The right of reply legislation – a boon to corruption

by Atty. Ernesto B. Francisco, Jr.

At first glance, the proposed right of reply legislation seems to be a valid proposition since it offers a fair chance to the public to reply to published or aired accusations or criticisms. However, a closer examination will show that far from bestowing the public with a right, the end result of this proposed legislation may be to protect public officials from valid accusations and criticisms coming from the public. But public officials are public figures who “have lost, to some extent at least, their right to privacy” and who should not be too “thin-skinned with reference to comment to (their) official acts.” Moreover, this proposed legislation, far from serving its avowed ends, may also be creating a boon to corruption.

Senate Bill 2150 is entitled “An Act Granting the Right of Reply and Providing Penalties for Violation Thereof” and is authored by Senators Aquilino Pimentel, Jr., Ramon Revilla, Jr., and Francis Escudero. It requires the free publication or airing of a reply to any accusation of a crime or offense or criticism that is published or aired.

The publication or airing of a reply free of charge will be required not only for any accusation of a crime or offense that is published or aired, but for practically all kinds of criticism as well, considering that the term “criticism” is described as “criticism by innuendo, suggestion or rumor for any lapse in behavior in public or private life.” Moreover, Senate Bill 2150 penalizes the failure or refusal to publish or air a reply free of charge by way of imposition of stiff penalties and other sanctions on the editor-in-chief, publisher, station manager or owner of the broadcast medium.

A never ending story

The principal beneficiaries of this kind of legislation are likely to be corrupt public officials and their relatives who are the usual subject of accusations and criticisms published and aired as news reports or commentaries. It may also be used by a corrupt administration to muzzle the press and prevent it from fully reporting matters involving accusations or criticisms of the government and public officials and their relatives. In a country like ours which reeks of graft and corruption and all sorts of malfeasance, misfeasance and non-feasance by public officials and private individuals in cahoots with them, a strict implementation of any right of reply legislation may drive many media establishments out of business.

Worse, those media establishments comprising the free press will likely to be most adversely affected, considering that they are the ones most inclined to publish and air accusations or criticisms against corrupt public officials and their relatives.

In the end, a right of reply legislation may even encourage corrupt public officials to do as they please knowing that they will have the right to a free publication or airing of their replies which are likely to come in the form of alibis, disclaimers, renunciation, convenient denials and distorted and misleading explanations or justifications of their corrupt acts and practices.

Moreover, Senate Bill 2150, if enacted into law, will be a prohibited “prior restraint” proscribed by the Constitution whose Bill of Rights prohibits the enactment of any law that abridges the freedom of speech, of expression and of the press. Black’s Law Dictionary defines “prior restraint” as “any scheme which gives public officials the power to deny use of a forum in advance of its actual expression.” Black’s, citing Near vs. Minnessota, 283 U.S. 697, further states that the United States Constitution “prohibits the imposition of a restraint on a publication before it is published.”

The ink may just run dry

Clearly, Senate Bill 2150 will result in a direct and prior restraint on the freedom of the press. Worse, this kind of legislation is coming in the worst of times when present economic realities might force media establishments not to publish or air accusations or criticisms for fear that the resultant loss of revenues from compliance with such legislation – which will require substantial use of valuable space or air time – and from the cost of compliance with the stiff penalty for every failure or refusal to publish or air a reply.

Media establishments which will choose to strictly comply with such legislation may eventually find their operations less viable as a result of loss of revenues from the substantial space or air time that is required to be devoted to the replies of the many who are likely to be accused and criticized in a graft-and-corruption-ridden nation like ours.

In effect, what may not be accomplished by way of an outright closure of dissenting media establishments will be achieved, in the short or long run, through a strict enforcement and implementation of the law on the right to reply. It is ironic that the right of reply legislation authored by oppositionist senators comes in the heels of subtle attempts by the present administration to reimpose Martial Law or to create the semblance of a state under Martial Law.

Senate Bill 2150, if enacted into law, may also be a prohibited form of “subsequent punishment” likewise proscribed by the Constitution. According to Fr. Joaquin G. Bernas, S.J., in his Commentary on the 1987 Constitution, “(t)he mere prohibition of government interference before words are spoken or published would be an inadequate protection of the freedom of expression if the government could punish without restraint after publication. The unrestrained threat of subsequent punishment itself would operate as a very effective prior restraint.” Fr. Bernas, citing Time Inc. vs. Hill and other U.S. Supreme Court decisions, further stated that “(i)f prior restraint were all that the constitutional guarantee prohibited and government could impose subsequent punishment without restraint, freedom of expression would be ‘a mockery and a delusion.’ Hence, freedom of expression also means that there are limits to the power of government to impose rules and regulations curtailing the freedom of speech and of the press.”

