How to make her accountable

We all agree on the following things:

* Malu Fernandez wrote words that are irresponsible and repugnant about overseas Filipino workers.
* Fernandez should be held accountable and responsible for what she had written.

What we don’t agree at is on how to make her accountable and responsible.

Nick of Tingog.com started a campaign to force her to issue an apology and to resign from Manila Standard Today and People Asia (or force the publications to fire her). Well, the response was overwhelming; the comments were another matter. Some of the blog posts and comments were ad hominem, which is sad, because they were not that different with Malu Fernandez. And as discussed before, these blog posts had unleashed something that I abhor – incivility. Some even justified the uncivil posts and comments, but as rationalizations, they are circular in nature. They do not add to the sum of ideas and wisdom. They pollute what is already a polluted discussion.

Many are now pouncing on the blogosphere, smelling blood. Some are now having second thoughts on what had transpired, and some are questioning the wisdom of Nick’s campaign. Some even claims that what happened is a blow against freedom of speech (an idea which I don’t share).

Now, the question remains, and assuming that the campaign has never happened: how should we make Malu Fernandez accountable and responsible?

File a libel case? Funny, but most reporters, newspaper columnists, and radio/TV commentators believe that libel is an affront against freedom of speech. So using that argument, should we even consider filing a libel case against Fernandez? Also, libel has three elements: identification, defamation, publication. (There’s a fourth one, malice, but US jurisprudence only applies the fourth element in libel cases filed by public figures.) Yes, there was defamation. Yes, the defaming words were published. Identification? That’s the problem. I leave that to lawyer and law students (calling The Jester-in-Exile). I think identification calls for specificity – that one person is identified as the subject of the published defamation. Can any offended OFW file a libel case against Fernandez? Or can a class libel suit be filed instead?

US jurisprudence allows illegal wiretap materials to be admitted as evidence when public interest requires it. New York Times v. United States states that the right to privacy must yield to public interest. The good of the many outweights the good of the few. I think this idea supports Nick’s campaign. The right to free speech must yield to public interest.

However, is the campaign actually a form of censorship? I disagree, unless we agree that there is prior censorship – censorship always happens after the fact. Near v. Minnesotta asserts that the freedom of speech is absolute and can only be restrained on extreme circumstances:

The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. ‘When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’ (Schenck v. United States). No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

Again, I repeat: how should we make Malu Fernandez accountable and responsible?

(Will refine this post when I have the time.)

August 28th, 2007

10 Comments

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  • http://jrocas.com.ph jhay

    The issue for me has been settled. Malu has resigned, that’s that. If a libel case were to be filed, perhaps a class suit? It’s a wild guess.

  • http://misterhubs.blogspot.com Misterhubs

    Where the article does not single out individuals, the offense of libel does not exist. (Uy Tioco vs. Yang Shu Wen, 32 Phil. 624)

  • http://cvjugo.blogspot.com cvj

    Giving her a piece of our mind (as we have already done), boycott and ostracism are alternatives to making her accountable without sacrificing the principle of freedom of speech. Of all interested parties, we bloggers should be the ones who should jealously guard this freedom.

  • http://chickenmafia.com joyfulchicken

    I agree with pretty much all of the comments above.

    I’ve called people who demanded Malu Fernandez’s firing a lynch mob. I was half joking. But a libel suit? Come on! That’s like beating the crap out of someone for cutting into your lane. Sometimes, flipping them the bird should be enough.

    I really believe that offensive speech is a good test of how much we really value the freedom of speech. The right to free speech is designed to protect all speech, even the potentially vile or distasteful kind. If you’re just going to be sweet and polite all the time, you don’t really need the freedom of speech, do you? No one is going to stop you from vomiting rainbows.

    Fernandez offended a lot of people, and I do believe that she deserved every harsh word and cruel insult that came her way. I too threw in a comment about her weight, and I won’t apologize for that. She hit below the belt, so the gloves are off. Hey, I just used two lame boxing cliches in one sentence. Yay!

    But my point is that appropriate response to words is words. Anything beyond that wouldn’t be consistent with truly free speech.

  • arthur

    Being a Filipino is not a choice. “Pissing inside the tent” was irresponsible.And if that isn’t enough where do I send my dollar to buy her an economy plane ticket to the Middle East?

  • http://jester-in-exile.blogspot.com the jester-in-exile

    @jhay: has she really resigned? http://cmfr-phil.blogspot.com/2007/08/malus-back.html maybe we should tell nick to restart the campaign to boycott the manila standard and people asia. if people stop buying the publications and visiting their online editions, maybe we can get somewhere.

    @cvj, joyfulchicken: well said, gentlemen.

    @arbet: i agree with cvj in saying that to criticize and ostracize ms. fernandez’ comments are sufficient sufficient means to hold her accountable. the battle must be between ideas, and not people — do ad hominem attacks contribute anything at all?

  • http://awbholdings.com Arbet

    Jhay, as Pierre has stated, it seems that Malu has NOT RESIGNED from MST.

    Atty. Misterhubs, thanks for that. Rule out libel, folks.

    Hi, Chuck, Joyfulchicken I agree that freedom of speech should be guarded and defended. And to connect Pierre’s comment: Pierre, if we allow freedom of speech to go unbridled, ad hominem attacks will happen. Hence, my idea of freedom with responsbility. But we human beings are known to be irresponsible in the name of freedom.

    Ad hominem is inevitable. No use crying over spilt spoiled words.

    Heck, Malu isn’t even espousing an idea!

  • http://cvjugo.blogspot.com cvj

    Arbet, the antidote to abuse of freedom of speech should not be a projection of power either from the government, the bloggers or the OFW’s, for the purpose of silencing the targets. The reason why ad hominems are abhorred is because they detract from whatever issue is being discussed and focuses attention instead on the speaker which normally does not move forward the discussion. In this respect, silencing someone else is just another form of ad hominem.

  • http://caffeinesparks.blogspot.com sparks

    A simple response from the newspaper would’ve mollified the people. But they choose to remain silent, apart from columnists B. Austero and C. Veneracion.

    Maybe they think this will all blow over soon and everyone will forget about it. Kasi nga naman ang Pinoy daw madaling makalimot.

    But this media unfolds in real-time, available for all and sundry to read 24/7 non-stop…in theory, until kingdom come. Or until US servers are nuked. That is the difference between old media – newspapers and TV spots. The messages they give are fleeting, once delivered they are gone. But our blogs, forums and mailing lists? They deliver the message and the message is there to stay ’til we decide to close shop. Ah well. Sagutin ang hamon ng Manila Standard Today.

  • http://awbholdings.com Arbet

    Sparks, someone accused me of wanting more blood, hence I am leery of continuing with the campaign.

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