Locsin on the Right to Reply (edited)

My understanding is the House of Representatives is tackling the so-called “Right of Reply” Bill, which is essentially an Obligation to Publish Bill. Like all issues politicians seize upon, there is a kernel of validity in what they are proposing, although the manner in which it’s being accomplished is entirely wrong and patently self-serving. The only thing helping the legislators’ cause is public skepticism over the assertions of a kind of sacred sovereignty on the part of media.

A Right to Reply is actually mainly of interest to people who are private citizens, do not live in the public eye, have no access to the powers-that-be, and who find themselves dragged into public scandal or controversy, without any means to properly defend themselves.

This is only my opinion gleaned from talking to readers, including some whom I’ve urged to write to challenge things they consider unfair or offensive to themselves. Generally, their answer is, it won’t accomplish anything, anyway, because the only thing as bad as an antagonized politician is an antagonized media person.

This goes to the heart of a problem many media people have, which is, that over the years, every time media has faced official hostility, there is a significant, even dominant, portion of the population that derives a kind of delight over media’s being on the defensive. Media people have a problem with this, because most of the time, they’re used to being praised and flattered by the public, which calls on them to expose and condemn the things the public finds wrong with officialdom.

But the power of the Fourth Estate comes not from public belief in the integrity or idealism of media, though individual media people do earn the respect of the public in terms of integrity and idealism, but rather, from the general cockfighting approach of the public to politics and public issues.

Media has gained its power and become convinced of its importance because it is used as a proxy by the public, in fighting officials the public couldn’t otherwise challenge, either institutionally or politically. But the usefulness of media shouldn’t be confused with public affection or respect for the profession and industry as a whole. It is all a proxy fight, and the proxy is only useful so long as a citizen or group of citizens find media fighting for their pet causes; but as for media itself, the widespread public attitude, it seems to me, lumps media practitioners with the politicians as part of an Establishment that bullies its way to get what it wants, regardless of the public good.

Were Congress to pass a law giving ordinary citizens the Right to Reply to articles/stories/broadcasts they believe unfairly slurred them, I think the public would applaud. But such a law would have to distinguish between ordinary citizens and those who, by virtue or position or affinity are public figures (for example, the ridiculous insistence of the Palace that the President’s husband is a “private citizen”).

Current proposals in Congress do not make any distinctions of this sort, and many of the arguments made by representatives like Monico Fuentebella and even former Senate President Aquilino Pimentel, Jr. points to politicians wanting to pass the law because they feel slighted and aggrieved over media handling of their actions. But if there’s one thing public officials don’t lack, it’s access to media to give their side on any story.

From my understanding of his arguments, Locsin believes Congress has dug a legal hole for itself with this effort to compel media to give politicians the right to seize equal space to reply to stories concerning them.

On the one hand, as a media person himself, he knows that libel presents a clear and present danger to media:

Even if a libel suit is eventually won, the expense of defending against it can be so prohibitive. Libel suits are a powerful deterrent to press freedom and a potentially fatal financial threat to media. Respected jurists noted this after the highly defective New York Times v. Sullivan decision unleashed a firestorm of libel judgments from outraged state judges protective of the reputation of their constituents. That was when the “dancing in the streets [only of journalists over the NYT decision] stopped.”

But he makes a point probably noxious to media people, which is, that libel is not a question of free speech and disputes the assertion that press freedom is a kind of sacred right:

US Chief Justice Rehnquist said that freedom of speech is a value, sure but it is not the only value protected by the Constitution; personal honor is another. And while Thomas Jefferson extolled press freedom as essential to democracy, he changed his mind after four years in the presidency, saying words to the effect that press freedom is as much of a threat.

In short press freedom is not a sacred right because, as everyone knows, journalism is not a priestly calling. None of its practitioners practice celibacy except when they have no choice. Indeed, there is nothing sacral about journalism – not by a long shot – even if its practice involves excessive intakes of heady beverages, frequent complaints about the shortness of “bread”, repeated grousing about the failure of media owners to multiply their wages combined with the overcompensation of former colleagues who are unaccountably transubstantiated into editors and publishers. All this followed and preceded yet more frequently by blasphemous takings of the Lord’s name in vain – or, worse yet, someone’s mother. (The PI invective made famous by a presidential candidate uttered when copy is read.) Any journalist who takes himself too seriously is not a serious journalist and is probably an academician or a media watchdog. As Samuel Johnson may have said, “Why do writers write? It’s a job.”

But he does believe that legislation is in order to provide what he calls “The Chance to Answer and the Right to Retract”:

This is the Chance [not Right] to Answer aspect of my short substitute. Joseph Conrad’s Lord Jim, who asked for a second chance [to redeem an act of cowardice or – in the present case – recklessness inspired the second aspect. To wit, a journalist should have the right to retract and thus be spared the liability or expense of a libel suit by voluntarily “eating his own words” - if they aren’t worth his trouble to keep the words out there for someone to sue on.

