On the Front Lines of the Fight for Press Freedom
It was Kafkaesque, Orwellian… and it was happening right here in Costa Rica, one of the hemisphere’s oldest and proudest democracies. Incredibly enough, despite Constitutional guarantees of freedom of the press and freedom of expression, a journalist in Costa Rica could be sent to jail for reporting the news without a license.
The license in question was issued by a government-sanctioned organization, the Colegio de Periodistas, formed in l969 to “raise the standards of journalism” in Costa Rica by making journalism a “profession” like law or medicine and restricting its practice to graduates of the University of Costa Rica Journalism School.
The Tico Times ran afoul of the Colegio law almost immediately after resuming publication in 1972, sparking a battle that would last 23 years, turn into a second full-time job for my father, TT Publisher Richard Dyer, and cost the newspaper untold thousands of dollars and man-hours. We quickly realized that had obligatory licensing been in place when The Tico Times was founded, the paper wouldn’t exist. And there were many times during the long struggle that we wondered whether the TT would survive.
The Tico Times needed people who could write in English, and the Colegio didn’t have any. Even our staffers who had journalism degrees from foreign unversities had no way to get legal. The Colegio law required foreign journalists to complete five years’ residency in Costa Rica before applying for Colegio membership.
And in the ultimate Catch-22, you had to be a member of the Colegio before you could apply for residency!
The organization was a grotesque mass of contradictions from the start. Founded by self-made journalists who had grandfathered themselves in before the law was passed, the Colegio was a strange mix of outstanding newsmen (who belied the need for any degrees…or a Colegio) and incompetents (who saw licensing as a way to protect their jobs – many of them in government press offices – from future competition.)
The Colegio quickly fell into the grip of a small group who lost sight of the organization’s lofty ideals. Far from “raising the standards” of journalism, they used the law to insure that mediocrity – or worse, unethical journalism – would prevail, now with official blessings.
Many critics compared the licensing of journalists to the licensing of artists, novelists or musicians.As the TT had proved repeatedly, brilliant newspeople came from everywhere, not just journalism schools. We believed, and most of our colleagues in the local media came to agree, that we – and our readers – were the best judges of our staffers’ competence. But Colegio backers saw nothing ominous about a group sanctioned and subsidized by the government having the power to determine who could or could not be a journalist.
They also were undismayed by the obvious curbs on freedom of expression that obligatory licensing would – and did – impose. No longer could José Q. Citizen interview someone or report on a community event or start a community newspaper.
Those privileges belonged exclusively to an elite class of Colegio-anointed “professional journalists.”
UNESCO and a Usurped Union
The licensing threat was not unique to Costa Rica. In the early ’70s, the Inter-American Press Association (IAPA), which represents some 1200 member newspapers throughout the hemisphere, met here to call attention to the Soviet-inspired “New World Information Order”, being pushed by UNESCO ostensibly to “democratize” news coverage in the developing world by promoting state news agencies that would compete with the “oligarchical” privately run media.
Press freedom groups around the world saw it as a thinly disguised way for would-be totalitarians to legitimize government control of the press, using (what else?) compulsory licensing as the first step.
The ideological clash also revealed itself in the Colegio backers’ insistence that those who opposed obligatory licensing for journalists were against fair wages and other benefits for working newspeople.This was particularly laughable in our case, since both my parents, Elisabeth and Richard Dyer, had been organizers of the American Newspaper Guild in the United States, and had warned colleagues here long before the Colegio was created that journalists in Costa Rica needed a labor union to fight for their rights, not a licensing body that would restrict their freedom. Although the country now had a Sindicato de Periodistas, it was toothless; the Colegio had usurped its role.
The Nightmare Begins
Unlike the Spanish-language reporters who had no “excuse” for not complying with the law, we had no possibility of becoming legal. So we found ourselves on the front lines in the battle against the Colegio, cheered on and tacitly supported by those who had to play the game even though they knew it was wrong. The Tico Times became a textbook case on the dangers – and absurdities – of licensing.
Several times we made a good-faith effort to seek an amicable solution to our predicament: perhaps, we suggested, the Colegio could reform its law, or even give our staffers an exam of some kind to see whether they met UCR standards? No. Instead, the Colegio faithful routinely harassed our reporters, doing everything they could to keep them from covering press conferences or getting credentials for official events.
