By Atty. Eduardo T. Reyes III
TRUTH is relative and not objective according to the discipline called Relativism. In Evidence Law, courts can only judge on the basis of the “legal truth” and not the “real truth” because only evidence that had passed the test of admissibility can be considered in the decision while those that are not admissible under Evidence Law, must not hold sway (even if outside the courtroom they are, in fact, true).
But regardless of the nuances of the truth, its importance as the end-goal of free speech can never be undervalued.
With the advent of social media, speech had been freest. The web had become an endless platform ranging from the harmless self-published photos and epithets, do-it-yourself (DIY) promotions or online marketing, to the insidious ones such as loafing on the internet preying on the gullible, expressing vituperative language intended for a certain target of ire but posted to be read by one and all, up to the downright defamatory and reckless as to be deemed as inciteful of commission of hate crimes or other felonies.
The January 6, 2021 siege on Capitol Hill in the US gathered steam from irresponsible online commentaries. This led to scores of deaths and injuries and precipitated the second impeachment of erstwhile President Donald Trump.
The power of speech that becomes viral can hardly be contained nowadays.
Given the dangers of allowing speech to spread like wildfire and torch society or meaningful institutions, could this justify defanging the media by reducing the threshold of free speech while widening the restricted area of defamation or libel thereby creating a considerable no- man’s land for free speech?
A good century ago when social media was perhaps not even close to a distant dream, two jurists, Holmes and Brandeis, showing uncanny prescience, had handed down dissents that were not only eventually adopted as majority decisions, but had become fixed guiding stars in the constellation of jurisprudence even up to today.
In Whitney v. California (1927), Justice Louis D. Brandeis held that “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” This right to free speech is so essential as to constitute as a citizen’s duty according to him, thus: “Therefore, the exercise of the right of free speech is also a citizen’s duty, for its exercise is more important to the nation than to himself …. In frank expression of conflicting opinion lies the greatest promise of wisdom in governmental action; and in suppression lies ordinarily the greatest evil.”
This augured well with Justice Oliver Wendell Holmes’ rhythmic pronouncement that free speech being a prized-commodity must be tested in the “marketplace of ideas”, thus: “that the ultimate good desired is better reached by free trade of ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes may be safely carried out. That, at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. (Opinion by Justice Oliver Wendell Holmes, Jr. in Abrams v. United States [1919] as cited in Brandeis, “A Life” by Urofsky).
The writings of these two libertarian jurists echoed down the ages until the current standard on how far free speech can go without running afoul of libel law, was set in New York Times Co. v. Sullivan (1964), where minor inaccuracies in a published advertisement placed by civil-rights activists had piqued the police commission. Upholding the right to publish by the newspaper, the Supreme Court erected the tenet that “a public figure who brings a defamation suit must prove actual malice, either deliberate lying or a reckless disregard of the truth”. “Awarding damages for mere mistakes would impoverish debate”, it said.
Then in Brandenbugh v. Ohio (1969) the call of re-vengeance against African-Americans and Jews was considered “protected speech” as such calls were “too abstract to be criminal” and would only be bannable “if directed to inciting or producing imminent lawless action and likely to incite or produce such action”.
While in United States v. Alvarez (2012) the Court for the first time held that freedom of speech covers not just truth, opinion and mistakes but barefaced lies. A person had claimed that he played professional hockey for the Detroit Red Wings and also for having been awarded with the Congressional Medal of Honor. Both are untruths but the second one is far worse as it also violates the Stolen Valor Act which is a law that punishes any false assertion of receiving military honors or awards. Instead of punishing the accused, the US Supreme Court declared the law as unconstitutional based on the logic that if Congress could stop a person from making a certain claim, it then could stop making any and all assertions, as well.
The message from jurisprudence is loud and clear: that the law and courts are willing to err on the side of freedom of speech and expression as the advantages of allowing ideas to be floated in media even with occasional inaccuracies, far outweigh the disadvantages of muzzled speech or a stifled media in the democratic sphere.
Blatant untruths can be tolerated for so long as they do not create a clear and present danger of harm lest the purveyors of truth be cowered to abandon the truth in the hidden panic-room of fear. In today’s social media world where fake news proliferates, the tricky question is whether to take them down or not. Then again, who decides? This is where Justice Holmes’ clear and present danger test comes into play. It is submitted that the policy of the law is to allow the fullest freedom of speech unless an imminent danger needs to be averted, like an incitement to the commission of a crime, besmirching the reputation of a person or the other rights of minors or women need special protection.
The legal paradox stands that the law is willing to uphold the right to lie up to a reasonable extent in order for the truth to come out.
(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).
