The temporary jailing and prosecution of a newspaper editor in Egypt has presented Mohamed Morsi, just two months into his historic presidency, with an initial litmus test on the bounds of free speech in post-Mubarak Egypt.
Though Morsi - using special powers in the absence of a parliament - passed a law on Thursday rescinding the Mubarak-era practice of jailing journalists before trial, the charges against Al Dostour editor in chief Islam Afify remain.
Afify's case, involving an August 11 editorial that called for overthrowing Morsi's government, is legally and theoretically the most intriguing episode in a series of recent confrontations between the state and the media, as it pushes a boundary of free expression that has troubled even established democracies.
But watchdogs fear a broader crackdown: what some have called the "Brotherhoodization" of the media. In addition to Afify, who faces charges of publishing false information and insulting the president, the Glenn Beck-ian television host Tawfiq Okasha is being prosecuted after appearing to threaten Morsi's life, and his Faraeen channel has been taken off the air.
Editors Adel Hamouda of Al Fagr and Abdel-Halim Qandil of Sawt Al Umma are facing charges similar to Afify's, while another, Khaled Salah of Al Youm Al Sabaa, even claimed he was assaulted by Morsi supporters. Ibrahim Abdel-Meguid and Youssef El-Qaeed, writers once given space to criticize the Brotherhood, now find themselves without columns in the state-owned Al Akhbar.
(The confiscation of newspapers for criticizing even non-Brotherhood officials, such as the head of intelligence, continues as well.)
The boundaries of incitement
Shadi Hamid, a Brookings Institution fellow and close Brotherhood observer, took up the issue of Afify's prosecution in a recent piece for the Atlantic. Raising the United States as a comparative example, Hamid argues that both Egyptian and American penal codes outlaw certain kinds of incitement but notes that "Egypt, obviously, finds itself in a very different place, coming out of decades of effective military rule."
While allowing that the Morsi administration's behavior toward Al Dostour and Afify might be legitimate, Hamid concludes that Morsi must play the game of democracy fairly and that "Muslim Brotherhood critics have a strong case on the group's worrying censorship."
Hamid's analysis is well-balanced, though his focus on the US penal code is a bit wrong-headed. As Hamid himself emphasizes, "the point is setting norms," and modern US norms of free speech are based not only on our collective acceptance of our elected government, as he argues, but on decades of 20th century case law from courts which are, unlike in Egypt, not easily subject to pressure from the executive.
It was only in the 1950s and 1960s, after the passage of the Smith Act, that the US Supreme Court truly tackled the specifics of incitement. Decisive cases - including Dennis v. United States, Yates v. United States, and the related Brandenburg v. Ohio - stemmed from anti-Communist laws passed during times when fear of an imminent "Red" uprising were, if not legitimate, at least fairly widespread.
Over the course of these cases, the US legal norm for prosecuting incitement narrowed. In Yates, the court rejected the 1951 prosecution of Communist Party officials, ruling that "advocacy in the realm of ideas" was not illegal, unlike "advocacy of action." In the 1969 Brandenburg case, the court reversed the five-year-old conviction of a Ku Klux Klan leader who had been filmed addressing a meeting of armed men, pledging a march of 400,000 people on Washington, D.C., and suggesting that if "our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken."
By comparison, Al Dostour, in Hamid's translation, "warned that if the Brotherhood had its way, Egypt would see 'the destruction of the citizen's dignity in front of his family and his children and the rape of his private property rights.' It warned that the result would be 'killing and bloodshed.'"
The editorial continued:
Saving Egypt from the coming destruction will not occur without the union of the army and the people and the formation of a national salvation front composed of political leaders and the army [which would announce] an explicitly civil state protected by the army, very much like the Turkish system. If this does not happen in the coming days, then Egypt will fall and be destroyed. ... Taking to the streets in peaceful protest is imperative and a national duty until the army responds and announces its support for the people.
Al Dostour never went so far as to advocate the violent overthrow of Morsi's government; in fact, it specifically advocated "peaceful protest." Talk of "national salvation" governments was also rife in the months of violent protest and army-led crackdowns leading to Egypt's presidential election. Figures across the political spectrum, from the progressive Mohamed ElBaradei to the Brotherhood, engaged in such negotiations. But the country has an elected government now, and Al Dostour did seem to call obliquely for a kind of military coup.
The editorial came during a time of tense confrontation, when Morsi was in the process of sacking the highest-ranking members of Egypt's military, who had been running the country since Mubarak's fall. Yet Egyptian newspapers have a long history of printing outrageous lies and heated rhetoric.
