POSTSCRIPT / March 1, 2009 / Sunday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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'Right to talk back' bill is prior restraint

RIGHT TO/OF…: Still on the bill forcing media to publish or broadcast with equal prominence the reactions of all persons claiming to have been slighted by reports and comments in the newspapers, over the radio and television:

The sponsor of Senate Bill 2150 refers to it as a “right to reply” measure, but some objecting media tag it a “right of reply” bill. The difference reflects a clash of adversarial interests.

The proponents seem to regard talking back to media as a moral right and now want to legislate it into a legal entitlement, maybe even elevate it to something akin to those in the Bill of Rights.

Interestingly, Article III (Bill of Rights) of the Constitution also uses the construction “right to…” and not “right of….”

The section speaks in solemn tones of the right of the people to be secure in their persons, houses, papers; the right peaceably to assemble and petition the government; the right to information; the right to form unions, associations; the right to be informed of (one’s) right to remain silent; the right to bail; the right to a speedy disposition of cases, et cetera.

With that, I would rather adopt the nomenclature used by the proponents — they are more familiar with their handiwork — and continue referring to it as the “Right to Reply” bill.

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RIGHT-TO-TALK-BACK: That the proponents want to invent a “Right to Reply” simply means that there is no such “right” at the moment. Otherwise, there would not be any need to create such a right by legislation.

The proposed right-to-talk-back cannot be invested with the same weight as those in the Bill of Rights which, we want to remind everybody, says in Section 4: “No law shall be passed abridging the freedom of speech, of expression, or of the press….”

In the very beginning, from the moment of creation of the Constitution, there was already this “freedom of speech, of expression, or of the press….” The Charter did not invent or grant these freedoms; it just recognized and affirmed them.

Now some politicians smarting from media criticisms are seeking to abridge these inherent freedoms?

On this constitutional score alone, the “Right to Reply” bill should be struck down.

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UNNECESSARY: In the second place, giving onion-skinned politicians and public figures a new right to talk back is redundant and unnecessary.

The penal code has provided already for a potent legal recourse to untruthful reportage and malicious media commentaries.

We have a tough libel law that even goes against the general rule of presumption of innocence by presuming malice in critical media reports. The law places on the accused author and publisher the burden of overturning this presumption of malice.

If this law on libel is not harsh enough, it can always be amended — instead of having touchy senators and congressmen pass a “Right to Reply” law of doubtful constitutionality.

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KILLING MEDIA: The talk-back measure is not necessary, also because there are already mechanisms and industry standards for ensuring fair play and balance in news reportage.

If these self-policing mechanisms and standards are inadequate or not properly enforced, the better recourse is to review and recast them.

The crude mechanism proposed in the “Right to Reply” bill is simply not workable. Forcing private media to use the same spot or time slot for the reactions of all those who feel aggrieved will drown the media in endless retorts.

At least half of the contents of newspapers and radio-TV programs would consist of supposed replies of those claiming to have been unfairly hurt by earlier reports.

This is the surest way to drive private media out of business. This will kill the Fourth Estate that the Constitution so solicitously protects.

Maybe that is the idea in the first place?

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IT WON’T WORK: It should be plain even to simpletons why the proposed law will not work.

First of all, somebody on top has to decide which replies should be published or broadcast. Media cannot just run every “reply” sent to them.

Who will decide what is fit to print? What if a newspaper or a radio-TV network refuses to use a rejoinder as is and on the date demanded by the complainant?

This will bring in the courts and a horde of lawyers and public relations people. By the time the Supreme Court decides which material merits publication and in what manner, several months may have lapsed and the subject may have been forgotten.

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PRIOR RESTRAINT: What lawmakers who do not understand media operations want to do is legislate editorial responsibility and balance. They are attempting to abridge the freedom of the press.

The “Right to Reply” law as proposed is a case of prior restraint, because it presumes to dictate on media beforehand what material to use and not to use — and in what manner. This is crude censorship.

Who will enforce the law at the editorial desk level? Do we go back to the Marcosian setup in the early stages of martial rule when government censors and enforcers were assigned to media to pass upon materials before publication?

Since the demand for paper, ink and other materials — not to mention personnel services — would double, would the government foot the extra bill arising from its meddling into what is clearly private business?

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(First published in the Philippine STAR of March 1, 2009)

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