“We must not underestimate the ability of the ordinary Filipino to know what is right and true from what is not.”

Last Sunday was the 107th general commencement exercises, or the university graduation rites, of the University of the Philippines (UP) Diliman. As what we have seen in similar occasions in the past, there were some students who staged a “lightning protest” during the ceremonies, complete with placards, signboards and the like. As is also the practice in UP, where academic freedom is sacred, the protesters were able to carry out their activities in peace, free from any disruption or impediment. This is the beauty of a democracy where freedom of expression is sacrosanct.

I mention this because last Wednesday, I was a resource person in a Senate hearing that tackled the bill imposing heavier penalties for government officials creating or spreading “fake news.”

It bears reminding that our Constitution expressly forbids the creation of any law abridging the freedom of expression. Hence, the position of the Office of the Presidential Spokesperson is that even fake news is protected by the Bill of Rights.

In fact, one of the landmark cases on free speech, which has been referenced by our Philippine Supreme Court multiple times, is the American case of New York Times vs. Sullivan. In that case, the US Supreme Court ruled that the First Amendment protects the publication of statements, including false ones. The Court quoted philosopher John Start Mill saying that:

“Even a false statement may be deemed to make a valuable contribution to public debate since it brings about the clearer perception and livelier impression of the truth produced by its collision with error.”

We, therefore, believe that it is best to leave it up to the public to use their intellect to discern truth from falsehood. We must not underestimate the ability of the ordinary Filipino to know what is right and true from what is not. The true test of truth is “the ability of a thought to be accepted as fact by the general public.”

I mentioned in last Wednesday’s hearing that this bill, should it ever become law, is dangerous in the sense that it is inherently vague – it could be used, possibly, as a weapon to persecute those in the political opposition who are also in government. It is vague because who gets to say what is fake from what is not?

Again, while I understand the problem the Senate wishes to address, it must be stressed that the curtailment of expression admits only a few exceptions. Any restrictions imposed on this very important freedom – indeed, the very freedom that is the hallmark of a healthy and vibrant democracy – must be of utmost necessity and justly proportionate. In other words, they must be narrowly tailored and not overbroad.

President Rodrigo Roa Duterte himself recognizes the importance of our right to freely express ourselves. Last year, he signed Proclamation 319 declaring September 21 as a National Day of Protest. The proclamation acknowledged the people’s freedom of speech and right to peacefully assemble so much so that it urged local government units (LGUs) to forgo rally permits during the National Day of Protest.

Thousands, from politicians to indigenous people, businessmen to activists, exercised their right to freedom of expression and took to the streets to protest certain policies of the administration with which they did not agree.

All these happened without any restriction from the government. Faced with criticisms, many times we heard President Duterte quoting US President Abraham Lincoln, “If I were to try to read, much less answer, all the attacks made on me, this shop might as well be closed for any other business. I do the very best I know how – the very best I can; and I mean to keep doing so until the end. If the end brings me out all right, what’s said against me won’t amount to anything. If the end brings me out wrong, 10 angels swearing I was right would make no difference.”

Taking a cue from the President and so as not to infringe on our fundamental right to self-expression, perhaps we can and should defer to the wisdom of our Supreme Court, and the various landmark rulings on curtailment of expression in lieu of this proposed bill on fake news. Jurisprudence has developed a conviction that the solution is never governmental censorship, but better journalism.

Recognizing fake news as a danger to democracy and free expression should not justify a supposed cure that may end up being worse than the disease. Because of the creativity and ingenuity of those who would abuse their freedom of expression, we may be faced with a situation where censorship becomes the norm. And our democracy will be worse for it.