Monday, October 8, 2012

Cyber Libel and Constitutional Precedents

The cyber crime law’s section on libel brings to focus once again, the landmark case of New York Times v. Sullivan [1], and its progeny. We focus on the case because it has been declared by the Supreme Court as applicable in the Philippines.

New York Times was a civil libel case filed in the State of Alabama by Montgomery City Commissioner L.B. Sullivan against the New York Times. The suit, involved the following statement, among others:
In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama
State College Campus.

             As police commissioner, Sullivan felt alluded to.

 New York Times held that a civil action for libel filed by a public official is constitutional if there is a showing of actual malice on the part of the publisher. For civil libel to prosper, the statement must have been made with “knowledge that it was false or with reckless disregard of whether it was false or not." Applying New York Times, in a later case, the US Supreme Court further fashioned "a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages."[2]
The  doctrine laid down in New York Times was later applied by the US Supreme Court in the criminal case of Garrison v. Louisiana. This case is of particular importance, because the defamation statute of Louisiana very closely resembles the Philippine libel law, the essential elements of which are: (1) a defamatory statement, and (2) publication. Like the Philippine libel law, Louisiana presumes malice in a defamatory statement. In fact, it employs essentially the same phraseology.

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: (Revised Penal Code, Article 354).
"Where a nonprivileged defamatory publication or expression is false it is presumed to be malicious unless a justifiable motive for making it is shown."  (La.Rev.Stat.1950, Tit. 14: "§ 48. Presumption of malice" , Footnote 1 of Garrison v. Louisiana)

A legal presumption, however, dispenses with the prosecution’s presentation of evidence. The presumption shifts the burden on the defense -  to prove the absence of malice.

Malice is an essential element of the offense of libel (defamation in the US). But the presumption of malice unburdens the prosecution from proving that element, in violation of the constitutional requirement that the prosecution prove each and every element of the offense. The US Supreme Court held that the Louisiana prosecution was unconstitutional. It  did not, however, categorically declare the defamation statute unconstitutional.

 Seventeen years after New York Times, in the case of Ivey v. Alabama, the Supreme Court of Alabama declared Alabama’s defamation statute unconstitutional. The law was struck down because it did not require the showing of actual malice as declared in New York Times. The statute used the term “maliciously”, instead of requiring actual malice.  

 “The State argues that, even if § 13A-11-163 does not expressly require “actual malice,” it can be made constitutional by this Court's interpreting the statutory term “maliciously” to mean “with actual malice.”   The State further points out that the trial judge instructed the jury that in order to convict Ivey for criminal defamation it had to find that Ivey had acted with “actual malice” and that the judge then instructed the jury that to find “actual malice” it had to find that Ivey had acted with “either actual knowledge that the accusation was false or [with] a reckless disregard of whether or not the accusation was false or not”; the State then argues that, given these instructions, the charge was within the constitutional bounds of the First Amendment.” 

Ivey v. State of Alabama 100141 July 6, 2001 [3]
 As quoted above, the State government tried to save the statute by arguing that the trial judge did require the showing of actual malice, in his instructions to the jury. The Supreme Court of Alabama, however, was unmoved. It held that the constitutional application of an unconstitutional statute does not cure the statute. Finding persuasion from decisions of the Supreme Courts of Alaska, and Pennsylvania, the Supreme Court of Alabama held that reading “actual malice” into the term “maliciously” would  amount to legislation, not interpretation. [4]

This is of particular importance, in light of the declaration of the Philippine Department of Justice that it would hew closely to Constitutional standards in the drafting of the Implementing Rules and Regulations of the cyber crime law. Applying the logic of Ivey v. Alabama, any attempt at constitutional rectitude in the drafting of the IRR is irrelevant to the consideration of whether or not the cyber crime law is unconstitutional.  Constitutionally correct implementing rules cannot cure the unconstitutionality of the mother law. The vine supports the branch; the branch cannot nourish the vine. If the vine is dead, the branch is rendered lifeless as well.
The doctrine of New York Times has been applied in the Philippines in a fashion similar to the application by the lower courts of Alabama. Acquittals have been declared in cases where actual malice was not proven. So it is the conduct of the prosecution that has been weighed, not the text of the law, in determining constitutionality. This runs counter to the superior logic of Ivey v. Alabama, that constitutional applications do not save an unconstitutional law.