The only reason we were able to keep going at all was Dad. This being Costa Rica, where “patas” (connections) are paramount, the fact that Dad had many good friends in journalism and government dating back to his years with the Bananera helped immensely.
Plus, he had been a founding member of Costa Rica’s original Press Association, all of whose members had been grandfathered into the Colegio. Not only didn’t they want to mess with don Richard, they didn’t know what to do about him.
In the late ‘70s, I asked then-Colegio president Carlos Mora point-blank what The Tico Times could do about our situation.
After reviewing all the usual unworkable options (such as hire Colegio members to cover the news and translators to put it into English), Mora came up with a novel idea: we could enroll in the private Autonomous University of Central America (UACA), which had just opened a new postgraduate licenciatura program in journalism.
We were so sick of being outlaws – of having to warn new staffers that they risked going to jail if they came to work for The Tico Times – that we decided to pursue this possible opening. Stephen Schmidt, a brilliant and simpático former math teacher from New York who had become the TT’s star reporter, and I became the designated guinea pigs and went back to school.
It Gets Uglier
During our 2 1/2 years at the UACA, the Colegio left The Tico Times alone; it even sent Steve and me a nice letter saying it looked forward to welcoming us when we graduated.
Along with two Tico classmates, Steve and I became the UACA’s first graduates, with honors (Steve graduated summa cum laude.) A representative of the Colegio was on our examining board.
Degree in hand, our fellow grad Gerardo Enrique Fonseca applied to the Colegio for membership.
He was turned down.
The only explanation he was given was that the Colegio law specified only graduates of the University of Costa Rica, the only university in the country at the time the law was passed.
We were back to being outlaws. Gerardo sued the Colegio. Five years later, the Supreme Court ordered the group to admit graduates of other universities.
In 1980, the IAPA sponsored a debate here on obligatory licensing. After listening to Mora’s successor, Carlos Morales, assure the audience that licensing as practiced in Costa Rica didn’t interfere at all with freedom of the press, Steve stood up and angrily demanded to know what the Colegio intended to do about him and all the other “illegals”.
Morales responded: “We are going to sue you for the illegal practice of journalism.”
Thus began one of the ugliest – and most revealing – chapters in the Colegio’s career. Venomous local news stories referred to Steve as “el extranjero” (the foreigner), describing him as a criminal, an enemy of Costa Rica and a stooge for rich foreign media owners. One stunning dispatch quoted a “court source” as saying that Steve, who was out of the country at the time, had been declared a “reo fugitivo” (fugitive from justice). It was a complete fabrication.
We were amused, in a bitter sort of way, to note that such attacks simply confirmed why good journalism can’t be legislated. Not once did the Colegio-approved “professionals” who wrote them make a single attempt to talk to Steve to get his side of the story.
Even more tragicomic, they spelled his name differently each time – sometimes several different ways in the same story – but they never once got it right.
The Schmidt Saga
The Colegio’s first victim was another foreigner – U.S. newsman Joe Phillips, editor of the English-language San Jose News, founded in 1973. In his defense, Joe sought only to show that he hadn’t been working as a journalist. He was convicted of “illegal practice of the profession” in 1978 and given a three-month suspended sentence, on condition that he never commit the “crime” again.He left Costa Rica, and The News went out of business in 1979.
Until Stephen Schmidt’s case, nobody had challenged the obligatory licensing law itself on the grounds that it violated human rights – specifically, the guarantees of press freedom and freedom of expression contained in the American Convention on Human Rights, of which Costa Rica had been the first signatory.
Veteran Costa Rican press attorney Fernando Guier was convinced that was the way to go, and he passionately threw himself into preparing Steve’s defense.
By the time his case went to trial in 1983, Steve was editing a magazine in the U.S. He could easily have chosen to stay away. But he had grown deeply attached to Costa Rica during his 10 years here, firmly believed that licensing was a threat to freedom, and was determined to see the battle through.
He had plenty of friends rooting for him. Stories and editorials about his case had appeared in dozens of newspapers and magazines around the world, and supporters included former Costa Rican Foreign Minister and veteran human-rights expert Fernando Volio, the daily La Nación, the UACA, the IAPA, the World Press Freedom Committee and Freedom House.
In a verdict hailed throughout the world, Judge Jeannette Sánchez absolved Steve on the grounds that, unlike law or medicine, the practice of journalism “bears directly on a primordial right of the human being: the freedom of opinion and expression, which necessarily requires the possibility of exercising that freedom.”