So instead of imposing something, the law would encourage something, a difference in attitudes that avoids the dangers of prior restraint on the press:

My substitute bill, aside from possessing the rare quality of brevity and being environment friendly, removes the smallest element of compulsion. It is this element, the US Supreme Court said in the Miami Herald case, that was the only objectionable aspect of a right of reply bill, saying that the right to compel publication is a step away from the right to repress it. Talk about hyperbole.

He argues, in another statement, that the proposed Bill has serious legal flaws:

The Senate bill, like that of the House, takes off from the Penal Code definition of libel. “Any person, natural or juridical, who is accused, directly or indirectly, of committing, or of having committed a crime or offense defined by law” ;  So far so good, free speech and press are unaffected although there is emerging view that it would be.

Unfortunately, if this is the basis for a new right of reply, how is it to be enforced? By stipulating that we are dealing here with a libel and demanding the right of reply, who shall determine if it is a libel in the first place?

It cannot be the alleged victim of the alleged libel because he will always believe he has been libeled. On top of which, if the alleged victim’s subjective judgment decided if a right has arisen and a remedy is in order, it would violate the first principle of justice which is that no man can be judge in his own cause.

It cannot be the media because they will never admit they have libeled the people they do in fact libel. They would violate the same principle of justice by unilaterally deciding their own innocence even as the victim would similarly assert his own injury.

Only an impartial third person could make the decision if a libel happened as the basis of a right of reply.

So, just as we were set to go, “Houston, we have a problem.” The very motor of this lunar venture won’t work – not legally which is what counts. We need an initial determination of probable cause that a libel has been committed to be made by the only qualified person to do it: a state prosecutor or fiscal. So we need to introduce the prosecutor or fiscal without whose determination that a libel has been committed, no right of reply exists.

On top of that, both the Senate and the House bill add as the subject of the right of reply the obnoxious clause: “or otherwise criticized for his public or private Act, provided the person criticized is named or identified and the subject is not privileged communication.”

If both bills had stuck strictly to the definition of libel, a case might be made for a right of reply. But to add any other criticism of a person’s public or private deeds that do not constitute a libel is really to chain discourse to the most humdrum and innocuous subjects.

And there are other problems with the proposed legislation as it stands:

Finally, if a right of reply bill passes, where would that put a right of rebuttal on the part of the publication? Would the rebuttal be protected from libel? If not, then why accord the right of reply? Where is the win-some, lose-some aspect of such a bill. What if the rebuttal is allegedly even more “libelous”? Would that occasion another right of sur-rebuttal? And so on? Indeed, what if the original reply is libelous, can the publication sue for libel? This is a bill that requires more thought, though not outright suppression into the archives.

And in the sense that no politician has ever put forward a proposal unless he feels there is some sort of support, in terms of public opinion, that can provide an issue on which to base a cause, Locsin is correct. Media will do itself more harm than good by ignoring skeptical public opinion concerning not only itself, but the ethics and principles media people often grandly proclaim but which the public believes media people ignore every bit as blithely as politicans ignore the commonweal.

As it is, as he himself summarizes his bill –

In my bill, if the reply of a victim of an alleged libel is published, he loses any right to sue the writer and the publication, civilly or criminally.

It achieves what the public wants, and yet protects the media’s Constitutional rights; it gives a positive incentive for media outfits to respond to complaints of unfair coverage, accords citizens a means to get themselves heard, and potentially eliminates many unecessary suits before the courts.

But as Locsin himself concedes, even as he marvels at the beauty of his own proposed bill, it isn’t the final solution:

It is not perfect in the sense that the usual media extortionist can put out anything libelous about a person and then, having inflicted the damage, retract it motu propio, leaving his victim powerless to seek a remedy since he cannot sue for libel anymore and the public will stop believing in the sincerity of the retraction if he does it often enough. After a while, the public will take retractions as merely pro forma but in no way substantially withdrawing the libelous allegations. (So, maybe, civil liability should be remain and only criminal liability should be extinguished.)

But it is better than what Congress itself proposes a present, and the risks it’s taking:

A congressional oversight committee on this subject is a Kangaroo Court composed of the usual suspects who always claim they are libeled and violates the first principle of justice above.

And, finally, while all that talk about the sanctity of press freedom is a lot of mumbo-jumbo, this is a fact as attested to by the World Bank’s chief economist: a free press is the only effective restraint on abuse of power and public theft, which accounts in great part for the continuing underdevelopment of poor countries. A free press with all its severe defects is still more important than free elections, which only guarantee the periodic reelection of those who abuse power to mass illegal wealth to buy elections.

Here is the first statement from which I lifted the blockquotes above, in full:

Press Statement of TLL

And here is his second, latest, statement, in full:

Locsin on Right of Reply Again

And here is his proposed substitute bill, which has been introduced as an amendment -a substantive one- to the bill that will probably be discussed in the House tonight.

HB No. 3306