Does an alleged libel victim have a right of reply?

Does a person who claims to have been libeled or wronged by a newspaper have the right to demand equal space for his reply? Will a refusal by the newspaper to publish his reply (or paid ad for that matter) be actionable?

A pending libel action filed by a prominent public figure against the officers of The Philippine STAR involves the said issue. The plaintiff and his counsel in the case have discussed this issue in other newspapers. In a lengthy letter to the editor of another newspaper, the plaintiff made the assertion that "On the right of reply, there is wide-ranging agreement that it must be accorded by every newspaper."

That "there is wide-ranging agreement that it (the right of reply) must be accorded by every newspaper" is not supported by the authorities. On the contrary, it is settled in the US that, as a matter of constitutional law there is no right of reply on the part of the person who claims to have been wronged or libeled by a newspaper. Indeed, it is well-settled law that there is no right of access to privately-owned media.

The principal argument for a right of reply is that such a right will enhance public dialogue, promote the diversity of the marketplace of ideas, and further the broad social interest in the free flow of information to the public. To the extend that the media deny access to dissenting points of view, so the argument goes, "uninhibited, robust and wide-open debate" is thereby diminished. If media are to be a true marketplace of ideas, should they be required to carry all points of view?

On the other hand, on the part of print media, the principal argument against compulsory publication of a reply by a person attacked or alleged to have been defamed by a newspaper is the violation of their right under the freedom of the press clause of the US Constitution (referred to as the First Amendment, which is Section 4, Article III, of the Bill of Rights of our 1987 Constitution) to edit or determine the contents of their publication. Also, such an affirmative or compulsory right of access may have the "chilling effect" of discouraging newspapers from commenting on controversial issues if they must provide free space for all replies. In Massachusetts, when a proposed law creating a limited right of access to print media was submitted in 1973 to the Massachusetts Supreme Court for an advisory opinion, the Court held that the proposed statute would violate the First Amendment of the US Constitution because it "may produce the chilling effect of discouraging newspapers . . . from accepting any political advertisement."

In the case of Miami Herald Publishing Co v. Tornillo (418 US 241[1974]), the US Supreme Court squarely passed upon the issue of "whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press." The case arose from the refusal of the Miami Herald, which had published articles critical of a candidate for a state office, to print the candidate’s replies. The candidate brought an action seeking declaratory and injunctive relief and monetary damages under the Florida "right to reply" statute which granted a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper. The reply was required to be published "in as conspicuous a place and in the same kind of type as the matter that calls for such reply, provided such reply does not take more space than the matter replied to". A violation of the statute was penalized as a misdemeanor.

The lower court held the statute unconstitutional as an infringement on the freedom of the press. The Florida Supreme court reversed, holding that the statute did not violate the First Amendment because it "supports the freedom of the press in its true meaning – that is, the right of the reader to the whole story, rather than half of it – and without which the reader would be ‘blacked out’ as to the other side of the controversy." The Court reasoned that the statute was "designed to add to the flow of information and ideas and does not constitute an incursion upon First Amendment rights or a prior restraint, since no specified newspaper content is excluded" and "there is nothing prohibited but rather it requires, in the interest of full and fair discussion, additional information."

On appeal, the US Supreme court reversed. In an opinion by Chief Justice Burger, expressing the unanimous view of the Court, it was held that the statute violated the First Amendment guarantee of a free press upon the following grounds:

(a) Any compulsion exerted on a newspaper to publish "that which ‘reason’ tells them should not be published" is unconstitutional. While a responsible press is an undoubtedly desirable goal, "press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated."

(b) The Florida statute operates as a command in the same sense as a statute or regulation forbidding the newspaper to publish specified matter. It exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting fro the compelled printing of a reply is exerted 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. If a newspaper is forced to publish a particular item, it must as a practical matter omit something else.

(c) Under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Faced with the penalties that would be blunted or reduced. Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Thus, government – enforced right of access inescapably "dampens the vigor and limits the variety of public debate."

(d) A compulsory access law is an intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment.

In his concurring opinion, Justice White reiterated that "a newspaper or magazine is not a public utility subject to ‘reasonable’ governmental regulation in matters affecting the exercise of journalistic judgment as to what shall be printed" and the "prior compulsion by government in matters going to the very nerve center of a newspaper – the decision as to what copy will or will nor be included in any given edition – collides with the First Amendment."

On the argument of proponents of the right of reply that it would promote public dialogue, a well-known author on media and law thinks otherwise:

". . . Legislative or court imposed replies, limiting editorial discretion, would further clutter and confuse the public dialogue, providing much less time and space for news and public information. It would be like running a government by daily referenda, without opportunity for legislative or, in this case, editorial deliberation and coherence in the presentation of information. The newspaper might become 48 pages of letters-to the editor (Gillmor, D.M., Power, Publicity and the Abuse of Libel Law, p. 154 [1992]).

Indeed, if a major newspaper were required to publish all replies or letters to the editor of persons claiming to have been defamed or wronged by it, the administrative burden on the newspaper would be immense and costly. Former New York Times Managing Editor Clifton Daniel estimated that if the Times had printed all of the publishable letters in 1969 "they would have filled up 135 complete weekday issues" (Daniel C., Right of Access to Mass Media-Government Obligation to Enforce First Amendment, 48 Texas L. Rev. 783, 785 [1990]). In the Miami Herald case, because of this consideration the American Civil Liberties Union argued that the Florida statute was violative of due process as a taking of property without just compensation.

At bottom, the problem is essentially one of balancing freedom of the press versus a compulsory right of access. Compelling editors and publishers to publish that "which ‘reason’ tells them should not be published" constitutes an erosion of their journalistic discretion and violates press freedom. Upon the other hand, the free flow of information and a greater diversity of ideas would definitely be in the public interest. In the end, we just have to trust that the sense of fairness of editors and publishers in the sound exercise of their journalistic discretion would consider the broad social interest in allowing diversity of views and promoting "uninhibited, robust and wide-open debate."

(The author is an Of Counsel of the ANGARA ABELLO CONCEPCION REGALA & CRUZ LAW OFFICES (ACCRALAW) and a professorial lecturer on evidence at the University of the Philippines College of Law and the Ateneo de Manila University School of Law. He may be contacted at tel. #: 830-800; Fax #: 894-4697 or email at [email protected].)