The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Argentina is in the midst of a political crisis, following the January 18 murder of prosecutor Alberto Nisman; he had been scheduled to testify to Argentina's Congress about President Cristina Fernández de Kirchner's alleged role in covering up Iran's role in the 1994 terrorist bombing of a Jewish community center in Buenos Aires. Indeed, Nisman had drafted an arrest warrant for President Kirchner.
The journalist who broke the story of Nisman's murder was Damian Pachter, of the English-language Buenos Aires Herald. Shortly afterward, he began to be followed. Fearing for his safety, he fled the country, and is now residing in Israel.
Mr. Pachter's experience is not surprising, for the Kirchner regime has been engaged in an increasingly aggressive war against what remains of a free press. The war is described in Tiempos turbulentos, a collection of 21 short essays by Argentinian journalists and professors. Published in October by Argentine newspaper industry trade association, ADEPA, the book details the methods and ideology of the government's anti-press campaign. As the authors note, similar press suppression is being carried out in Venezuela, Nicaragua, Bolivia, and Ecuador. The authors provide compelling analysis of what is becoming the 21st century model for getting rid of an independent press; some of the problems the authors describe exist in the United States as well.
The essays in the 146-page Tiempos turbulentos are written for the lay audience. In length and breadth, a typical chapter is similar to a long article in a British Sunday newspaper, or an American political weekly magazine. You don't need to be fluent in Spanish to read the book. Armed with a dictionary, a moderately proficient Spanish reader will be just fine.
Before I describe the book's analysis, some brief history might be helpful. Argentina declared independence from Spain in 1810, and the revolution against Spanish colonialism was won under the leadership of General José de San Martin. After liberating Argentina, and well as Chile and Peru, he retired from public life, rejecting entreaties to become President of Argentina. Since independence in 1810, Argentina's democracy has been interrupted four times by military coups. The most recent military government took power in 1976; it perpetrated many human rights violations, including killing about 30,000 people. The dictatorship fell in 1983.
In 2003, Néstor Kirchner won the presidency. Previously he had been Governor of Santa Cruz, a province in the far south. His wife Cristina Fernández de Kirchner won the next presidential election, in 2007. He died in 2010, and she won re-election in 2011 with 54% of the vote. This power couple is often called los K (the K), by friends and foes alike. According to Tiempos turbulentos, the K assault on the freedom of the press began early, intensified greatly in 2009, and has become all the worse during the current third term.
The first essay of Tiempos turbulentos says that liberty of expression is being asphyxiated, restricted, and inhibited-asfixiada, restringida, inhibida. The government is attempting to make it economically impossible for a critical press to exist. Media which are not economically strong enough to sustain a prolonged confrontation with the government have already been compelled to support the government, or at least not to criticize it, in order to be able to stay in business.
To the authors, what it at stake is the survival of constitutional order, which cannot exist without a free press. The authors fear that Argentina is well on its way towards illiberal democracy-like the nominally democratic dictatorships of Russia or Venezuela. There, the regimes garner legitimacy by holding elections; but without an independent and strong press, a regime can maintain its power indefinitely. After all, if there isn't a free press, who is going to report on whether the votes were counted honestly?
During the first K term, the government began to manage state media as if it were a party organ. The K was not the first regime to use state media for propaganda. But in 2009 they found a way to attract a much larger audience: by taking over the broadcast of all soccer games. This means free broadcasts of every game of all 40 teams in Argentina's primary and secondary leagues. (Liga A and Liga B.) The government's huge spending on Fútbol para todos (football for everyone) captures 30 points (about 6 million viewers) on some games. During halftime, and between games, there's lots of government propaganda. Some of it is soft, such as how well the government is running the train system; especially in-between the two games of the night, the propaganda includes harsh and extended attacks on the regime's enemies, particularly the press. Anybody who wants to rebroadcast a Fútbol para todos game has to include the propaganda.
