Sunday, September 24, 2006

If you can't salvage 'em, SLAPP 'em

The Philippine Center for Investigative Journalism (PCIJ) per Isa Lorenzo has taken note of the “flurry of libel cases” filed by First Gentlemen Jose Miguel Arroyo since 2003 against 43 journalists involving filing fees of 1.2 million pesos and demand for damages amounting to 141 million pesos.

The result, according to Lorenzo, is a “chilling effect on writers, editors, and publishers, who may think twice before writing and publishing articles criticizing Arroyo.”

In the same PCIJ piece, Lorenzo cited quiet approvingly a lobby effort by the National Union of Journalists in the Philippines “to exert pressure on Congress in order to decriminalize libel.”

I posted two successive comments on the Lorenzo article. The first reads:
It is shameless for the Arroyos to employ SLAPP (short for “strategic lawsuits against public participation”) suits to mute critics.

Citizens who are dragged into SLAPP harassments seldom lose in court if they fight back but they are stigmatized in the short-term while stemming others from joining their or similar cause. SLAPPers attain their goals by forcing critics to spend considerable amounts of time, money and other resources defending their fundamental rights to speak out on public issues and to petition the government for redress of grievance.

Sec. 425.16. of California Code of Civil Procedure is one good model for this legal reform.
(The California law requires that a case against a person for his act in furtherance of the right of petition or free speech shall be subject to a special motion to strike, unless there is a probability that the plaintiff will prevail as determined by the court.)

The other (when the Jose Abueva Charter change proposal prescribing “responsible” exercise of free speech cut across my mind) this:
SLAPP tactics are undemocratic and anti-people power. Therefore, I’ll go as far as . . . if there is any constitutional reform that should be seriously considered today, one of them should be the prohibition of SLAPPs that the Arroyos are making the most of as staple arsenal of political vendetta versus the Filipinos’ basic right to hold their leaders accountable.
Pro-Arroyo blog-commenter Joselu, whose clever tautology laden purposely with spelling and grammar errors is quite unique in the local blogosphere, not wanting to pass up on it made this post:
it’s a free world, where in the world is it written that journalist can’t be sued for libel!!!!!
what defence doe citizens have to protect themselves from the abuseses of media/journalist.
are you saying media people can’t be wrong & can do no wrong? personaly, i think that insted of just thinking of individual rights, why not also remember that there is such a thing as responsibilities” & “consequences”. there are many journalist around who don’t get sued compared to the few who do get sued. why? does not media also have ‘bad apples” in thier ranks too? people who demand to much freedom also deny other people their freedom & rights too.
My next riposte sounded rather legalistic (because I had Malcolm and Holmes in mind):
The “rotten apple” analogy is in fact the rationale for the right to speak out freely deserving a preferred stand in the marketplace of ideas. It has to be so because free speech is also a necessary component of “political sovereignty” - or the power of the people as the source of political authority - to retain control over the leaders they have chosen to manage the affairs of the community. A rotten idea, the thesis goes, attracts no adherents and eventually it putrefies by itself to oblivion.

For example, if someone posting in PCIJ would do so to heckle at the President all for the sake of heckling, it will probably not be worth the trouble for a presidential rooter to react to the post. But if there’s any grain of logic or truth to the commentary that may linger in the public mind, refutations of various shades from supporters and flunkies alike are quickly let loose. It’s fair enough maybe. For partisans see to it their version of the image or position of their bets gets the coverage and attention in the marketplace. So too scrutiny of public figures initiated by individuals - journalists, activists, ordinary citizens or hecklers for that matter who may not have the deep resources of an organized media to fight the fat man.

The powers that be must not be too thin-skinned even to disparaging or infuriating criticisms especially if the goal of the exercise is ultimately to agitate for political action or institutional changes or, paraphrasing Justice Malcolm, to serve as scalpel to relieve the abscesses of officialdom.
It was in fact in Abrams v. U.S. (1919) where Justice Holmes has laid in his dissent the basis for the “free trade of ideas” formulation:
. . . when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
Yes, to save the country. Not the fat man or his queen whose murder instincts we had once noticed here. Aren’t SLAPPs also tools to cover certain crime scenes?

Today, the 25th Sunday in ordinary time, I was assigned as if by some queer coincidence to do the following first reading from the Book of Wisdom:
The wicked say:
Let us beset the just one, because he is obnoxious to us;
he sets himself against our doings,
reproaches us for the transgression of the law
and charges us with violation of our training.
Let us see whether his words be true;
let us find out what will happen to him.
Who do you have in mind the wicked threaten to harm aside from Him condemned to a shameful death? If you haven’t known it yet, the US Committee to Protect Journalists has ranked the Philippines the second most dangerous country for journalists, second only to Iraq.