Even intemperate language is fit to print – the significance of the New York Times case

Justice Brennan

What follows is a digest of a landmark case in Constitutional Law.

The “moral lesson” of the story seems to be that in cases of libel, if a complainant cannot succeed in pursuing a criminal case, he may also not prevail in a civil case.  Whether the suit is pursued as a criminal or civil action, the offended party must prove actual malice if the subject matter is in the public interest.

Justice Brennan is the “hero” of the story (see the excerpts).

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Borjal v. CA, 301 SCRA 1

G.R. No. 126466, January  14, 1999

Art. III, Sec. 4, libel and freedom of speech

Facts:

Private respondent Wenceslao initially filed a criminal case for libel against petitioners Borjal and Soliven, alleging that the accused had written and published certain articles that were derogatory and offensive to Wenceslao. Borjal wrote about an unnamed “political fixer,” who allegedly organized a useless conference paid for by unwitting corporate sponsors.

The criminal case was dismissed at the preliminary investigation stage for insufficiency of evidence. Wenceslao then sued for damages in a civil case against petitioners.

Issues:

(1)Was there libel?  (2) Do the subject articles constitute privileged communications? (3) Does the Court recognize and apply the “public official doctrine” laid down in New York Times v. Sullivan? (4) Does private respondent have a valid cause of action in a civil action for libel against petitioners although he failed to prove actual malice?

Held:

In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named.  At least a third person must be able to identify the victim. In this case, even the offended party was himself unsure that he was the object of the verbal attack.  The revelation of his identity came not from petitioner Borjal but from private respondent himself when he wrote a letter to the editor of a newspaper.  Absent such letter, the public would have remained ignorant of his identity.  On the element of identifiability, libel does not lie.

Were Borjal’s articles privileged communications?  The lower courts had ruled that the articles were not because they were not expressly defined as privileged in the Revised Penal Code.  The Supreme Court disagreed.  It held that the articles were nonetheless privileged because the concept of privileged communications is implicit in the freedom of the press as guaranteed by the Bill of Rights.  As early as 1918, in United States v. Cañete, the Court ruled that publications are privileged for reasons of public policy, i.e. they are protected by the constitutional guaranty of freedom of speech.  This constitutional right cannot be abolished by the failure of the legislature to give it express recognition in the statute punishing libels.  Citing Elizalde v. Gutierrez and Santos v. Court of Appeals, the SC held that the doctrine in these two cases states that privileged communications must, sui generis, protect public opinion.  The Borjal articles dealt with matters of public interest, which are appropriate subjects of public opinion.

The Court cited the “public official doctrine” laid down in New York Times v. Sullivan, and deemed the private respondent a public figure within the purview of the New York Times case.  (This holding is also consistent with the definition of “public figure” in Ayers v. Capulong.)

The New York Times doctrine states that liability for defamation of a public official or public figure may not be imposed in the absence of proof of actual malice on the part of the person making the defamatory statement.  To prevail, the private respondent must prove actual malice. (Note:  New York Times was a civil case.)

The Supreme Court held that to avoid self-censorship, which would violate the freedom of the press, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies.  It also held that the privilege of public opinion is not defeated by intemperate or deprecatory utterances.  (In effect, certain inaccuracies or even intemperate language may be tolerated under the constitutional right to a free press.)

Excerpts:

The raison d’etre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it.

But no matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan, “[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials.”



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