But everyone’s jubilation was shortlived. The Colegio appealed to the Supreme Court, which five months later overturned Sánchez’s verdict, condemning Steve to three months in prison and suspending the sentence on condition he not repeat the “crime”.
An End Run by the IAPA
We had nowhere to go but up. Stephen, Guier and Dad appealed Steve’s conviction to the Inter-American Human Rights Commission in Washington,D.C., asking the Commission to refer the case to the Inter-American Human Rights Court, based in San José, for review.
Meanwhile, uneasiness over the Colegio’s increasingly undemocratic stance was growing.
In September 1984, more than two dozen of Costa Rica’s top political, diplomatic and educational leaders, including former President José Joaquín Trejos, the signer of the original Colegio law, sent a memorandum to the Rights Commission declaring that “freedom of expression, of thought and information cannot and must not be monopolized in the benefit of any special group, nor can this right be limited to specific individuals, but must be regarded as belonging to all human beings, without restriction by direct or indirect measures of any kind.”
As the battle continued, Stephen’s case turned into a cause celebre for press freedom groups around the world. The IAPA awarded Steve its 1983 Pedro Joaquín Chamorro Award for Freedom of the Press, and interviews, articles and editorials about his case appeared in The Miami Herald, The New York Times, The Chicago Tribune, The San Francisco Examiner, The Dallas Morning News, The Seattle Times, The International Herald Tribune and dozens of other publications. Interest was so intense that The Tico Times printed a booklet about the case to hand out to the steady stream of reporters, editors, scholars and professors who called, wrote or came to the office requesting information.
In November, 1984 the Human Rights Commission ruled 5-1 to reject Steve’s appeal on the grounds that his conviction “did not constitute a violation of human rights.”U.S. delegate Bruce McColm issued a blistering 39-page dissenting opinion, and press freedom experts noted bitterly that the representatives of Latin American nations on the Commission had been under heavy pressure from colegio supporters in their countries.
It was the end of the line for the Schmidt case, but press freedom defenders were determined to carry on the struggle. Horacio Aguirre, publisher of the Miami-based Diario de Las Américas and a veteran IAPA official, flew to San José to ask then-President Luis Alberto Monge, an old school friend, if Costa Rica would consider asking the Human Rights Court for an advisory opinion to clarify the entire licensing issue.
Monge agreed to help. Colegio backers were furious over what they charged was an end run by licensing foes to – one way or another – get the issue before the Rights Court, and they were right.
Rights Court: Licensing Violates Human Rights
Thirteen press freedom and human rights groups filed briefs with the Rights Court opposing licensing. They included the IAPA, the World Press Freedom Committee, the International Press Institute, the Newspaper Guild, the International Association of Broadcasting, the American Society of Newspaper Editors, the Associated Press, the International League for Human Rights, the Lawyers’ Committee for Human Rights, the Americas Watch Committee and the Committee to Protect Journalists.
In a unanimous advisory opinion issued on Nov. 13, 1985, Court President Thomas Buergenthal and Justices Rafael Nieto, Huntley Munroe, Máximo Cisneros, Rodolfo Piza and Pedro Nikken found that “the compulsory licensing of journalists is incompatible with Article 13 of the American Convention on Human Rights if it denies any person access to the full use of the news media as a means of expressing themselves or imparting information,” and that Costa Rica’s Colegio law “is incompatible with Article 13 …in that it prevents certain persons from joining the Association of Journalists and, consequently, denies them the full use of the mass media as a means of expressing themselves or imparting information.”
The Court had issued an opinion, not a ruling, so Costa Rica was not obligated to correct its offending legislation. But since the country was the first signatory of the Human Rights Convention (known as the “Pact of San José” because it was signed here) and because it had requested the opinion, everyone expected Costa Rica would move immediately to reform the Colegio law. But to its everlasting shame, it did nothing.
Even Nobel Laureates Fear the Colegio
Costa Rican President and Nobel Peace Prize winner Oscar Arias stood up to the mighty United States over its policies in Central America. But his own country’s Colegio de Periodistas so cowed him that, at a conference organized by the group in 1988, Arias declared the compulsory licensing of journalists “healthy”. Such was the Colegio’s power over politicos – which was why the Colegio law remained on the books.
