“Heartbeat of Opinion” Rethinking Freedom of Expression

News21.09.2020John Nery
Freedom of Expression
Freedom of ExpressionFNF Philippines
Learning Series on Freedom of Expression
Learning Series on Freedom of ExpressionFNF Philippines

Last month, I joined other journalists in filing a petition with the Supreme Court against the Anti-Terrorism Act of 2020. Ours—making common cause with academics and lawyers, retired and active lawmakers, and framers of the Constitution—was the 12th or 13th petition; today, the number of petitions against the new law is nearing 30.

There are many serious infirmities in Republic Act 11479, but for me, as a journalist and a teacher, the principal reason for opposing it is Section 9: the law unconstitutionally creates a new speech crime. In other words, it is principally a freedom of expression issue for me.

I believe that many if not most of us are here today, connecting virtually, because we sense, we fear, that freedom of expression is under grave threat. The risk is not only local; the trend is global. When I received the invitation to speak today, I readily accepted it, partly because I welcomed the opportunity to study this fundamental right and the risks it faces. What, exactly, is under threat? And what, exactly, is the nature of the threat?

I want to revisit the largely legal language we commonly use when we talk about freedom of expression and its related rights. And then I want to rediscover the roots of this fundamental freedom in Philippine history. (And in a sidebar, I want to propose Hohfeld’s system as an analytical framework we can use to deepen our understanding, and our practice, of freedom of expression.)

ONE: LEGAL

I would think that for many if not most of us in the Philippines, our understanding of freedom of expression is legalistic—that is, it is based on the language we find in our basic laws.

The language of the 1987 Constitution is straightforward. Article III, Section 4 reads: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

Some scholars use freedom of expression, not freedom of speech, as the foundational right; each of the rights included in this constitutional guarantee, as well as in related provisions such as on freedom of information, is vital and consequential in itself, but the birth-right, so to speak, is freedom of expression.

The language in the 1987 Constitution does not follow this distinction, but all our previous constitutions did.

In the 1973 Constitution, for instance, which the dictator Ferdinand Marcos caused into being, the position of this guarantee has changed; the Bill of Rights is now Article IV, and the provision is now Section 9. But the language is largely the same: “No law shall be passed abridging the freedom of speech, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

Here the expression “freedom of expression” is not found, but the rights included—free speech, free press, and conduct such as peaceful assembly and petitioning for redress—can be understood as instances of the mother right, freedom of expression.

In the 1935 Constitution, we find the guarantee in Article III, Section 1, paragraph 8: “No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.”

How did this language enter Philippine history?

We find it in the Jones Law of 1916, the legislation that allowed the Philippines as an American colony a measure of self-government. Section 3 is dedicated to the Bill of Rights, and paragraph (j) to freedom of speech. “That no law shall be passed abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.”

In the Philippine Organic Act of 1902, when American colonial authorities assumed full control over the Philippines, the same rights are listed in Section 5, and the 13th paragraph (though unnumbered) reads: “That no law shall be passed abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.”

This language, of course, is rooted in the First Amendment of the US Constitution. “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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

For better or for worse, our experience in the exercise of freedom of expression and especially the language we use in defending it come from the history of the First Amendment.

This tradition is ingrained to such an extent that, even under the Japanese Occupation, the new constitution that was written in 1943 borrowed similar language: “(6) The freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances, shall not be abridged.”

But Article VII is not titled Bill of Rights; it is “Duties and Rights of the Citizen.” And Section 11, where freedom of expression is guaranteed, begins with an important, wartime, restriction:  “Subject to such limitations as may be imposed by law in the interest of peace, morals, health, safety or public security.”

What can we do to deepen our understanding, and our practice, of freedom of expression? We can, as our own Supreme Court has, embrace the rich and influential American jurisprudence on that fundamental freedom, while at the same time adding our own distinctive contributions to the exercise of that right (such as our tradition of strongly protecting journalists’ sources). But we can also rediscover the legal language used in the First Philippine Republic.

