We still speak not with bated breath

Source: dailyopinioninternational.com

When the Supreme Court decided to uphold the anti-cybercrime law, netizens were fast to decry the decision as an erosion of our fundamental right to free speech and paving the way for online martial rule.  This issue assumes much relevance at a time when we celebrate the 28^th year anniversary of the EDSA People Power Revolution that toppled the Marcos dictatorship.

Those who lived through the Martial Law years know that they could only criticize Marcos and the government in hushed tones, lest they be the target of the dreaded ASSO (Arrest, Search and Seizure Order) by the state’s security forces.  This could mean being incarcerated without charges or worse, joining the ranks of the desaparecidos or those who disappeared and never to be heard from again.

The 1986 People Power revolution ended this garrison state and with it came the restoration of our cherished freedoms, particularly our freedom of speech and expression which is now enshrined in Article 3, Section 4 of the Constitution.  It prohibits Congress from making any law abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. 

The advent of modern technology even expanded the exercise of this freedom by providing us the medium of the cyberspace where we can vent our frustrations with the government and its officials or cast our criticisms and disgusts.  Imagine if tweeter or facebook were already existing during the time of Marcos. The authorities would probably be spending countless hours tracking emails, tweets and status updates adverse to Marcos and his cohorts.

One only needs to read the papers, listen to the radio, watch the TV, surf the internet, browse facebook or read tweets to see that our freedom of speech is still very much intact – and we no longer have to criticize the government in bated breath.  28 years later we can still speak freely against the government and our public officials without fear of punishment.

And what about the anti-cybercrime law that punishes online libel?  Did it not remove or downgrade our free speech right with the connivance of the Supreme Court?  There is so much misinformation circulating the web about this.  Freedom of speech is not absolute.  The state can legitimately prohibit speech that is libelous, obscene, incites lawlessness, or is in the nature of fighting words (those that by their very utterance inflict injury, incite lawlessness, hatred or violence).  These are unprotected speeches that the state may validly regulate.

Libel, which is the utterance of defamatory words that destroy or injure another’s character or reputation, has always been punished even before the enactment of the anti-cybercrime law.  What the anti-cybercrime law merely did is recognize the internet as a means by which libel may be committed or as a medium where defamatory words can be published.  If a statement is libelous when made on a newspaper, radio or television or when uttered orally, it does not become less libelous when made on the internet.

The anti-cybercrime law does not punish protected speech.  By importing the definition of libel under the Revised Penal Code, the jurisprudence outlining the acts punishable when the defamatory remarks are made against a private individual and when made against a public official or figure are also imported.  Thus, speech critical of a public official or figure, even if defamatory, remains protected if made without malice and, therefore, cannot be punished as libel.

Those who say that the anti-cybercrime law will stifle free speech are clearly making false and misleading statements.  The criticism of official conduct, condemnation of malfeasance in public office or denunciation of any wrongdoing by our public officials  remain part of our protected speech and nowhere under the anti-cybercrime law, or in the Supreme Court’s decision, has this been made a punishable act.   

Libel and free speech

In a free society like ours, there is a constant clash between the right to free speech and the right to protect one’s reputation. And when this clash lands on the doorsteps of our courts, judges sometimes find themselves constrained to draw a fine line between the two. The most complicated of all is when the opposing rights involve a matter of public interest.

The 20-million peso libel suit of Pampanga Chamber of Commerce (Pan-Cham) President Rene Romero against veteran Pampanga journalist Bong Lacson is one such case, wherein the trier of facts and law will have to carefully distinguish between what is constitutionally protected speech and plain and simple defamation.

Libel, which is the publication of defamatory statements that damages a person’s reputation, could either be on a private or public matter. If it is on a private matter, as when it involves a private person or purely private concern, the law presumes every defamatory imputation to be malicious and, therefore, actionable.

But when the defamatory statements involve a public official or a matter of public interest, the complainant must prove malice to become successful. This is in consonance with the freedom of speech guarantee under the Constitution, which protects speech on matters of public interest.

Malice has been defined in the US case of New York Times v. Sullivan as knowledge of the falsity of one’s statements or reckless disregard as to whether or not they are true. In other words, one knows that his statements are false or entertains serious doubts as to their truthfulness, but nevertheless makes the statements.

In the landmark 1999 case of Borjal v. Court of Appeals, our own Supreme Court further defined malice as the presence of spite or ill will; when a person acts not out of response to duty, but for some unjustifiable motives or bad intentions. In that case, the Court exonerated Philippine Star columnist Art Borjal of libel upon finding that he acted out of a sense of civic duty and in the performance of his job as a newspaperman in exposing alleged anomalies in the government.

