by Marie Yuvienco
There’s this legal koan relating to free speech cases that’s supposed to stump first-year students of constitutional law. Why it’s necessary to stump first-year law students as they tend to be stupid anyways has never been satisfactorily explained, but the question goes something like this: “Is it okay to shout “Fire!” in a crowded movie house?” Recall that the purpose of posing a koan is to stimulate reflection by exploding the bounds of rational thinking—imagine being asked perhaps the most famous koan of all: “What is the sound of one hand clapping?” A koan is something akin to a rhetorical question, which is intended to make a point rather than solicit an answer, but with a Zen twist. So is it okay to raise the alarm during a sold-out screening of, say, Darna in one of Henry Sy’s cinemas?
I’ve heard all possible answers than I care to, and then some.Majority argue that it is never okay to shout “Fire!” in a crowded cinema especially—italics mine—if there is no fire. The qualification misses the point: shouting “Fire!” when there is in fact no fire islying, which is not the dilemma the question is posing. Instead, the inquisitor wants the subject to choose which would be the lesser of two evils, that is, downplaying the gravity of the emergency by calmly making an announcement, which would not alert as many while the fire possibly becomes uncontrollable, or, causing a stampede which could possibly kill or injure more than the fire itself. Especially if there is no fire, I might add.
Here’s another inflammatory question: is it okay to spread fake news in a crowded digital landscape? If I were a constitutional law professor and had Mocha Uson as my student, it would be an interesting hour of recitation only because sixty minutes is how long a class normally takes. An ardent supporter of freedom of expression, Mocha—that’s Assistant Secretary Uson to you peons—argues that spreading fake news as she does on her social media account is okay because of her right of free speech. With such an answer, Mocha would not have made it past the second semester of freshman year, which is when the Bill of Rights is taught, because constitutionally, free speech is in fact not absolute.
One well-known exception to the right is pornography, which needs little explanation, so here goes: civilized societies equally have the right to be protected against exposure to offensive texts or images that appeal only to prurient interests and have scant artistic or moral value. Another well-established exception is defamation.Disseminating untruths about someone is criminal because civilized societies recognize that falsehoods can injure reputations, and people are entitled to their good name. (Note, however, that truth is not an absolute defense against defamation; if published with no intent other than to humiliate or injure, even truth can be actionable.) A third exception would be perjury. When one swears to tell the truth and nothing but, society has the right to rely on one’s word that one will not tell a lie.
Does fake news merit a Jeopardy! category of its own, as an exception to the exceptions on free speech? The way Assistant Secretary Mocha’s mind seems to work is that because she posts what she posts on her own social media accounts, her postings move from the realm of news to the fiefdom of personal opinion. True, freedom of speech protects opinion, but does it also protect fake opinion, that is, statements that masquerade themselves as opinions but in reality are not?
Is there even such a thing as fake opinion? There are misguided opinions and there are uninformed opinions but there are no wrong opinions simply because, well, opinions are not facts. I have heard of hoaxes, but a hoax differs from fake news because it is meant as ajoke, to poke fun at readers. Not so fake opinions. Before the trifecta of Russia, Donald Trump and the Internet, most people, including myself, had never conceived—italics mine—of fake news, but now, I am swimming in them and sharing the planet with people who traffic in them and paying their salaries. So maybe I am not inventing the genre.
The good assistant secretary is in a bind these days when herWikipedia entry became a turf war between her supporters and her critics. Team Mocha tried to edit her Wiki entry by deleting portions detailing instances of her peddling fake news; not to be outdone, Team anti-Mocha restored the deleted portions and locked down the entry to prevent further tampering. I can only speculate if Mocha herself approves of these amateurish attempts, but assuming she does, it only shows a surprising tendency to be thin-skinned.
Once there was a princess with skin so delicate she could sense a pea hidden beneath layers of mattresses on which she slept. She had a soul sister who worked in another palace, with skin translucent like an onion, but who, when she lies on her bed, is hardly bothered by the kernel of truth that would keep most people awake at night.