Article 20 of the Malolos Constitution of 1899 reads:

“Neither shall any Filipino be denied: 1. Of the right to freely express his ideas and opinions, be they orally or in writing, through the use of print or any other similar means; 2. Of the right of association for all purposes of human life that is not contrary to public morals; and lastly, 3. Of the right to address a petition, whether individually or collectively, to public powers and authorities. The right to petition shall in no way be exercised by means of arms.”

As [Philippine Supreme Court] Justice George Malcolm noted, the phrasing was “in the main, literal copies of articles of the Spanish Constitution” of 1869. (We find the Malolos language in Article 17 of the 1869 Constitution, with the exception of that last sentence, about “means of arms.”)

But the Spanish Constitution of 1869 is a monitory example. It reflected a resurgence in progressive and democratic ideals at that juncture of Spanish history, yes; it led to first the election of a monarch, and shortly after to the founding of a republic; but then it caused a military coup and finally the return of the Spanish monarchy. A closer look at its extraordinary emphases on citizens’ rights, however, and how that must have influenced a generation of Filipino nationalists, should repay deeper study.

The Biak-na-Bato Constitution of 1897 was, as the constitutionalist scholar Father Joaquin Bernas noted, a copy of the Cuban Constitution. But it carried four articles not found in the Cuban Constitution; two of those four articles deal with freedom of expression and related rights:

“Article XXII. Religious liberty, the right of association, the freedom of education, the freedom of the press, as well as the freedom in the exercise of all classes of professions, arts, trades, and industries are established.”

“Article XXIII. Every Filipino shall have the right to direct petitions or present remonstrances of any import whatsoever, in person or through his representative, to the Council of Government of the Republic.”

In short, the roots of our theory and tradition of freedom of expression go beyond the First Amendment.

Learning Series on Freedom of Expression
Mr John Nery and Ms Karry Sison on a Q&A SessionFNF Philippines

TWO: HISTORICAL

Perhaps some of us will remember that Rizal’s dual purpose when he still believed in the Propaganda Movement—that is, the organized effort in Spain to press for reforms in the Philippines—was to force the Spanish colonial authorities to grant Philippine representatives a seat in the Spanish Cortes and to allow press freedom in the Philippines. In short, he wanted a vote and a voice.

In my class on Media and Politics, we spend some time analyzing this notion of voice, Rizal’s theory of press freedom. I think it is fair to sum up his view with this particular passage from the third part of his long essay, “The Philippines a Century Hence.”

“The free press will keep the government in touch with public opinion.”

That’s Austin Craig’s translation. But the original is more evocative: “la prensa libre le hará conocer al Gobierno los latidos de la opinión.” In this instance, I think a literal translation serves us better; it communicates Rizal’s thought while conveying his characteristically figurative way of thinking and writing: “The free press will let the Government know the heartbeat of opinion.”

We can spend many hours threshing out this theory, but I welcomed this forum as an opportunity to do more research; what, I wanted to know, did the founders of the Katipunan, our revolutionary movement, think of freedom of expression and its related rights, such as freedom of the press? Andres Bonifacio, Emilio Jacinto, and others certainly exercised these rights; they wrote, they read and they shared their readings, they published.

But we can barely find a reference to these particular freedoms in the texts most associated with the Katipunan’s founders. In Bonifacio’s “Decalogue,” in Jacinto’s “Kartilya,” in their pieces for the first and only issue of the “Kalayaan” newspaper, even in the belated “Decalogue” of Gregoria de Jesus, Bonifacio’s valiant widow, we find moral principles, the building blocks of an ethical life, but no theory, or articulated defense, of a free press, or of the freedom of expression. What we find, again and again, is a moral code, not a political treatise.

But the scholar Jim Richardson, the indispensable historian of the Katipunan, discovered in the archives of the Spanish military in Madrid the oldest known “foundational document” of the Katipunan—written in January 1892, six months before the date we traditionally accept as the foundation of the Katipunan. He notes, drily:  “Most histories say the Katipunan was born on July 7, 1892, and they may be right, but that was not the date it was conceived.”

