An underhanded law (Updated)

THE PRESIDENT’S remark that proper news practitioners should have no reason to worry if the Right of Reply Law passes is not only patronizing but also inversely misleading. It is precisely the fair-minded and self-respecting, the rightly skeptical and dogged, among the journalists whom the law penalizes—those resistant to extra-legal means of silencing, the incorruptible. To subdue their kind, no lesser force than that of law is indeed required, and obviously it is a recourse that the president is very much taken with.

A natural but less than game target for the media, but, again, one disinclined to retaliate in any shady way, the president puts the weight of his popularity and office behind the campaign for a Right of Reply Law to the extent that at every chance he indicts the media, and does so in such a generalized way he makes them collectively appear bereft of any self-redeeming virtue. More and more he is looking like a very sore and vengeful man, not unlike—come to think of it—one of the first right-of-reply champions, Aquilino Pimentel Jr., the former senator.

Also admired for his passion for freedom and also targeted by the media but averse to dealing with them in the shadows, he decided to resort to lawmaking and filed his Right of Reply bill. It is in fact his bill that was the parent of all Right of Reply Bills, and it is his arguments that essentially resonate for the present-day campaign.

Around the time Pimentel filed his bill, I wrote my own counter-take on it (BusinessWorld, June 14, 2002), and re-offer it here updated and only slightly reworked, its title retained:

A twisted sense of equity

THE RIGHT OF REPLY BILL essentially tells the media: If you not only fail to publish the reply of someone you have criticized, but fail to publish it in a certain form, in a certain slot, and within a certain time, you shall be fined; and if you do it too often you shall be both fined and thrown in jail.

That, proclaims its champion, Sen. Aquilino Pimentel Jr., “enables all persons to equitably exercise the right of reply.”

What twisted sense of equity! A senator, a person of power and influence, as such only fair game for the media, lumping himself with the masses of far lesser mortals whose chances of landing in the news and consequently benefiting from his bill are absolutely nothing compared to his? And in a further misrepresentation, Pimentel selectively, arbitrarily takes some of the words from the mouth of two illustrious men who happen to be too dead to be able to straighten him out themselves.

In his preface to his bill, Pimentel first quotes the English writer George Orwell (Animal Farm, Nineteen Eighty-Four):

In a society in which there is no law, and in theory no compulsion, the only arbiter of behavior is public opinion. But public opinion, because of the tremendous urge to conformity in gregarious animals, is less tolerant than any other system of law.

Then, he either paraphrases or indirectly quotes Justice Malcolm (presumably George Malcolm, first dean of the University of the Philippines College of Law)—no quotation marks appear in the citation, which says,

[P]ublic opinion should be the constant source of liberty and democracy rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary. The value placed on public opinion is enshrined in our Constitution, which guarantees freedom of expression, freedom of speech and freedom of the press. However, the interest of society demands not merely the right to express one’s thoughts, but the right to an educated and enlightened public opinion. Essential to the protection of the freedom of expression is the promotion of full discussion of public affairs. The freedom of speech and expression enshrined in the Constitution necessarily embraces a correlative right of reply, which is the right to reply to every form of expression protected under the Constitution, especially to accusations or criticisms published or aired through the mass media.

It is from those premises that Pimentel has had to leap—for there precisely exists no logical bridge—to the conclusion that there’s no law governing the behavior of the media, particularly toward the right of reply, and that the right to an educated and enlightened public opinion would be reinforced, if not guaranteed, by a law penalizing any media organization that fails to publish the reply of anyone it has criticized, as if by simply opening his mouth truth and wisdom would flow from it.

In a democracy, the equation of competing rights in the relationship between the media and the rest of the society is so basic it has long been established in law, in tradition, and in the self-correcting mechanisms natural to a free society and market. The media shall not be told what to say or how to say it or when. They shall rise and fall on their own.

On the other hand, anyone who feels aggrieved by the media can go to court for satisfaction, which may come in a public apology or fines or, until libel is finally—and only properly—decriminalized, imprisonment or in all three ways. If he does not want to be bothered with litigation, or his case is not serious enough for the court to be bothered with, he can still do any or all of these things:

1. Go to other media organizations on the chance that they are moved, if not by genuine professional interest, by the spirit of market competition: Whatever is ideally made of it, media power is necessarily dispersed, blunted by a multiplicity of ownership and diversity of interests.
2. Try the media-watching organizations or the media’s self-policing councils: The Philippine Press Council sanctions any member national newspaper it finds to have unduly denied the right of reply. [Our own Center for Media Freedom & Responsibility publishes a monthly critique of the media – PJR Reports.)
3. Publish his case in a tract or any such sort of medium as he may decide to publish himself for the purpose or, for an even quicker and wider distribution, he may post it in the Internet.

He should be able to devise yet other ways if he is imaginative enough. But if he happens to be a senator, he needs little imagination. He has the great advantage of his office. He can seize the floor of the Senate anytime and say what he pleases—and, yet, not be held liable for it! He can double, as in fact some of his colleagues do, as a newspaper columnist or broadcast commentator and escape ethical sanctions. And, while no law may be passed abridging press freedom, he can propose one, as Pimentel has done, if only to menace the media with the possibility that Congress might be tricked into passing it and the courts into affirming it—for all its patent constitutional infirmity.