A dangerous turn for democracy

While the cyberlibel convictions of Rappler Executive Editor Maria Ressa and researcher Rey Santos are pending finality, this decision has become the worst decision on our great freedoms of press and speech (because we are all publishers now through our social media). Our  long line of jurisprudence on these rights  from 1918 in U.S. v. Bustos to 2008 in Chavez v. Gonzales, including the martial law years, has always upheld these freedoms and for good reason.

In the very early case of U.S. v. Bustos (G.R. No. L-12592, March 8, 1918), Justice Malcolm, writing for the Court, liberally established the guarantees of freedom of speech and of the press in a Philippine society dominated by Americans and was existing merely under an Organic Act.

“The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience . . . It is a duty which everyone owes to society or to the State to assist in the investigation of any alleged misconduct. It is further the duty of all who know of any official dereliction on the part of a magistrate or the wrongful act of any public officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of Mr. Justice Gayner, who contributed so largely to the law of libel. ‘The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism.’”

A little less than a hundred years later, Chavez v. Gonzales (decided in 2008), with Chief Justice Reynato Puno writing for the court, eloquently traces the essence of such freedoms.

On the freedom of speech: “The right belongs as well—if not more—to those who question, who do not conform, who differ. The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view ‘induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’ To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.”

On the freedom of the press: “Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed.”

Clearly, there are valid limitations to free speech, such as the restraint on speech that can cause immediate and real harm and punishment of libelous remarks, among others. However, the Supreme Court has consistently put a remarkably high bar for such restraint and punishment. There is the clear and present danger test and the determination of malicious speech in the case of slander or libel. This should not change even with the emergency of digital technology and the internet.

Judge Rainelda Estacio-Montesa in her decision said, “The right to free speech and freedom of the press cannot and should not be used as a shield against accountability. The law sets out parameters for this accountability.” Ironic as it may sound, while the conviction seems to demand accountability from journalists on a supposed offense of cyber libel, the very decision itself removed the public’s opportunity to demand accountability from the greater and more powerful authority of government through the courageous press.

With this decision, we step into a new era on free press and speech. The judiciary has led the country to a dangerous turn not just for these freedoms but also for democracy. We must be resolute in resisting and fighting this, for the glorious past when the courts were the last bastions of these freedoms and for the future for the survival of our democracy,

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