The basis of this principle requires that "public service should abide by the
constitutional and legal regulations governing its organization, powers, functioning and
competence".16

11
Cosculluela, Montaner, Luis, Manual de derecho administrativo, Vol. I, Civitas. España, 2004, p. 21.
12
Hamilton, Alexander, Madison, James, y Jay, John, The Federalist Papers, Ed. FCE, México, 2006,
p.22.
13
Wade, H.W., Estudio del derecho administrativo, Instituto de Estudios Políticos, Madrid, 1971, p.18.
14
Ferrajoli, Luigi,op.cit., p.208.
15
Canto Presuel, Jesús, op. cit., p.57.
16
Cienfuegos Salgado, David, op. cit., p.101. Vid, Galván Rivera, Flavio, op. cit., pp.90-91.
 Leoncio Lara defines the principle of legality in terms of its objectives: "it
entails that the authority in the fulfillment of its purposes and in the exercise of its
powers fully comply with the constitutional and legal provisions that configure and
delimit it, especially with legal systems".17

Legality implies that, at all times and in all circumstances, in the exercise of its
powers and the performance of the functions entrusted to it by any public authority, the
constitutional and legal mandate that defines them and the normative provisions that
regulate them must be scrupulously observed.18

It can be seen that when resolved according to the norm, one is relieved of any
internal or external pressure. This allows one, in motivating and establishing authority,
to freely express one’s conceptions and preferences, and to resolve cases knowing that
one’s work, like one’s source of work, is stable, which allows one to act and pass
sentences according to previously established laws. And at the same time, the rule limits
one’s independence, being able to resolve only according to law, and not based on
arbitrary or illegal acts.19

The public character of acts of the State is determined by the role of such acts.
"In the case of acts carried out exclusively as a result of the existence and functions of
the State or whose immediate cause is the satisfaction of a particular collective interest,
such acts are public".20

Antonio de Cabo distinguishes two different types of advertising: "1. which links
it to the State (everything that is directly or indirectly of the State is public, that is,
advertising in the organic sense) and 2. Here, the public, as the ultimate reason for the
public nature of the act and activity of the State is to satisfy the collective interests of
the people".21

Lara Sáenz, Leoncio, Derechos Humanos y Justicia Electoral, Colección de cuadernos

17

de Divulgación sobre aspectos doctrinarios de la Justicia Electoral, No.4, TEPJF,

México, 2003, pp.39-40.
18
TEPJF, El Sistema mexicano de justicia electoral, op.cit., p.14.
19
Vid, MacCormick, Neil, Legal reasoning and legal theory, Ed. Clarendon press, New York, 1978.
20
Carpizo, Jorge, Concepto de democracia, Ed UNAM, México, 2006, p.107.
21
Cabo de la Vega, Antonio, op.cit., pp.159-161.
 In this way, the public is conceived of as an interrelation between the public of
society and the public of the State, with society being responsible for specifying the
national interest and transferring it to the State sphere.22

Now let us look at some cases where censorship has operated as an act that has
tended to protect a public good, and for the benefit of society. The first to be discussed
is so-called "hate speech":

In common language, the term "hate speech" refers to offensive speech directed
at a group or individual and based on inherent characteristics (such as race, religion or
gender) and which may endanger social peace. To provide a unified United Nations
framework to address this problem at the global level, the UN Strategy and Plan of
Action for Combating Hate Speech defines hate speech as "any kind of communication,
whether oral or written, or also behaviour, which attacks or uses pejorative or
discriminatory language in reference to a person or group depending on what they are,
in other words, based on their religion, ethnicity, nationality, race, colour, ancestry,
gender or other forms of identity”.23

In several public statements, jurists and experts on extremism have expressed

divergent views. Some argue that the ultra-rightists might even feel backed by the
allegations and that a blanket ban would threaten a crime of opinion. Others consider
Nazi symbols to be a danger to peaceful democratic coexistence, which is intolerable in
a State based on the rule of law.24

The Church of Satan as been such a focus of conspiracy theories that there is still
high speculation about their beliefs, practices and rites. From sex with animals, orgies
and baby sacrifices, to plots to annihilate entire populations, Satanism affiliated with the
Church of Satan radiates a "hidden" mystery (in pedantic moments, but always
exclusive and hierarchical in its "revelation") that can turn into myth, hatred and chilling
fear for some. Although Satanism has had a long history and a linear history cannot be
imposed, much of it is based on pagan cults to antagonistic figures such as Moloch,
Ba'al, Baphomet, Astaroth, Leviathan, Loki, etc. Much of what revolves around the

