“What Badoy said is permissive satire which, according to jurisprudence, is not legally actionable. After all, who in his right mind will even believe that Badoy will really kill the judge, and publicly announce her plan to do so?”
“If I kill this judge and I do so out of my political belief that all allies of the CPP-NPA-NDF (Communist Party of the Philippines-New People’s Army-National Democratic Front) must be killed because there is no difference in my mind between a member of the CPP-NPA-NDF and their friends, then please be lenient with me.”
That, in essence, is what Lorraine Badoy, the former spokesman of the National Task Force to End Local Communist Armed Conflict, supposedly posted on her social media account soon after a Manila Regional Trial Court judge ruled that the CPP-NPA are not terrorist organizations but mere rebels.
The decision emanated from a petition filed in 2018 by the Department of Justice which asked the court for a declaration that the CPP-NPA are terrorist organizations.
Many communist sympathizers, radical troublemakers, publicity seekers, opinionated characters with dubious credentials, anti-establishment elements, hollow-minded politicians, and judges and lawyers groups denounced Badoy.
Their collective knee jerk reaction gave the judge a lot of free publicity in mainstream and social media.
A closer study of what is attributed to Badoy will show that she committed no crime or punishable act to warrant her public vilification.
In the first place, what Badoy said is permissive satire which, according to jurisprudence, is not legally actionable. After all, who in his right mind will even believe that Badoy will really kill the judge, and publicly announce her plan to do so?
If Badoy really intended to kill the judge, announcing her plan on social media is the last thing she would want to do because the public warning will give the judge a chance to take precautionary measures.
There is also the doctrine of fair comment, which is a legal doctrine that goes back to 1918 in the leading case of United States versus Bustos.
That doctrine allows the public and the press to comment on matters involving public interest. To my mind, a decision of a trial court falls under that category.
What is involved in this controversy is Badoy’s Constitutional right of free speech. Thus, why should Badoy be condemned or penalized for what is essentially the public manifestation of her opinion about a matter of public interest?
Upon ultimate reckoning, the undeniable fact is that nobody forced the judge to obtain employment in the judiciary, and that the judge must have expected that in the course of her adjudication work, there will be people who will not agree with her pronouncements.
To be perfectly frank, the decision of the judge is not even completely tenable, legally speaking, because the historical record confirms that the CPP-NPA have been, since the late 1960s, engaged in terrorist acts, including murder, bombings, arson and extortion, among others.
It has been said that freedom of speech is freedom not only for the thoughts that others like, but also for the thoughts which others do not like.
As long as the words and phrases used are not libelous or obscene, the utterance is not legally actionable.
I do not find anything libelous or obscene in the statement attributed to Badoy.
Does Badoy’s statement constitute inciting attacks against judges in general?
I don’t think so, because the words Badoy used are in the subjunctive, which means that what Badoy said is a big if. It is a mere supposition, and a supposition can hardly be considered as incitement to inflicting physical harm on another.
Also for the same reason, what Badoy said does not amount to the crime of grave threats punishable under the Revised Penal Code.
If it were otherwise, and with opinion leaders worldwide embroiled in conjectures and speculations, anybody who says anything controversial but harmless, may be held liable for grave threats.
By golly, even a past president of a lawyers organization who loves to make press statements about almost anything under the sun even conceded that Badoy’s use of subjunctive words acquits her of any accusation that she threatened to attack the judge.
In all likelihood, had the judge ruled against the CPP-NPA, the radicals who have been quick to denounce Badoy would have probably been the ones criticizing the judge.
Badoy should take solace in the knowledge that her critics are not exactly beyond criticism themselves.
At least two of Badoy’s critics have repeatedly lost in senatorial elections; another critic is a cantankerous, scandalous former election commissioner; and two others have been at the receiving end of a disbarment suit filed against them for conduct unbecoming of lawyers.
If Badoy’s detractors really have the goods on her, then they should put their money where their mouths are and file charges against her. Otherwise, they should shut up and refrain from making unfounded accusations against Badoy.
Meanwhile, Badoy should continue her valiant crusade as the nation’s most vocal sentinel against communism and communists.
