‘Bum weed’

Like the proverbial mala yerba, proposals to clamp mandatory “right of  reply” (RoR) rules on media keep cropping up. The latest “bum weed” is Commission on Elections Resolution No. 9615: “Candidates aggrieved by press reports can demand to have their side published in the same prominence or in the same time slot as the first statement,” says this implementing rule for the “Fair Elections Practices Act.”

The Kapisanan ng mga Brodkaster ng Pilipinas, National Union of Journalists of the Philippines, Cebu Citizens’ Press Council, among others, slammed the stitching of RoR provisions into rules for the May 13 elections. If need be, they’ll challenge this rule before the Supreme Court.

The RoR resolution is “not Comelec’s invention,” bristled Comelec Chair Sixto Brillantes. “It is in the Constitution.” Will Brillantes flag that at the Inquirer’s editors and direct them to “stand aside”? The Comelec during the 2013 campaign decides what font to use for RoR gripes, which Inquirer pages they must appear, and how often. Or else?

Commissioners Rene Sarmiento and Grace Padaca are cut from a decent bolt, too. Will they shuck editorial prerogatives and order ABS-CBN or GMA Network to air RoRs? Prime time or graveyard shift? When do Comelec regional directors stride into newsrooms of, say, Mindanao Cross in Cotabato, Cebu Daily News, or Mabuhay in Pampanga, to arm-twist the publication of RoR gripes?

We’ve not discussed Resolution No. 9615 with editors and broadcast executives. But our aging bones say if Brillantes et al. surface at newsrooms, they’ll be politely—but firmly—ushered out the door. That rebuff wouldn’t well up just from bile.

The basis is RoR’s track record of serial rejection. In the Inquirer issues of June 1, 2009 and Nov. 18, 2012, constitutional scholar Joaquin Bernas called attention to the overarching 1974 US Supreme Court’s decision in Miami Herald vs Tornillo.

“We follow American tradition in speech jurisdiction,” Father Bernas wrote. The US Supreme Court unanimous (9-0) decision struck down Florida’s RoR right statute as an infringement of the First Amendment guarantee of freedom of the press. That “can be said about right of reply bills here.”

Candidate Pat Tornillo demanded that Miami Herald print his reply to scathing Herald criticism. A 1913 Florida law required a newspaper to provide free reply space to any candidate whose personal character or official record the newspaper would assail. Miami Herald refused, so Tornillo sued.

Senators Aquilino Pimentel, Bong Revilla Jr. and Francis Escudero, with Rep. Monico Puentebella, cloned the Florida RoR in House Bill No. 3306 and Senate Bill No. 2150. Congress junked both.

A “responsible press is an undoubtedly desirable goal,” the Court said. “But press responsibility is not mandated by the Constitution and, like many other virtues, it cannot be legislated.” An RoR could impose intolerable financial costs. It’d force newspapers to omit material they wished to publish to make room for replies. Worse, it could spur papers to avoid publishing “anything that might trigger a reply, and constitute an unwarranted intrusion into the editorial process.”

The power of a privately owned paper is bounded by only two factors: (1) Acceptance of a sufficient number of readers—and hence advertisers—to assure financial success; and (2) journalistic integrity of its editors and publishers. “The clear implication is any compulsion to publish that which ‘reason’ tells them should not be published is unconstitutional.”

“The choice of material to go into a newspaper, and the decisions made as to the limitations on the size and content of the paper and treatment of public issues and officials—whether fair or unfair—constitute the exercise of editorial control and judgement,” Chief Justice Warren Burger wrote.

“Government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom’s floor,” Justice Byron White added in a concurring opinion.

“The press has no quarrel with fairness (But) only dictatorships barge into newsrooms to usurp editorial functions,” Cebu Citizens’ Press Council stressed in a position paper (Dec. 14, 2007) then bucking HB 3306 and SB 2150.

However a legislated RoR “operates as a command. (It resembles) a statute forbidding the newspaper to publish specified matter,” added the Cebu Media Legal Aid group. “This is prior restraint. If media cannot be told what to publish, it cannot be told what not to publish.”

Like the proverbial mala yerba, RoRs sprouted again at the 15th Congress to bedevil the freedom of information bill. Nueva Ecija Rep. Rodolfo Antonino snuck an RoR provision into the FOI bill as a rider. Already approved by the Senate, the FOI bogged down in the House, abetted by President Aquino’s “cartwheels.”

From an election crusader for FOI, P-Noy backpedaled into stolid silence as a Malacañang neophyte, then extended grudging support—only to relapse into stolid indifference. It spurns his parents’ stance on a free press.

“It is true you cannot eat freedom and you cannot power machinery with democracy,” Corazon Aquino said. “But then neither can political prisoners turn on the light in the cells of a dictatorship.” Ninoy Aquino began his journey toward martyrdom as a 17-year-old journalist.

Congress adjourns this week. An FOI in extremis will go the way President Gloria Arroyo ensured the FOI’s demise by getting her supporters to skip the 14th Congress’ closing day session. Would P-Noy and Glo then be peas in a   mala   yerba   even as the press grids to beat back Resolution No. 9615?

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