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This week we have an interesting US case on whether citizens enjoy First Amendment rights to photograph police activity without the intent to criticize their actions.  Also published this week are two more cases in our ongoing series on Right to Information.   

The theme of this week's Global Jurisprudence in Focus is cartoons and cartoonists, to accompany a recent brief by Dario Milo, Columbia Global Freedom of Expression expert, on South Africa's proposed Prevention and Combating of Hate Crimes and Hate Speech Bill.  

We hope you enjoy this week's cases!
New Publication
We have just posted a brief prepared by Dario Millo, Stuart Scott and Itumeleng  Phalanein on behalf of a coalition of South African Comedians, in response to South Africa's proposed Prevention and Combatting of Hate Crimes and Hate Speech Bill. The brief demonstrates that the provisions under the Bill are impermissible because they not only expand on the definition of hate speech but also fail to satisfy the limitations clause under the constitution. The authors explain that there are less restrictive means of achieving the purpose of the bill and provide suggested wording for an exemption for artistic and comedic expression from the Bill.
Database Additions
February 2 - 8, 2017
United States
Fields v. City of Philadelphia
Decision Date: February 19, 2016
The Eastern District Court of Pennsylvania held that video recording or photographing police activity without the intent to protest, chronicle, criticize or challenge the activity does not constitute expressive conduct protected under the First Amendment. In separate incidents, citizens Fields and Geraci each photographed police officers performing their duties as observers with no stated purpose or message in taking the photos. For conduct to receive first amendment protections, the putative speaker must engage in direct and expressive actions to convey a message, belief or criticism which is likely to be understood by those who see it.  The Court found no basis to craft a new First Amendment right based solely on "observing and recording" without expressing a clear message understood by the police or other bystanders. However, the Court noted that several other Circuits have interpreted expressive conduct more broadly to include mere observation based on the belief that gathering information on what public officials do on public property constitutes scrutiny which can prevent abuses.  
The ACLU has appealed this decision and several amici briefs have been filed.
South Africa
Trustees for the Time Being of the Biowatch Trust v. Registrar Genetic Resources and Others
Decision Direction: February 23, 2005
The High Court of South Africa (Transvaal Provincial Division) granted Biowatch access to information about genetically modified crops and held that the state has a duty to assist those seeking information even where a request is considered broad.  The Registrar of Genetic Resources and the Executive Council for Genetically Modified Organisms relating to GMOs had refused Biowatch’s request on the grounds that the request was too broad and that a part of the information sought was commercially confidential and its disclosure would harm interests of several companies. The Court reasoned that although a right of access to information is subject to limitations, Biowatch should have access to any information it seeks which is not immune from disclosure and that the Registrar’s failure to grant access to these documents violated the organization’s constitutional rights.  Furthermore, on appeal, the Court ruled that Biotech was not obliged to pay the legal fees of a party to the dispute since it is the state’s duty to cover costs of a successful applicant in constitutional litigation. The court additionally noted the potential chilling effect of such economic burdens on applicants.   
This case analysis was contributed by
In re Constitutionality of Acts LXIII of 1992 and LXV of 1995
Decision Date: April 6, 2004
Hungary’s Constitutional Court upheld a provision of the State Secrets Act defining an official secret but found that Act LXIII pertaining to the Disclosure of Information of Public Interest lacked certain guarantees necessary to protect the right of access to information. The States Secret Acts was found to be constitutional because it was limited in scope, applied only to a narrow category of official secrets with sufficient procedural guarantees in place to prevent arbitrary classification; and because a substantial judicial review of a non-disclosure decision was available.  The Court, however, found Act LXIII to be subject to abuse because it permits the arbitrary denial of access to public information relating to internal government decision making processes for up to 20 years. Therefore, the Court required the legislature to adopt changes to ensure that access to the classified deliberations should not be restricted after a decision has been made, there must be an opportunity to challenge a decision to withhold information on the merits as well as on procedural grounds, that the period for restriction must be limited and the law must clearly define the restricted category of information.
This case analysis was contributed by
Global Jurisprudence in Focus: Cartoons and Cartoonists
Marathe v. The State Of Maharashtra
Decision Date: March 17, 2015
In 2012, Indian political cartoonist Assem Trivedi created and published several cartoons online that allegedly defamed India’s Parliament, Constitution and spread hatred towards the government. He was charged with the offense of sedition under Section 124A of the Indian Penal Code. The Court noted that cartoons and caricatures are a form of expression with an element of humour or sarcasm. The bench found the cartoons in question were devoid of any wit, humour or sarcasm. However, in the Court’s opinion, that by itself could not be a reason to encroach upon his constitutionally protected right "to express his indignation against corruption in the political system in strong terms or visual representations … when there is no allegation of incitement to violence or the tendency or the intention to create public disorder." The High Court issued a set of guidelines to be followed in applying Section 124A which stated that a written or spoken expression can be considered seditious only when it brings the government "into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the [g]overnment and the ords/signs/representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder."
Former Governor of the State of Aguascalientes v. General Director of the Newspaper "Tribuna Libre la Voz del Pueblo"
Decision Date: May 5, 2014
A former governor filed a lawsuit in the ordinary civil jurisdiction against two newspapers, the cartoonist of one of the newspapers (for sketching him) and several journalists claiming that the newspapers published stories which attacked his private life, honor and reputation, systematically and with the intent of discrediting him for which he sought compensation for the moral damages. The Supreme Court found the content of the journalistic columns and reports were of public interest, because they did not reveal matters pertaining to the plaintiff’s private and intimate life.  The court determined the information and content disseminated by the newspapers were protected forms of expression and the applicable standard in this case was that of actual malice. Although the expressions were provocative, eccentric and caustic but they did not exceed the limits of freedom of expression because they were in the public interest and that the governor had an obligation to tolerate a higher degree of scrutiny.
United States
Masses Publishing Co. v. Patten
Decision Date: August 24, 1917
Judge Learned Hand determined that the Espionage Act does not prohibit the publication or distribution of the impugned cartoons by mail, that the Plaintiff was not in violation of the Espionage Act, and that failure of the Defendant-Postmaster to mail the magazine would violate the First Amendment.  The Plaintiff's monthly magazine published four cartoons, with text, that criticized the U.S.'s involvement in World War I which the Defendant-Postmaster refused to deliver claiming that they violated the Espionage Act of 1917. The Court found that the cartoons and texts, although critical of the U.S. government, were opinions protected by the First Amendment, and accordingly, they could not be censored or suppressed by the government.
Thank you!

Hawley Johnson
Project Manager, Columbia Global Freedom of Expression
Columbia Global Freedom of Expression
Columbia Global Freedom of Expression seeks to advance understanding of the international and national norms and institutions that best protect the free flow of information and expression in an inter-connected global community with major common challenges to address. To achieve its mission, Global Freedom of Expression undertakes and commissions research and policy projects, organizes events and conferences, and participates in and contributes to global debates on the protection of freedom of expression and information in the 21st century.
Copyright © 2017 Columbia Global Freedom of Expression, All rights reserved.

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