Punishing free speech

Coming on the heels of the justice secretary’s pants-on-fire disclosure of the purported complicity of certain opposition senators in the Marawi siege, another opposition senator filed Senate Bill No. 1492 or An Act Penalizing the Malicious Distribution of False News and Other Related Violations. The bill is also designed to address the proliferation of troll messaging in social media.

The bill defines fake news as any information that causes or tends to cause panic, division, chaos, violence, and hate, and exhibits or tends to exhibit propaganda to blacken or discredit one’s reputation. The bill’s proponent says that when the law is passed, citizens and public officers will be more responsible and circumspect in creating, distributing and/or sharing news. He also says false or fake news make global and national concerns more complicated.

That takes the cake; it is illegal for the people, the press, and those who work in the government to be wrong. The bill is nothing more than a content-based regulation of free speech.

Freedom of speech is the right to express any opinion without censorship or restraint. That freedom is essential to human agency or the ability of men and women to act independently and to make their own free choices based on their will. Without this freedom, an individual’s basic right to act independently will be impaired, and his or her essence as a person will be diminished. Free speech is as essential as the right to life, liberty and property — fundamental rights held as absolute truths and sacrosanct in any constitutional theory.

In 1791 the First Amendment to the US Constitution was adopted. The amendment bars the US Congress from making a law respecting the establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people to peaceably assemble and to petition the government for redress of grievances.

Early Filipino patriots, the forefathers of Philippine constitutionalism, were not left behind. The 1899 Malolos Constitution provided that no Filipino shall be deprived of the right to freely express his or her ideas, or opinions, orally or in writing, through the use of the press or similar means. In the law on libel, means similar to the press include broadcast
media and the internet.

The American-inspired 1935 Constitution copied almost verbatim the First Amendment which guaranteed freedom of speech against government regulation or censorship. The 1973 Constitution — crafted at a time when dissents were stifled — also carried over the same guarantee on free speech, a provision that was adopted by the post-Edsa Provisional Freedom Constitution.

Unlike its 1935 counterpart, the 1987 Constitution expands the coverage of the guarantee to free speech and the press with the inclusion of the word “expression.” Thus, the unbridled freedom of speech or expression has been ingrained in Philippine constitutional theory for already over a century.

In Bishop of Bacolod vs Comelec (2015), the Supreme Court elucidated on the several theories and schools of thought that strengthen the need to protect the basic right to freedom of expression. One theory relates to the right of the people to participate in public affairs, including the right to criticize government actions. Speech that promotes dialogue on public affairs, or airs grievances and political discontent, should thus be protected and encouraged.

Another theory says that free speech should be encouraged under the concept of a marketplace of ideas, quoting Justice Holmes’ “the ultimate good desired is better reached by free trade in ideas.”

Last March, a similar California fake news bill, which seeks to criminalize false news that tend to influence an election, was withdrawn by its proponent after being criticized as unconstitutional censorship. As Dave Maass aptly puts it, you can’t fight fake news with a bad law.

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Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.