Assault on press freedom? Q and A

Last week, on Twitter, I was asked by someone critical of Rappler editor Maria Ressa whether I had ever been sued for libel. (Yes, I said, twice for libel and once for cyberlibel.) The reason for the question became clear when I gave my answer. “Did you also cry for suppression of press freedom?” was the response.

Well, no — because the circumstances are completely different. My second, longer answer is rooted in the current Philippine context; perhaps the following short question-and-answer can quickly describe that context.

Is libel, per se, an attack on press freedom?

No, but many journalists have long sought the decriminalization of libel in the Philippines, because it hampers free speech and the freedom of the press. Decriminalization would render libel and other forms of defamation only a civil offense, punishable not by imprisonment but the payment of fines.

When, as happens often enough in the Philippines, libel suits (or the mere threat of legal action) are used to stop news coverage and publication, or prevent journalists from doing their work, then our libel laws, which date back to 1932 when the Philippines was still an American colony, are turned into weapons against the freedom of the press.

Are journalists immune from warrants of arrest?

No, and none of those who voiced their support for Ressa ever said that. An arrest warrant can flow from a libel suit, to compel a defendant to post bail. An arrest can also be effected at any time — but this is not an argument for arresting Ressa after office hours, but rather for the NBI to wait until the next day. This was discretionary on the part of the arresting officers, and the way that discretion was exercised reflects on them, not on the defendant.

Is the cyberlibel case against Rappler, Ressa and former Rappler researcher Reynaldo Santos Jr. valid?

The charge has been revived, and a court has issued a warrant of arrest based on the (bailable) charge. In that sense, it has been presumed by the NBI to be regular. But the case is or should be deemed constitutionally infirm, because it depends on an ex post facto application of a law, something explicitly rejected by the Constitution.

If the cyberlibel case was presumed regular, why is it an assault on press freedom?

It relies on an extreme legal strategy that imperils everyone who posts online or on social media. In that sense, it is an assault not only on the freedom of the press but on freedom of expression itself. But the case must also be understood as part of a pattern: It is only one of nine cases filed against Rappler, with more investigations under way. Only those who refuse to see will fail to recognize the orchestrated character of the attacks on Rappler — and thus on a free press.

So did I cry suppression the three times I was sued for libel? “In all 3 instances: There was no manufactured tax evasion case, no attempted revocation of corporate license, no ban from Palace coverage, no vilification from the President, etc. directed against me or my news org at the same time, and no attempt to arrest, so the answer is No.”

If you say that press freedom is under attack, why can you continue to write highly critical pieces on the President and his administration?

I have already answered this question before, offering an extended metaphor in “Digong has taken over the bus.” But the scholarship on democratic decline is bustling, and has much to recommend.

In “How to Save a Constitutional Democracy,” the legal scholars Tom Ginsburg and Aziz Z. Huq distinguish between two “pathways” leading away from constitutional democracy: authoritarian collapse and democratic erosion.

In Philippine history, the Marcos martial law regime (despite its legal trappings) is the paradigmatic example of a democracy collapsing into authoritarianism. If the Duterte administration manages to coerce the military into imposing a revolutionary government, we would be living through another hellish example.

But democratic decay is the road much traveled, and that is where the Philippines under the Duterte presidency finds itself today.

What is democratic decay?

Ginsburg and Huq write: “We define such erosion as a process of incremental, but ultimately still substantial, decay in the three basic predicates of democracy—competitive elections, liberal rights to speech and association, and the rule of law.”

The evidence is there for anyone who is willing to look: Misuse of government resources to make the President’s special assistant a senator (the marching orders are to make him place third); organized disinformation and attacks on the press (led by President Duterte, who violates both our history and our Constitution by insisting that press freedom is a privilege, not a right); the coercion of the courts and its agents. The decay, the rot, is real.

On Twitter: @jnery_newsstand