If allowed to grow, bad weeds will smother the good grass”, says a Filipino proverb. (Ang masamang mila, kapag kinonsiti, / Pag tubo’y, siya ang makapangyayari.)
That fits Deputy Speaker Giorgidi Aggabao’s proposal: Scrounge the Lower House’s trash can for scrapped legislatve proposals. From the shreds, patch together a Right of Reply bill. An RoR would enable “beleaguered” congressmen to respond to media reports on their inclusion in the multiple pork barrel scam list.
Aggabao says he is one of those tarred by the scandal. “The bell has been rung… How do you unring a bell?” Aggabao adds. “You can’t undo the damage…This is a common complaint.” His RoR could be a “stand-alone measure”. It need not hitchhike into 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 media for candidates.
“The resolution was not a masterpiece of clarity,” constitutional expert Joaquin Bernas 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 re-emerged as a free speech issue. If enacted into law, an RoR would compel the press to print or air the rebuttal of parties who feel maligned with 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 scissor-and-paste copies from Rep. Monico Puentevella’s House Bill 3306 and Senators Bong Revilla and Francis “Chiz” Escudero’s Senate Bill 2150. Both measures were scrapped in Congress for constituting “prior restraint”.
Escudero later withdrew support.
“We recognize editorial functions are privately exercised prerogatives,” 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 had been explained by Bernas in the Inquirer issues of June 1, 2009 and Nov. 18, 2012. “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 of the First Amendment guarantee of freedom of the press. That “can be said about right of reply bills” in the Philippines.
In the Florida case, candidate Pat Tornillo demanded 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 assailed. 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 would 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 bounded 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 it’s journalistic discretion, it chooses to leave on the newsrooms floor,” Justice Byron White added in a concurring opinion.
The Reynato Puno Supreme Court hewed closely to this constitutional tradition. It spiked Department of Justice and National Telecommunications Commission warnings against airing the “Hello, Garci” tapes of Gloria Macapagal-Arroyo. This threat to gag constituted prior restraint, Justice 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 National Telecommunications case (GR No 168338). “Such prior restraint is presumed unconstitutional. (And) government bears a heavy burden of proving constitutionally of such restraint.”
“The press has no quarrel with fairness (But) “only with dictatorships that barge into newsrooms to usurp editorial functions,” the Cebu Citizens-Press Council stressed in a position paper (Dec. 14, 2007), then bucking House Bill 3306 and Senate Bill 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 group.
“This is prior restraint. If 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 Internet, How do you impose an RoR on them with the click of a computer mouse?
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