The Fourth Enemy. James Cane

On the one hand, the decree legally recognized the existence of a print public sphere, at once open to the participation of all residents of the rebellious territories and free from prior censorship.¹³ At the same time, however, the decree limited legitimate debate to “political ideas,” leaving discussion of questions of public morality open to official censorship and effectively ceding control over legal print debate on religious matters to the clergy precisely because of its vested interest in upholding certain aspects of Catholic doctrine. This latter element of the decree was hardly inconsequential, especially in an environment in which struggles over the nature and form of political authority as well as the rights and limits of republican citizenship—and thus also of the relationship between state and church—were becoming increasingly contentious.¹⁴ Essentially, even as the junta set the basis for a political press that could serve as a forum of political debate among an emerging political elite, it also retained the monitoring and regulation of the press within the legitimate realm of state and church activity. Not until 1821 and 1822, a decade after the junta’s initial decree, did authorities in the province of Buenos Aires enlarge the realm of the rights of private citizens to publish by enacting a set of laws affecting both the press and the process of secularization.¹⁵ The decree of April 1811 and its subsequent revisions thus stood together with the junta’s creation of the Gazeta de Buenos-Ayres as an amalgam of disparate influences: the statist and Catholic legacy of Spanish colonial rule; emerging bourgeois conceptions of the separation of public and private rights; and the practical demands of erecting a new political order in the ashes of the old.¹⁶

      If continued revisions of the April 1811 press decree reflected, for the most part, a trend toward expanding the legal latitude allowed in the press, they also represented a more pragmatic attempt to create a legal framework that authorities could actually enforce. This liberalization, however, proved short-lived. In May 1828, the Manuel Dorrego regime in the province of Buenos Aires sharply curtailed the right to “attack state religion” through the press and prohibited the use of satire to criticize the public actions and private “defects” of “any individual” under penalty of heavy fines.¹⁷ The rise of Juan Manuel de Rosas as governor of the province of Buenos Aires—with vast authority over both the province as well as the United Provinces of the Río de la Plata as a whole—only strengthened restrictions on the press. Indeed, while the Rosas dictatorship continued to allow some semblance of a public sphere, publishing became subject to increasingly tighter legal and de facto state and quasi-state control.¹⁸ The most vibrant press opposition to the Rosas regime, in fact, came from the journalism practice of writers who, like Domingo Sarmiento and Bartolomé Mitre, attacked the government from beyond the reach of the rosista state while in exile in Chile, Uruguay, and Bolivia.¹⁹

      Only the Unitario victory over Rosas at the battle of Caseros in 1852, together with the broader ascendancy of a more coherent political liberalism in the Río de la Plata and beyond, allowed a new and ultimately more stable juridical framework for the operation of the Argentine press. Delineating the relationship between state and press in a far clearer fashion than previous attempts, Argentine lawmakers devoted article 14 of the 1853 constitution to the question of public expression through the press, while the subsequent addition of article 32 in 1860 further limited the capacity of the federal government to impose restrictions on publishing activities. Together, articles 14 and 32 of the constitution addressed the positive and negative aspects of the ideal press-state relationship: article 14 stood as a positive definition of citizen rights with regard to publishing, while article 32 embodied a conception of the role of the press as necessarily free of state restriction.

      Yet the drafters of the new constitution also attempted to reconcile a basic contradiction that Sarmiento himself had asserted plagued the functioning of the press in any republic: “without complete freedom of the press there can be neither liberty nor progress. But with it one can barely maintain public order.”²⁰ To address this, not only did the drafters of the constitution allow provincial authorities significant latitude in determining local press law, but in doing so they also unlinked the rights of individuals to publish from the broader laws restricting libel and other aspects of the content of expression. In drawing a distinction between the private prerogative of citizens to publish and the public right of individuals to be protected from certain kinds of written attacks, the drafters of the new constitution sought to strike a new balance between the operation of a highly politicized press and broader political stability.

      Article 14 of the 1853 constitution established that “all inhabitants of the Confederation enjoy the following rights in conformity with the laws that regulate their exercise; that is: … to publish ideas through the press without prior censorship.”²¹ Based on the draft constitution of liberal ideologue Juan Bautista Alberdi in his Bases y puntos de partida para la organización política de la República Argentina, the article guaranteed freedom of the press in its positive and universal sense: as a freedom for the expression of thought through the press, ostensibly open to use by all inhabitants of the republic regardless of citizenship, political affiliation, ethnicity, or gender. Article 32, added in 1860 as the province of Buenos Aires rejoined the Confederation, reinforced the terms of the earlier article by declaring that “the Federal Congress will not dictate laws that restrict the freedom of the press, nor establish federal jurisdiction over that freedom.”²² Born as a concession to inhabitants of the rebellious province who feared President Urquiza’s attempts to stifle the opposition press, article 32 defined press freedom in its negative form: as freedom from the dictates of state authorities. The Constitution of 1853 thus effectively placed press freedom in the realm of natural rights, both universally valid and prior to the constitution itself, while at the same time explicitly limiting the actions of the federal government with regard to the functioning of the press.

      Still, while establishing the right of private individuals to exercise freedom of expression through the press, both articles contained ambiguities that helped shape the particular environment in which the Buenos Aires commercial press would grow. First, though article 14 declared the right to publish without prior censorship, it did so only “in conformity with the laws that regulate [its] exercise,” despite Alberdi’s more unequivocally antistatist inclinations.²³ Until the 1930s, for the most part, these laws remained restricted primarily to offenses stipulated in the Argentine Penal Code that might be committed through the press: calumnia (libel), injuria (insult), and desacato (contempt of a public official).²⁴ By holding the authors of published works answerable for offenses as subjective and murky as injuria and desacato, the qualifications drafted into article 14 thus established the possibility that press activity could, in fact, remain subject to legitimate state penal action despite constitutional prohibitions against prior censorship. As a result, the federal legal and legislative battles surrounding the press prior to the 1930s centered primarily upon the proper definitions and limits of violations of the Penal Code committed through the press.²⁵ The possibility of litigation for these offenses—and the concrete cases of such litigation—marked a clear and constant limit to the role of the press within the emerging Argentine public sphere.

      Second, article 14 did not guarantee freedom of expression, but rather a more limited right to publish “through the press” without prior censorship. Article 32 would reinforce this by focusing explicitly on libertad de imprenta, perhaps most accurately translated as the medium-specific “freedom of print” or “freedom of the printing press.” The national constitution, then, did not endorse a blanket right of Argentines to express themselves by any means, and in this Argentine constitutional law remained consonant with that of countries like Chile, Switzerland, and Belgium.²⁶ Nor did the 1853 constitution establish the right of libertad de prensa (freedom of the press), with its institutional and ill-defined quasi-corporate connotations, even if that expression did come into common usage at least by the late nineteenth century. These issues transcended simple semantics and left newer media like radio, audio recording, and film in an indeterminate position vis-à-vis constitutional law by the time of their growing importance in the 1920s.²⁷

      This qualification of the right of expression by means of the press, finally, reinforced a corollary to article 32: if the federal Congress could not dictate laws preempting the exercise of expression