Free Speech and Punishment
By: Fr. Ranhilio Aquino
February 11, 2013
One can suppose what one cannot even imagine (a line is the supposition of distance without dimensions, and a point, of mere location), and one can imagine what one does not sense. The internet creates a space that parallels the space we inhabit. It is popularly known as cyberspace. Of course the habitues of cyberspace are people of flesh and blood who occupy real space in real time. Netizens are citizens as well. You access cyberspace through your computer (or your tablet, the latest incarnation that computing has taken, it seems) and the computer is a tremendously powerful and creative thing. You can take the picture of a pious monk, crop it and do with it what marvelous software allows you to do with it — until the monk appears as a porno star in some disgusting porno flick. Post this on one of the social Web sites that abound — and given the penchant of many societies like ours to believe the worst about others, the poor monk who has hardly left his cell is soon the topic of salacious gossip worldwide. The power of the Web consists in recognizing no boundaries.
By: Fr. Ranhilio Aquino
February 11, 2013
One can suppose what one cannot even imagine (a line is the supposition of distance without dimensions, and a point, of mere location), and one can imagine what one does not sense. The internet creates a space that parallels the space we inhabit. It is popularly known as cyberspace. Of course the habitues of cyberspace are people of flesh and blood who occupy real space in real time. Netizens are citizens as well. You access cyberspace through your computer (or your tablet, the latest incarnation that computing has taken, it seems) and the computer is a tremendously powerful and creative thing. You can take the picture of a pious monk, crop it and do with it what marvelous software allows you to do with it — until the monk appears as a porno star in some disgusting porno flick. Post this on one of the social Web sites that abound — and given the penchant of many societies like ours to believe the worst about others, the poor monk who has hardly left his cell is soon the topic of salacious gossip worldwide. The power of the Web consists in recognizing no boundaries.
US jurisprudence has been most vigilant against any erosion of the breadth of the First Amendment — the guarantee of free speech and expression. The fact however is that seventeen states of the US have laws that define and penalize libel. That libel is defined and punished in our own Revised Penal Code then does not, in the least, suggest our juridical retardation!
I think that we have exaggerated the claim to free speech. From ancient times, it has been the wise realization of humankind that speech has the terrible potential to destroy, often irreparably. One of the commandments of the Decalogue bears witness to this elemental insight: “You shall not bear false witness against your neighbor.” Democracy safeguards free speech because the consent of the governed is necessary, and you cannot express consent when you are kept mum. Contemporary accounts of democracy refer to the juris-generative power of collective will formation. That simply means that the fundamental human right is the right to participate as an equal in that discourse by which rational consensus is reached and by which valid law is passed. It is the right that allows me to challenge claims and to demand that they be vindicated. It is the right to give my arguments against a proposed norm of action, and to be given the arguments for it.
Nowhere, however, is the right to calumniate and slander constitutionally protected. There is no argument for the absurd proposition that for a democracy to flourish the right to defame others must be protected! Justice Thurgood Marshall very well enunciated the reason for the premium on unhindered speech in Police Department v. Mosley (1972): “The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Speech must be free and expression unhindered so that “our politics and our culture may be built” and so that “debate on public issues” should remain robust and uninhibited. But pray, tell me, how are our politics and culture served by posting on Facebook or on some blog the naked pictures of the object of my particular fetish or the target of my premeditated malice? How is a robust and inhibited debate on public issues fostered by publishing rumors on the dalliances of a person against whom I may be harboring a grudge? And then too, punishing libel whether in real space or in cyberspace does not hinder free speech. It is not prior restraint. But it holds you responsible for your speech!
In fact, speech that is completely free of legal parameters — particularly as now circumscribed by our penal laws on libel and defamation — effectively silences many. How often has it happened that a critic of government becomes the object of a smear campaign, the hapless target of every vicious attack, especially when government has conscripted friendly media that it has pampered if not bribed for this demolition job? Speak of the ‘chilling effect’ that criminalizing libel may have on free speech? Speak then too of the ‘chilling effect’ that relentless media attacks have on the reputation of one who has done nothing more than write against an inept government, otherwise the discourse is skewed!
And why should civil liabilities not suffice? Because the real big-time defamers and slanderers in this country are big-time media, highly financed and highly powerful. They are capable of the unkindest cut of all! What dent would a five- or even six-digit indemnity or levy make on a media conglomerate for which one million pesos is loose change? Keep the penalties for criminal libel on our books, and let our penal laws be expressive of that kind of society we all desire that keeps to the first precept of distributive justice as Rawls puts it: As wide a range of liberties possible as is compatible with a like range for others!
I think that we have exaggerated the claim to free speech. From ancient times, it has been the wise realization of humankind that speech has the terrible potential to destroy, often irreparably. One of the commandments of the Decalogue bears witness to this elemental insight: “You shall not bear false witness against your neighbor.” Democracy safeguards free speech because the consent of the governed is necessary, and you cannot express consent when you are kept mum. Contemporary accounts of democracy refer to the juris-generative power of collective will formation. That simply means that the fundamental human right is the right to participate as an equal in that discourse by which rational consensus is reached and by which valid law is passed. It is the right that allows me to challenge claims and to demand that they be vindicated. It is the right to give my arguments against a proposed norm of action, and to be given the arguments for it.
Nowhere, however, is the right to calumniate and slander constitutionally protected. There is no argument for the absurd proposition that for a democracy to flourish the right to defame others must be protected! Justice Thurgood Marshall very well enunciated the reason for the premium on unhindered speech in Police Department v. Mosley (1972): “The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Speech must be free and expression unhindered so that “our politics and our culture may be built” and so that “debate on public issues” should remain robust and uninhibited. But pray, tell me, how are our politics and culture served by posting on Facebook or on some blog the naked pictures of the object of my particular fetish or the target of my premeditated malice? How is a robust and inhibited debate on public issues fostered by publishing rumors on the dalliances of a person against whom I may be harboring a grudge? And then too, punishing libel whether in real space or in cyberspace does not hinder free speech. It is not prior restraint. But it holds you responsible for your speech!
In fact, speech that is completely free of legal parameters — particularly as now circumscribed by our penal laws on libel and defamation — effectively silences many. How often has it happened that a critic of government becomes the object of a smear campaign, the hapless target of every vicious attack, especially when government has conscripted friendly media that it has pampered if not bribed for this demolition job? Speak of the ‘chilling effect’ that criminalizing libel may have on free speech? Speak then too of the ‘chilling effect’ that relentless media attacks have on the reputation of one who has done nothing more than write against an inept government, otherwise the discourse is skewed!
And why should civil liabilities not suffice? Because the real big-time defamers and slanderers in this country are big-time media, highly financed and highly powerful. They are capable of the unkindest cut of all! What dent would a five- or even six-digit indemnity or levy make on a media conglomerate for which one million pesos is loose change? Keep the penalties for criminal libel on our books, and let our penal laws be expressive of that kind of society we all desire that keeps to the first precept of distributive justice as Rawls puts it: As wide a range of liberties possible as is compatible with a like range for others!