Opinion-makers have advanced the argument that the case is not ripe for adjudication, because there is no real, and direct injury to any of the petitioners. This is the prevailing view in the United States – that a criminal statute may only be challenged by one indicted under said statute. Any other petitioner is deemed to have no standing before the court. This is where Philippine precedent parts company with American jurisprudence. In the recent case of LAMP v. The Secretary of the Budget (G.R. No. 164987) [5]the Supreme Court, en banc, held that:  "xxx   taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.

It bears noting that there is an appropriation of 50 million pesos per year for the implementation of this statute. In order, therefore, that not a single peso of that appropriation is devoted to unconstitutional purposes, the objectionable sections of the statute must be declared unconstitutional.

It has also been urged that the Supreme Court stay its hand; that it exercise judicial restraint because the legislature has declared its intention of amending the law, and the executive has declared that it would apply the law judiciously. But neither legislative intentions, nor declared prosecutorial restraint, have formed the basis for judicial abstention. Intended changes are not facts; and it is elementary that courts decide only on the basis of facts.

Despite their professed adherence to the principles that underlay the Bill of Rights, many legislators agreed to the bill. Is it because they want to minimize internet posts critical of them? There is Tito Sotto and the plagiarism issue. There is Villar and the corruption issue. In the case of the executive, were they also motivated by self-interest? To chill internet posts like the Abnoy youtube videos, and the dalliances of the Executive Secretary with a hot number?

And what of the Court? After all, there are also issues about its Members. There is the psychological test of the Chief Justice. There are the talks about the Firm, its founding member, and former closeness to Gloria Arroyo. There is the still lingering talk about the plagiarism of another justice. Will the Court members yield to self-interest in deciding this case? Will the Court yield to the political power of the few?  Or will the Court members decide in such a way as to deserve their title? Justice.

[1]    New York Times v. Sullivan 376 US 254

[2]      Milkovich v. Lorain Journal Co. 479 US1, quoting  Philadelphia Newspapers, Inc. v.                     Hepps,   475 U.S. 767 (1986)

[4]     In Gottschalk, the State of Alaska argued that the Alaska criminal-defamation statutes should be narrowed to escape a holding of constitutional infirmity and that the trial court had properly narrowed them in its jury instructions;  that argument was very similar to that  The Supreme Court of Alaska, presented here by the State of Alabama.  however, disagreed, and stated:
“We recognize the rule of construction that where it is reasonably possible to do so, statutes should be construed in a manner consistent with constitutional  Here, however, ․ we are not able to save the statute in requirements.  question because in doing so we would be stepping over the line of interpretation and engaging in legislation.
“We are supported in our conclusion that it would be improper for us to engage in the radical reconstruction necessary to save [the statutes] from unconstitutionality by the decisions of other state courts which have  In Commonwealth v. Armao, 446 Pa. 325, dealt with the same problem.  286 A.2d 626 (1972) the Pennsylvania Supreme Court struck down criminal libel statutes which suffered from the same defect as ours, stating:
“ ‘The Commonwealth urges us to in effect re-draft the criminal libel  To accede to statutes in accordance with First Amendment requirements.  this request would be to undertake a wholly inappropriate judicial activity amounting to judicial legislation.’ ”
 The Gottschalk court also noted: 575 P.2d at 296.
“If we were to engage in the process of narrowing suggested by the State, after striking [the statute making truth a partial defense] we would then have to decide whether [the defamation statute] should be limited only to cases of private defamation or should apply to defamation of public officials, public figures or concerning public issues;  whether truth should be an absolute or a conditional defense to private defamation;  and, whether a private false defamation which is neither  The variety of knowingly nor recklessly false should be criminal.  these choices underscores the essentially legislative nature of the task of bringing our defamation statutes within constitutional bounds.”