April 11, 2016
Dear Friends,

We are excited to share our first in a series of analyses of Chinese cases, Peking University v. Zou Hengfu, prepared by our experts Doreen Weisenhaus and Susan Finder of the University of Hong Kong. In this defamation case, the court ordered the defendant Zou Hengfu to make a public apology to Peking University for posting libelous statements about university professors and deans on his Weibo account.

Also this week we have decisions from Canada, the US and Brazil. In Garcia v. Tahoe Resources, Inc.  a Canadian court allowed Guatemalan citizens injured during a protest at a local mine to bring an action against the parent Canadian company, which allegedly authorized use of excessive force against them. The Court allowed this based on the determination that there was a real risk that the appellants could not obtain justice in Guatemala.

From the US this week, we are featuring the two seminal cases cited by the Hawaii and Maryland district courts which outline the legal tests used to demonstrate that President Trump’s travel ban violates the Establishment Clause. 

In Pessôa et. al v. 5th Region Court of Appeals from Brazil, the Court allowed a peaceful protest to go ahead despite law enforcement attempts to suppress it.

We hope  you enjoy reading the summaries below as well as the full analyses!

For the Record

North America


García v. Tahoe Resources Inc.
Decision Date: January 26, 2017
The Court of Appeal for British Columbia determined that Canada was the more appropriate forum for an action brought by seven Guatemalan individuals claiming damages against Tahoe Resources Inc., a Canadian company which manages the Escobal mine in Southeast Guatemala. The Plaintiffs/Appellants had been injured by a private security guard who opened fire on protesters gathered in front of the mine. They argued that although the shooting was planned, ordered and directed by the private security guard, Tahoe had authorized the use of excessive force. In allowing the appeal, the Court admitted evidence showing that the existing criminal proceedings in Guatemala were not the more appropriate forum for adjudicating the dispute. The Court also found that the chambers judge in the Supreme Court had erred in finding that a potential stand-alone civil suit in Guatemala was a more suitable forum. The Court reasoned that the limited discovery procedures available, the one-year expiration of the time limit for bringing a claim and the real risk that the Appellants would not obtain justice weighed against a finding that Guatemala was a more appropriate forum than British Columbia.

United States

Lemon v. Kurtzman
Decision Date: June 28, 1971
The U.S. Supreme Court held that Rhode Island and Pennsylvania statutes which provided state funding for the teaching of secular subjects, as well as the associated teacher’s salaries, in parochial schools were unconstitutional.  The Court found that the statutes were an excessive entanglement of church and state thereby violating the Establishment and Free Exercise Clauses of the First Amendment. The Court affirmed the decision in the Rhode Island case which had held that the state aid in support of secular instruction to teachers in Roman Catholic schools violated the Establishment Clause. Meanwhile, the Court reversed and remanded the decision of the Eastern District Court of Pennsylvania which had held that state reimbursements to non-public schools for expenditure on secular educational services did not violate the Establishment nor Free Exercise Clause. The Court reasoned that state funding for secular activities at non-public schools, as well as the required monitoring of the programs and the potential for political divisiveness this would entail, went beyond the acceptable degree of entanglement between church and state. It said that programs like the ones created in the Pennsylvania and Rhode Island statutes "too greatly blur the separation of church and state. Such entanglement is extremely dangerous and violates the First Amendment".
This case is significant because the Court outlined what has become known as the “Lemon Test,” which was recently cited by the Hawaii and Maryland district courts in support of their issuing of temporary restraining orders against President Trump’s travel ban.  According to the test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion." 

McCreary Cty v. Am. Civil Liberties Union of Ky
Decision Date: June 27, 2005
The U.S. Supreme Court upheld an injunction as part of a claim brought by the American Civil Liberties Union against two counties in Kentucky for public displays of the Ten Commandants in the counties' courthouses. The Appellants, McCreary County and Pulaski County, argued for a limitation on the 'secular purpose' element of the three-part Lemon test to determine whether a government action violated the Establishment Clause of the First Amendment. The Court rejected the Counties' attempt to abandon the secular purpose test as set out in Lemon, stating that scrutinizing the purpose of the action makes sense in Establishment Clause analysis. Moreover, the Court said that the evolution of the litigation, which included the Counties' displaying various versions of the Ten Commandments, was relevant in evaluating the Counties’ claim of secular purpose.

