Criminalizing Dissent: A Dangerous Threat to Free Speech in Guatemala

Yesterday, the Supreme Court’s Chamber for Injunctions and Pretrial Matters refused to grant a preliminary injunction requested by the Special Prosecutor’s Office Against Impunity (FECI) in an attempt to reopen a case against journalists and columnists from El Periódico.

This case dates back to February 2023, when, during criminal proceedings against journalist José Rubén Zamora, a judge ordered an investigation into whether El Periódico’s journalists and columnists had committed crimes such as obstruction of justice. The argument was that their reporting and coverage of the case—particularly regarding various judicial officials—might constitute criminal offenses. At the time, the accusation suggested that these journalists’ articles were intended to coerce or intimidate judges and prosecutors, improperly influencing the proceedings.

This is a critical issue because the accusation directly threatens journalists’ right to publish their opinions. And that is deeply alarming. Article 35 of the Guatemalan Constitution provides strong protections for freedom of expression and explicitly states that publications containing allegations, criticisms, or accusations against public officials for actions taken in their official capacity do not constitute a crime or an offense. In other words, the very basis of the case pushed by FECI directly contradicts this constitutional guarantee.

As always, we must consider the legal principles at stake and the precedent this case could set. Comparative law offers valuable lessons.

In the United States, for example, free speech enjoys strong constitutional protection. The Supreme Court has interpreted the First Amendment broadly, particularly when it comes to political speech. A landmark case was New York Times v. Sullivan (1964), which set a high bar for defamation lawsuits involving public officials: plaintiffs must prove that false information was published with “actual malice”—meaning, either with knowledge that it was false or with reckless disregard for the truth. This is an intentionally difficult standard to meet.

As a result, this legal framework protects criticism and public debate, ensuring that journalists and media outlets can do their jobs without the constant threat of baseless legal action. In Watts v. United States (1969), the Supreme Court reinforced this principle by distinguishing real threats from mere political rhetoric. Watts had been convicted for allegedly threatening the president during a public rally, but the Court overturned the conviction, ruling that his statement was political hyperbole rather than a “clear and present danger.” This precedent establishes that speech cannot be restricted just because it is aggressive or controversial—only expressions that incite imminent violence or real harm can be punished. Once again, a high standard that applies equally to criticism of any public official, including judges.

The contrast with more authoritarian regimes is striking. In Singapore, for example, journalist Alan Shadrake was convicted in 2010 for contempt of court after publishing his book Once a Jolly Hangman: Singapore Justice in the Dock. In it, he criticized the country’s judicial system and argued that political and commercial interests influenced death penalty decisions. The court ruled that his statements posed a “real risk” of undermining public confidence in the judiciary—without needing to prove that this was his intent. One of the passages cited in his conviction stated:

“Something sinister: how the Singapore legal system works in secret and how politics, international trade and business often determine who lives and who dies on the gallows”.

Authorities argued that this claim threatened the judiciary’s “image” and therefore warranted punishment. Unlike in the U.S.—where even harsh criticism is protected unless it incites violence or constitutes a real threat—Singapore punishes speech that, in its view, weakens confidence in institutions.

Now, applying this contrast to Guatemala, we must ask ourselves: does the effort to prosecute journalists and columnists resemble a democracy that protects criticism of those in power, or a regime where dissent is punished through the courts?

The real danger isn’t just this specific case—it’s the precedent it sets. Our Constitution already provides a mechanism for addressing disputes over the accuracy of claims made against public officials: the juicio de imprenta (press tribunal). Shifting these matters into criminal law creates a system where the judiciary becomes both judge and interested party, punishing those who challenge its authority.

This type of legal persecution leads to what’s known as a chilling effect—when the fear of judicial retaliation forces journalists and citizens to self-censor, avoiding publishing information or expressing opinions that, while legitimate, might make those in power uncomfortable. Authorities don’t need to convict everyone—prosecuting just a few is enough to send a message and silence the rest.

That’s what makes this so dangerous. This isn’t just about the immediate injustice facing El Periódico’s journalists—it’s about the broader signal being sent to society: criticize those in power, and you could end up in court. And when people are afraid to speak out, self-censorship becomes the norm. And self-censorship, as history has shown us, is the first step toward tyranny.