Cherished freedom

The current debate on fake news is valuable because it prompts us to revisit an often overlooked but very important element of a democratic society: freedom of expression and of the press.

Let me write about this today in the light of proposed legislation to criminalize fake news. The latter was brought to my attention recently when my opinion was sought to narrowly define fake news.

For over three decades that we have enjoyed freedom of speech after the Marcos period, the "fresh air of free speech" has been gradually replaced by the "stale air of free speech." The freewheeling and often irresponsible environment of social media now puts freedom of speech at the risk of becoming among those liberal-democratic values whose merits today's generation may no longer appreciate.

We have grown weary of abuses of free speech that have spread because of the anonymity and democratized platforms afforded by the internet. The usual reaction to fake news and cyberbullying, for example, is to push for accountability oftentimes through legislation. This is where we should tread carefully and try hardest to strike a balance between accountability and protecting free speech.

Under the 1987 Constitution, the right to freedom of expression is embodied in the Bill of Rights, Art. III, Section 4: "No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievance."

Freedom of expression is "the right to express one's ideas and opinions freely -without restraint or threat of punishment- through speech, writing, and other forms of communication." It comes with a condition, however, that its exercise shall not deliberately cause harm to another person's character or reputation, and that its exercise shall not threaten the public welfare.

As straightforward as it may seem, this definition of freedom of expression has on many occasions been expounded by the Supreme Court. Any system of prior restraints of expression (censorship) comes to the court bearing a heavy presumption against its constitutionality, giving the government a heavy burden to justify its imposition of such restraint. This was the ruling of the US Supreme Court in New York Times vs. United States (1971) which inspired Philippine Supreme Court rulings in some cases like Chavez vs. Gonzales (2008).

Prior restraint on speech, including religious speech, according to the court, cannot be justified by "hypothetical fears" but only by the showing of a "substantive and imminent evil." Even abuses of freedom of the speech and of the press by "irresponsible members of the media or by miscreant purveyors of scandal," cannot justify the exercise of prior restraint by the State.

While a jail sentence may be imposed against certain speeches like libel and oral defamation, the Supreme Court has consistently confined its application to speeches tainted with malice.

In explaining the privileged nature of criticisms against official conduct, the Supreme Court had ruled: "The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete 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."

Those of us who grew up in a suppressed environment during the Marcos era and later came to enjoy the freedoms post-EDSA have a responsibility to remind today's millennial generation about these principles of freedom of expression.

In my next column, I will expound on how current efforts to combat fake news and toxic online speech can easily slide down to the treacherous terrain of suppression of freedom of expression, and how we can strike a balance.