Stark Irony

by Juan L. Mercado

The irony is stark. . We’re marking “People Power One” this week. A nation’s free spirit unshackled a press stifled by the Marcos dictatorship for 14 years.. .Yet this week, Congress may recycle authoritarian gags. This time around, they doll it up as “right of reply”.

The Lower House is “under pressure” to approve HB 3306, Speaker Prospero Nograles claims. Who is arm-twisting who? Filed by Rep. Monico Puentebella, this measure would compel, by fines or jail terms, publication of replies.

Reply to what? Reply to “ innuendo, suggestion or rumor of any lapse in behavior, in private and public life, to charges or criticisms in newspapers, magazines, newsletters, radio, television and websites.” Senators Aquilino Pimentel, Ramon Revilla and Francis Escudero demand that in SB2150.

Replies must appear on the same page or program. Print or air within three days, the senators order. One day, insists the congressman. Dun protestors with fines up to P50,000 plus jail terms, Nene, Bong and Chez propose. Jack t hat up to P200,000, Monico says.. For good measure, suspend or cancel franchises. .

“A statutory right of reply would have a chilling effect”, an Inquirer editorial cautioned.. The measure imposes penalties based on contents of a newspaper or broadcast. “Legislated right of reply intrudes into the function of editors”

If these measures were law, the “Garci tapes,” flawed election computers, overpriced Asean street lamps, ZTE broadband and fertilizer scams, World Bank bid-rigging and assorted rackets wouldn’t have surfaced. “Replies” by officials usurping editorial chairs, would have smothered them..

Edsa One, however, restored a regime where the only permissible restraint, on media, is the citizen’s refusal to read or listen. The new Charter resurrected constitutionally protected rights, including press freedom from prior restraints. Any law that fractures constitutionally-shielded rights is “unenforceable”. Period.

Thus, the Inquirer editorial reminded legislators their bills merely recycled Florida Statute 104.38. Candidate Pat Tornillo hefted this 1913 measure to compel Miami Herald to publish his reply. Herald criticized his role in a teachers’ strike. The editors refused. Instead, they went to court. .

In a 1974 decision, the US Supreme Court ruled: Florida’s right-to-reply statute unconstitutional. Forcing a paper to print something that “reason’ tells them should not be published” violated free press guarantees, Chief Justice Warren Burger wrote. ”

“A newspaper is more than a passive receptacle or conduit for news, comment, and advertising,” the Court ruled. “The choice of material…and decisions made as to limitations on size and content, and treatment of public issues and public officials–whether fair or unfair–constitute the exercise of editorial control and judgment.”

A free press is not necessarily an angelic press. “A statutory right of reply imposes the virtue of responsibility on the media,” Burger wrote.. “Press responsibility is not mandated by the Constitution. And like many other virtues, it cannot be legislated.”

Inquirer underscored Justice Byron White’s apt concurring opinion: ““Government may not force a newspaper to print copy which, in it’s journalistic discretion, it chooses to leave on the newsroom’s floor….Prior compulsion by government in matters going to the very nerve center of a newspaper — the decision of what copy will or will not be included in a given edition — collides” with the Constitution’s provision on freedom of the press.

“The press can not be told what to publish. Nor can it be ordered what not to publish” the Cebu Citizens Press Council said in a memo to Congress on RoR bills..In a democracy, only self-imposed codes of ethics may ensure fair professional press practices.. Much is already being done in this area.,

That stance is anchored to a Philippine Supreme Court February 2008 decision. ( GR No 168338) This struck down a National Telecommunications Commission threat to cancel franchises of radio stations airing the “Garci” tapes.)

Even a threat is “unconstitutional prior restraint on exercise of freedom of speech and of the press,” Chief Justice Reynato Puno wrote for the court. . “Where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down”.

“Deeply ensconced in our fundamental law is hostility against all prior restraints on speech,” the majority decision reads. “Any act that restrains speech is hobbled by the presumption of invalidity…” As early as 1918, “this Court already stressed that …complete liberty to comment on the conduct of public men is a scalpel in the case of free speech…

“A government action that restricts freedom of speech or of the press, based on content, is given the strictest scrutiny,” the Court added. “Government has the burden of overcoming the presumed unconstitutionality.” There is only one exception: “where there is clear and present danger” to national security.””

Congress however may ignore People Power One’s lessons and court.. It’s likely to opt for converting 381 radios stations, plus 250 tv outfits, into megaphones and over .120 newspapers into stamp-pads. A gagged press emerging, on the week the country recalls it’s unshackling 23 years ago, is stark irony indeed

(E-mail: juanlmercado@gmail.comThis e-mail address is being protected from spambots. You need JavaScript enabled to view it ) . .

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