Is Free Speech Really at Stake? Venezuela and RCTV

President Hugo Chávez of Venezuela has been the subject of many controversies. His critics often accuse him of laying the groundwork for dictatorship, despite the democratic credentials of his government. Chávez  was democratically elected in 1998 and again in 2000 under a new constitution. He then won a recall election in 2004, which was certified by observers from the Carter Center and the Organization of American States. Chávez was re-elected last December by 63 percent of voters, a result again certified by international observers including the OAS and the European Union. Chávez has pledged to accelerate policies that have given poor Venezuelans vastly increased access to health care, education, and subsidized food, and in the last three and a half years of political stability, a remarkable 40 percent increase in the economy.

Throughout this process of increasing voter and citizen participation and electoral democracy, the Venezuelan opposition and their allies in the U.S. press have told us that authoritarianism was just around the corner. They now say it has arrived. The immediate focus of their concern is the president's decision not to renew the broadcast license of a major television network that is openly opposed to the Chávez government. Their free speech concerns have been echoed by Human Rights Watch, Reporters without Borders, and the Committee to Protect Journalists. On the other hand, the vice-chair of the European Parliament's Freedom Commission, ruling out a resolution on the issue, has said the non-renewal has nothing to do with human rights. 

Here are the basic facts. Rádio Caracas Televisión (RCTV) is one of the biggest television networks in Venezuela. It airs news and entertainment programs. It is also openly opposed to the government, including by supporting a military coup that briefly ousted Chávez in 2002. (More information available on what Le Monde Diplomatique has called Venezuela's "hate media" here and here.) During the oil strike of 2002-2003, the station repeatedly called upon its viewers to come out into the street and help topple the government. As part of its continuing political campaign against the government, the station has also used false allegations, sometimes with gruesome and violent imagery, to convince its viewers that the government was responsible for such crimes as murders where there was no evidence of government involvement.

According to a law enacted in 1987, the licenses given to RCTV and other stations to use the public airwaves expire on May 27. President Chávez has publicly declared that RCTV's license will not be renewed, citing its involvement in the coup. Although it will not be able to continue to use the public broadcast frequencies, the station will still be able to send its signal out over cable, satellite, and the Internet. 

The U.S. media, much of which has been unsuccessfully predicting dictatorship under Chávez for years, has used this case to make accusations of censorship and the end of press freedom in Venezuela.

To understand the issue better, I decided to talk to the human rights and press freedom groups who have criticized the action. 

José Miguel Vivanco of Human Rights Watch clarified for me that "broadcasting companies in any country in the world, especially in democratic countries, are not entitled to renewal of their licenses. The lack of renewal of the contract, per se, is not a free speech issue. Just per se." A free speech issue arises if the non-renewal is to punish a certain editorial line.

Still, Benoît Hervieu of Reporters Without Borders in Paris said that, while he could not be certain, he thought US and European governments would stop short of non-renewal despite RCTV's "support for the coup." 

"I think that there would be pressure to make a replacement at the head of the channel. But I don't think that they would not renew the concession. There is a risk in that story. There are 3000 employees at RCTV. So I don't think that even in a country like [the United States or France], a government would risk putting 3000 people in the streets," he said.

Could it be that governments like Venezuela have the theoretical right not to renew a broadcast license, but that no responsible government would ever do it? In the United States, this may seem plausible, since broadcast licenses here seem to be forever. (Who could imagine life without ABC, CBS, or NBC?) Still, the government sometimes takes actions in other parts of the economy that result in a company going out of business. 

Actually, in other democratic countries, broadcast companies sometimes do not get their licenses renewed. For example, in Britain in 1992, in a process based in part on a subjective assessment of "quality of service," Thames Television lost its license after 24 years of service. Several British commentators speculated that the Thatcher government had influenced the result.

So democracies do occasionally find reasons not to renew a license. So what about this case in particular: Would RCTV have had its license renewed in the United States or Europe? 

While the two US-based human rights advocates I spoke with declined to answer that question directly, they acknowledged that non-renewal would not be out of the question here.

Vivanco said, "I don't know. The Federal Communications Commission (FCC) could decide that they're not going to renew, for instance, Fox News or MSNBC because they're in violation of the contract, according to the conditions of the contract. Normally you settle those things in court." 

Carlos Lauría of the Committee to Protect Journalists (CPJ) spoke similarly: "I don't think you can translate what's going on there [in Venezuela] to the United States. That's a very difficult question. I mean, if RCTV had violated the law, I assume they wouldn't get the concession renewed."