The January 1892 document, which Richardson labels “Casaysayan; Pinagcasunduan; Manga Daquilang Cautosan” after its three main sections, provides a thrilling look at the motivations that moved our revolutionary generation.

The first part, Casaysayan or Narrative, is an unusual detailing of the people’s grievances against Spain—unusual, that is, for Bonifacio, Jacinto, and the Katipunan’s founders. As Richardson writes:

“Debates as to whether Spain had been a relatively malign or benign colonial power, or what particular aspects of her rule had been most hateful or detrimental, they might see as almost incidental, even irrelevant, to the nation’s fundamental right to be free.”  

“To some extent the same assumptions are evident in Katipunan documents that predate the revolution.  The paper Kalayaan, for example, the only publication the KKK circulated prior to the revolution, sought to mobilize support from across the whole subjugated population, and depicted colonial injustice in concrete detail only rarely.  Liberty is projected in its pages as an aspiration that should be common to all, because the abuses and indignities of Spanish rule have been suffered by all.  Details are unnecessary, superfluous, because colonial injustice is part of the very fabric of daily life.”

There are 23 grievances in all (although there was a mistake in the numbering, and the count ended with Number 22). The first six record abuses of power as manifested in commerce and trade; most detail acts of racial discrimination; two accuse Spanish friars of fornication and abuse—and five deal with freedom of expression and related rights.

“10.  Does not like us to participate in congresses or for us to have representatives in the Cortes, who could defend and assert our rights in our name, denounce the mistaken decisions of the leaders, relate how we are oppressed as a result of all their abuses and submit proposals for the welfare of this distant Archipelago.”

This was one of the main reforms sought by the Propaganda Movement, expressed by Rizal and others; we find here yet another link between that Movement and the revolution, whose leaders read smuggled copies of La Solidaridad. In this struggle for the right of representation, we find an early sign of the fight for the right of redress.

“11.  Does not give us any freedom to produce or distribute any book or document in our language that would open our eyes to beneficial pursuits and enlighten our thinking on the Arts and Sciences and other things that are not holy, so that thus we remain in blindness, and wherever we are led we are prevented from glimpsing reason and other virtues.”

In this plaint for the right to trade in “any book or document in our language,” we can hear an early stirring for what we know now as freedom of information.

“12.  Deems to be illicit and against the King anything that resembles a lament about her, or enumerates the mistakes, abuses and public misdemeanors of her children who are supporting her power and authority here in this Archipelago.”

The classical, First Amendment, understanding of freedom of speech is it is a right that is protected against State interference; a 21st-century appreciation of free speech should include protections against other forms of interference, such as business influence over the media or political party discipline on party members. But in this 19th-century grievance, over the criminalization of any complaint against King or government, we hear the appeal for freedom of speech, classically understood.

“13.  Denounces as inimical to the Catholic Religion anyone among us who circulates writings that expose and protest against the errors committed by that organization.”

This is a clarion call for freedom of religion—understood less as the modern ideal of the right to choose any religion or none at all, but more the right to criticize the established, overwhelmingly dominant religion of the time. But it is a start.

“16 [sic].  Does not allow us to publish any newspaper, especially in our language, that is not passed first to the Censor, because it is he, fellow conspirator, who is responsible for detecting whether what is said reveals the errors of the chief.  That is why the news about the abuses that are committed here does not reach others, especially in [Spain], regardless of who is aggrieved.  If someone has funds they could sail there and press charges, but they will not be given a hearing so as to avoid any confrontation, and still they will achieve nothing.”

In this picture of the past, no sepia tones disguise the black and white of censorship. The freedom to publish “any newspaper, especially in our language,” to report “the news about the abuses,” is preeminently about the freedom of the press to meet its purpose.

What can we do to deepen our understanding, and our practice, of freedom of expression? We can do worse than to study these grievances in greater depth, using them as stepping stones to building a more complete, more historical, theory of freedom of expression.

 

John Nery is a journalist; he is a columnist of the Philippine Daily Inquirer and a convenor of the Consortium on Democracy and Disinformation. He also serves as board chair of the Asian Center for Journalism at the Ateneo de Manila University.

