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Sunday, September 22, 2019
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Seares: Ban on Rappler reporters: Why equal-protection attack may work

[Related column: “Seares: Rappler’s lawsuit: Have its reporters been prevented from doing their job?” April 16, 2019]

THE equal protection clause in the Bill of Rights of the Constitution, as the Supreme Court explains it, guarantees that “laws will treat alike persons similarly situated and treat differently those who are differently situated.”

Pia Ranada, news reporter assigned to Malacanang, and at least seven of her colleagues in the digital news site Rappler, last April 11 complained to the SC they have been banned or kicked out from presidential coverage: Pia on Feb. 20, 2018 and since then her co-workers too.

What are “beat reporters” with no access to their beats? And why are they being denied the right that other beat reporters enjoy? Besides, presidential spokesman Salvador Panelo on Dec. 14, 2018 told Rappler it should’ve sued if the news media site thought the ban is unconstitutional.

Last Aug. 14, the SC acted on the petition for certiorari against the Office of the President, the executive secretary, and the accreditation section of Presidential Communications Operations Office (PCOO). The high court required comments from those sued and allowed 41 journalists to join the lawsuit and the scheduled oral arguments.

Rappler legal arguments

And which arguments against the ban may work better?

Rappler lawyers who have been talking since the issue erupted cite:

[1] Violation of free press and free speech: consisting of prior restraint and restricted access to information, a punitive action imposed arbitrarily without due process;

[2] Violation of equal protection clause in the Constitution.

The first argument is popular and cogent, which is why it won’t be left out by the Rappler lawyers. It fits in and hews to the template that the SC itself laid down in a number of cases on press freedom.

SC rulings on free speech

In Francisco Chavez Jr. vs. DOJ Secretary Raul Gonzales and National Telecommunications Commission (GR#168338, Feb. 15, 2008), which was spawned by the 2005 “Hello Garci” scandal (with then president Gloria Arroyo talking about election rigging with a Comelec official), the first paragraph of the Puno decision offers the fort from which Rappler lawyers may stage their attack:

“In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and expression that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it.

“When on its face, it is clear that a government is nothing more than a naked means to prevent the exercise of free speech, then it must be annulled.”

Facts backing theory

Clearly the ban on Rappler was sudden and sweeping. Not just on one reporter but on all its reporters who wanted to cover the President. No due process, where those banned were heard. No clear reason for the punitive action: the closest to a journalistic reason was that Duterte’s words were “twisted” by Rappler. Malacanang didn’t cite incidents of reporting that media experts could’ve examined and seen if there was a pattern of malicious behavior by Rappler.

And no evidence of “clear and present danger” that, under the SC’s own guideline, is required to justify the ban.

OK, the assault on the ban in the name of press freedom is good for Rappler and the journalists who joined the petition, the media community, and by extension the public of which media is the surrogate. Still what could be the crack on the floor is how the justices would look at the ban: was it a restriction within the meaning of the Constitution?

‘No censorship’

Malacanang argues that Rappler reporters, with the rest of media, have not been censored on content and manner of reporting. They could still cover the President through his speeches and statements that are live-streamed. In fact, Malacañang says, Rappler has been “as critical as ever” in its news and opinions.

That theory may be struck down with the argument that coverage of the President, or any other high official, is not limited to what he says publicly. It includes coming up close to the subject, listening, watching. A story needs background and fleshing out, which the reporter can do only if the reporter has access to other people in the public office. Malacañang is the location of many powerful offices of government. The banned journalist cannot thoroughly do his job by watching from afar. Not unlike the logic of a city mayor who, in a year past, banned a SunStar reporter from the mayor’s press-cons but allowed his tape-recorder to sit in the room. The person was banned but not his reporting.

The economic loss

Rappler can show to the court that its reporting has suffered because of the reduction in access. A professional and economic loss in an intensely competitive business. And economic loss is real, for a business that still has to make money and stay afloat though its primary purpose is public good.

Rappler apparently is a victim of unequal protection which the Bill of Rights condemns.

That could provide a stronger reason for the SC to favor the Rappler petition. A skeptical public cannot ignore the probability that many justices may be influenced by the President’s persona in wielding power. Duterte has had “an overwhelming winning streak” in the high tribunal.

Using “press freedom” might not be enough. “Equal protection” could help.


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