Right of reply?

Had not the debate on the Freedom of Information bill been aborted last Tuesday, it might have taken up the issue of “right of reply.” Actually, this is not the first time that the right of reply has reached Congress. In 2009 a bill on the subject sought preferential treatment. Essentially the bill said 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.” It did not become law and no case went to court.

Something analogous, however, did reach the Philippine courts. Pursuant to its constitutional power to regulate media during election periods, the Commission on Elections passed a resolution regarding free time or space in media for candidates. The resolution was not a masterpiece of clarity so that it was not clear whether it was meant to compel media to make time or space available or whether the Comelec was merely making a recommendation to media. At any rate, when the Supreme Court took it up in 1995, it said that, if understood as mandatory, it would amount to taking of private property without just compensation.

The Court could also have taken it up as a speech issue because freedom of speech means both the right to speak and not to speak. Political ads, after all, are speech. But the Court chose to approach it as an illicit act of property hijacking.

Should the right of reply become part of the Freedom of Information bill or of the cybercrime law, it will be a good issue to take up as speech and not just as illicit taking of property. And since we follow the American tradition on speech jurisprudence, we will be looking for American cases on the subject. Fortunately there is one that is ready at hand that takes up both sides of the debate.

Miami Herald v. Tornillo (1974) involved a Florida law on the right of reply. Candidate Tornillo, relying on the Florida law, demanded that the Miami Herald print his reply to the editorial comments of the Herald. But the Florida law was declared unconstitutional.

It is interesting that the US Supreme Court took pains to summarize the arguments brought up in favor of a right of reply. They are worth recalling if only to see if they find resonance in our condition.

Essentially the argument in favor of a right of reply rested on the historical premise that “at the time the First Amendment to the Constitution was ratified in 1791 as part of [the] Bill of Rights the press was broadly representative of the people it was serving and collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive … A true marketplace of ideas existed in which there was relatively easy access to the channels of communication.”

However, the argument ran, because of changed circumstances newspapers had ceased to be “a true marketplace of ideas.” “The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion.”

Proponents also sought support from certain dicta of the US Supreme Court suggesting that the guarantee of a free press also imposed obligations on owners of newspapers. The First Amendment, they quoted, “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Cited also was the dictum that spoke of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.”

In the end, however, the Court was deterred by problems of implementation. “However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.”

The Court also said: “The power of a privately owned newspaper to advance its own political, social and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers—and hence advertisers—to assure financial success; and, second, the journalistic integrity of its editors and publishers….The clear implication has been that any such compulsion to publish that which ‘reason’ tells them should not be published is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”

I might also add that a right of reply in the context of current Philippine society today will not really add anything to what people who pay attention to media already know. Newspaper readers, radio listeners and television viewers already are bombarded with assertive reporting, some straight and others biased, and opposing opinions of columnists. The strong temptation in fact is to ignore them or sometimes to go over media, just for fun, as a vacuum cleaner would—only to look for dirt.