Understanding freedom of expression as a four-fold right

Wesley Hohfeld, an American lawyer who died in 1918 (quite possibly of the Spanish flu), created an analytical system that allowed a clearer understanding of rights. He identified four kinds of rights: the privilege, the claim, the power, and the immunity.

I will not attempt to explain his system in detail; to be completely candid, I still get lost in the technical thicket. I will only try to sum it up through an example.

My personal phone: It’s mine; I have rights to it.

I have the right to use it. In the Hohfeld system, that’s called a privilege (sometimes also called a liberty). I have the privilege, for instance, to send a Viber message on it to—what do you call a group of plant enthusiasts?—a pot, or a pothos, of “plantitos.”

I have the right to not allow others to use it; that’s called a claim. I have claim against others, for example, not to use my cellphone to call overseas.

I have the right to transfer ownership, or allow use, of my cellphone to someone else. That’s called a power; I have power to waive, change, transfer my claim-right over my cellphone.

And I have the right to not allow others to waive, change, or transfer my claim-right over my cellphone. This is mine; no one should tell me what to do with it. That’s called immunity. I have immunity against others altering my claim-right over my cellphone (or, you know, from being voted off the island).

The four elements, or “incidents,” of Hohfeld’s system then: Privilege, claim, power, immunity.

While freedom of expression is not something we own, in the sense of property, we can still usefully think of it as a complex right, or a cluster of rights, according to Hohfeld’s system.

Freedom of expression is a privilege-right, a liberty: I use it, for instance, when I express an opinion: Say, that Health Secretary Francisco Duque III must resign. By what right can I say that? By my freedom of expression, understood as a privilege.

Freedom of expression is also a claim-right: I have claim against others not allowing me to use my privilege-right to express an opinion. By what right can I say that I will not allow others to prevent me from exercising my freedom of expression understood as a privilege? By my freedom of expression understood as a claim. (Incidentally, when I give up this claim, for instance when I prevent myself from expressing my own opinion that Secretary Duque must resign, I am censoring myself. Self-censorship is a voluntary if grudging ceding of my claim-right.)

Freedom of expression is a power-right too: I use it when I exercise my power to waive, change, transfer my claim-right or to modify my use of my privilege-right. For instance, I can change my opinion about the need for Secretary Duque to resign; when, for instance, I express the opinion that it is President Duterte himself who must resign, because he is too sickly, too distracted, to oversee the country’s life-or-death struggle against the coronavirus pandemic, I am using my freedom of expression as a power-right. By what right can I do that? By my freedom of expression understood as a power.

Freedom of expression, finally, is also an immunity-right: I use it when I insist that I am immune to the State forcing me to change my opinion or, worse, to keep silence. By what right can I assert that? By my freedom of expression understood as immunity. When the State enforces silence by criminalizing a speech act as inciting to terrorism, it violates all of our immunity-rights, and thus diminishes freedom of expression itself.

Learning Series on Freedom of Expression
A slide on the discussion on Hohfeld SystemFNF Philippines

What can we do to deepen our understanding, and our practice, of freedom of expression?

In our petition before the Supreme Court, we offer three hypothetical examples to demonstrate the constitutionally impermissible vagueness of the Anti-Terrorism Act. First, a concerned citizen’s call on social media to boycott the companies of the President’s crony; second, a teacher’s appeal on Facebook to people who are going hungry, to gather at the local gym where relief goods are stocked; third, a worker’s criticism of the President’s incoherent ramblings on TV. Hypothetical examples, but wrenched from everyday Philippine reality.

We ask the Court: Will these examples be classified as incitements to terrorism under the new law?

Under Hohfeld’s analytical system, we can understand the specific nature of the anti-terror law’s assaults on freedom of expression and related rights.

It puts pressure on the individual or the institution in their exercise of their claim-rights. And it undermines, subverts even, a citizen’s immunity-rights. In a word, it diminishes the citizen’s right to put our fundamental freedom to use.—John Nery