The history of the Fairness Doctrine in the United States is probably what inspires the support of Senator Joker Arroyo for the Right of Reply Bill, as he “slams” President Arroyo for threatening a veto (“buttering up to the media”) even before the Bicam has finalized the proposed measure. I’m having my own second thoughts about opposition to RORB after reviewing that history in the U.S. The issue is not so cut-n-dried as some have made it sound.
A good place to begin a personal investigation of this issue is the story of Fred J. Cook a journalist who had written a scathing article on Barry Goldwater and was subsequently attacked by conservative broadcaster Billy James Hargis. Journalist Cook then sued for Right of Reply Against Personal Attack under the FCC’s Fairness Doctrine. SCotUS upheld Cook and the constitutionality of the Federal communication Commission’s Right of Reply Rule under its 1967 Fairness Doctrine imposed on licensed broadcasters in the historic case, Red Lion Broadcasting vs. FCC. A unanimous Court ruled:
A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others…. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.[1]
The main WikiSyllabus describes this SCotUS decision:
Held: 1. The history of the fairness doctrine and of related legislation shows that the FCC’s action in the Red Lion case did not exceed its authority, and that in adopting the new regulations the FCC was implementing congressional policy. Pp. 375-386.
(a) The fairness doctrine began shortly after the Federal Radio Commission was established to allocate frequencies among competing applicant in the public interest, and insofar as there is an affirmative obligation of the broadcaster to see that both sides are presented, the personal attack doctrine and regulations do not differ from the fairness doctrine. Pp. 375-379.
(b) The FCC’s statutory mandate to see that broadcasters operate in the public interest and Congress’ reaffirmation, in the 1959 amendment to 315 of the Communications Act, of the FCC’s view that the fairness doctrine inhered in the public interest standard, support the conclusion that the doctrine and its component personal attack and political editorializing regulations are a legitimate exercise of congressionally delegated authority. Pp. 379-386.
2. The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment. Pp. 386-401.
(a) The First Amendment is relevant to public broadcasting, but it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount. Pp. 386-390.
(b) The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others. Pp. 390-392.
(c) The danger that licensees will eliminate coverage of controversial issues as a result of the personal attack and political editorial rules is at best speculative, and, in any event, the FCC has authority to guard against this danger. Pp. 392-395.
(d) There was nothing vague about the FCC’s specific ruling in the Red Lion case and the regulations at issue in No. 717 could be employed in precisely the same way as the fairness doctrine in Red Lion. It is not necessary to decide every aspect of the fairness doctrine to decide these cases. Problems involving more extreme applications or more difficult constitutional questions will be dealt with if and when they arise. Pp. 395-396.
(e) It has not been shown that the scarcity of broadcast frequencies, which impelled governmental regulation, is entirely a thing of the past, as new uses for the frequency spectrum have kept pace with improved technology and more efficient utilization of that spectrum. Pp. 396-400.
I have highlighted above the aspects of the Red Lion decision that seem particularly relevant to the PRESENT situation and context in the Philippines.
I think Senators Joker Arroyo and Nene Pimentel could strengthen their case if:
(1) They recast Right of Reply to be more in line with the Fairness Doctrine (and its associated Right of Reply to Personal Attack Rule) as it was adopted at least for a period of US media history when it was deemed necessary.
(2) They do not attempt to tell the National Telecommunications Commission how to implement in detail such a Philippine Fairness Doctrine. They should in other words expunge the “implementation” measures and stick to establishing a proper legislative objective and principle: fairness in the mass media! Then let the regulator do the job as the need arises and finds justification in the public interest.
Popularity: 1% [?]
It is now hard to defend the RORB and the author himself has now been reduced to butt of ridicule as we now read from most newspaper editorials.
Whatever fairness doctrine or personal attack rule the US has practiced cannot be made to apply since this law is done in haste. And haste really makes waste since this RORB failed to see the short and the long of it having limited its deliberations to a select resource persons.