In the 10 years that followed the Rights Court opinion, the Colegio sought to avoid another embarrassing Stephen Schmidt case, so it limited itself to bullying, threatening and calling Tico Times reporters names – “unqualified illegal drybacks” was a favorite – and trying to keep them from covering the news. The group actually posted watchdogs in government press offices with orders to do nothing but review all requests for credentials and keep out dangers to society like us.
After clashing loudly with the Colegio several times over the credentials issue, we found we could elude the long arm of the licensing law by applying for credentials not as reporters, but as photographers, cameramen, “support personnel” or stringers for the various foreign publications TT staffers wrote for. Though the Colegio had tried several times to gain control over these jobs, they fortunately remained outside its domain. So by misrepresenting ourselves, we were able to cover the news.
It was so idiotic, it became a joke: everyone from the President on down knew who The Tico Times’ reporters were – and of course, so did the Colegio – and everyone knew why their badges said “Fotógrafo” or “Miami Herald”.
The Ticos’ Turn
No such farcical solutions were available to Costa Rican journalists, who increasingly were running afoul of the licensing law as the Colegio worked to consolidate its power. The cases of four Ticos accused of “illegal practice” – TV sports commentator Flavio Vargas, editor Daniel Apú, radio sports commentator Roger Ajún and reporter Ronald Moya – were wending their way through the courts, when Lorena Villalobos, a Costa Rican lawyer-turned journalist, became living proof of the truth of U.S. attorney Leonard Marks’ warning before the Rights Court in 1985 that “A licensed journalist is not free. The hand that gave him the license is the same hand that can take it away.”
Villalobos was working as a reporter for the daily La Nación while pursuing her licenciatura degree in journalism at the UACA. After she broke a story about a questionable business deal involving the head of a local cooperative movement, she discovered that the Colegio had failed to renew her student’s license.
The renewal, which was routine for all journalism students and should have been immediate, was delayed precisely when the man she had named in her story was in the process of suing her for “illegal practice of the profession.” Villalobos said she first learned she was “illegal” when she called the Colegio about another case and an official told her, scoldingly:
“I can’t talk to you, you’re not a member of the Colegio. You’re in trouble. You’re accused of illegal practice. The Colegio doesn’t authorize students who write stories against people, who don’t write positive things.”
Her case was eventually shelved. But the whole episode had accomplished its apparent chilling aim.
“It acted as a muzzle,” she said. “I never wrote another word about the cooperative, and the newspaper never assigned anyone else to follow up on it.”
Sala IV to the Rescue
Obligatory licensing’s long and winding road in Costa Rica ended on May 9, 1995, when the seven justices on the Supreme Court’s Constitutional Chamber (Sala IV) annulled the Colegio law for violating guarantees of freedom of expression contained in the American Human Rights Convention. The justices also chided Costa Rica’s Executive Branch for allowing the law to remain on the books – and be used against journalists – for 10 years after the Rights Court had declared it incompatible with the treaty. The ruling came in response to complaints filed by three Costa Rican journalists who had been sued by the Colegio for “illegal practice of the profession,” and nullified all earlier convictions under the law, including Stephen’s.
Neither the Human Rights Court nor the Sala IV – the two institutional heroes that got Costa Rica’s democratic traditions back on track after its perilous experiment – existed when the battle against licensing in Costa Rica began.
“The Sala IV ruling gave the power to decide who can or cannot be a journalist back to its rightful owners: the people who read newspapers, listen to radio or watch TV,” we wrote. “And Costa Rica’s press can only win as a result. The local news media are now free to hire only the best and the brightest, no matter where they come from or how they got that way. And journalists will have to prove their worth; waving a Colegio card will no longer suffice.”
A Job Well Done
In October 1995, Tico Times Publisher Richard Dyer, Costa Rican attorney Fernando Guier, Diario de Las Américas publisher Horacio Aguirre, World Press Freedom Committee attorney Leonard Marks and Germán Ornes, publisher of the Dominican Republic’s El Caribe and a lifelong licensing foe, were awarded the IAPA’s Grand Prize for Press Freedom for their “untiring efforts in the fight against the obligatory licensing of newsmen” in this hemisphere.
* * *
Postscript: Membership in Costa Rica’s Colegio de Periodistas is now voluntary and the group promotes journalists’ continuing education, speaks out on press freedom issues, works to reform Costa Rica’s antiquated press legislation, and champions alternative and rural publications.
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