Being Right

PROBABLY it’s intersectionality. Or identity politics. Or the glorification of victimhood. Whatever the cause, everyone nowadays seems to demand preferential treatment. Of course, it’s never stated that way. Usually, it’s called as a plea for “rights.”
From LGBT activists to the Bangsamoro, special laws are urged, all providing for a specific set of “rights” exclusive to them alone.
Never mind that, in our constitutional system, human rights have been well provided for — for all people — under our Constitution’s Article III, various other constitutional provisions, and our adoption of international law as part of the laws of the land.
Anyway, even journalists are now making the same clamor.
Yet the Constitution’s relevant provision, Article III.4, is quite succinct: “No law shall be passed abridging the freedom of speech, of expression, or of the press …”
So it’s baffling why this is news to some people: “freedom of the press” is not exclusive for journalists. That constitutional right was never meant to carve out a special privilege for those working formally as part of a registered news organization.
For context, let’s remember the text of the US Constitution’s First Amendment (from where we essentially got our Articles III.4 and III.5): “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; …”
From the foregoing, as UCLA School of Law’s Eugene Volokh points out, it’s clear that the freedom was for “‘every citizen’ to use the press-as-technology, and not a freedom belonging to the press-as-industry.”
Furthermore, “Justice Scalia pointed out in Citizens United, the shared words ‘freedom of’ in the phrase the ‘freedom of speech, or of the press’ are most reasonably understood as playing the same role for both ‘speech’ and ‘press.’ The ‘freedom of speech’ is freedom to engage in an activity, much like ‘freedom of movement’ or ‘freedom of religion.’ In particular, it is the freedom to use the faculty of speech. This suggests that ‘freedom of the press’ is likewise freedom to engage in an activity by using the faculty of the printing press.” (“Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today,” University of Pennsylvania Law Review, 2011)
But doesn’t providing for free speech, applicable to all, while providing for a free press, also applicable to all, result in a redundancy?
Not so, says Professor Volokh: “the freedom of the press was seen near the time of the Framing (and near the time of the ratification of the 14th Amendment, as well as in between and largely since) as protecting the right to use the press as technology — everyone’s right to use the printing press and its modern technological heirs. It was not seen as protecting a right of the press as industry, which would have been a right limited to people who printed or wrote for newspapers, magazines and the like.
Without the freedom of the press, the freedom of speech might have been seen as not covering printing, which could be said as posing dangers that ordinary ‘speech’ did not.” (“The ‘freedom of the press’ doesn’t give the media any special privileges — but it’s also not a redundancy,” October 2016)
University of Georgia’s Sonja West (cited by media law professor Jonathan Peters in his article, “What some reporters get wrong about the First Amendment,” February 2018) says that: “Journalists often overestimate how many and what kind of constitutional rights they enjoy. For the most part, the Supreme Court has said that reporters have the same First Amendment rights as everyone else … there are very few constitutional protections for news-gathering, and virtually none that apply just to journalists.”
The point is not to downplay the journalist’s importance but rather to highlight that every right has concomitant responsibilities. Freedom of the press was never meant as a license for professional journalists to do whatever they want.
This means taking care to not publish “false statement of facts,” which both Philippine and US jurisprudence declare to be punishable by law whether maliciously done or — as in some instances — even if it involved honest mistakes.
Fairness also dictates that everyone be given not only the right of reply but also the professional undertaking by journalists themselves to vigorously vet their sources or information.
In the end, because of technology and social media, everyone is effectively a “journalist.” Which all the more becomes important for everyone to remember that we have rights because we have responsibilities.
But professional journalists have the duty to lead the way and call out their own who violate their professional code or ethics, regardless of the ideology they may share.
Thomas Sowell correctly points out: “Too many journalists see their work as an opportunity to promote their own pet political notions, rather than a responsibility to inform the public and let their readers and viewers decide for themselves.”
Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.
Twitter @jemygatdula