It will be stamped down if it is not already stamped down.
Manong Dean,
You are absolutely correct in this regard.
You know problem with Pimentel is he actually just plagiarized the bill heard in 1972, months before martial law’s declaration.
Sen. Escudero revealed this himself though he did not call his elder colleague by that name.
If you care to:
http://midfield.wordpress.com/2009/03/01/pimebtels-right-of-reply-bill-rorb-dug-up-from-1972/
karlpopper,
more worthy of being the butt of jokes are those people in the Echo Chamber who’ve been repeating over and over “It’s a violation of free speech…” without really knowing why except they read that somewhere like the inquirer. but they cannot explain it themselves. Perhaps that is because, even in the US, where they had a Fairness Doctrine for 40 years, SCOTUS never ruled that the Right of Reply against Pesonal Attack Rule of the Fairness Doctrine violated the First Amendment.
There are better arguments against it than that, but if that is all people know, then the laugh is on them.
I had, in the past, occasion to discuss politics with the First Secretary of the Japanese Embassy here during the time of Congw. Hortensia Starke.
He was rather surprised how mass produced bills in Congress are since in his own country, it takes at least a couple of years before a bill will even have to be filed. And it is so because, they really give it a serious thought – no less study them very carefully.
In our setting, any congressman can file a bill that is a product of something like a bubble of an idea – otherwise not well-thought out or studied. Hence, when it becomes a law, it will always end up getting quickly amended if not un-implemented. Not all laws can be implemented more especially so-called appropriate bills as they are subject to the availability of funds.
The best arguments we should hear first hand from the proponent of the bill are those that make it convincing offhand – not to point to the moon – in search of answers.
I would have wanted to write a blog in a more thought out answer to that comment but maybe the argument of the author himself is simply too ‘malnourished’, forgive me, to attract anymore further discussion.
karlpopper,
on tonight’s Strictly Politics with Pia Hontiveros, Nene Pimentel and Teddy Boy Locsin were guests. The latter made an excellent point: since Members of Congress can go on the floor and speak freely on any subject, including reply to any news story or opinion column, they ought not have a special Right of Reply under a special law (they already have ample opportunity to reply to anything).
If the RORB were applicable only to purely PRIVATE PERSONS, would your opinion of the RORB change at all?
BTW, there are right of reply laws in Canada and Britain and several other major Western Democracies. SCOTUS upheld as Constitutional the Fairness Doctrine of the FCC, which had a right of reply to personal attack rule.
Perhaps if we distnguished the principle and objectives of the bill from the absurd IRRs therein…
The right to reply bill is an anachronistic bill,
in this age of digital technology and internet.
It will be a toothless law, which will be hard
to implement.
How can you hunt down a blogger in the cyberspace ?
He or she may be bloging ten thousand kilometers
or more away. Beyond the reach of any Philippine
laws. How about if he or she is a Filipino blogging
from the North Pole ? Will you send PNP there ?
DJB,
How about the right of reply for non-politicians and the obligation to reply for all politicians and anyone else collecting a salary from the taxpayer
@pareng karding
i believe their goals in this bill are to reply on channels which they think will matter to them, particularly online editions of the dailies
@topic
i am curious as to how this bill would enjoin multinational/foreign news organizations like CNN, Al Jazeera, Fox, etc. or sites like Yahoo news, who have a considerable number of readership in this country.
@Liam on March 4th, 2009 4:44 am
thats most interesting! what is the treatment of foreign news outlets?
can local media quote foreign news outlets? if so, are they then obligated to make a space for a reply? — for a story that they just quoted???
thats NOT good…
Folks,
Maybe this is the first time many people heard about it, but since 1949 the United States’ Federal Communications Commission maintained a “Fairness Doctrine” which contained a Right of Reply Against Personal Attack Rule that was used by the journalist, Fred Cooke, to defend his criticisms of Barry Goldwater as an extreme rightist, against personal attacks by a Christian Crusader on talk radio. SCOTUS upheld Journalist Cook and proclaimed the Fairness Doctrine and the Right of Reply Rule that Cooke invoked to gain the right to rebutt the attacks as Constitutional–as long as they did not restrain speech.
