PENDING in both Senate and the House of Representatives are bills on the right of reply. Essentially the bills say that “all persons who are accused directly or indirectly of any crime or offense or are criticized by innuendo, suggestion or rumor for any lapse in behavior in public or private life shall have the right to reply to the charges published in newspapers and other publications or to criticisms aired over radio, television, website or through any electrical device.” Criminal penalties are attached to violations of the proposed bills.

As I understand the bills, a person who is criticized by a newspaper must be given free space in the same newspaper to make his or her reply. The proposed requirement applies to criticism made in radio or television or websites or blogs. These media of communication must also offer space or time for the object of criticism to make a reply.

The critics of the bill are not saying that a person who is the subject of criticism may not reply. Of course, he or she may. He or she has the freedom of speech guaranteed by the Constitution. What the critics are saying is that their media for communication may not be hijacked to give free time or space to others to hit back.

(The Comelec is able to obtain space or time during election period because the Constitution gives special power to the Comelec during that time.)

Essentially, what the critics are saying is that media have the freedom to choose what they want to say, and they may not be compelled to say what they do not want to say or what they do not believe in. Editorial control of content is an aspect of free speech.

Additionally, what they are saying is that their own private media, their private property, may not be appropriated to be used as vehicles for the thoughts of others no matter how beautiful or how praiseworthy those thoughts might be. The freedom of speech or expression includes the freedom to choose what to speak or express. It also includes the freedom not to speak.

The freedom not to speak is pure common sense that it is perhaps for this reason that I am not aware of any jurisprudence specifically guaranteeing it.

There is, however, something analogous in jurisprudence. There is jurisprudence to the effect that the government has the right to choose what permanent monuments it may sponsor in government parks.

How can this jurisprudence serve media’s right not to speak?

Although a public park is a traditional public forum, the display of a permanent monument in a public park is a form of “government speech.” As one decision has said: “Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.”

Accordingly, cities take some care in accepting donated monuments. They may not be compelled to accept everything offered. The monuments that are accepted have the effect of conveying a government message, and thus constitute government speech.

The bills we are talking about are not about public monuments. They are about speech in private media. But if the government has the right to choose what speeches in the form of monuments to sponsor, so also media practitioners or even private bloggers have the right to choose what to say or not to say.

Finally, there is another element of free speech jurisprudence which makes me think that these bills are more protective of public officials, and especially of lawmakers, than of anybody else. Free speech jurisprudence says that every defamatory imputation is presumed to be malicious. However, this principle does not apply when the object of defamation is a public official. For a public official to be able to recover in a libel suit, he or she must prove that his or her defamer acted with “actual malice,” that is, with knowledge of the untruth of what has been said or with reckless disregard of the truth.

The reason for this special jurisprudential rule for public officials is that public officials are theoretically and also in fact already in good position to be able to defend themselves. Members of Congress, especially, are protected by their broad immunity for speech or debate. (Is Congress open to a right of reply in Congress to privilege speeches?) The proposed bills practically negate this reason for treating public officials differently in libel law. With these proposed bills, maligned public officials will have a cheap way of defending their honor by using officially hijacked space or time at the expense of printed or broadcast media.

Will the bills pass in their present form? I think not. There are enough sensible people in Congress who will reject them. Or am I wrong again?