In reaffirming government neutrality in religious matters by preventing the display of the Ten Commandments in public courthouses, the Supreme Court highlighted that neutrality is essential to ensure the free exercise of religion. The case reaffirms the test in Lemon v. Kurtzman and both decisions are cited in cases regarding the Establishment Clause of the First Amendment, most recently in April 2017 in State of Hawai'i and Elshikh v. Trump.



Peking University v. Zou Hengfu
Decision Date: December 23, 2014
The Beijing No. 1 Intermediate People's Court upheld a ruling of the Haidian District People’s Court that the Defendant/Appellant Zou Hengfu refrain from infringement and make a public apology to Peking University in respect of libelous statements about university professors and deans posted by him on his Weibo account. In response to the postings, Peking University brought a civil action against Zou for infringement of its right of reputation. The Court’s decision denied Zou’s argument that the exercise of the right of public opinion supervision exempted him from restrictions on insults and libel. The Court found that Peking University was a civilian subject, just like Zou, which enabled it to protect its right of reputation. The Court reasoned that the reputation of university professors was akin to that of the University and because Zou had failed to submit any evidence in support of his statements which related to the University, his act was unlawful and was a direct cause of damage to Peking University's reputation.

Latin America


Pessôa et. al v. 5th Region Court of Appeals
Decision Date: June 20, 2013
Brazil's Superior Court of Justice (STJ) granted a group called the "Bus Rebellion" the relief sought in a Habeas Corpus allowing them the right to protest as previously planned. The “Bus Rebellion" movement had been denied a permit to protest an increase in fares for public transportation due to concerns that they could obstruct highway traffic into the city. The ruling ensured their right to peacefully enter and exit the city by foot in accordance with the right to freedom of movement as protected by the Brazilian Constitution. The Court reasoned that it was not the judiciary's job to suppress the freedom of movement by the use of force against citizens who seek to exercise their constitutional right to protest.
This case was contributed by the Open Society Justice Initiative in collaboration with ARTICLE 19.

Other Noteworthy News

Monitoring Human Rights and Freedom of Expression
  • The Hungarian Parliament approved legislation designed to shut down Central European University, a private Hungarian-American graduate institution that has programs ranked among the top 50 in the world. Over 1,000 cognitive scientists, including 2 Nobel Laureates, have signed a letter to Hungarian authorities calling on the government to withdraw the proposed legislation and maintain academic freedom and scientific excellence.

    Dr. Agnes Callamard and Global Freedom of Expression expert David Schulz participated in the Faculty Forum: Regulated Speech in a Global Context sponsored by Columbia Global Thought on Monday, April 10th at Columbia's School of International and Public Affairs. Panelists discussed the distinctive approaches to speech regulation around the world, and the challenges arising from internet and technology.

    The Hindu published this opinion piece where Mishi Choudhary,President and Legal Director of and Columbia Global Freedom of Expression expert, raised the issue of Internet shutdowns and the economic loss suffered due to it, saying that the legal justifications offered for the shutdowns “are far too narrow to sustain any measure with this breadth of undesired social consequence.”
New Initiatives
  • Centre for Communication Governance at National Law University Delhi, led by Columbia Global Freedom of Expression expert Chinmayi Arun, launched #DelhiTechTalks, a technology policy update event series.
  • The Association for Progressive Communications (APC) is mapping gender dimensions in the field of gender and ICTs with the aim of trying to improve gender-related outcomes, to strengthen gender analysis and inclusion in research projects, and to bolster the development of a gender-focused network. Take their questionnaire to help them provide an overview of key actors and current trends relating to gender.
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. 

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