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Prior Restraints in Venezuela’s Social Responsibility on Radio and Television Act: Are they Justified?

Prior Restraints in Venezuela’s Social Responsibility on Radio and Television Act: Are they Justified?

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“Prior Restraints in Venezuela’s Social Responsibility on Radio and Television Act: Are they
Justified?” GEORGE WASHINGTON INTERNATIONAL LAW REVIEW. Vol. 40, p. 401. (2008).
“Prior Restraints in Venezuela’s Social Responsibility on Radio and Television Act: Are they
Justified?” GEORGE WASHINGTON INTERNATIONAL LAW REVIEW. Vol. 40, p. 401. (2008).

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Published by: Angel L. Olivera-Soto on Jul 21, 2013
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PRIOR RESTRAINTS IN VENEZUELA’S SOCIALRESPONSIBILITY ON RADIO AND TELEVISION ACT: ARE THEY JUSTIFIED?*
 A 
NGEL
L
UIS
O
LIVERA 
S
OTO
**
The right to express one’s thoughts and opinions, in writing, orby any other way, is the first and most appreciated thing a manof society can own. The Law could never prohibit it, but it willhave the power to set just limits, making responsible of its prints, words, and writings, those persons who abuse such liberty, anddictating proportional penalties against such abuse.***Sim´on Bol´ıvar, August 7, 1819
I.I
NTRODUCTION
In recent years, freedom of expression in the media has becomea controversial issue in the South American nation of Venezuela.The first event to draw attention to this issue was the enactment of a controversial statute that regulates the content of radio and tele- vision programming. Then came two highly criticized judicial deci-sions issued by Venezuela’s highest court. Most recently, the Venezuelan government has demonstrated an unwillingness torenew the broadcasting license of the country’s longest runningprivate channel, Radio Caracas Televisi´on. All of these events have
*Submitted to the Faculty of The George Washington University Law School inpartial satisfaction of the requirements for the degree of Master of Laws.**LL.M. 2007, The George Washington University Law School; J.D. 2006, PontificalCatholic University of Puerto Rico; B.S. 2003, Inter-American University of Puerto Rico.Many thanks to Jerome A. Barron, Maribel Sierra Bel´en, Lauren Briggerman, Natali Fani,David Fontana, Nancy Hoffman, Margarita Escudero Le´on, Ana Cristina N´u˜nez Machado,Hector Luis Acevedo P´erez, Gregorio Igart ´ua De la Rosa, Marjorie Rosenfelt, Nikhil ArunShimpi, and Luke Wilson for their support on this project. All views and mistakes are my own. Comments or suggestions may be sent to: oliverasoto@gmail.com.***Author’s literal translation of: “El derecho de expresar sus pensamientos y opi-niones de palabra, por escrito,´o de cualquier otro modo, es el primero y m´as estimablebien del hombre en sociedad. La misma Ley jam´as podr´a prohibirlo, pero tendr´a poderde se˜nalar justos l´ımites, haciendo responsables de sus impresos, palabras y escritos, a per-sonas que abusaren de esta libertad, y dictando contra este abuso penas proporcionales.”Sim´on Bol´ıvar, C
ORREO DEL
O
RINOCO
, Aug. 7, 1819, at 4 (internal quotations omitted).
See also 
Luis Miguel Valbuena Villalobos, La Opini´on P´ublica, a trav ´es del Periodismo y laLibertad de Prensa [Public Opinion through Journalism and Freedom of Press] (July 29, 2008), http://www.monografias.com/trabajos62/opinion-publica-periodismo-libertad-prensa/opinion-publica-periodismo-libertad-prensa2.shtml?monosearch.
401
 
402TheGeo.Wash.IntlL.Rev.[Vol.40
made it to front pages, news headlines, and editorials around the world.This Article will discuss the “content law” officially known as theSocial Responsibility on Radio and Television Act (RESORTE)
1
and determine whether its polemical provisions constitute any typeof prior restraints or excessive restrictions on the right to freedomof expression. In effect, this Article concludes that various provi-sions of RESORTE severely limit freedom of speech. Additionally,this Article will analyze the reasons provided by the Venezuelangovernment for the restrictions, such as national security, the pro-tection of children, and public health concerns, to determine whether the restrictions on speech are justified.Part I provides a general historical background on Venezuelaand the political and economic situation that eventually led to theenactment of RESORTE. Part II provides the constitutional frame- work of the right to freedom of expression as established in the1999 Constitution of Venezuela, and evaluates applicable judicialdecisions issued by the Constitutional Chamber of the VenezuelanSupreme Tribunal of Justice. Part III analyzes the several contro- versial provisions of RESORTE, including those considered by many as prior restraint mechanisms. Additionally, Part III men-tions the international and domestic reactions to RESORTE as wellas the judicial challenges to it. Part IV analyzes the reasons givenby the government regarding such restrictions, and whether thosereasons justify limiting freedom of expression. Finally, Part V con-cludes that due to Venezuela’s contemporary political situation,most of the restrictions contained in RESORTE are justified on thegrounds of national security, protection of children, and publichealth.II.B
 ACKGROUND ON
ENEZUELA 
In recent decades, Venezuela has been one of the strongest examples of democracy in Latin America.
2
Its adherence to demo-
1.Ley de Responsabilidad Social en Radio y Televisi´on [Social Responsibility onRadio and Television Act]
,
La Gaceta Oficial Nº 38.081 [Official Gazette No. 38.081] (Dec.7, 2004) (Venez.) [hereinafter Social Responsibility on Radio and Television Act]. Thislaw is often referred to as RESORTE Act, based upon its Spanish language acronym; any references hereinafter to RESORTE Act are to the Social Responsibility on Radio and Tele- vision Act.2.
See generally 
T
HE
ENEZUELA 
EADER 
: T
HE
B
UILDING OF
P
EOPLE
S
D
EMOCRACY 
(Olivia Burlingame ed., 2005).
 
