April 24, 2016
Dear Friends,

This week we are featuring a controversial judgment by the European Court of Justice (ECJ), Achbita v. G4S Secure Solutions, finding that a blanket ban on wearing any signs of religious or political beliefs does not constitute direct discrimination.

From Colombia, we have two Constitutional Court decisions on the right to protest; Mena v. ICETEX which expands expression by establishing rules on the misuse of the personal data collected during a protest and Challenge to the Constitutionality of Obstructing Public Streets, which has a mixed outcome since it subsequently exposed several peasant-farmer organizations to criminal prosecution for protesting government policies.
In Eatock v. Bolt, an Australian publisher was ordered to issue a  corrective notice and restrict further publication of articles found to contravene the racial vilification provisions of the Racial Discrimination Act.  
Below are also decisions from the United States which have been cited as precedent against President Trump's travel ban, Edwards v. Aguillard, and in defense of it, Kleindienst v Mandel. Based on the Supreme Court’s decision in Kleindienst v. Mandel, Trump’s lawyers are contending that "that courts must accept Trump’s stated motive even if Trump did act with unconstitutional animus."

Press Freedom Day is coming up May 3rd!  We have already heard from a few readers, but if you have publications on issues of press freedom, violence against journalists, or impunity that you wish for us to share on our website, please send them along!
We hope you enjoy reading the summaries below as well as the full analyses!

For the Record

CPJ releases annual assessment of press freedom worldwide

Reporters Without Borders (RSF) will unveil its 2017 World Press Freedom Index on Wedenesday, April 26. 

Opinions on the anticipated ruling by the Danish Parliament on the blasphemy ban:  IPI announced today that Ethiopia’s Eskinder Nega was named IPI Press Freedom Hero and the Afghan Journalists Safety Committee was honoured as Free Media Pioneer.

A reminder that registration is now open for the BHRH Lawyers' Network Annual Human Rights in the U.S. Symposium/CLE, scheduled for May 19, 2017. The title of this year's full-day program is "Localizing Human Rights in the New Era: Strategies for State and Local Implementation of Human Rights in the United States." ​Information and a detailed agenda are available here. Click here to register. 



Achbita v. G4S Secure Solutions
Decision Date: March 14, 2017
The European Court of Justice (ECJ) issued a preliminary ruling that a blanket ban on wearing any signs of religious or political beliefs did not constitute direct discrimination. However, it said the ban could constitute indirect discrimination if it disproportionately affected members of a class and did not have a legitimate aim that was appropriate and necessary. The ECJ referred the case back to the referring court. The Court of Cassation in Belgium had made a request for an ECJ advisory opinion in respect of proceedings brought by Ms Samira Achbit, a Muslim, and the Centre for Equal Opportunities and Combating Racism (Centrum), against G4S Secure Solutions NV (G4S) following Ms Achbita's dismissal for insisting on wearing an Islamic headscarf at work.

Latin America


Mena v. ICETEX
Decision Date: June 27, 2013
The Constitutional Court of Colombia ruled that a state agency had violated the petitioner’s fundamental rights by denying her access to their offices because she had previously participated in a peaceful protest in front of their building. The petitioner claimed that she was not allowed to enter the building out of racial discrimination, due to her Afrocolombian origins. The Court found that the agency, rather than the building’s management as asserted, had collected personal data on the petitioner after she participated in the protests. This violated the petitioner’s habeas data and equality because she was neither informed of the real reason why she was denied access to the building nor of the existence of “negative data” as a result of her participation in the protest. In the opinion of the Court, the situation was further aggravated because the petitioner was also prevented from conducting legitimate business at the public agency. For all these reasons, the Court decided to protect the petitioner’s fundamental rights and ordered the agency to publicly apologize for its inappropriate conduct, to post a copy of its apology in “a place that could be easily accessed by the public,” to remove from its databases the negative information on the petitioner, and finally, to refrain from carrying out similar practices in the future.
Challenge to the Constitutionality of Obstructing Public Streets
Decision Date: September 26, 2012
The Constitutional Court of Colombia held that the criminal laws against the “obstruction of public roads that affect the public order” and the “disruption of collective or official public transportation services” during public protests are constitutional.  A citizen challenged the unconstitutionality of the crimes, arguing that the drafting of the provisions was ambiguous, violated the principle of legality and allowed the criminalization of demonstrations. The Court found that the provision preventing the “obstruction of public roads that affect the public order,” does not violate the principle of strict legality because the potential consequences of a violation were predictable based on the text, the defendant could challenge the provision, and the meaning and definition of the conduct it intends to prevent or encourage was sufficiently clear.  Furthermore, the Court found that the required authorization of protests by the competent authorities should be understood as the result of an advance notice that does not intend to demand authorizations for exercising a fundamental right but rather “is intended to inform the authorities so they can adopt the measures that are necessary to facilitate the exercise of the right without significantly hindering the normal development of the community’s activities.