The Romero libel suit appears to involve a matter of public interest: the Most Outstanding Kapampangan Award (MOKA) – a highly publicized and much anticipated yearly event in Pampanga, wherein awards of recognition are conferred to Pampangueños who have made significant achievements in various fields of endeavor or contributions to the community. If the court finds Lacson’s article as one involving a matter of public interest, it would have to determine the presence of malice to make him liable for libel.

It should be noted that under the doctrine of constitutional defamation, the fact that the defamatory statements are false or erroneous will not necessarily give rise to liability for libel. In the words of Borjal, “[e]ven 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 . . . There must be some room for misstatement of fact as well as for misjudgment.”

It is clear then that when matters of public interest are involved, the Constitution allows greater leeway for speech. As Justice Brennan eloquently said in New York Times, "debate on public issues should be UNINHIBITED, ROBUST and WIDE OPEN, and that it may well include VEHEMENT, CAUSTIC and sometimes UNPLEASANTLY SHARP ATTACKS on the government and public officials.” (Emphasis added).

This, of course, does not mean conferment of an unbridled license to defame. If the offending words are made with malice, the speaker or writer could still be held liable. For in such case, the objective is no longer to create or invite discussion on issues of public interest, but to attack the character of another under the guise of free speech or press freedom.

When hateful speech is protected

Voting 8 to 1, the nine-member US Supreme Court upheld the right of the members of the Westboro Baptist Church to picket the funerals of US soldiers killed in the line of duty and hold signs displaying hateful language, such as "Thank God for Dead Soldiers," "Fags Doom Nations," and "You're Going to Hell," among others. Fred Phelps, founder of the denomination, claims that God is punishing the United States, such as the death of soldiers, for its tolerance of homosexuals.

The case, Snyder v. Phelps (March 2, 2011), emanated from a suit by Snyder, father of Marine Lance Corporal Matthew Snyder who was killed in Iraq, claiming damages for the emotional distress and invasion of privacy inflicted upon him and his family as a result of the picketing by Phelps and his fellow parishioners during Matthew's funeral. The jury awarded millions of dollars in damages to Snyder, prompting Phelps to appeal on the ground that the decision violated his First Amendment right of free speech.

There is here an apparent clash between the rights of the bereaved to privacy and respect for their dead and the right of the picketers to free speech.

The almost unanimous decision turned on a determination of whether the picketers' speech involved a matter of public concern. A speech is said to be of public concern when it relates to a matter of social, political and other concern to the community or it relates to a matter of general interest to the public. The Court found this to be present in the picketers' case as their speech relates to the conduct of the United States and its policies as a nation, particularly in relation to homosexuals.

According to the Court, speech on a matter of public concern, no matter how distasteful or controversial, occupies the highest rung in the hierachy of First Amendment rights values. If the speech - its content, manner and context - is of public concern, then it will enjoy special protection under the First Amendment.

The Court stressed that the outrageousness or inappropriate character of the speech is irrelevant in determining whether or not speech is relating to a matter of public concern. Chief Justice John Roberts, who penned the decision, eloquently put it this way:

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

In upholding the picketers' right, the Court was careful to point out that the Westboro parishioners neither interfered with the funeral nor were violent. It also empahsized that the picketers were on a public place: on the streets, which have historically been associated with the exercise of free speech.

This decision clearly demonstrates the importance the US legal system accords to free speech. While the US is known to be very protective of, and highly values, its servicemen, the Court unambiguously gave greater protection to the free speech rights of a small group of rabid churchgoers as against the plea for respect and dignity of a fallen soldier's grieving family that has been offended, if not outraged, by the picketers' insentivity and hateful language.

FVR's Mistaken View of Constitutional Violation

While I was scanning the news, I came across a statement from former President Fidel V. Ramos claiming that the Catholic Bishops Conference of the Philippines (CBCP) violated the Constitution in issuing a call not to vote for candidates who support the controversial Reproductive Health (RH) Bill. According to Ramos, the CBCP's campaign violates the people's right to freedom of conscience and belief by imposing its view on them.

Conceivably, FVR was referring to freedom of religion or the free exercise clause under Article III, Section 5 of the Constitution, which prohibits the enactment of a law or any governmental act that prevents the free exercise of religion. An elementary principle in constitutional law, however, will show that Ramos's statement is incorrect.

The fundamental rights enumerated in Article III of the Constitution (Bill of Rights) can only be violated when State action or governmental conduct is involved. The Bill of Rights is meant as a check against exercise by the government of its immense powers; as a balance between individual liberty and governmental power. Thus, one will see that the enumeration of rights in Article III are directed against the enactment of laws, law enforcement functions, criminal prosecutions, imposition of penalties, etc., which are within the domain of governmental functions.

