In all the discussions raised against the right-of-reply bills, so far 2nd district Rep. George Arnaiz advances what---to my mind---is the most compelling argument against the legislative proposal.
There are bills pending in the senate and the house of representatives that would, in a nutshell, compel newspapers to publish replies to published criticisms, under pain of fines.
The bills require newspapers to publish the replies providing equal space and, in the same prominence that the criticisms were published.
According to Rep. Arnaiz, the bills are violative of the due process clause of the constitution.
He argues that compelling newspapers to publish replies free-of-charge is an economic deprivation of a newspaperman’s property without due process of law.
Arnaiz’ constitutional argument differs from others that are focused on the constitutional guarantee to freedom of the press.
Here, Arnaiz showed wisdom because he has sounded an economic reality of newspapermen---specially community newspapermen---even if he has never been newspaperman.
You see, from the very start, the premise is that newspapers have to be a business.
It is not by choice.
It is by force of circumstance.
You can study all forms and sizes of newspapers in the free world--- from the biggest (New York Times, Washington Post, etc.) to the smallest tabloids.
The common denominator is that newspapers have to operate as a business.
When one runs or operates a newspaper, there are inherent costs.
The publisher or owner has to take care of the costs of the newsprint, the ink, the labor costs (printers, composers, news-gatherers, editors, administrative personnel, etc) the electricity costs, chemicals, etc.
Where will the publisher get the money to cover the costs?
The publisher is not a government official, many of whom get money from kick backs, commissions, pork barrel, horse-trading, etc.
The publisher is also unlike the Red Cross which can receive donations, or a foundation that lives on charity.
So, everything you read in the newspaper---from page one to the last page---money has to be generated to make it a going concern.
In the case of columnists, they are chosen to write freely.
But their writings occupy space.
For every space that a columnist occupies for his or her article, there is a corresponding cost borne by the publisher or newspaper owner.
It is the columnist who, above anyone else, criticizes public official actions.
That is his job.
That is a very vital element in our democracy.
Checks and balance.
Here come these bills that say that for every criticism published, there must be compelled publishing of a reply.
Note that the reply should be of equal space, and of similar prominence.
If a columnist criticizes a public official for his official act, the bill compels the newspaper to publish the reply.
The foremost question is (actually this was my very first question):
Who pays for the space used-up or occupied by the reply?
Free? Libre? Bokong?
From the stand point of the newspaper publisher or owner, the government is exacting an economic burden because of what one of his columnists wrote.
By the way newspaper publishers or owners are separate from columnists. They are usually two different animals. (The bills don’t even distinguish)
So it is a double whammy for the publisher or owner.
The publisher bears the cost of the space for the columnist.
Now, if the bills become law, the publisher will also have to bear the cost of the reply.
Loosely speaking, double jeopardy (for lack of better description or analogy).
As a consequence, the newspaper publisher will start telling your political columnists: “Stop criticizing public officials because the cost will double”.
What is the effect?
For one, the corrupt will be happy.
The incompetent and the inept will rejoice.
No one will expose them anymore.
Newspapers will no longer be “watchdogs”.
Instead, they will become “dog watchers”.
Goodbye press freedom.
The publisher—specially the provincial publishers---will start telling columnists to just write about why the sky is blue, or why the sun is hot, or why cockfighting uses roosters and not hens.
That way, by staying away from controversial stories, the publisher can evade costly replies, and devote his newspaper space to generate income to cover the cost of the column.
I believe George Arnaiz saw this imminent and, should I say dangerous, anomaly.
And his argument has jurisprudential precedence.
Let me reinforce it, if I may.
In the case of Miami Herald Publishing Co. versus Tornillo decided by the U.S. Supreme Court on June 25, 1974 (418 U.S. 241), the court struck down as unconstitutional a right of reply bill in Florida.
The supreme court said: “The Florida statute exacts a penalty on the basis of the content of a newspaper. The…penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print”
In simplified but superb legal articulation, the U.S. Supreme Court said: Faced with the penalties ... editors might well conclude that the safe course is to avoid controversy. Therefore,… political and electoral coverage would be blunted or reduced.
If I may add, a blunted or reduced political discussion would undermine the constitutional guarantee to freedom of the press.
If these right-of-reply bills are passed into law, there is a chance that the editor-publisher of this paper---to avoid added costs---may instruct me to just write about my inconsequential childhood, my boring past love-lives, or whether during my adolescence there was ever a time I entertained gay tendencies, or to just be creative without being controversial.
Well, I’m already pondering on that possibility.
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