2008]
Venezuela’s Social Responsibility on Radio and Television Act 
403
cratic principles has resulted from several factors.
3
A gentlemen’sagreement known as the Punto Fijo pact between the two principalpolitical factions to respect the country’s democratic institutionsand electoral processes set the standard for peaceful rule of thecountry.
4
In addition, the subordination and unquestionable loy-alty of the armed forces to the president of the Republic undoubt-edly helped prevent overthrows of governments that havefrequently occurred in that hemisphere.
5
Finally, an increase inexports of oil has provided the financial means to develop ahealthy and prosperous economy.
6
 A.
Political and Economic Crisis 
In the 1980s, Venezuela’s economic situation started to deterio-rate. On February 18, 1983, a date commonly known as “Black Fri-day,” a sudden devaluation of the local currency caused by thegovernment’s heavy foreign debt and a decrease in oil pricesbrought economic chaos to the country.
7
During subsequent 
3.
See 
Mario J. Garcia-Serra,
The “Enabling Law:” The Demise of the Separation of Powers in Hugo Chavez’s Venezuela 
, 32 U. M
IAMI
I
NTER 
-A 
M
. L. R 
EV 
. 265, 267 (2001) (“This stablesocio-political system was essentially founded upon three key elements: a professional mili-tary subservient to civilian authority, an understanding between the major political partiesto collaborate and respect elections, and a high growth oil export economy.”).4.In January 1958, a general uprising and riot in the streets resulted in the oustingof dictator Marcos P´erez Jim´enez, who left the country.
See id 
. at 268. Comit ´e de Organiza-ci´on Pol´ıtica Electoral Independiente [COPEI], Uni´on Republicana Democr´atica [URD]and Acci´on Democr´atica [AD], the political parties of Venezuela, formed a pact to peace-fully rule the country.
See id 
. (describing the obligations inherent in the pact). The pact  was called the Pact of Punto Fijo, meaning fixed point, in reference to the name of theresidence of former President Rafael Caldera, where the leaders of the political partiesconvened to create the pact.
See 
Juan Pablo Lupi & Leonardo Vivas,
(Mis) Understanding Ch ´ avez and Venezuela in Times of Revolution,
29 F
LETCHER 
F. W 
ORLD
FF
. 81, 90 n.34 (2005)(“The
Punto Fijo 
regime evokes the long-standing coalition rule established in Venezuelabeginning in 1958, which included the main political parties . . . that helped to oust thelast dictator Marcos Perez Jimenez.”).5.For a general discussion on the several political conflicts in Latin America duringthe second half of the twentieth century, see Dawn Bennet-Ingold,
Latin American Democ- racy: Flourishing or Floundering? 
, 28 G
 A 
. J. I
NT
L
& C
OMP
. L. 111, 111-17 (2000) (discussingmilitary coups and constitutional crisis in Latin America and the Caribbean during decadespast); Thomas C. Wright,
Human Rights in Latin America: History and Projections for the Twenty-First Century 
, 30 C
 AL
. W. I
NT
L
L.J. 303 (2000).6.
See generally 
Elisabeth Eljuri,
Corporate Structuring of Oil and Gas Projects in Venezuela: Views from the North and South 
, 18 J. E
NERGY 
N
 AT
. R 
ESOURCES
L. 53 (2000) (illustrating how  Venezuela enjoyed economic prosperity as a result of its oil exports for decades).7.Margarita L´opez Maya,
Venezuela 2002-2003: Polarization, Confrontation, and Vio- lence 
,
in 
T
HE
ENEZUELA 
EADER 
: T
HE
B
UILDING OF A 
P
EOPLE
S
D
EMOCRACY 
,
supra 
note 2, at 9, 10 (“In 1983, Venezuela lived through its own ‘Black Friday’ as the government declareda moratorium on its debt payments. Venezuela became the fourth most indebted country 

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