Right to Reply – The reasoned opposition is not based only on freedom of expression (updated)

According to news reports, Sen. Aquilino Pimentel challenged those who oppose the so-called “Right to Reply” bill to make a “reasoned argument.” One columnist, Patricia Evangelista, states that Pimentel’s challenge is “far more difficult… than it appears. After all, reason is a quality that is rarely recognized by those in public office.”

Evangelista not only makes a sweeping indictment of those who hold public office, but is also quite wrong. The Pimentel challenge is easy.

The problem with the Right to Reply bill is not that it directly abridges press freedom, as it never said that journalists had to be censored. The media has had a hey-day arguing that the proposed law will have a “chilling effect,” and thereby violates freedom of expression.  But all the bill proposes is a guarantee that anyone who feels maligned can seek redress, and on its face, it is a stretch to argue an abridgement of press freedom. Fr. Joaquin Bernas also suggests that the bill violates freedom of expression construed to include the “freedom not to speak.”  I also think that that argument is a stretch, since the one “speaking” is not the media but the alleged victim.  The media just gives him a platform, and the issue is ultimately how that platform is to be had.

The idea that the Right to Reply will impose undue burdens on media is nonetheless correct, but the burden is economic, not political. But there need be no reason to worry. The bill is flawed on perhaps more substantive grounds.

The fundamental problem is that the guarantee contemplated by the bill directly violates the due process and the takings clauses of the Constitution. “Due process” can be summed up in one sentence – “Let no man be a judge of his own cause.” The Right to Reply bill makes the “victim” the judge of his own cause, and calls upon the government to expropriate valuable media resources, without just compensation, on behalf of the victim. The Constitution requires that such expropriation be for public use, and protecting an individual’s sense of honor is not public use. It is a private good as to him, and he can enforce it through the libel laws. And even if the judiciary were to interpret “public use” broadly, the just-compensation requirement cannot be avoided. Should the public then pay for the media resources to be used to implement the so-called Right to Reply?

At present any person who feels maligned by media can buy print ads or air time to give his side, precisely because of the freedom of expression clause. If he is poor, or feels that the public opinion should be on his side, he can send a letter to editor. There is a moral obligation, enforced by custom, on the part of media to publish, within reason, such letters to the editor. Thus, on constitutional and on “reasonable-status-quo” grounds, there is much harm and no need for the so-called Right to Reply. That right, in its most fundamental sense, has always been there, and does not need to be shored up by the taxpayers.

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