Paid government advertising
Governments legitimately advertise to inform the public about government services, such as the schedule for free vaccinations. Under the K, Argentine federal and provincial government advertising has changed into advertising about the accomplishments (or alleged accomplishments) of the K government. The advertising often features a picture of a politician who is taking the credit. This violates the statute which forbids government advertising to use names or images to promote public officials. (Ley de Ética en el Ejercicio de Función Pública, law 25.188, chapter 10, article 42. "Publicidad y divulgación").
The amount of such spending was once minor, and is now enormous. In 2000, it was $16 million, rising to $28 million in 2002. By 2007, the K had raised it to $326 million, then to $919 million in 2013. This figure does not include spending on Fútbol para todos (reported to be $1.28 billion in 2012, although the government does not disclose the amount).
The advertising, which of course is paid by taxpayers, is calibrated to the election cycle. For example, the 2009 provincial and local elections were in June. Advertising spending was far larger in the first half of the year than in the second, reaching a peak in June of over 180 million. The next month it fell to 40 million.
Money is spent not based on the size of the audience that a particular media organ reaches, but is very heavily slanted towards media groups that editorially support the K. When media feature government-favored programs, the funding goes up. Most of the financially weaker media cannot afford to resist, and so have fallen in line.
The advertising discrimination is plainly illegal, as the Supreme Court (Corte Suprema de Justicia de la Nación) ruled in the 2009 case Editorial Perfil c. Jefatura Gabinete de Ministros. That case followed a similar 2007 decision in Editorial Rio Negro c. Provinicia de Neuqén (2007). It was reaffirmed in the 2013 Grupo Clarín case. Most recently, in February 2014, the Supreme Court in Arte Radiotelevisivo Argentino ordered the K government to stop arbitrarily and abusively discriminating against Channel 13 and several other channels. The government was given 30 days to produce a system of public advertising spending which treats similar stations similarly.
None of the above cases have resulted in compliance by the Kirchner government. For more on this issue, see the report by Transparency International's Argentine branch, Poder Ciudadano (citizen power).
The remaining free press
The major print media which have not yet succumbed to K control are:
La Nacíon. It was founded in 1870 by former President Bartolomé Mitre and is still in the family, led by Mitre's great-great-grandson, who has the same name. It owns various Spanish language newspapers published in the United States. Along with Grupo Clarín and the Argentine government, it shares ownership in the newsprint manufacturer Papel Prensa, which has a 58% market share.
Grupo Clarín. The largest Spanish language media entity in the world. Its flagship is the Clarín daily newspaper, the best-selling paper in the nation, and among Spanish-speakers worldwide.
Editorial Perfil. This organization publishes weekly magazines, and a biweekly newspaper, Perfil.
El Cronista Comercial. A daily business newspaper, founded in 1908, and now owned by the Spanish publisher Unidad Editorial, which in turn is mostly owned by the Italian conglomerate RCS MediaGroup. Its best-known property is Spain's El Mundo daily newspaper.
Against the free press, the regime uses many weapons.
Public dissent attracts the heavy hand of the tax office (Administración Federal de Ingresos Públicos, AFIP). The AFIP's rules are vigorously applied to K's enemies (as in a May 2013 raid on Grupo Clarín), and ignored for K's friends.
As reported by the Spanish newspaper El Mundo, the national intelligence agency (Secretaría de Inteligencia) spies on K's political opponents, including by e-mail and telephone surveillance.
Italo Pisani, editor of the Patagonian newspaper Rio Negro, writes that "The reprisals against the press have been directly proportional to the advance in investigations of cases of corruption linked to the government." (page 130). Among the cases he lists are those involving the Swedish gas line company Skanska, alleged money-laundering from the Chavez regime in Venezuela to support Cristina Kirchner's 2007 presidential campaign, and the "K money trail" (La ruta del dinero K). The latter began with an April 2013 report by Channel 13 on the alleged theft of large sums of money for public works by K-friendly business, with some of the wealth going to the Kirchner family-whose personal wealth increased from US$1.4 million in 2003 to US$14 million in 2010. One aspect which is very much in (some) newspapers in Argentina right now is further findings about alleged money-laundering via southern resort properties which the Kirchner family partially own.