The CBCP's statement urging voters not to vote for candidates in favor of the RH Bill does not constitute action by the State. On the contrary, it should be viewed as an exercise by its members of their religious freedom and free speech rights, which are guaranteed in Article III. The very constitutional provision that FVR says the CBCP is violating in fact grants the latter and its members the right to adhere to a particular religious belief (about the claimed immorality of artificial birth control) under the free exercise clause and to express such belief under the free speech clause.

The CBCP, or any other religious group for that matter, has every right to campaign for or against a particular legislation, candidate or governmental action that it deems contrary to the tenets of its religion. The free exercise of religion clause under the Constitution guarantees this right.

Free Speech is the Casualty in Punishing Willie Revillame

The Movie Television Review and Classification Board (MTRCB) has once again shown its penchant for curtailing free speech rights by mulling over the imposition of sanctions against Wowowee television show host Willie Revillame. Last Monday, Revillame expressed his objection to the showing of live feeds on Cory Aquino's funeral cortege during a segment of the popular noontime show. He asked for the removal of the feeds for being inappropriate and distracting.

Apparently riding on the tide of public outrage against Revillame, MTRCB Chairwoman Consoliza Laguardia said Revillame violated Presidential Decree 1986 (the law creating the MTRCB)and the KBP (Kapisanan ng mga Broadcaster sa Pilipinas) Code. Notice the haste and prematurity with which Laguardia has spoken; already, the MTRCB through its chairwoman pronounced its judgment even before the besieged showman was given the opportunity to defend his actions.

But not only is the MTRCB disregarding Revillame's due process rights, it is also arranging to violate his free speech rights by imposing sanctions for his conduct which, although distasteful and inappropriate, is a function of democracy. However objectionable Revillame's statement may be, the fact of the matter is there is nothing in either his conduct or statements that would justify MTRCB in imposing sanctions on him, for he was free to express how he felt about the mixing of the funeral procession with his game show.

Speech under our laws can only be regulated or punished if it passes a strict scrutiny test. Not long ago, Chavez v. Gonzalez made it abundantly clear that this test applies with equal vigor in the broadcast media - which is a dramatic departure from American jurisprudence from where we imported our concept of free speech. The Supreme Court in this case did away with the differentiation between print and broadcast media in the application of the strict scrutiny standard in content-based regulation of speech. Under this test, speech can only be regulated if it creates or is likely to create a clear and present danger of a grave and imminent evil which the government has the right to prevent. The government must show a compelling or overriding interest that would justify curtailment of speech.

There is nothing in the statement or conduct of Revillame that would even remotely suggest such clear and present danger. It may be in bad taste, but to say that the government has an overriding or compelling interest to prevent or punish such speech is downright ridiculous. Revillame's gaffe is the stuff of 24/7 news that thrive on controversy rather than of state interest.

In fact, a review of section 3 of PD 1986, which is being relied upon by MTRCB, would show that there is nothing that would make Revillame's case fall squarely. Said section enumerates the powers of the MTRCB and the instances upon which it may exercise its power to approve, disapprove or otherwise censor objectionable movie and television shows. Specifically, the section empowers MTRCB to regulate or prohibit media materials constituting sedition or rebellion, which glorifies criminals and condones crimes, solely satisfies market for violence and pornography, abets the traffic and use of prohibited drugs, are libelous or defamatory, or constitutes contempt of court. None of these instances cover Revillame's statement and conduct.

It is true that good Filipino customs dictate respect for the departed, but I find it hard to understand how requesting the removal of the coverage of a funeral procession in a game show - without a doubt out of place and timing in the show - could constitute such disrespect. If there is anyone who was disrespectful it was the director of the show, and not Revillame, for including or allowing the inclusion of the former president's funeral cortege during a merrymaking portion of the game show. Revillame may be guilty of insensitivity for proceeding with his show like it was business as usual at a time of national mourning, but his act of not allowing the mixing of a somber occasion with an entertaining game show was actually the right thing to do under the circumstances. He should have, however, requested the removal discreetly and should not have needlessly publicized his disgust.

Former President Corazon Aquino became our beloved icon of democracy when she stood to fill the place of Ninoy after being felled by an assassin's bullet. She led the fight to restore our democracy which gave us the freedom to speak our minds. Punishing Revillame for his inappropriate statement - which is certainly not a "crass attempt to desecrate the memory" of the former president, as her family's spokesperson Lourdes Dy Sytangco characterizes it - would be a disregard of the cherished right which Ninoy and Cory fought for.