Now take a look at us, Bloggers. We have a built in right of reply in our Comment Threads.
I ask you. Has that ever, EVER restrained the exercise of free speech on blogs???
Just to clarify my garbled sentence at 6:57:
SCOTUS found the Fairness Doctrine and the Right of Reply Against Personal Attack Rule did not violate the First Amendment Right of Free Speech.
Not so. We sure have read a lot about other models first before we can even start to examine what exists on our own. That ought not fair to say.
Most times, more than enough literature to even write too limited a piece.
For this bill to even reach SC, it will not be so without reducing the US as a vast wasteland or junkyard where everything will be thrown.
Karlpopper,
when this first started up again a few weeks ago, i found myself whistling and humming along with the Chorus in the Echo Chamber. I caught myself napping and decided to dig a lil deeper again into this whole issue. May I suggest it has some depths that the floaters among us have not yet quite plumbed.
Liam’s question is interesting! what if the original story is from a foreign news agency and a local media outlet carries it?
to whom should the aggrieved party address its reply to?
In a scale of 10, if RORB were to be applied more to private citizens than to already privileged-politicians, I could be inclined to favor it at 6.
The Fairness Doctrine in the case of what DJB cited, I’m afraid, applies more in the case of the broadcast medium and less in the case of newspaper/publication. In fact, when applied in the case of the latter, I believe, the US Court has in fact, stamped it down as unconstitutional if my recollection serves me right.
Nonetheless, I share that view that this right of reply is already practiced in the more civilized societies but I am not sure if we should find ourselves in that list given than our psyche or maybe our so-called ‘national IQ’ perhaps, still falls off the mark.
Scenario-wise, there is more than meets they eyes in this bill especially that some quarters are bent on in fact amending the present law on libel and weighing in even harsher penalties on its violations.
Logically, fever against it is maybe ‘unreasonably’ high.
It is not hard to defend the RORB just because author himself has now been reduced to butt of ridicule as we now read from most newspaper editorials. ALL PEKENG-PERYODISTAS are against RORB.
The pekeng-peryodistas redicule shows their low-iQness. Their columns don’t make sense at all that is why we need RORB.
Our pekeng-peryodistas are graduates of school of journalism with impeccable perpekt country-club englischtzes. They don’t know economics, law, evidenciary procedures, etc to their assignments. They just report and publish any they hear so are the editors.
The current state of reporting by pekeng-peryodistas is deplorable. Their low-iQ incense me. They market dumbness and idiocy. These pekeng-peryodistas are non-thinking robots.
The pekeng-peryodistas low-iQ act on Ces Drilon News Blackout, Ayala’s insistence of terrorist bombing on Glorietta Bombing shows that we need RORB.
Am not aware if the RORB is a dead issue.
In case it is not, there is a relevant case – Miami Herald versus Tornillo. – http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=418&page=241
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
The issue in this case is 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 challenged statute creates a right to reply to press criticism of a candidate for nomination or election. The statute was enacted in 1913, and this is only the second recorded case decided under its provisions.
Appellant contends the statute is void on its face because it purports to regulate the content of a newspaper in violation of the First Amendment. Alternatively it is urged that the statute is void for vagueness since no editor could know exactly what words would call the statute into operation. It is also contended that the statute fails to distinguish between critical comment which is and which is not defamatory.
****
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. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. 23 Government-enforced right of access inescapably “dampens the vigor and limits the variety of public debate,” New York Times Co. v. Sullivan, 376 U.S., at 279 . The Court, in Mills v. Alabama, 384 U.S. 214, 218 (1966), stated:
“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates . . . .” [418 U.S. 241, 258]
***
Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its 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. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.
The RORB version in the House of Representatives has been archived last I heard.