Asia - Pacific


Eatock v. Bolt
Decision Date: September 28, 2011
The Federal Court of Australia found that the impugned newspaper articles were reasonably likely to offend, insult, humiliate or intimidate the Applicants, and that the messages contained in the articles were motivated by the race, colour or ethnic origin of those people. Australian journalist Andrew Bolt published two articles in the Herald Weekly Times (HWT) alleging that fair-skinned people were "choosing to identify as Aboriginal" in order to gain career advantages. In response, Aboriginal activist Ms. Pat Eatock, along with 8 other applicants, filed a complaint against Bolt and HWT seeking an apology and an injunction against further publication of the articles. The Court found that the articles contravened the racial vilification provisions of the Racial Discrimination Act and because they contained erroneous facts, distortions of the truth and inflammatory and provocative language, they failed to meet the "good faith" requirement needed to satisfy the exception that applies to fair comment on a matter pf public interest. The Court ordered HWT to publish a 500 word corrective notice next to Bolt's column. Republication of the articles was restricted to "historical or archival purposes" and only where accompanied by the corrective notice.

North America

United States

Edwards v. Aguillard
Decision Date: June 19, 1987
The U.S. Supreme Court affirmed that Louisiana's "Creationism Act" violated the Establishment Clause of the First Amendment to the Constitution. The Appellees who included Louisiana parents, teachers, and religious leaders, challenged the Act's constitutionality on the grounds that it prohibited the teaching of evolutionary theory in the public schools unless it was 'balanced' by teaching "creation science", a Biblical belief that advanced forms of life appeared abruptly on Earth as a result of divine creation. The Court reasoned that the Louisiana law did not further its stated secular purpose of "protecting academic freedom"; but rather advanced the religious belief that a supernatural being created humankind; and significantly entangled the interests of church and state by seeking "the symbolic and financial support of government to achieve a religious purpose." In so doing it failed all three prongs of the Establishment Clause "test" set out in Lemon v. Kurtzman. 

Kleindienst v. Mandel
Decision Date: June 29, 1972
The U.S. Supreme Court U.S. Supreme Court upheld the Attorney General's denial of a waiver for Ernest Mandel, a Belgium-based academic, political activist and self-described "revolutionary Marxist", to obtain a U.S. visa in order to attend and speak at conferences.  Mandel, along with several academics in the U.S. who had invited him to attend conferences, requested a waiver of the denial.  The Court found that the Attorney General, as an appointee of the Executive Branch, had acted in accordance with the plenary power delegated to the Executive Branch by Congress under the Immigration and Nationality Act of 1952, which barred entry to individuals who advocate or publish "the economic, international, and governmental doctrines of world communism."  The Court declined to balance the professors' interest in access to information against the governmental regulation, and instead focused on the history of Congressional acts restricting immigration for various reasons, some ideological. Although Mandel was invited by the other Appellees to U.S. universities to speak at academic conferences, and although denial of the visa was based in part on Mandel's political viewpoint, the Supreme Court held that it would not "look behind" the action of the Attorney General in order to balance that action against the First Amendment rights of U.S. citizens when the AG acted according to power lawfully delegated to the Executive.
Justice Douglas dissented, arguing that the Government had not shown that Mandel presented any clear threat to national security, and as such, the decision to bar him from entry to the U.S. amounted to an act of censorship. Justices Brennan and Marshall also dissented, emphasizing the Court's longstanding protection of the "right to receive information," and arguing that Government did not have power - even through the plenary power - to interrupt free discussion.

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