Bum weed

Like the proverbial mala yerba, proposals to clamp mandatory “right of reply” (RoR) rules on media keep cropping up. The latest “bum weed” is Commission on Elections Resolution 9615. “Candidates aggrieved by press reports can demand to have their side published in the same prominence or in the same time slot as the first statement,” says this implementing rule for the Fair Elections Practices Act.

Kapisanan ng Broadcaster ng Pilipinas, National Union of Journalists, Cebu Citizens Press Council (CCPC), among others, slammed the stitching of RoR provisions into the rules for the May 13 elections. If need be, they’ll challenge this rule before the Supreme Court.

The RoR resolution is “not Comelec’s invention,” bristled Commission on Elections (Comelec) Chairman Sixto Brilliantes. “It is in the Constitution.” Will Brillantes flag that at Inquirer’s editors and direct: Stand aside? Comelec during the 2013 campaign decides what font be used for RoR gripes, PDI pages where they must appear, plus frequency. Or else?

Commissioners Rene Sarmiento and Grace Padaca are cut from a decent bolt too. Will they shuck editorial prerogatives and order ABS-CBN or GMA Network to air RoRs? Prime time or graveyard shift? When do Comelec regional directors stride into the newsrooms of, say, Mindanao Cross in Cotabato, Cebu Daily News to Mabuhay in Pampanga to armtwist the publication of RoR gripes?.

We’ve not discuused Resolution 9615 with editors and broadcast executives. But our aging bones say that if  Brillantes et al surface at newsrooms, they’ll be politely but firmly ushered out the door. That rebuff wouldn’t well up just from bile.

The basis is RoR’s track record of serial rejection. In the Inquirer issues of  01 June 2009 and 18 November 2012, constitutional scholar Joaquin Bernas called attention to the over-arching 1974 United States Supreme Court decision on Miami Herald vs. Tornillo.

“We follow American tradition in speech jurisdiction,” Fr. Bernas wrote. The US Supreme Court  unanimous (9-0) decision struck down Florida ’s RoR right statute as an infringement of the First Amendment guarantee of freedom of the press. That “can be said about right of reply bills here.”

Candidate Pat Tornillo demanded Miami Herald print his reply to scathing Herald criticism. A 1913 Florida law required a newspaper to provide free reply space to any candidate whose personal character or official record the newspaper assailed. Miami Herald refused, so Tornillo sued.

(Senators Aqulino Pimentel, Bong Revilla Jr. and Francis Escudero with Rep. Monico Puentebella cloned the Florida RoR in House Bill 3306 and Senate Bill 2150. Congress junked both.)

A “responsible press is an undoubtedly desirable goal,” the Court said. But press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated. An RoR or right of reply could impose intolerable financial costs. It would  force newspapers to omit material they wished to publish to make room for replies. Worse, it could spur papers to avoid publishing “anything that might trigger a reply, and constitute an unwarranted intrusion into the editorial process.”

The power of a privately owned paper is bounded by only two factors: (1) Acceptance of a sufficient number of readers—and hence advertisers—to assure financial success; and (2) journalistic integrity of its editors and publishers. “The clear implication is any compulsion to publish that which ‘reason’ tells them should not be published is unconstitutional.”

“The choice of material to go into a newspaper, and the decisions made as to the limitations on the size and content of the paper and treatment of public issues and officials—whether fair or unfair—constitute the exercise of editorial control and judgement,” Chief Justice Warren Burger wrote.

“Government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom’s floor,” Justice Byron White added in a concurring opinion.

The press has no quarrel with fairness (But) “only dictatorships barge into newsrooms to usurp editorial functions,” CCPC stressed in a position paper (14 December 2007), then bucking House Bill 3306 and Senate Bill 2150.

However, legislated RoR “operates as a command. (It resembles) a statute forbidding the newspaper to publish specified matter,” added the Cebu Media Legal Aid group. “This is prior restraint. If media can not be told what to publish, it can not be told what not to publish.”

Like the proverbial mala yerba, RoRs sprouted again at the 15th Congress to bedevil the Freedom of Information bill. Nueva Ecija Rep. Rodolfo Antonino snuck an RoR into FOI as a rider. Approved by the Senate, FOI bogged down in the House, abetted by   President Benigno Aquino III’s “cartwheels.”

From election crusader for FOI, P-Noy back pedaled into stolid silence as Malacañang neophyte, then extended grudging support—only to relapse into stolid indifference. It spurns his parents’ stance on a free press.

“It is true you cannot eat freedom and you cannot power machinery with democracy,” Corazon Aquino said. “But then neither can political prisoners turn on the light in the cells of a dictatorship.” Benigno Jr. began his journey towards martyrdom as a 17-year old journalist.

Congress adjourns this week. An FOI in extremis will go the way President Gloria Macapagal Macapgal-Arroyo ensured FOI’s demise by getting her supporters to skip the 14th Congress’ closing day session. Would P-Noy and Glo then be peas in a mala yerba even as the press girds to beat back Resolution 9615?