Sunday, November 6, 2011

Mexico Should Proceed With Caution In “Twitter Terror” Cases

“Don’t kill the messenger”

By Edward V. Byrne for The Yucatan Times
September 12, 2011

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Tweeting – or twittering if you prefer – can land you in jail in Mexico.

Take the recent case of María de la Luz “Maruchi” Bravo and Gilberto Martínez, residents of  Veracruz, a city (and state) rapidly moving to the top of the list of Mexico’s most dangerous places.  A few days ago these two learned, apparently independently, of an alleged impending attack against a local school.  (Another version of the story held that the school had already been attacked, resulting in the kidnapping of five children.)  Whatever the original claims may have been, they fortunately turned out to be baseless rumor.  But before the facts were known, Bravo (who is a journalist) and Martínez had already passed it along via social networks.  With a cell phone, computer or iPad, spreading anything these days via Facebook or Twitter is just a click away.  Once the pebble is tossed into the pond the ripples move on endlessly, beyond anybody’s control.

We’re told the news spread like wildfire through Veracruz, and that many working parents left their jobs and rushed to the school to pick up their children.  Everyone was relieved when it became clear that it was all a big mistake.  But that was not the end of the matter.

Veracruz state prosecutors promptly charged Bravo and Martínez with various crimes, including the transmission of terroristic communications and “sabotage.”  The latter charge was apparently included because the affected school was forced to shut down, and because some local businesses came to a virtual halt as workers left their jobs, rushing to get their kids.  The first offense carries up to 30 years in jail, and the second up to 20 years.

Mexican professor and columnist John Ackerman wrote a Spanish op-ed piece a few days ago in which he characterized the case as an “open challenge to free expression and the rule of law.”  He’s correct, since Article 6 of the Mexican Constitution specifically provides that “The free expression of ideas shall not be the subject of any judicial or administrative inquiry, trial or legal proceeding.”  Other legal experts say the charges violated not only Mexican constitutional guarantees, but various international law accords to which the country is a party.  Amnesty International has spoken out against the prosecutions.

María de la Luz “Maruchi” Bravo and Gilberto Martínez face 30 years behind bars for tweeting the wrong message.
A Mexican federal court has granted Bravo and Martínez an amparo hearing, to be held on September 23.  Amparo is a powerful legal tool which is somewhat equivalent to the American/British/Canadian habeas corpus.  Among other things, it tests the legality of someone’s detention and/or the validity of a criminal charge.

Mexico might well take a lesson from countries that have tried to balance free speech interests with the need for public security and good order.  When the United States was a very young nation, the framers of its great constitution wisely wrote into law some of the most powerful protections for free speech, assembly and freedom of the press the world has ever known.  They are embodied in the First Amendment.  The framers, for the most part, were well-educated Englishmen, and they had long suffered at the hands of British monarchs who were incessantly meddling with “the market place of ideas” – especially when the market place was suspected of peddling "novel" political theories designed to check absolute power.

The United States now has over two centuries of legal and cultural experience with free speech and the robust dissemination of ideas.  But they are not without well-recognized limitations.  A statement by a giant of the U.S. Supreme Court in an early 20th century criminal case has passed into common parlance: “No one has the right to shout ‘fire’ in a crowded theatre.”  When Justice Oliver Wendell Holmes penned that phrase in 1919, he was of course talking about someone who deliberately spreads a falsehood in order to provoke alarm or terror.  So while the U.S. enjoys perhaps the greatest degree of free expression known to the modern world, it’s certainly not absolute.  We, too, have state and federal laws which penalize “terroristic communications.”  But in a prosecution for such it must be proven that the actor had the purpose of promoting fear for fear’s sake.  Such crimes always require evidence of “specific intent,” as it’s called in the criminal law, which places a very high burden of proof on the prosecutor.

Which brings us back to Mexico’s “terror twitters.”  In the Veracruz case, there is absolutely no evidence that Bravo and Martínez had mens rea – a guilty state of mind.  They “tweeted or re-tweeted,” as it’s called in the technology of the internet age, passing along unverified information which they themselves had received from others.  Such innocuous acts have no legitimate place in the criminal code of any nation truly committed to freedom of expression.  As Professor Ackerman noted in his editorial, authorities in Veracruz would be better served by focusing on the root causes of violence in this country than on prosecuting those who disseminate accounts of such, whether those accounts prove to be accurate or – as in this case – fortunately inaccurate.

© Edward V. Byrne 2011.  This article may be briefly quoted but not reproduced in full without express permission of the author.

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