Published on June 16, 2015.
I wish to revisit a topic that colleague Oscar Franklin Tan and I have debated in recent weeks: the role of commentary in the so-called free market of ideas. I have the sense that while we are both believers in free speech, we define the terms of the argument differently. To be more precise, we may have different ideas of what passes for publishable commentary in newspaper opinion pages.
The argument has not lost its appeal for me since Oscar first raised what I called his “seductive” but “untenable and misguided” appeal to Inquirer editors to screen out controversial opinion pieces like those contributed by retired Court of Appeals justice Mario Guariña III; I have continued to review my own response, borne out of the experience of working in opinion sections in three newspapers, including in particular almost a decade and a half with the Inquirer, to check my biases and trace the consequences of my position. But I am led to return to the subject because Oscar’s criticism of an opinion piece, in another newspaper, raises an even more uncomfortable question.
First, on that appeal to Inquirer editors “to filter legal pronouncements by so-called experts.”
In “Stop lawyers’ intellectual fraud, fear-mongering,” Oscar criticized the Inquirer’s publication of a commentary by Guariña on the grounds that it was based on “outlandish legal propositions that contradict freshman law books.” Like Oscar, I disagree completely with Guariña’s thesis, that the Bangsamoro Basic Law would pave the way for an Islamic state. I said as much, in “PH politics is a 600-year-old ‘balete’ tree.” Unlike Oscar, however, I will defend the opinion editors’ decision to run that comment.
In his “protest,” Oscar assumed that the legal basis of Guariña’s op-ed comment was self-evidently ludicrous, and that the editors allowed it to run because they had “unduly” given weight to the contributor’s former occupation.
He raises the counter example of an engineering debate, which “would be inutile if allowed to begin from 1+1=3.” Then he writes, in what I understand is the crux of his argument:
“Should editors not filter legal pronouncements by so-called experts as rigorously as they do normal sources instead of according law a deference it does not merit? Does it not diminish the free market of ideas when an editor automatically assumes that he has no right to gauge a justice’s legal pronouncements and that his duty to free speech is to publish them for another lawyer to refute?”
I acknowledge the persuasive effect of this passage; as I have written before, anyone invested in the quality of public discourse would thrill to the sound of this call to rhetorical arms. Wouldn’t it be good if all legal commentators making their presence felt in media were lawyers worthy of a Harvard education, or of a seat in the Supreme Court? Oh, if we could only weed out the incompetent and the ignorant—then we’d have a real discussion going.
But this is the wrong ideal for a mass media organization; the opinion pages should not aspire to be a law classroom, but rather a public square—open even to nonlawyers who wish to debate legal points. I realize that lawyers and law students see the give and take in a classroom (if there is in fact a give and take) to be an example of Holmes’ free trade in ideas. But the discussion in a classroom is a specialized subset of the marketplace of ideas; the classroom is necessarily restrictive, elitist even. There is certainly some trade in ideas (again, only if the professor allows substantial discussion, not rote memorization), but it is not the trade we see in public markets or sidewalk stalls or the tiangge. That is the ideal of the free market of ideas.
In a Facebook response to my column, where I also took a dig at two retired Supreme Court justices for “stupid opinions” on the BBL, Oscar gently makes a distinction:
“The opinion that the BBL will lead to part of the Philippines joining Malaysia proceeds from the BBL creating a parliamentary system in the proposed area. You can call the proposition stupid but you cannot dismiss it outright as the proponent is citing a BBL provision that is in fact in the law. This is thus not the example I want to discuss and is very different from the proposition that the BBL will create an Islamic state based on the impossible premise that Congress will suspend separation of church and state in Mindanao.”
But there’s the problem right there. If I were closing the opinion page, and rejected a comment from a retired justice who thinks that the mere fact that a parliamentary system is being created in the Bangsamoro would lead to the region joining Malaysia, simply because I thought it was stupid and I exercise my filtering privilege to “dismiss it outright,” would public discourse be better off? I do not think so. Aside from spotting obvious cranks, an editor should be responsible for welcoming all opinions—including those which challenge his most cherished beliefs.
(I also believe that a stupid idea can be mocked to an early death.)
The truth is: Law is nothing like engineering. Many legal edifices have been built on dubious arithmetic.
Second, on F. Sionil José’s criticism of Chinese-Filipinos. I cannot agree with Manong Frankie when he argues that “many of our ethnic Chinese will side with China” if push comes to shove. But, with due respect for Oscar’s Chinese-Filipino heritage, and with great sympathy for his wounded sensibilities, I do not agree that the proper response to the offending column was to argue from the extreme. The column does not suggest, as Oscar tweeted a few days ago, that “all Chinese Filipinos” must be placed “in concentration camps.”
When free speech offends, how do we criticize it without making it more offensive?