Whose freedom? Legislation, discrimination, and free expression in the United States and Bolivia

There is an interesting debate taking place in Bolivia regarding a proposed anti-racism law (opens PDF). Many claim the law, as proposed by the Morales government, would restrict free expression and have a dangerous chilling effect on freedom of the press. Bolivia and the U.S. can learn from one another here, as both struggle to balance the twin values of freedom on the one hand, and equality and justice on the other.

We U.S. Americans tend to take justifiable pride in the freedoms and rights ensconced in our constitution and guaranteed our citizens, while at the same time we recognize that many of these rights have often and systematically been denied certain groups and individuals. Our constitution is necessarily a living, evolving document. It could hardly be otherwise, born as it was of the contradictions implicit in a group of slave-owning, male, white, protestant land-owners who were, nevertheless, truly revolutionary and shook the world by founding a uniquely free and open nation, even as they initially established the most fundamental rights only for themselves.

Ours is a history – slow, and ongoing – of liberation. African Americans. Immigrants and workers. Women. Huge swaths of our citizenry have fought hard and suffered long so that we might more fully live out in deed the values we hold up in word. It seems to me that sexual minorities – the GLBTQ community – are the most recent group to challenge our stingy concepts of freedom (even as the above-mentioned groups continue to struggle as well).

Two of the rights U.S. Americans hold dearest are the umbrella right to “life, liberty, and the pursuit of happiness,” and the first right outlined in our historic Bill of Rights, the right to free speech and the related freedom of the press.*

In Bolivia, where I live (I’m a dual US-Bolivian citizen), people are engaged in their own dramatic, inspiring, and messy struggle for liberation. Until 1952, the indigenous majority of Bolivians were not full citizens in the republic. And even after winning legal rights nearly 60 years ago, many indigenous, rural, labor, church, and other social leaders here have felt that deeper changes were necessary; that it wasn’t enough to allow the historically oppressed members of Bolivia’s 36+ indigenous nations to participate in a system created by and for their oppressors; that, rather, true liberation required a whole new structure. We are now involved in a struggle to “re-found” Bolivia. A new constitution was passed last year, ending the 184-year-old Republic and establishing the Plurinational State of Bolivia.

Now, in considering the proposed anti-racism law, Bolivia is faced with a challenge U.S. Americans should all be familiar with: How, and to what extent, can a country legislate an end to discrimination?

Much of the proposed law essentially amounts to hate crimes legislation. It adds penalties to crimes determined to be motivated by racism or other forms of identity discrimination. But it also aims to outlaw public expressions of racism and hatred. Here is where things get sticky.

The Bolivian Bishops Conference released a statement (opens PDF) earlier this week analyzing the proposed law. The country’s Catholic hierarchy recognized the need to halt racism, and seemed to support many aspects of the bill. But the bishops also urged revision of the bill inasmuch as it would allow the government to fine and shut down media outlets deemed to have published/broadcast discriminatory content, and to imprison the journalists who author such content. The bishops affirm the inviolability of freedom of expression and the freedom of the press, and echo the fears of many journalists in the country, that the new law would tend to damper both.

President Morales and his Vice President, Alvaro Garcia Linera, have been clear in stating that they have no intention of modifying the proposal.

A little context is important here. The bishops have butted heads several times with Morales. Many prominent bishops have taken very political, even seemingly partisan stances over the last several years. They have tended to support wealthy and powerful leaders of the political opposition. They would be naive not to recognize that it is in that context that they delivered their statement on the Anti-Racism Law. Also, most major newspapers and privately-owned television stations in Bolivia are owned by businesspeople strongly opposed to the Morales administration. On the one hand, they are probably correct in feeling targeted by this law. On the other hand, I believe many of these media outlets have played a central role in fomenting division, discrimination, fear, and even violence since Morales took power. Many journalists fear and oppose the proposed law. But among independent news organizations, some see the law as fair and necessary.

I am somewhat split. I think freedom of expression and freedom of the press are essential. I believe the state should allow people to say stupid, even hateful things. I’m with Voltaire and Tom Paine on this one. I do sense a certain disturbing lack of vigilance regarding the sanctity of human rights and essential freedoms among some Morales supporters and even in the administration itself. I don’t think it is unreasonable to worry that the new law could be applied in a partisan manner. I understand the concerns over freedom of the press.

However, I believe this freedom is fundamental and I believe in the importance of open discourse precisely because I believe in the power of words. And because I know how powerful words are, I hesitate to draw too distinct a line between hate speech and hate “crimes.”

I think most people would agree that freedom of expression should end where violence begins. But I also believe that words can constitute violence. I think if we take an example like verbal and psychological abuse of spouses and children, most of us would agree that words can do unacceptable damage.

We can’t yell “fire!” in a crowded theater. But can we yell “faggot” on a school campus? Can we write “Evo Morales is an ignorant Indian” in a daily newspaper? What about subtler language implying the same?

This week, there have been two separate stories (see here and here) in the U.S. news of young people committing suicide in the United States because they were harassed by peers for being gay (or perceived as gay). At the same time, an Assistant Attorney General in Michigan, Andrew Shirvell, has made it his life’s mission to publicly attack and tear down a gay undergraduate student at the University of Michigan. CNN’s Anderson Cooper interviewed Shirvell, and while it was clear that Cooper did not approve of what the man is doing, the one thing they both seemed to agree with is that doing it was Shirvell’s “right.”

Now, I hope to God that young Chris Armstrong, the Michigan student, enjoys the emotional wherewithal and outside support necessary to wither the attacks of a hateful nutjob like Shirvell. He is openly gay and, as student government president, a prominent figure on campus. But the suicides of Seth Walsh and Tyler Clementi make it tragically clear that public attacks and ridicule can have devastating effects.

Are Andrew Shirvell’s right to free expression and Chris Armstrong’s right to life, liberty, and the pursuit of happiness mutually exclusive? Does Bolivia stand to lose more by potentially crimping freedom of the press and free expression in passing the proposed anti-racism law, or by allowing journalists to stoke racial divisions and resentments in a country where racism has been at the root of so much suffering and violence?

I tend toward protecting free expression. But uneasily.

*The First Amendment is a biggie, and also includes the equally crucial freedom of religion and freedom to assemble and to petition the government; the entire Bill of Rights is important, but the First Amendment really lays out the most basic, fundamental rights of a free and open society.