Article III, Section 4 of the 1987 Philippine Constitution states in an unequivocal manner: “No law shall be passed abridging the freedom of speech, of expression, or of the press, xxx.”
The landmark case of United States v. Felipe Bustos (G.R. No. L-12592, March 8, 1918) discussed the history of this guarantee in our jurisdiction:
“The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August 29, 1916, in the nature of organic acts for the Philippines, continued this guaranty. The words quoted are not unfamiliar to students of Constitutional Law, for they are the counterpart of the first amendment to the Constitution of the United States, which the American people demanded before giving their approval to the Constitution.
We mention the foregoing facts only to deduce the position never to be forgotten for an instant that the guaranties mentioned are part and parcel of the Organic Law of the Constitution of the Philippine Islands.
These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries with it all the applicable jurisprudence of great English and American Constitutional cases. And what are these principles? Volumes would inadequately answer. But included are the following:
The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and the dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official or set of officials, to the Chief of Executive, to the Legislature, to the Judiciary to any or all the agencies of Government, public opinion should be the constant source of liberty and democracy.”
I repeat – the language carries with it all the applicable jurisprudence of great English and American Constitutional cases.
House Bill No. 3306 or the Right of Reply Act of 2009 is unconstitutional, it is a clear violation of the guarantee of a free press, the guarantee of press freedom and freedom of expression, a guarantee which our forefathers have fought and shed their blood for.
Let me emphasize the controversial provision in the Florida’s 1913 Right to Reply statute, which led to the landmark case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, June 25, 1974 striking down the said statute as unconstitutional as it was a clear violation of the First Amendment guarantee of a free press:
“Florida Statute 104.38. – Newspaper assailing candidate in an election; space for reply – If any newspaper in its columns assails the personal character of any candidate for nomination or for election in any election, or charges said candidate with malfeasance or misfeasance in office, or otherwise attacks his official record, or gives to another free space for such purpose, such newspaper shall upon request of such candidate immediately publish free of cost any reply he may make thereto in as conspicuous a place and in the same kind of type as the matter that calls for such reply, provided such reply does not take up more space than the matter replied to. Any person or firm failing to comply with the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in 775.082 or 775.083.”
Florida Statute 104.38 is fundamentally the same as House Bill No. 3306. That we cannot deny. And why did the United States Supreme Court decide to strike down the said statute?
It is on the following reasons:
“The Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a 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.
Appellee’s argument that the Florida statute does not amount to a restriction of appellant’s right to speak because “the statute in question here has not prevented the Miami Herald from saying anything it wished” begs the core question. Compelling editors or publishers to publish that which “reason tells them should not be published” is what is at issue in this case. The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter.
Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print.
Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of access inescapably “dampens the vigor and limits the variety of public debate. There is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates.
Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment.”
And this is what constitutes the freedom of the press: “The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment.”
That is the overarching wisdom of the continued guarantee of a free press. This American jurisprudence, which is the controlling doctrine in the United States, is, we all know, applicable in our jurisdiction.
The sponsors have declared and I quote from their sponsorship speech, “xxx, when a person in invoking the freedom of speech and of the press accuses or criticizes another, especially publicly, he must do so recognizing the equal freedom of expression, and the rights to privacy and due process of the person accused or criticized, hence, that person must be accorded the opportunity and right to reply to the accusation or criticism.”
The sponsors are confused. It is elementary that there is a hierarchy of rights under the constitution. In the hierarchy of civil liberties, the rights of free speech, of expression, of the press and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions, and such priority gives these liberties the sanctity and the sanction not permitting dubious intrusions.
So the right to privacy is inferior to the right to freedom of the press. Yes, a person accused or criticized has the right to exercise his or her freedom of expression but not by dictating or imposing upon the press the conveyance of his or her expression. And due process, the press is not a venue for judicial or administrative proceedings for due process to apply.
Though public officials may have suffered under a hostile and an unjust accusation by the press, it is not a reason to legislate and create a statutory right of reply which shall clip and cut the constitutional guarantee of a free press. If Congress shall pass House Bill 3306, Congress shall trample upon one of the highest and preferred rights of every civilized nation.
Other than the fact that House Bill 3306 is unconstitutional for it clearly violates the freedom of the press, it is likewise unconstitutional as it is void for its vagueness, on its face.
In our jurisdiction, the void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application.
Everyone is entitled to know what the government commands or forbids.
House Bill 3306 penalizes the editor-in-chief, publisher, station manager or owner, as the case may be, of the broadcast media who fails or refuses to receive or publish or broadcast the reply either with a penalty based on the Code of Ethics or fine, as the case may be. That is the prohibited act.
However, the same House Bill 3306 states that the reply of the person so accused or criticized shall be published in the same newspaper, magazine, newsletter or publication or aired over the same program on radio, television, website, or through any electronic device as far as practicable and respecting the editorial judgment and availability of space or airtime.
If the editors have exercised their judgment, and based on their editorial judgment, they decided not to publish or broadcast the reply, what will happen now? Will they be penalized as they have performed the prohibited act under House Bill 3306, that is, the refusal to publish or broadcast the reply? But why would they be penalized when House Bill 3306 itself authorizes the exercise of editorial judgment, and editorial judgment includes the judgment whether to publish or broadcast or not to publish or not to broadcast?
And if the sponsors would say, “Let’s look then at the intention of the editors in their refusal to publish or broadcast the reply.” That is not allowed since House Bill 3306 is a special penal law, and it is not a part of nor an amendment to the Revised Penal Code. Likewise, there is no provision in House Bill 3006 with respect to the intention of the perpetrator of the prohibited act.
In special penal laws, the intention of the perpetrator has no relevance – as long as the prohibited act is committed. Regardless of the intention of the perpetrator, the special penal law is violated once the prohibited act is committed.
So which is which, then? And though House Bill 3306 is a special penal law, since it affects the freedom of expression and of the press, the void-for-vagueness doctrine clearly applies.
Are we going to go back to those dark days of martial rule when unreasonable and arbitrary restrictions are imposed upon the press?
In this time of impunity, extrajudicial killings, enforced disappearances, systematic legal maneuvers, and high-level graft and corruption, are we going to dictate upon the press on what they shall inform the public?
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