The asphyxiation strategy was apparently the reason why in 2013 Secretary of Interior Commerce Guillermo Moreno ordered supermarkets and household electronics stores not to purchase advertising in nationally circulated media. Such ads are a very crucial source of newspaper revenue. For example Clarín had about 8 pages per day of such ads. Protests in Congress resulted in the government backing away from attempting to enforce such a dubiously lawful decree. At least some of the newspaper advertising has returned.
Moreno resigned in November 2013, and was later found guilty of abuse of authority, for having ordered the national statistics agency (Instituto Nacional de Estadística y Censos, INDEC) to falsify inflation data. Indeed, he also heavily fined independent researchers and consumer groups who conducted their own studies of prices, and who reported inflation rates much worse than the official rates. Eventually, the fines were rejected by the courts. According to genuine data, Argentina suffers from the second-highest inflation rate in South America, with only Venezuela (which is in economic collapse) being worse.
The biggest anti-press weapon is a 2010 law on media concentration. Ostensibly for the purpose of nurturing media diversity, the law is aggressively enforced, or ignored, depending on whether or not a media business is considered a friend of the government.
Various K allies have acquired their own large media empires, including by purchasing, at generous prices, long-established and formerly independent newspapers and radio/TV channels. Under this system of the capitalism of friends, big media concentration is fine as long as it is allied with the government. This "hyperconcentration of much media in few hands" (113) was how almost all of the free press in Venezuela was eliminated by the Chavez-Maduro regime.
The rhetoric of the media law is about expanding voices-"voces de la sociedad." But in practice, the law is used to constrict viewpoint diversity. What the statute lauds as "voices of the society" really means only "the voice of the ruling party."
A new law on audiovisual communication services (Ley de Servicios de Comunición Audiovisual, LCSA) further tightens the regime's control. TV and radio licenses for commercial media were cut, with the licenses transferred to government entities and to government-favored "non-government organizations." The length of licenses was shortened, thus keeping the remaining commercial licensees on a shorter rope.
New private channels with national reach were prohibited. Without being able to reach nationally, a channel can have a much harder time attracting a large enough audience to be economically viable by selling ordinary advertising. So the station must then depend on government support, through the government's massive advertising expenditures. As noted above, getting this money depends on having news and editorial slants which please the government.
These limits on new cable television channels make no sense, other than as censorship, since cable TV is not broadcast on the radioelectric spectrum, and thus there is no shortage of bandwidth.
Under the "Digital Argentina" statute enacted in December 2014, the government now has the power to fix the prices for all telecommunications services. As explained by El Diario Exterior, the new law gives the government the power to conduct warrantless searches of homes, to monitor compliance with the law. Any telecommunication service can be shut down when the regulatory agency (Autoridad Federal de las Tecnologías de la Información y Comunicación, AFTIC) says that "national security" is involved (Article 65). Even a business intra-net now needs a government license, and so do services such as Skype or Google Hangout.
In Venezuela, newspapers are being forced out of existence by a shortage of newsprint, as the dictatorship delays and denies their access to foreign currency, which is necessary to pay for the imports. Argentina's leading newsprint manufacturer, Papel Prensa, is owned 27% by the government, with the rest owned either by La Nación or Grupo Clarín, both of which are anti-K. In 2012, the K government proposed legislation to expropriate Papel Prensa. All of the non-K parties unanimously opposed it, and it did not become law.
The multifront war on the independent press is contrary to Argentina's Constitution. Chapter One, section 14 guarantees: "All the inhabitants of the Nation are entitled to the following rights, in accordance with the laws that regulate their exercise, namely: …to publish their ideas through the press without previous censorship…."
Section 32 outlaws national control of the press: "The Federal Congress shall not enact laws restricting the freedom of the press or establishing federal jurisdiction over it."
Further, Argentina has adopted the American Convention on Human Rights, and international treaties on human rights are considered a core of Argentina's constitutional system. The Inter-American Court of Human Rights (which sits in San Jose, Costa Rica) is the authoritative interpreter of the Convention, and has made it clear that K-style press control is illegal. See Ivcher Bronstein v. Perú (Feb. 2, 2001) (To remove a person's control of a television channel, or to ban the journalists on a television program, is a violation of their free speech, and of the right of the audience to receive information).
