Top Gear and Free Speech In Argentina

If you are a fan of the British TV show Top Gear you know that the former presenters are not immune to controversy. Often accused of being insensitive and nationalist it is not surprising that a relatively recent episode detailing their Patagonian journey in Argentina yielded similar results.

Amidst their travels the presenter trio of Jeremy Clarkson, James May and Richard Hammond were accused of riling up past sentiments regarding the Falkland Wars with a license plate attached to a vehicle reading: H982 FKL. A reference many Argentines believed overtly referenced the 1982 skirmish. While the presenters insisted it was entirely coincidental to reference the islands and year on the license plate. Word spread before the filming of the episode concluded and the presenters and crew changed the license plate to read H1 VAE instead. This was an attempt to quell future protest from war veterans and sympathizers. If you are a frequent watcher (as I am) you may be surprised to know the episode ended poorly with the crew being attacked and the trio of presenters exiting by other means in an effort to yield to the demands of the gathering crowd.  Overall, only minor injuries resulted from the incident, but it appears as if it was a tense moment for the crew and presenters. They appeared to be legitimately scared.

Now I am no expert on Argentina law, however, out of this incident the trio is now facing charges for falsification regarding the aforementioned change to the license plate.  As reported at the Telegraph the charges were initially dismissed and then prosecutors appealed. The Telegraph reports:

The three appeal judges nullified her decision and ordered her to reopen the case – at the request of state prosecutor Daniel Curtale – after a private hearing in the nearby city of Rio Grande.

One, Julian de Martino, described her decision in their joint ruling as “premature” and said her arguments were “insufficient to reject the criminal hypothesis outlined by state prosecutors.”

Prosecutors claim the Top Gear team committed a crime under article 289 of the Argentinian Penal Code which carries a prison sentence of between six months and three years for those who “falsify, alter or suppress the number of an object registered in accordance with the law.”

However this also creates broader implications regarding freedom of the press and speech, both of which are protected in Argentina. As well as what means one may employ in order to prevent a potential conflict, particularly one that may inflict bodily harm or injury.

First there is no evidence that the first plate was in fact tampered with or illegal in any way (whether it was intentional or not remains controversial). As it stands, it was a legitimate license plate.  But instead this particular charge arises from changing the offensive license plate to the less innocuous plate. Further evidence may arise regarding the first plate on the car, an old Porsche driven by Jeremy Clarkson.

Second, assuming that it was legal and intentionally referencing the Falklands War, it is then a matter of speech. One of which, in the states and in that format may likely be restricted by the government. (This is an interesting topic that has been explored by others, I do not intend to delve into this topic at this moment) I would assume Argentina has a similar standard, nevertheless if the plates were legit (which they appear to be) there appears to have been no government effort to restrict or change the plates. The result of the protest about the plates was an effective heckler’s veto after a picture of the plates was posted on the internet during their shoot. Intentionally chosen or not by the Top Gear team, they yielded to their pressure (however it failed to avoid the conflict coming at the designated journey’s end).

The threat from the protesters effectively silenced the speech of the presenters. Frankly it doesn’t matter too much if they did it intentionally (the presenters) as a matter of speech or not since the result was the same. The protesters believed it was intentional and acted in an illegal manner, with threats that culminated in actual violence with the intent to quell speech and express dissatisfaction. Unfortunately the end result of this behavior, to silence speech through violent means, is encouraged regardless of the intent of the presenters and producers of Top Gear.
The falsification claim arises from the effort to quell the mob and yield to the hecklers’ veto. (For a recent case in the Sixth Circuit on the heckler’s veto, see this post by Eugene Volokh). The question is then, is there a legal defense for what appears to be a reasonable response (self-preservation) from the Top Gear crew, i.e. switching the plates. Particularly since the government was willing to allow the threat to persist over this speech issue. Furthermore, following through on the charges legitimizes the protesters and minimizes the ability to speak freely.
The episode raises the following basic questions 1] Did the presenters/crew falsify their plates under the law? 2] Is there a defense, regarding the circumstances, that would allow the change of the plates, as the Judge initially stated when dismissing the case the first time? 3] What weight does the broader policy point regarding free speech or freedom of the press demand in consideration of what may be at stake by prosecuting them for a legitimate attempt to moderate their speech?
This is an interesting legal question. As far fetched as it may be the judge originally agreed with the assertion that they responded quickly to avert a disastrous outcome. Even without the speech implications there seems to be a strong case for dismissing these charges. However, importantly, failing to dismiss these charges only emboldens hecklers if speech referencing uncomfortable, insensitive or controversial topics is indirectly prosecuted when a speaker attempts to remove himself from a dangerous situation. Though speech is likely not an affirmative defense, it is intricately interwoven throughout this incident.
This story is one worth following, both for the legal aspects as well as the possible impact on the former Top Gear presenters, Clarkson, Hammond and May.

 

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