For Lauría, non-renewal itself is not the problem. His concern is the process by which the decision was reached. "I assume in the US there would be a process. The FCC would follow protocol. This is what hasn't happened in Venezuela. We're not arguing that the concession should be renewed, should be given to RCTV. We're just saying that there's no process to evaluate if it should be." 

Vivanco also complained about the process, saying that if the government argues there is a violation of the contract, "that would be settled normally in court. Second, if there's some crimes committed, the individuals who were involved in those crimes should be prosecuted in a court of law."

On process, they have a legitimate point. The government seems to have made the decision without any administrative or judicial hearings. Unfortunately, this is what the law, first enacted in 1987, long before Chávez entered the political scene, allows. It charges the executive branch with decisions about license renewal, but does not seem to require any administrative hearing. The law should be changed, but at the current moment when broadcast licenses are up for renewal, it is the prevailing law and thus lays out the framework in which decisions are made. 

However, Vivanco's critique goes beyond process to the government's justification for non-renewal. "You have the president saying, forget it, the license is not going to be renewed, it's a bunch of golpistas [coup-mongers] or fascists or whatever - which is clearly some sort of censorship. That sounds like an arbitrary decision made by the president on political grounds. And that is not acceptable."

Lauría also told me that RCTV was "selectively chosen because of opposition views." 

But is support for the violent overthrow of an elected government really protected political speech? Vivanco acknowledges that RCTV "obviously probably sympathized with the coup." But, he says, "it is a matter of free speech."

Vivanco understates RCTV's connection to the coup. RCTV encouraged viewers to attend a rally that was part of the coup strategy, invited coup leaders to address the country on their channel, and reported the false information that the president had resigned. After Pedro Carmona declared himself president and dissolved the National Assembly, Supreme Court, and other democratic institutions, the head of RCTV Marcel Granier met with him in the Presidential Palace. The following day, when mass protests and loyal army units brought back President Chávez, RCTV and other stations blacked out the news, showing movies and cartoons instead. 

Such actions clearly go beyond protected free speech, at least in the United States. Imagine the consequences if NBC took such actions during a coup against Bush.

In fact, RCTV's participation in the oil strike of 2002-2003, and even their joining in  legal political campaigns would be grounds for revoking their broadcast license in the United States. 

Consider this episode in the US. Two weeks before the 2004 presidential election, it was reported that the Sinclair Broadcast Group, which operates the largest number of local TV stations in the United States, planned to order its affiliates to replace prime-time programming with a documentary critical of John Kerry.

Democrats were outraged. The Democratic National Committee filed a case with the FCC arguing that such "partisan propaganda" was inappropriate. And, yes, at least one powerful Democratic politician swore that if the documentary was aired, there would be no Sinclair Broadcast Group by the 2008 election. A Kerry spokesman said, "You don't expect your local TV station to be pushing a political agenda two weeks before an election. It's un-American." Couldn't it be un-Venezuelan too? (The political pressures above led Sinclair to cancel the anti-Kerry broadcast). 

If RCTV were the only major source of opposition to the government, the loss of its voice would be troubling. It would also be disturbing if the RCTV case forced others to tone down legitimate opposition. But Greg Wilpert, a sociologist living in Venezuela, declares, "It is the height of absurdity to say that there's a lack of freedom of press in Venezuela."

Of the top four private TV stations, three air mostly entertainment and one, Globovisión, is a 24-hours news channel. On Globovisión, Wilpert says, "the opposition is very present. They pretty much dominate it. And in the others, they certainly are very present in the news segments." 

Regarding the print media, Wilpert told me, "There are three main newspapers. Of those three, two are definitely very opposition. The other one is pretty neutral. I would say, [the opposition] certainly dominates the print media by far. There's no doubt about that."

"I think some of the TV stations have slightly moderated [their opposition to the government] not because of intimidation, but because they were losing audience share. Over half of the population is supportive of Chávez . They've reduced the number of anti-Chávez  programs that they used to have. But those that continue to exist are just as anti-Chávez  as they were before."

The RCTV case is not about censorship of political opinion. It is about the government, through a flawed process, declining to renew a broadcast license to a company that would not get a license in other democracies, including the United States. In fact, it is frankly amazing that this company has been allowed to broadcast for 5 years after the coup, and that the Chávez  government waited until its license expired to end its use of the public airwaves. 

Once again, it seems, the warnings of a move from democracy to dictatorship in Venezuela have been loud but lacking in evidence.

Patrick McElwee is a policy analyst with Just Foreign Policy (www.justforeignpolicy.org). He can be reached at patrick@justforeignpolicy.org