22
Ídem, p.199.
23
https://www.un.org/es/hate-speech/understanding-hate-speech/what-is-hate-speech
24
https://www.swissinfo.ch/spa/politica/prohibir-los-s%C3%ADmbolos-nazis--una-demanda-creciente/
47748740
configuration of this belief can be called fact or superstition: everything lies in the
questioning of what we call evil and, therefore, of what we perceive as good. 25

With the coup of the military regime headed by Augusto Pinochet in September
1973, a dictatorship was installed that remained in power for 17 years. 26 It was not until
1980 that the political participation of the citizenry was again taken into account. 27

Democracy has as one of its bases free competition between political parties and
with the "legal" prohibition of the Communist Party in Chile by means of ad hoc laws in
1948, their electoral participation and the possibility for voters to select their authorities
from this public entity were excluded. It was rehabilitated in 1958, but subsequently
declared illegal again in 1973, when all Marxist or Marxist-inspired parties were
excluded from electoral competition, based on decree number 77.

On the subject of filmography, censorship has served to prohibit the exhibition

or marketing of several films. For example, films that have been banned include The
Passion of Christ, The Life of Brian, The Triumph of the Will, The Birth of a Nation,
Pink Flamingos, The Empire of the Senses, The 120 Days of Sodom, The Texas
Chainsaw Massacre, The Last Temptation of Christ, Nightmares of a Sick Mind,
Cannibal Holocaust, and The Clockwork Orange.

In Mexico, film law authorizes films to be shown to the public. Article 17 of the
Act states that distributors may not condition or restrict the supply of films to exhibitors
and marketers, without justified cause, nor may they condition them on the acquisition,
sale, lease or any other form of exploitation, of one or other films of the same
distributor or licensee; so censorship operates as a legal instrument, to authorize the
material to be displayed, and ensures that it does not go against public morals.

The state of Michigan (USA) has passed a law that punishes sodomy and oral
sex with a penalty of up to 15 years in prison. The measure is a last-minute amendment
to a regulation aimed at combating animal abuse. This new law is not specifically aimed
at homosexuals, but punishes sodomy and oral sex, regardless of the sexual orientation
of its practitioners.28

25
https://laparada.uniandes.edu.co/index.php/la-revista/la-revista-3/la-plaza/la-iglesia-de-satan
26
Drake, Paul W., “Transformation and Transition in Chile, 1982-1990”, op. cit., p.1.
27
Angell, Alan, “Las campañas electorales en Latinoamérica”, en Ai Camp, Roderic (compilador), La
democracia en América Latina, op.cit., p. 260.
28
https://www.elmundo.es/f5/2016/02/10/56bb564746163f912e8b45fe.html
 Sodomy, without distinction, has been considered a crime in the Chilean legal
system since 1875. And it was only in 1999, with the enactment of law 19.617, that sex
performed in private between homosexual men over eighteen years were
decriminalized.

Another example of legal censorship is the ban on gay bars where an authority
encounters a request to open commercial establishments of this type. The rule may
prohibit them, deny their permission or postpone their start of operations as a business.
In consequence, a lot of bars were forced underground for having this LGBT letterhead.

Now, in Aguascalientes (Mexico) there are no special permits for bars dedicated
to the LGBTI community since the Municipal Code does not establish as a requirement
any particular ideologies or sexual preferences among those who will attend any club,
bar or restaurant where liquor is allowed.29

Another scenario in which censorship occurs is in electoral propaganda, for which

Mexican legislation observes the following:

Electoral propaganda means all the writings, publications, images, recordings,

projections and expressions produced and disseminated during the electoral
campaign by political parties, registered candidates and their supporters, in order
to present registered applications to the public. Both the electoral propaganda
and the campaign activities referred to in this article shall encourage the
presentation, development and discussion before the electorate of the programs
and actions established by the political parties in their basic documents and in
particular, on the electoral platform which they registered for the election in
question.30
An analysis of the above suggests the promotion of a behavior for candidates and
political parties, in which ideas and concepts are subject to certain principles that
contribute to the democratic debate.

However, it may be part of an electoral strategy or simply a message that you

want to be known without restriction, even if it attacks a person, demerits an ideology or
causes confusion among the electorate.

