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The Miami Herald Publishing Case

(Article published in the Sep 22,2004 issue of TODAY, Business Section)

On July 19, Roberto Romulo filed before the Makati Regional Trial Court a civil case for libel against a local broadsheet, two of its columnists, and its senior editorial staff.  Among the significant issues involved in the case is whether a person, who has been maligned by a newspaper, has the right, under Philippine law, to ask that the offending newspaper be compelled to publish his reply in defense of his honor.  That right, for short, is referred to as the “right of reply”.

Last week, on September 14, the defendant newspaper, in one of its gossip columns, cited an American case, namely the case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, decided on June 25, 1974, apparently to support the proposition that such a  “right of reply” does not exist.  The unsaid implication, subtly suggested in the description of the case as “precedent”, is that the Philippine courts would rule in the same way the American court did on the right of reply.

I am a partner in the firm of Romulo Mabanta Buenaventura Sayoc & De Los Angeles  and we are the lawyers of Roberto Romulo in his case against the broadsheet, its two columnists and its editorial staff.  I am the partner in charge of handling the case.  I prefer to litigate the issue of whether a right of reply does exist under Philippine law within the sacred halls of justice.  However, since, outside the courtroom, the Miami Herald Publishing Co. v. Tornillo, was claimed to be a “precedent”, it is important that the public understand thoroughly what the American decision really said.

Pat Tornillo, who was the executive director of the Classroom Teachers Association in Florida, ran  for a seat in the state House of Representatives. The Miami Herald, in the course of the campaign, published two editorials critical of his candidacy.  In response to the editorials, Pat Tornillo demanded that the newpaper print his replies verbatim.  He invoked a statute in Florida that provides, in its relevant sections, as follows:

“104.38 Newspapers assailing candidate in an election; space for reply – If any newspaper in its columns assails the personal character of any candidate for nomination or election in any election, or charges said candidate with malfeasance or misfeasance in office, or otherwise attacks his official record, or gives to another free space for such purpose, such newspaper shall upon request of such candidate immediately publish free of cost any reply he may make thereto in as conspicuous a place and in the same kind of type as the matter that call for such reply, provided such reply does not take up more space than the matter replied to.  Any person or firm failing to comply with the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in 775.082 or 775.083.”

The newspaper challenged the statute as violative of the American Constitution, particularly, the First Amendment, which is equivalent to our constitution provision on the freedom of the press.  The U.S. Supreme Court agreed.

The American Supreme Court made a lengthy review of both the arguments of those upholding the statute, collectively referred to as the “access advocates”, as well as the development of the  American jurisprudence on the First Amendment, and noted that “the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would otherwise not print.  The clear implication has been that any such compulsion to publish that which “’reason’”  tells them should not be published is unconstitutional.” 

It went on to say that “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.”  That is, of course, not to be desired since the “political and electoral coverage would be blunted or reduced.”

Finally, the American court said that “the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors…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.”

Is Miami Herald Publishing Co. v. Tornillo  then to be considered as an unqualified license of editorial discretion?  The concurring opinions gives us the proper way of reading the decision.

Mr. Justice Brennan and Mr. Justice Rehnquist both point out that the decision applies only to “the ‘right of reply”’ statutes and does not imply any view upon the constitutionality of “retraction” statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction.”

Mr. Justice While, who wrote a more extended concurrence, pointed out that “the constitutionally obnoxious feature of 104.38 is not that the Florida Legislature may also have placed a high premium on the protection of individual reputational interests; for government certainly has ‘a pervasive and strong interest in preventing and redressing attacks upon reputation.’”…Quite the contrary, this law runs afoul of the elementary First Amendment proposition that government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor.”

In other words, the competing forces that were resolved in Miami Herald Publishing Co. v. Tornillo  were the right of the state to step into editing newsroom and the right of the editors to keep it out.  It did not in any way preclude the right of an individual wronged to seek relief from the courts for a wrong done by a newspaper.

Thus, Mr. Justice White reminded the press that “though a newspaper may publish without government censorship, it has never been entirely free from liability for what it chooses to print…Among other things, the press has not been wholly at liberty to publish falsehoods damaging to individual reputation” Citing New York Times Co. v Sullivan, 376 U.S. 254, decided ten years earlier, he maintained that “the press certainly remains liable for knowing or reckless falsehoods”. 

As if he could not stress the point enough, Mr. Justice White maintained that “the press is the servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen."

 How in the Philippines a citizen can defend himself effectively against a licentious newspaper is at the bottom line of the Romulo case.