New Question

by Juan L. Mercado

If allowed to grow, bad weeds will smother the good grass, says a Filipino proverb. “Ang masamang mila, kapag kinonsinti, pag tubo’y siya ang makapangyayari.”

That fits Deputy Speaker Giorgidi Aggabao’s proposal: Sift through the House’s trash can for scrapped legislative proposals. From the shreds, patch together a right of reply (RoR) bill. It will enable “beleaguered” lawmakers to respond to media reports on their inclusion in multiple pork barrel scam lists.

Aggabao says he is one of those tarred by the scandal. “The bell has been rung… How do you unring a bell?” he adds. “You can’t undo the damage…” This is a common complaint. His RoR bill could be a “stand-alone measure.” It need not hitchhike on the freedom of information bill.

In 2009, an RoR bill was filed in Congress. It never went beyond first base. The Commission on Elections later adopted a resolution that sought to regulate free time or space in the media for candidates.

“The resolution was not a masterpiece of clarity,” constitutional expert Joaquin Bernas, SJ, wrote then. If understood as mandatory, the resolution “would amount to taking of private property without just compensation,” the Supreme Court ruled. It approached the case “as an illicit act of property hijacking.”

Now, this has reemerged as a speech issue. If enacted into law, RoR would compel the press to print or air the rebuttal of parties who feel maligned in the same space and airtime.

Previous Congresses trashed all such bills. Nueva Ecija Rep. Rodolfo Antonino, in the previous Congress, stitched an RoR provision into the freedom of information bill. The provisions were cut-and-paste copies of Rep. Monico Puentevella’s House Bill No. 3306 and Senators Bong Revilla and Chiz Escudero’s Senate Bill No. 2150. Both measures were scrapped in Congress for constituting “prior restraint.”

Escudero later withdrew support. “We recognize that editorial functions are privately exercised prerogatives,” then Rep. Juan Edgardo Angara wrote. That reflects the unease that Deputy Speaker Raul del Mar of Cebu and Ifugao Rep. Teddy Baguilat expressed. They were not comfortable with usurping editorial functions.

This unease was explained by Bernas in the Inquirer issues of 6/1/09 and 11/18/12. “We follow American tradition in speech jurisdiction,” he wrote. The US Supreme Court, in a 9-0 decision, struck down Florida’s RoR statute as an infringement on the First Amendment guarantee of the freedom of the press. That “can be said about right of reply bills” in the Philippines.

In the Florida case, candidate Pat Tornillo demanded that the Miami Herald print his reply to scathing Herald criticism. A 1913 Florida law required newspapers then to provide free reply space to any candidate whose personal character or official record the newspaper had assailed. The Miami Herald refused, so Tornillo sued.

A “responsible press is an undoubtedly desirable goal,” the court noted. “But press responsibility is not mandated by the Constitution and, like many other virtues, it cannot be legislated.”

An RoR law could impose intolerable financial costs. It’d force newspapers to omit material they wished to publish just to make room for replies. Worse, it could spur papers to avoid publishing “anything that might trigger a reply. [That would] constitute an unwarranted intrusion into the editorial process.”

The power of a privately owned paper is bound by only two factors: (1) acceptance of a sufficient number of readers—and hence advertisers—to assure financial success; and (2) journalistic integrity of its editors and publishers. “The clear implication is any compulsion to publish that which ‘reason’ tells them should not be published is unconstitutional.”

“The choice of material to go into a newspaper, and the decisions made as to the limitations on the size and content of the paper and treatment of public issues and officials—whether fair or unfair—constitute the exercise of editorial control and judgement,” wrote Chief Justice Warren Burger.

“Government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor,” Justice Byron White added in a concurring opinion.

The Reynato Puno Supreme Court hewed closely to this constitutional tradition. It spiked warnings of the Department of Justice and National Telecommunications Commission (NTC) against airing the “Hello Garci” tapes involving Gloria Macapagal-Arroyo. This threat to gag constituted prior restraint, Puno wrote as ponente. “It challenged the most exalted of all civil rights, the freedom of expression.”

“Any prior restraint … must hurdle a high barrier,” Justice Antonio Carpio wrote in his tightly-reasoned concurring opinion for the NTC case (GR No 168338). “Such prior restraint is presumed unconstitutional. [And] government bears a heavy burden of proving the constitutionality of such restraint.”

“The press has no quarrel with fairness, only with dictatorships that barge into newsrooms to usurp editorial functions,” the Cebu Citizens Press Council stressed in a position paper (12/14/07) in bucking HB 3306 and SB 2150.

However legislated, RoR “operates as a command. [It resembles] a statute forbidding the newspaper to publish specified matter,” added the Cebu Media Legal Aid. “This is prior restraint. If the media cannot be told what to publish, it cannot be told what not to publish.”

A final question for Aggabao & Co: By the end of 2014, there will be three billion on the Internet. How do you impose an RoR on them with the click of a computer mouse?


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