Libel: Beyond decriminalization

Posted by VOSantos | Posted in Vergel O. Santos | Posted on 30-03-2012

The following is an adaptation from, and an updating of, a talk given by the writer to an audience of international lawyers two years ago. It is instanced by re-energized discussions of a bill decriminalizing libel; it is retitled from “Libel: beyond the law.” It comes in two parts.

 

First of two parts

 

WHEN I began as a newsman I was only 17, with scarcely a year of college and an immediate prospect yet of altogether dropping out, a prospect actually decided by my landing the job, which inspired in me the exciting, if naive, notion that, if college was intended to prepare one for a job, it had become irrelevant in my case.

If I brought anything to the job in the way of eligibility, it was no more than a rudimentary ability to string words together into an English-language news narrative, something I had developed during a stint of some months at a college paper and an even shorter experience freelancing. As for the other aspects of the news trade, I remained ignorant. And as for libel, the very crime that could put all of us news mongers not only in penury but also in prison, I gambled with it.

I had not actually looked at the law, let alone read and studied it, until much later on the job, as I faced an express threat of being sued. Until then I had simply kept in mind what I believed—and continue to believe—to be the most basic and potent safeguard against libel:

Stick with the facts, and keep your heart free of malice.

I feel gratified that in all my forty years or so in the business the trick has not failed me, that it has worked nicely indeed as the proverbial ounce of prevention that is worth a pound of cure—or, if you like, the ounce of prevention that’s worth an arm and a leg in legal fees.

On the other hand, I have tried to be not just conscious but conscientious to not allow libel—the Sword of Damocles that it is, there hanging over the journalist’s head—to deter me from taking risks with my freedom, the very freedom I have taken up in a vow as a weapon with which to defend the public interest against onslaughts by the powers that be.

All this, as any journalist may well know, makes for a situation so delicate that, for his own health, he had better choose his battles well. And I now wonder if I had not chosen my own battles too well—that is, chosen them so self-servingly that, while managing to remain untouched by the sword of libel myself, I have kept my own sword of freedom stuck too often too long in its sheath and, by such default, have shortchanged the public in whose interest I am supposed to wield it. Indeed, while I may have provoked a number of threats of a libel suit, I actually have been sued only twice, and even then the cases were dismissed quickly at the pretrial inquiry, found too flimsy to bother the courts with.

But then, again, would I prefer to have been like some journalists I know who tend to regard being sued for libel as a crowning affirmation that, by ruffling a mighty adversary to the point of suing, they have done better than well, have performed beyond the call of duty? I have in fact observed a few of these types keeping count of the times they have beaten libel with the same sense of pride and achievement as a gunfighter who records his every kill with a notch in the back of his pistol handle.

I don’t think I quite like that—journalism being reduced to the idea of something as dicey, not to mention deadly, as a gunfight. But then, it seems to me that the law of libel, by its nature, is only likely to inspire extreme attitudes toward it—faint-heartedness at one end and a gunfighter’s aggressiveness at the other.

As a law that punishes malicious attacks on someone’s reputation, libel sets down determinants you can’t put your finger on—undeterminable abstractions, matters of necessarily arbitrary judgment. You can cut out the heart of a journalist, and still you will find no evidence either way—malice or any purer intention; in the meantime, you have killed him; you have silenced a voice for a most critical freedom in a democracy.

Reputation is little different. It may well be a mere illusion, a presumption at best, in any case something sustained by a sense of self-importance—it is one’s blue suede shoes, which, since themselves imagined, can be stepped on and soiled only in one’s imagination.

Indeed, in its pure sense, reputation is the ultimate sense of conviction; it is equipoise, a state beyond ego, where one is immune to attack, untouchable by libel to say the least. You can call someone in that state the worst names, and he will take no offense precisely because where he’s at he feels absolutely secure.

Ah, but philosophy and idealism have no place in the real world—a world, that is, of bad news-people. Well, if that’s the working presumption of the law of libel—which apparently it is—how can there be any sense of justice in it at all?

 

Ended next week.