I'm not aware of a prominent US parallel to the Dostour case, but Afify's editorial would almost assuredly have gone unpunished in America. US precedent has tended to give wide berth to the press, and the cases described above dealt with secretive conspiracies, not well-known newspapers. A US court would likely rule that Al Dostour's editorial had little chance of giving rise to imminent violent action.
SCC as SCOTUS?
But perhaps this goes to show that it's not incredibly constructive to compare modern Egyptian and US approaches to free speech. Or, as Egyptian law scholar Nathan Brown wrote to me, "a particular restriction cannot be described as consistent with democracy with the claim that some country recognized as a democracy [h]as done it at some point."
Egypt's civil law system - the kind practiced throughout Europe - places less importance on precedent than the common law decision making in the United States. While this actually makes Egypt's Supreme Constitutional Court quite powerful, since the court directly tries the constitutionality of laws and is given some authority to make sure its decisions are enforced, it seems unlikely that the SCC is going to play the role of the SCOTUS in transitional Egypt's free speech environment.
The court is young - only 43 years old - and though its decisions assumed dramatic importance in the period between the fall of Mubarak and the election of Morsi, it remains tarred by a reputation for being politically manipulated and its powers may be subject to some curtailment if elements of Morsi's administration have their way.
I may be wrong on this, and I invite correction, but the court also seems disinclined to play in the realm of free speech law. When I asked Brown about past SCC decisions on incitement or freedom of expression, he mentioned only a ruling in the 1990s that struck down statutes extending criminal liability to editors or publishers for content produced under their watch.
(Brown goes into far greater depth about the court, Morsi's administration, and the transition in a forthcoming article, which I recommend.)
From Libya to Spain
With the media wary and under threat, and the courts so far offering no resistance, one could argue that human rights groups are rightfully alarmed. And yet, comparatively, Egypt isn't doing so bad.
In Libya, a court had to overturn a broad law passed by the National Transitional Council that criminalized the act of praising or glorifying Muammar Gaddafi, his sons, or his ideas, as well as any insult to the revolution, the state, or Islam. In Iraq, where the constitution ostensibly guarantees freedom of the press, nobody has been prosecuted for any of the 92 journalists killed since the 2003 US invasion, and authorities continue to use old laws concerning libel and incitement that date to the Coalition Provisional Authority and even as far back as the 1969 penal code, according to Freedom House.
If we look at Chile and Spain, two Western nations that emerged from military authoritarianism in the 20th century, Egypt's media still appears vibrant.
In the 1980s, years after the death of dictator Francisco Franco, Spain still used a 1966 press law to restrain journalists, and the largest news wire, EFE, was government owned. The state only began to allow the development of private television channels in 1989, 14 years after Franco. In Chile, where Augusto Pinochet gave power in 1990 to a democratically elected government still overshadowed by the military, the monopolization of the media in the hands of those sympathetic to the armed forces and the blunt power of the military itself cowed much of the press into self-censorship for years.
Egypt's media is no model, but the current playing field is comparatively open, competitive and safe. Morsi's administration simply doesn't have the power to silence or control outlets which, whether they spent the past decade supporting or criticizing Mubarak, now represent an entrenched spectrum of opposition.
The Brotherhood's soft power
But the Muslim Brotherhood is experienced at playing the long game subtly, and there are effective ways to corral the press that don't involve jailing reporters.
(It's worth mentioning here that Morsi, while still a Brotherhood member, has resigned his leadership positions in both the Brotherhood and Freedom and Justice Party, though in practice all have acted hand in glove.)
The party has, since October, been running its own newspaper, which faithfully trumpets the FJP's views, strives to undermine opponents, and occupies street vendor position alongside all its rivals. The party also pushes its narrative across an array of English and Arabic websites. On August 10, the day before the offending Dostour copies were seized, one site published an article condemning attacks against journalists, ironically after Al Youm Al Sabaa's Salah made his assault accusation.
Beyond its media output and the state-sponsored prosecutions, the FJP has proven willing to take its own legal action against opponents. In the perilous June days preceding the official announcement that Morsi had won the election, the party sued Al Dostour for another front-page editorial which made the (quite arguably outrageous) allegations that the Brotherhood was conspiring to foment mass protest, sneak in Iranian commandos, and assassinate public officials if Morsi didn't win.
Finally and perhaps most obviously, Morsi and the Brotherhood now hold the reins of government. Egypt's state media apparatus has shown how efficiently it can become obsequious to Morsi, and there is little doubt that state radio and television - the primary means of reaching the people - will offer weak criticism.
Meanwhile, the Shura Council - the upper house of parliament which has not been disbanded and remains thoroughly controlled by the FJP - retains power to appoint media chiefs and earlier this month did just that. The name of the new Akhbar editor in chief? Mohamed Hassan El-Banna.