Wednesday, June 3, 2009

Right of Reply Law Violates Press Freedom

Recently, legislator-turned-blogger Mon Palatino (courtesy of the Supreme Court in the Banat case) warned that the Right of Reply Bill (RORB) will affect bloggers and writers in other internet-based platforms, such as social networking sites, once it passes into law. Temporarily sidelined by the passage of House Resolution 1109, which calls for the convening of Congress into a constituent assembly to propose amendments to the Constitution, the RORB is one of the measures in the Lower House's high priority agenda.

Originally introduced in the Senate by veteran street parliamentarian Sen. Aquilino Pimentel, Jr., Senate Bill No. 2150 requires media organizations under pain of sanctions to provide print space or broadcast time, free of charge, to the accused or criticized person in the same space or program where the accusation or criticism was made.


The flurry of oppositions and criticisms that the bill is receiving is not surprising, considering the serious implications it will have on the right to free speech and press freedom. And no matter how insistent Senator Pimentel is in defending his pet measure by claiming that it engenders rather than inhibits speech by allowing the objects of press accusations and criticisms the opportunity to counter the charges against them, the bill – no matter how well-intentioned by one who had undoubtedly vigorously fought an authoritarian regime notable for its suppression of free speech – presents clear restraints on press freedom that are hard to ignore.

The U.S. case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) is instructive in determining the constitutionality of the bill. This case was about a candidate for the Florida House of Representatives who was the subject of adverse editorials in the Miami Herald newspaper. When the newspaper refused to publish the candidate’s replies to the editorials he sued claiming a “right of reply” under a Florida statute. The Florida statute substantially provides that if any newspaper assails the personal character of any candidate, such newspaper shall upon request of the candidate immediately publish free of cost any reply he may make.

In ruling that the Florida statute violates the First Amendment’s guarantee of a free press, the U.S. Supreme Court held that government compulsion on a newspaper to publish that which reason tells it should not be published is unconstitutional. The statute was considered as a command by the State in the same sense as a statute or regulation forbidding the publication of specified matter. In other words, the U.S. Supreme Court was essentially saying that a law dictating the publication of certain matters is similar to one that prohibits their publication, which as a rule is clearly prohibited as unlawful restraint on free speech.

The U.S. Supreme Court also found the statute to exact penalties on newspapers by imposing additional printing, composing, and materials cost and by taking up space that would otherwise be devoted by newspapers to matters they prefer to print. And even if no such penalty attends the allowance of print space to persons claiming their right of reply, the U.S. Supreme Court reasoned that the statute intrudes into the function of editors in choosing what material goes into a newspaper, in deciding on the content and size of the newspaper and the treatment of public officials and issues.

The chilling effect of such regulation cannot also be taken for granted. As observed by the U.S. Supreme Court, “(f)aced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safest course is to avoid controversy . . . Government-enforced right of access inescapably “dampens the vigor and limits the variety of public debate.”

While this case is not binding on our courts, it is nevertheless persuasive. Historically and by practice, our own Supreme Court has on numerous occasions looked upon American jurisprudence in deciding constitutional issues, especially when it comes to free speech cases in view of the fact that Article 3, Section 4 of our Constitution – our constitutional guarantee on freedom of speech, of expression and of the press – is almost a verbatim copy of the free speech clause in the First Amendment to the U.S. Constitution.

Senate Bill No. 2150 clearly violates press freedom by forcing under penalty of law the printing or broadcasting of matters that editors or publishers of print and broadcast media may not agree with or prefer to publish. Requiring media outlets to publish or broadcast materials from persons claiming to have been aggrieved by their adverse writing or reporting is in effect meddling with the editorial discretion of said media; it would virtually make the government inject itself in newsrooms and participate in the essential task of editors in determining what to print or publish.

If this bill were to become law, one could only imagine the volume of requests coming from the government and public officials to be given print space in newspapers, airtime or spots on radios and televisions, to rebut every adverse reports against them – which are not few, I should add.
In a very real sense, the print and broadcast media will be running short of print space and airtime just to accommodate, for free, these rebuttals, else they will be penalized with monetary fines ranging from P10,000 to P30,000 for every denied request.

To avoid such inconveniences and penalties, the print and broadcast media will limit themselves to printing and broadcasting non-controversial matters or issues that do not involve accusations of criminal activity or criticisms for “lapse in behavior,” as the bill words it. This will effectively chill the exercise of free speech and prevent what the U.S. Supreme Court said in the famous case of New York Times v. Sullivan that debate on public issues should be “uninhibited, robust, and wide-open.”

Another questionable feature of the proposed law is its vagueness. Section 1 of the bill grants the right of reply to persons who have been criticized for lapse in behavior. What would constitute “lapse in behavior”? If I were to criticize Sen. Miriam Defensor-Santiago for laughing out too loud when giving media interviews or Jesus Dureza for praying for the extension of GMA’s term, would that be criticism for lapse in behavior?A statute seeking to regulate speech that is vague offends not only the freedom of speech, but also the right to due process. People ought to know what is a prohibited activity in clear and precise language so that they will know what activity they will refrain from doing. A vague statute seeking to regulate speech acquires special significance because if people do not know what speech is prohibited they will refrain from speaking altogether for fear that they might violate the law.

While a responsible press is undoubtedly important and people should be given the opportunity to rebut unfair charges against them, these considerations cannot, however, trump the right to a free press and free speech in general. Needless to say, individuals aggrieved by false and defamatory reports are not without legal recourse. That our judicial institutions do not deliver in seeking redress cannot override our most fundamental liberty in a democratic and republican government. In such case, rather than making press freedom the casualty strengthening of the judicial system should be the target.

1 comment:

Dean Jorge Bocobo said...

SO MANY interesting issues. I haven't really gotten my head into this one yet as much as I should. I guess it was not tackled by the House...have to check on that.