The right to reply was already slipped into our election laws. Yes, the evil that Sen. Grace Poe decried can already be enforced against the media in election contexts. We must redouble our efforts against this wolf in human right’s clothing.
The “Napolist” controversy demonstrates why the right to reply is evil. Isabela Rep. Georgidi Aggabao proposed to resurrect right-to-reply bills to allow those implicated via the Napolist in the pork barrel controversy to defend themselves. The dangerous, seemingly reasonable idea is to require the media to run a rebuttal by the subject of a story with the same prominence, space or airtime. Poe immediately reiterated that this would undermine press freedom.
If a newspaper runs front-page stories with the names of over 100 legislators in a Napolist, will the price be devoting the following days’ front pages to replies by each and every one? Must they print the most verbose, cookie-cutter and utterly boring denials conceivable, discouraging readers from touching the paper for several days? Will they be restrained from focusing on compelling denials, such as former senator Jun Magsaysay’s in the Inquirer that disclosed even the numbers of his special allotment release orders? Can a rebuttal touch on unrelated topics while hijacking the front page?
Free speech rejects a right to reply. Freedom of the press necessarily includes the right to editorialize, to choose which stories to highlight and ignore. Nothing can justify literally putting words into a newspaper’s mouth and under its masthead. Prominent personalities deemed “public figures” need less protection. They will necessarily be talked about and must live with it, and their inherent newsworthiness gives them the access to air their side when necessary. For the ordinary Juan, we allow libel suits, not media hijacks. This philosophy rings truer with today’s technology, where an ordinary person can drag traditional media into nonsensical Twitter debates (“The fake Comelec constitutional crisis,” Opinion, 4/24/2013).
In justifying the right to reply in the Commission on Elections’ regulations last year, Chair Sixto Brillantes invoked our Constitution’s Art. IX-C, §4: “The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information…. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.”
The Art. IX-C, §4 “right to reply” has been consistently understood as the opportunity to purchase ad space to respond to competing political ads, never as allowing the editorial hijacking that stabs the heart of the free speech law. The Constitution contemplates a network boss refusing to sell airtime to a campaign he dislikes, but leaves a news editor refusing to cover that campaign to be accountable to his market. The Comelec was never intended to judge, say, a local radio station to be guilty of being paid to run a one-sided vilification campaign and command it to give equal airtime.
The Supreme Court proclaimed in the 1990 Sanidad case: “[Nothing in Art. IX-C, §4] can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves.” The 1992 National Press Club case allowed an ad ban to curb “the unlimited purchase of print space and radio and television time [where] the resources of the financially affluent candidates are likely to make a crucial difference,” but stressed it did not “authorize any intervention and much less control on the part of Comelec in respect of the content of the normal operations of media.”
The 1998 Osmeña case ruled that the Constitution regulates only paid political propaganda, not normal news coverage. The 2001 SWS case reiterated that “the grant of power to the Comelec under Art. IX-C, §4 is limited to ensuring ‘equal opportunity, time, space, and the right to reply’ as well as uniform and reasonable rates of charges for the use of such media facilities ‘public information campaigns and forums among candidates.’” Incidentally, I asked Comelec spokesperson James Jimenez on Twitter last year which high court case the Comelec based its regulation on, and he declined to cite one for my class.
Congress ignored the high court’s consistent interpretation in passing the Fair Election Act of 2001. Section 10 contradicts the Constitution, providing: “All registered parties and bona fide candidates shall have the right to reply to charges published against them. The reply shall be given publicity by the newspaper, television and/or radio station which first printed or aired the charges with the same prominence or in the same page or section or in the same time slot as the first statement.” Problematically, some franchises for broadcast stations impose a similar right to reply.
While we have faith that the likes of Brillantes and Jimenez have more integrity than some of their predecessors, we must be wary of less scrupulous successors’ abuse.
We join Poe’s admirable call for public vigilance to defend the freedom of the press against the right to reply. However, we hope she aims her legislative artillery at the beach head in the Fair Election Act before it expands.
Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.