Locsin On Right Of Reply Again

PRESS STATEMENT OF CONG. TEODORO LOCSIN JR HOUSTON, WE HAVE A PROBLEM It has been over a year since, unbeknownst to media, the entire Senate without a single goddamned exception, launched a Right of Reply bill and put it into orbit preparatory to slinging its space module to the moon by a House of Representatives vote. Now the House is as ready to vote, as much as it is to get rid of this hot potato, and send the Senate’s unanimous measure on to the moon. In a sense, it is all systems go for the Senate shuttle. I have even discovered, finally, a good reason to send the Senate spaceship on its lunar journey: it does not affect free speech and the press because libel is no part of the constitutional guarantee. If it were, all libel laws would be struck down and they are not. 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. In fact, I would add to my substitute bill on a Chance to Answer and the Right to Retract, which extinguishes libel when a reply is published or a retraction made that “any opinion, argument, point of view or statement, however strongly worded or

expressed, can never give rise to libel.” It is never libelous to describe a person’s statements, acts or arguments as, say, insane, even if that may reflect on the person himself. Otherwise, you will sap all passion from discourse along with the human capacity to commit to reform. Only an attack on a person’s honor can qualify as libel, not on his thoughts, substantive or vacuous as they may be. This addendum to the definition of libel is a poison pill or a self-destruction mechanism in both bills because it will not survive judicial scrutiny. So it must be deleted and the subject of a right of reply strictly confined to libelous statements as defined by the Penal Code and probable cause for which is found by a prosecutor. So, “Houston, we have a problem. We have to abort the launch unless we take out this baby and fling it into outer space. Another problem is surplusage which only adds useless weight to the vehicle even if there is no gravity in outer space. Both bills say that the reply shall be published in the same media outlet. Where else? Who else would pick it up, another newspaper or station? The other problem is the language on the placing and timing of the right of reply. It is not so much the so-called sanctity of editorial judgment (which is just a lot of mumbo-jumbo on space availability) and the tortured attempts to respect while subverting it, as the impossibility of determining the physical requirements that would satisfy a right of reply, as when more than one person feels insulted by the same material. The entire newspaper or the entire day could be taken up with a reply. I say “could but almost certainly won’t be” because media will just ignore the reply and no court will enforce it. Trust me. And that is why only my Chance to Answer and Right to Retract, which eliminates the element of compulsion entirely, is acceptable. It is entirely voluntary. 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 remain and only criminal liability should be extinguished.) To get the Senate’s shuttle launched on the last phase of its lunar journey, we shall have to remove two components from its engine: Section 1 and Section 2 and substitute Section 1 with a similar paragraph limited strictly to the definition of libel and requiring an initial finding of probable cause by a fiscal. I cannot think of any substitute for Section 2 except to leave it entirely to the media to decide the sufficiency of its response—either in publishing a reply or its own retraction. But this is already the situation today. Except that publishing a reply or making a retraction does not shield from libel. Sec. 3 of both bills is good but can come into play only if we get rid of Sections 1 and 2 altogether, forget the right of reply, and instead retain Section 4 as the entire bill because forcing a publication to print a judicial decision is in no way compulsion. This is one of the suggestions made by eminent American jurists to go around the Miami Herald decision striking down a right of reply statute. Successful libel judgments, say experts, must include a ruling by the court that the same be published by the

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offending publication. But this can be done even without a new law. A new rule of court will suffice. There is another suggestion. A special action shall be allowed by the Supreme Court for summary judgments on libel suits that seek only a judicial ruling on the veracity or mendacity of an allegedly libelous item without seeking criminal or civil liabilities. We are talking here only of a summary and immediately executory judgment to be delivered not later than two weeks from filing by a competent court. Appeal will not stay publication of the judgment, though if the judgment is reversed the publication can be depended on to eagerly publish its own vindication. Section 5 on the length of the reply is useless in view of Section 4, so delete. Section 6 on the cost of reply is implied in my own suggestion of a Chance to Answer and a Right to Retract since it is voluntary. In the case of paid advertisements, this treads on ground covered by another US case whose name I forget and favors the rich who think they are maligned and can afford to pay the advertisement over the poor who probably are maligned and cannot. This flies in the face of equal protection. Section 7, which tries to do away with rebuttals, sur-rebuttals, an endless series of answers to answers unless “new matter” is introduced, may or may not be a welcome addition to my Chance to Answer and Right to Retract substitute bill/amendment because it depends on the determination of new matters, as in seeking a new trial—a determination that is peculiarly judicial in character and cannot be left to either the victims or the perpetrators of libel to decide. Section 8, by fixing penalties, is prior restraint, and if it is excessively modest mocks the law that provides it. It is telling the public not to take the law seriously. Sufficiently grave penalties, on the other hand, becomes, more precisely, prior compulsion because it threatens media with sanctions if media will not publish a reply or, conversely, if media will not learn to temper its reports by keeping these sanctions in mind. Section 8 is a direct threat to press freedom. That is why my brilliant suggestion is the only viable one because it is completely voluntary: a Chance to Answer that extinguishes libel and a Right to Retract with the same legal effect. The only “penalty” in quotation marks I can think of is that failure to publish a reply or make a retraction will give rise to a legal presumption of malice but I don’t know if malice can be legislated. Maybe it can. I will ask the wise men of the House like Sim Datumanong. A congressional oversight committee on this subject is a Kangaroo Court composed of the usual suspects who always claim they are libeled. It 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, there is nothing sacred about journalism, this is a fact as attested to by the World Bank’s chief economist, Paul Collier: a free press is the only 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. I am humbly proposing that a smaller spaceship will complete the journey: a oneparagraph amendment of the provision on libel in the Revised Penal Code.

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