On “Denialism” as a Criminal Offense

I understand that the bill has little chance of being approved, but it deserves some consideration for at least three reasons. First, because it introduces criminal law as a state tool in the process of constructing collective memory regarding the crimes of the last military dictatorship, and in that sense, it represents a significant shift from the strategies adopted thus far. Second, because in doing so, it raises serious issues from the perspective of criminal law and—third—freedom of expression.

In this brief text, I would like to discuss Bill 0878-D-2021, introduced by Representative Patricia Mounier. The bill seeks to criminally punish a slippery form of conduct: “Any person who has publicly made statements or expressions intended to vindicate, legitimize, and/or downplay the crimes committed by state terrorism during the last Argentine dictatorship, which took place from March 24, 1976, to December 10, 1983, in the media, on social media, and in any type of public demonstration. This includes crimes that have been the subject of specific judicial rulings.” I understand that the bill has little chance of being approved, but it merits some reflection for at least three reasons. First, because it introduces criminal law as a state tool in the process of building historical memory regarding the crimes of the last military dictatorship, and in that sense, it represents a significant shift from the strategies adopted thus far. Second, because in doing so, it raises serious issues from the perspective of criminal law and—third—freedom of expression. The first problem is, perhaps, the most serious. Argentine society made the condemnation of the crimes of the last military dictatorship a common cause that strongly shaped the transition to democracy. This cause was notably championed by the human rights movement, which succeeded—after many steps forward and just as many setbacks—in achieving the goals of memory, truth, and justice. The movement’s primary strategy consisted of dismantling the legal obstacles to the prosecution of those crimes. This “judicial” approach entailed certain costs, especially in terms of truth, which Claudia Hilb has recently shed light on. This construction of a “common” understanding of the last dictatorship does not, of course, imply absolute consensus. There are many citizens who undoubtedly defend the actions of the military dictatorship. What is significant is that these are minority groups and that such views, if expressed publicly, would be “rejected” by the majority of society—including, significantly, all relevant political parties and coalitions. This is what the consensus consists of: a kind of hegemony of significant values, such as the rejection of those crimes and support for the ongoing judicial proceedings. By adding a criminal penalty that would apply only to that minority group, the bill presents two serious problems. First, it acts as if the consensus did not exist (which is false). Second, it adds an unnecessary tool: social condemnation is sufficient to relegate the “defenders of the dictatorship” to ostracism in public debate. The second problem is of a legislative nature and relates to criminal law: the use of terms such as “legitimize” or “minimize” is incredibly inconsistent with a liberal, rights-based, and minimalist conception of criminal law. These are words that say very little in terms of describing behavior, and whose meaning depends heavily on the interpreter’s subjectivity. Let’s take an example. Suppose a historian writes a book about the political violence that preceded the military coup of March 24, 1976. Perhaps those historical facts play a role in the discourses that justify the coup (which are not necessarily the same as those that justify the illegal repression). Does the historical research conducted by our hypothetical historian function as a legitimizing discourse that—therefore—warrants the punishment it proposes? Another example. Suppose an irritating polemicist argues that the figure of 30,000 “disappeared” does not reflect reality: that the number of people detained and disappeared by the last military dictatorship is not 30,000 but a different number—let’s say, substantially lower. Does this type of discourse function as a case of minimizing the dictatorship’s crimes? Do such statements imply “downplaying” the crimes? Both examples can certainly lead to different perspectives regarding the scope of the terms “legitimize” and “minimize” in relation to such conduct, and that is precisely the problem. These terms are too vague and ambiguous to function as criminal offenses. They thus share the same characteristics that led the Inter-American Court, in the Kimel case, to condemn Argentina for having a criminal code incompatible with the American Convention. That ruling led Congress to remove the offenses of libel and slander from the criminal code when they concern matters of public interest. Do we want to return to the Inter-American Court for a second rebuke? The third problem is obviously linked to the previous one—but it goes beyond it. Criminal offenses that punish expression are incompatible with the American Convention for three reasons. First, because they generally suffer from the vagueness and ambiguity noted earlier. Second, because they are “disproportionate” restrictions, incompatible with the American Convention. This conclusion has an interesting history within the inter-American system: while the Inter-American Commission has always considered criminal offenses to be, by their very nature, incompatible with the defense of freedom of expression, the Inter-American Court has always concluded that they are “theoretically compatible” but—at the same time—has consistently found them to be incompatible with the Convention in the specific cases it has analyzed. In my view, this changed in the 2019 case of Álvarez Ramos v. Venezuela, where the Inter-American Court noted that “Article 13(2) of the American Convention states that the exercise of the right to freedom of expression may not be subject to prior censorship but only to subsequent liability. However, this provision does not specify the nature of the liability that may be imposed; yet the jurisprudence of this Court has held that criminal prosecution is the most restrictive measure against freedom of expression, therefore, its use in a democratic society must be exceptional and reserved for those circumstances in which it is strictly necessary to protect fundamental legal interests from attacks that harm or endanger them, since the contrary would constitute an abusive use of the State’s punitive power. In other words, among the range of possible measures to hold individuals accountable for potential abusive exercises of the right to freedom of expression, criminal prosecution will only be appropriate in those exceptional cases where it is strictly necessary to protect a pressing social need. It is understood that in the case of speech protected by its public interest—such as that concerning the conduct of public officials in the performance of their duties—the State’s punitive response through criminal law is not conventionally appropriate to protect the official’s honor. Indeed, the use of criminal law to punish the dissemination of news of this nature would directly or indirectly create a climate of intimidation that would ultimately limit freedom of expression and prevent conduct that violates the legal system—such as acts of corruption, abuses of authority, etc.—from being subjected to public scrutiny. Ultimately, this would weaken public oversight of the branches of government, with clear harm to democratic pluralism. In other words, the protection of honor through criminal law—which may be legitimate in other cases—is not consistent with the Convention in the scenario described above.” The discussion of the past is clearly a matter of public interest. Interpretations of the facts, causes, responsibilities, and consequences are at the very heart of the process of “memory, truth, and justice,” which is so relevant to our country’s transition to democracy. In this context, criminal penalties such as those proposed in this bill are problematic because they seek to reopen a debate that has already been settled in the Kimel case. Finally, the bill presents a third problem regarding freedom of expression that is of a strategic nature: statements that we consider mistaken deserve to be refuted through the “free debate of ideas” rather than through attempts at censorship. As Barbara Streisand taught us years ago, such attempts only serve to promote them. Censorship offers those willing to espouse such views the opportunity to assume the role of martyr, rebel, or persecuted figure in the public debate. Something similar happened in Europe with similar legislation, which, far from discouraging this type of discourse, actually boosted the presence in the debate of “historians” with a penchant for the spotlight. Such bills, then, not only fail to advance the agenda they claim to support but may actually work against it. Written by: Ramiro Álvarez Ugarte @ramirou