Another issue around which censorship has been exercised is in the advertising
of cigarettes. In Mexico, the government put into effect changes to the General Law for
Tobacco Control, promoted by the administration of President Andrés Manuel López

29
https://www.elsoldelcentro.com.mx/local/no-hay-permiso-para-bares-gay-4244286.html
30
Articulo 228.
Obrador and which, among other measures, totally prohibits advertising of tobacco
products in the media.31

We conclude this section with the control of advertising of pornographic

material, in which companies are asked to cover their covers, which demonstrates an
editorial censorship of their product. For example, in Puebla, this type of advertising is
prohibited:

To exhibit on the public highway and in the view of the general public,
pornographic material or with content such as to affect morals and values,
including but not limited to: Magazines, photographs, posters, album covers, etc.
Merchants displaying material referred to in the preceding paragraph shall be
encouraged to remove such material from the public eye and if they disregard
such an order the material shall be removed from the public thoroughfare by the
Municipality, through the appropriate authority and made available to the
Qualifying Judge through the Public Security Directorate.
This has demonstrated the State’s power to censor certain acts on the grounds of public
order, health or social interest. There are cases in which censorship has been questioned,
such as the Pentagon papers, when the media were accused of disseminating material
classified as secret and national security.

There are issues that undoubtedly must always be censored: material that
undoubtedly affects or may affect the social conglomerate, for example, guerrilla
manuals explaining how to build a pipe bomb, paedophilia, zoophilia or electronic
pages dedicated to human trafficking, the purchase of drugs, or anyone who might
commit a crime.

In Mexico, there is a proposal in the Mobility Law that public transport operators
will not be able to carry audio devices with a volume greater than 60 decibels and it will
be prohibited to transmit or reproduce music or recording material that promotes a
culture of violence or an apology for crime. 32 But how legitimate will it be to censor this
kind of music, or videos that objectify women?

2. CONCLUSIONS

• No freedom is an absolute right nor a blank cheque, but the issue of responsibility and
the impact on the use of its prerogatives must be considered.

31
https://www.olivares.mx/mexico-pone-en-vigor-prohibicion-total-de-publicidad-sobre-tabaco/
32
https://www.eluniversal.com.mx/metropoli/presentan-iniciativa-para-prohibir-a-choferes-de-transporte-
publico-escuchar-narcocorridos-en-la-cdmx/
• Note that the divisions between "good" and "evil" are related to cultural context,
which is intertwined with religion and therefore with history. The borders that divide
good and evil manifest to the extent that they become a paradigm of social regulation,
whether a law or a moral protocol. The moral filter is always susceptible to change
according to the cultural and particular context of each person.

• The issue of public order is susceptible to the subjectivity of State operators who may
allow theselves to use personal elements for their determinations or judgments, for this
reason whether such censored material violates the Constitution, and society itself,
should be reviewed impartially by the judicial authority.

• The means of constitutional control must be directed by a new unified integral block,
that is, by taking into account the normative framework that protects the governed to a
greater extent and by interpreting its provisions with the broadest protection for the
rights of the same, in accordance with the law. The expanded and directed criteria must
be seen in accordance with the new principles that are most reflected in instruments that
ensure the fundamental rights of the governed, such as constitutional protection.

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RECURSOS ELECTRÓNICOS CONSULTADOS

https://www.corteidh.or.cr/tablas/r37603.pdf

http://diccionariojuridico.mx/definicion/principio-de-estricto-derecho/

https://encyclopedia.ushmm.org/content/es/article/nazi-propaganda-and-censorship
https://www.elmundo.es/viajes/el-baul/2018/06/28/5b054b4ce5fdeaa5738b4648.html
https://www.corteidh.or.cr/tablas/r37603.pdf

http://diccionariojuridico.mx/definicion/principio-de-estricto-derecho/
https://www.un.org/es/hate-speech/understanding-hate-speech/what-is-hate-speech

https://www.swissinfo.ch/spa/politica/prohibir-los-s%C3%ADmbolos-nazis--una-
demanda-creciente/47748740

https://laparada.uniandes.edu.co/index.php/la-revista/la-revista-3/la-plaza/la-iglesia-de-
satan

https://www.elmundo.es/f5/2016/02/10/56bb564746163f912e8b45fe.html

https://www.elsoldelcentro.com.mx/local/no-hay-permiso-para-bares-gay-4244286.html

https://www.olivares.mx/mexico-pone-en-vigor-prohibicion-total-de-publicidad-sobre-
tabaco/

https://www.eluniversal.com.mx/metropoli/presentan-iniciativa-para-prohibir-a-
choferes-de-transporte-publico-escuchar-narcocorridos-en-la-cdmx/