Peronists vs. the Press
During World War II, Argentina was ruled by a military dictatorship which was formally neutral, but sympathized with the Axis. Later Juan Domingo Perón took power. The military dictatorship and the Perón regime both controlled the import and distribution of newspaper printing paper. Accordingly, self-censorship was necessary for most newspapers to be able to publish.
President Perón expropriated La Prensa in 1951, and gave it to the national labor federation. He closed the Catholic newspaper El Pueblo. He put all of the press either under the control of himself and his allies, or in a position of fear about criticizing the regime.
In 1995, President Carlos Menem (a Peronist) dedicated his re-election "to journalism, which was the only opposition." In the 2009 election, Néstor Kirchner urged voters to "defeat journalism in the polls." Since then the rhetoric has become much more intense. Millions have been spent to promote the slogan Patria o medios. ("Homeland or media"). As several authors of Tiempos turbulentos note, the K regime, which is a Peronist party, has many parallels with the original Perón.
One author, though, draws another parallel. The concluding chapter, by La Nación columnist Fernando Laborida, observes K's similarities to the military dictatorship of 1976-83. The generals believed that Argentina was a "sick society." To the K regime, whatever does not conform to their will (e.g., prices, journalists) is just a manifestation of a sickness which will be eliminated.
The authors argue that the K use the press as a scapegoat for their own failures. They denounce the free press as the "Corpo." Yet as the news director of the newspaper Perfil points out, the K regime has built "a real Korpo of state and para-state media."
Subjugation to the hyper-president
Several authors put the press problem in the context of the government's parallel attacks on judicial independence, and on businesses outside the government orbit. Given the extent of government power already, the only major businesses not presently at the mercy of arbitrary government decisions are rural primary producers.
According to many of the authors, the K government's campaign for what it calls "democratization of the judiciary" parallels its campaign for "democratizing the media." In other words, eliminating the judiciary as an independent check on the executive. In Venezuela, for example, since the Chavez-Maduro regime took over the Supreme Court (which then issued an opinion declaring itself to be in the service of the Chavez revolution), the regime has a 55-0 record of wins.
President Kirchner argues that no judicial decision should contradict the popular will, which is to say that since she won 54% of the popular vote, judges should never rule her actions unconstitutional. She criticizes the judiciary because it "ties the hands of the State" (le ata las manos al Estado). La Nación's Laborida retorts that she "pretends to ignore that the Judiciary is as much the State as herself." Moreover, the Constitution itself is the highest expression of the State. The executive and judiciary are mere creations of the Constitution; they have no lawful authority except what the People have given them through the Constitution. To assert that the executive should enjoy impunity from the Constitution is to assault the Rule of Law.
Judge Ricardo Recondo is the official representative of the association of national judges (Asociación de Magistrados y Funcionarios de la Justice Nacional), a position to which he was elected by the national judges. He views his election as a strong statement by the majority of the judiciary in support of judicial independence. He recently stated that "The nation and democracy are in grave danger" because of the "many anti-democratic activities of this government, which could not be more ingenious. Using democracy wanting to destroy democracy. If we do not react, one day we are going to wake up and going to be subjugated." (Clarín, Nov. 30, 2014).
Latin America has long been plagued by hyper-presidentialism (hiperpresidencialismo). Argentina has had presidents, such as the late Raúl Alfonsin, who respected the separation of powers and the rule of law. But that is not the case today. The K regime aims for perpetuity and impunity (132).
The regime says that it is leading Argentina to a better and fairer future, especially for the poor. The editors of Tiempos turbulentos ask, "If there is no more free press, if we accept silencing the dissidents, will there be more indigence, poverty, corruption, insecurity, inflation? Will there be more and better education, justice, health?"
Supposedly, the war against the free press is part of a progressive political agenda. Yet necessarily, the suppression of truth is regressive. Caudillismo is the worst part of the past, not part of a genuinely progressive future. A country with a press under pervasive restraint is a regression to the Spanish colonial period, when prior restraint was the norm.