Lest we forget, it is settled that the rights of freedom of speech, of expression and of the press “occupy a preferred position in the hierarchy of civil liberties.” While there may be limitations to the exercise of such right under the “clear and present danger rule” or the “balancing-of-interests test,” the right of reply legislation does not qualify as any such lawful limitation. At this juncture, it may be relevant to revisit some of the leading decisions of our Supreme Court on these preferred rights.

The price that celebrities have to pay

The authors and proponents of the right of reply legislation must be reminded that public officials are public figures. In Ayer Productions Pty. Ltd, et al. vs. Hon. Ignacio M. Capulong, et al., G.R. No. 82380, 29 April 1988, which incidentally involved now Senate President Juan Ponce Enrile, the Supreme Court held that a “public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a ‘public personage.’ He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person. Such public figures were held to have lost, to some extent at least, their right of privacy. Three reasons were given, more or less indiscrimately, in the decisions that they had sought publicity and consented to it, and so could not complain when they received it; that their personalities and their affairs had already become public, and could no longer be regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when they were given additional publicity, as to matters legitimately within the scope of the public interest they had aroused.”

In Arturo Borjal, et al. vs. Court of Appeals, et al., G.R. No. 126466, 14 January 1999, the Supreme Court held that “fair commentaries on matters of public interest are likewise privileged.” The Supreme Court, in absolving columnist Borjal, held that “(t)here is no denying that the questioned articles dealt with matters of public interest” and that “(a) newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community.”

“To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.”

The Supreme Court, in Borjal, citing New York Times vs. Sullivan, 376 U.S. 254 (1964), pointed out that the United States Supreme Court ruled “that honest criticisms on the conduct of public officials and public figures are insulated from libel judgments. The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not.” The Supreme Court further held that the “raison d’etre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it.”

In Mario Jalandoni, et al. vs. Hon. Secretary of Justice, et al., G.R. Nos. 115239-40, 2 March 2000, the Supreme Court held that “the (published) statements embodied in the advertisement and the open letter are protected by the constitutional guarantee of freedom of speech. This carries the right to criticize the action and conduct of a public official. The extent of the exercise of this right has been interpreted and defined in U.S. vs. Bustos which held: ‘The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official or set of officials, to the Chief Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public opinion should be the constant source of liberty and democracy.”

In Jose Antonio U. Gonzalez, et al. vs. Chairman Maria Kalaw Katigbak, G.R. No. L-69500, 22 July 1985, the Supreme Court held that “(p)ress freedom, as stated in the opinion of the Court, ‘may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment.’ This is not to say that such freedom, as is the freedom of speech, is absolute. It can be limited if ‘there be a clear and present danger of a substantive evil that [the State] has a right to prevent.’ xxx xxx The test, to repeat, to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. There is the requirement of its being well-nigh inevitable.”

In closing, it seems that the right to reply legislation, far from serving its avowed ends, may end up as a boon to corruption which our poor country may be better off without. Be that as it may, it is but fitting to stress the admonition of the Supreme Court in Borjal thus: “We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached to and demanded by their noble profession. The danger of an unbridled irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the right and the regression of human society into a veritable Hobbesian state of nature where life is short, nasty and brutish. Therefore, to recognize that there can be no absolute ‘unrestraint’ in speech is to truly comprehend the quintessence of freedom in the marketplace of social thought and action, genuine freedom being that which is limited by the freedom of others. If there is freedom of the press, ought there not also be freedom from the press? It is in this sense that self-regulation as distinguished from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, ‘(W)ithout… a lively sense of responsibility, a free press may readily become a powerful instrument of injustice.’”

“Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and operates. For we have always strongly maintained, as we do now, that freedom of expression is man’s birthright — constitutionally protected and guaranteed, and that it has become the singular role of the press to act as its ‘defensor fidei’ in a democratic society such as ours. But it is also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen.”

(The author teaches the subject “Constitutional Law” at the College of Law of the Pamantasan ng Lungsod ng Maynila.)