Why the premium on free speech
Some people may wonder why we place a very high premium on free speech despite its tendency to be abused by others. We do so because history proves how dangerous it is to have government regulate free speech.
Despite the good intention to promote responsible speech and valid complaints against irresponsible speech, in most cases government regulation ended up limiting the democratic space for critical discourse. Regulation tends to create what we call a "chilling effect," a term described by the Supreme Court in Disini vs Secretary of Justice (2014) as that which "creates a tendency to intimidate the free exercise of one's constitutional rights."
Thus in voiding Section 5 of the Cybercrime Law (RA 10175) that punishes "aiding or abetting" online libel, the Court reiterated its earlier doctrine: "A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence."
This has been the principle behind every Supreme Court decision regarding freedom of speech, where it has consistently restricted the regulation of speech to specific circumstances. It likewise puts the burden on government to prove the factual existence of each circumstance, and likewise treats as privileged communication, lost only by proof of malice, those statements about a public official's character or conduct.
Thus, when President Corazon Aquino testified in a libel trial against newspaper columnist Louie Beltran whom she accused of damaging her reputation when he wrote that Aquino hid under her bed during the 1987 coup attempt, Beltran's lawyer Antonio Coronel confronted her with the question if her administration adheres to the principle laid down in US vs Bustos (1918).
Coronel quoted: "Complete 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."
In Borjal vs Court of Appeals (1999), the Supreme Court ruled: "Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Xxx Only by giving (the press) much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy."
In my previous column I mentioned about the dangers of proposed legislation criminalizing fake news in the light of these principles on press freedom. How then, one may ask, is the proposed legislation to combat the abominable fake news in the least can affect the "full discussion of public affairs"?
For lack of space, allow me to continue this discussion in my next column. I am writing this series given my background as an assistant professor of mass media law and former newspaper reporter.
Meanwhile, coincidentally after my deadline last Monday, news came out that the Securities and Exchange Commission has revoked the articles of incorporation of Rappler, Inc., the business entity which is running the news website Rappler.com. Rappler has described the SEC decision as a "blow to press freedom in the Philippines."
The 29-page decision did not actually say that Philippine Depositary Receipts are per se instruments that violate foreign equity restrictions in Philippine media. The SEC ruled that it is the PDR of Omidyar Network (the foreign investor) which contains a "repugnant provision" that allows Omidyar control of Rappler's corporate matters. This is absent in the PDRs of other foreign entities placing their bets in Philippine media.
So Rappler's Maria Ressa was not exactly forthright during her press conference last Monday when she said that PDR issuance is standard practice in the media industry, implying that government is singling Rappler out.
I'm not exactly a fan of Rappler and its snooty brand of "independent journalism" –one that borders on haste just so it creates an impact. But in any case, I believe that the SEC should have allowed Rappler some period to comply with the regulation before resorting to revocation. Government should carefully wield its power because, indeed, this case against Rappler has an impact on press freedom.
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