A war against the press?

(The sudden passing of Boss Max leaves a void which I shall address at length in another column. For now, I extend my heartfelt condolences to Ma’am Precious and the beloved family he left behind.)

We can now consider the question from several angles, having considered in previous columns the two reasons frequently cited for proffering an affirmative reply. One is the slew of libel cases filed by the First Gentleman; the other is the alleged unresolved killings of journalists.

Let’s start with FG’s libel cases. This issue should be discussed dispassionately and somewhat clinically. It’s one debate which, perhaps unavoidably, gets clouded over with emotion, clichés and ideological jargon.

The constitutional guarantee that no law shall be passed abridging the freedom of speech, of expression or of the press prohibits prior restraint, meaning generally any government restrictions on the press before actual publication or dissemination.

There is as well a prohibition on subsequent punishment by way of civil or criminal penalties after publication. Both operate as limitations on state action, since they can result in a "chilling effect" on the freedom of journalists to report or comment fairly on matters of legitimate public concern.

This chilling effect may be brought about not only by criminal statutes, but also by civil legislation on libel. In the 1964 case of New York Times vs. Sullivan, US Supreme Court Justice William Brennan, noted: "The fear of damage awards…may be markedly more inhibiting than the fear of prosecution under a criminal statute."

The highly respected liberal Justice added: "Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which freedoms [of speech and of the press] cannot survive."

There are, however, recognized exceptions to the constitutional protection of speech and of the press. These exceptions include so-called "libelous speech," which is a crime under the Revised Penal Code, for which civil and criminal penalties are provided.

As the US Supreme Court said in the New York Times case, there is a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open," even if it includes "vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."

However, the Court also made clear that "libel can claim no talismanic immunity from constitutional limitations" and must be measured by constitutional standards. The Constitution, the Court stressed, does not protect libelous publications.

Thus, the fact that the First Gentleman filed a "slew" of libel cases cannot by itself be cited as constituting an attack on press freedom. Any citizen may resort to the Revised Penal Code to vindicate what he claims to have been violations of his rights which are also protected by the Constitution and other laws.

The trouble is that FG is no ordinary mortal and is reputed to wield considerable power over, among others, prosecutors and judges. People wonder, for instance, at how quickly some of his libel complaints have ripened into criminal informations filed in court. Warrants of arrest have been issued. Accused newsmen have been required to post bail. Their mug-shots, i.e. pictures, have been taken by police, and their fingerprints obtained in an ignominious exercise called "playing the piano."

This, the media charge, is precisely what they mean by the "chilling effect" of libel cases. They claim their predicament can be considered a warning to other newsmen of a similar fate which awaits them should they persist in critical reports about the FG.

The FG’s lawyers, of course, deny that he possesses inordinate influence over the justice system. If the criminal informations are filed expeditiously, they insist, it is because the prosecutors have found "probable cause" for libel. The arrests, the mug-shots and piano-playing are all routine steps allowed by applicable law and procedure.

This is a difficult point to debate, because pressing the issue inevitably leads to putting the entire justice system under a cloud of doubt (Yeah, yeah, I know some people are saying it already is). The charge can be repeatedly made, for instance, that ambitious and promotion-hungry prosecutors and judges can be expected to defer to the "well-connected" FG. But it is quite another matter to prove that charge.

Instead, one is likely to get eloquent proclamations of faith in the judiciary. So, why even bother. Let’s just say that it’s one of those perquisites of power which ordinary citizens can probably do nothing about but accept as an unpleasant fact of life.

This, I suppose, is what Justice Reynato Puno meant when he said in one of his notable dissents, that the fight for press freedom is a "costly struggle." It may be costly, but it is a noble and worthwhile struggle.

As for the libel cases, the accused should pay close attention to an argument which the FG’s lawyers are making. The court’s disposition of this critical issue may well determine, for instance, who has the burden of proving truth, as well as "actual malice."

Complainant’s counsel has taken the position that the FG is neither a public official nor a public figure, but is, allegedly, a private individual. The claim is made that his status as a private person should insulate him from being "fair game" for media scrutiny and criticism.

The rule in this jurisdiction is that if a libel complainant is a public official, the truth is a complete defense. Thus, in each case the FG has filed, if the court rules he was in fact a public official, the accused news persons can prove that the contents of the defamatory news item or comment represented the truth. If the accused succeeds in doing that to the satisfaction of the court, then the case will be dismissed.

But even if the news item or comment was false, the public official must prove actual malice on the part of the accused in order to prevail. Actual malice means that the accused made the defamatory statement knowing it to be false, or with reckless disregard of whether it was false or not. This is the so-called "New York Times" rule, enunciated by the US Supreme Court in 1964, and subsequently adopted in this jurisdiction.

But the New York Times rule has been extended, both here and in the US, to "public figures." Thus, if the complainant is deemed by the court to be a public figure, the above rules apply, as if he was a public official.

But what doth it profit the FG to be deemed neither a public official nor a public figure, but a private individual? It doth profit him quite a bit actually, as we shall see.

(To be continued)