Dictating to the media
It appears that Congress is dead set on passing the right of reply bill. The Senate, voting 21 to 0, has passed the bill that will require media companies to provide equal space or air time to persons who are the subjects of their negative reports. Now, Speaker Prospero Nograles says the House of Representatives is “under pressure” to approve the measure.
The measure would give individuals who are “criticized by innuendo, suggestion or rumor of any lapse in behavior in private and public life the right to reply to charges or criticisms in newspapers, magazines, newsletters, radio, television and websites.”
At the outset, we must state we are in favor of everyone exercising their right of reply. It is part of the freedom of expression guaranteed to every individual by the Constitution. What we are against is a statutory right of reply.
We are against the right of reply bill because it would violate the right of journalists under the freedom of the press clause of the Constitution to edit or determine the contents of their publication. It would intrude into the function of editors. Chief Justice Warren Earl Burger of the US Supreme Court, in the 1974 case of Miami Herald Publishing Co. v. Tornillo, said the choice of material to go into a newspaper, the decisions made as to limitations on the size and content of the paper, and the treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.
Justice Byron Raymond White, concurring in the Burger majority opinion, said that a newspaper or magazine is not a public utility subject to “reasonable” government regulation in matters affecting the exercise of journalistic judgment as to what shall be printed. He said that prior compulsion by government in matters going to the very nerve center of a newspaper — the decision of what copy will or will not be included in a given edition — collides with the freedom of the press clause of the Constitution.
The right of reply bill would mandate that the replies be “published or broadcast in the same space of the newspapers, magazine, newsletter or publication, or aired over the same program on radio, television, website, or through any electronic device.” So, if the news story to which the reply is being made is the banner or No. 1 story in today’s issue, the reply should also be the banner story in tomorrow’s issue, although there may be bigger, fresher, more significant news that merits banner-story treatment.
A statutory right of reply would have a chilling effect on free speech. It would discourage newspapers, TV and radio stations from commenting on controversial issues when they know that they must provide free space and free air time for all replies.
A statutory right of reply in effect would impose a penalty on the basis of the contents of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exerted in terms of the cost in printing and composing. It will take away space that could be devoted to other material that the newspaper may have preferred to print.
There are already measures and venues available to persons who want to exercise their right of reply: They can write letters for publication in the Letters to the Editor section. If a major factual inaccuracy is involved, the letter or article could be published on Page 1. They can write letter-complaints to the readers’ advocate, publisher, editor in chief or vice president for news and current affairs of the newspaper or radio or TV station concerned. They can address their complaint to the Philippine Press Council. Or they can file libel suits.
Burger said that a statutory right of reply imposes the virtue of responsibility on the media. He said, “…Press responsibility is not mandated by the Constitution and like many other virtues, it cannot be legislated.”
Most of the major newspapers, radio and TV stations have manuals of editorial policies that include provisions on the right of reply and on accuracy, objectivity and fairness. We urge the authors of the right of reply bill to withdraw it. Responsibility cannot be legislated. Government officials, politicians and the people in general will just have to trust in the responsibility, ethical uprightness and sense of fairness of publishers, editors and reporters in doing their work and exercising journalistic judgment and discretion.