Mass Com 422: ETHICS OF THE MASS MEDIA
Reading No. 2
SCOPE OF CONSTITUTIONAL PROTECTION
EXTENT OF PROTECTION
Protection in general
What is the scope of the freedom of the press? Philippine law does not give a complete answer and we must look, therefore, to the law of those countries where this right has long flourished. Jurisprudence prevailing in the free world today, particularly in the United States, recognizes four aspects of the freedom of the press. These are (1) freedom from prior restraint, (2) freedom from punishment subsequent to publication, (3) freedom of access to information and (4) freedom of circulation.
The constitutional guaranty
extends to (a) discussion as well as to (b) advocacy, to (c) statements
of facts as well as to (d) statements of opinions and ideas.
FREEDOM FROM PRIOR RESTRAINT
Protection from government censorship
Freedom from prior restraint is largely freedom from government censorship of publications. The two are sometimes distinguished but there is not sharp difference between them. Both preclude government approval of a proposal to publish. No license need be obtained before a publication can be printed; if any law or official requires it, there is infringement of the constitutional right and remedy can be had at the courts.
Freedom of the press from
censorship makes it doubtful whether bad or offensive publications can
be considered a nuisance and therefore amenable to certain remedies like
injunction. This latter remedy entails at least inquiry into the
character of a proposed publication for the purpose of banning the printing
when found harmful as claimed. This, in essence, is prior restraint
which the Constitution forbids.
Prior restraint on publication
or circulation of mass media effected through extra-legal acts of public
officials at the instance or at the behest of private groups or associations
constitutes interference with the freedom of expression and may be remedied
by the courts.
Conditions justifying censorship
While the rule is that the
constitutional guaranty precludes censorship, there are certain types of
mass media, which are subject to government regulation in varying degrees.
Thus, a prior license is required for the operation of a radio broadcasting
station, although not for particular broadcasts. This is justified
by the necessity of regulating radio traffic, in order to prevent interference
and confusion. In the case of moving pictures, a permit is required
before a public exhibition of a particular film can be made. This
censorship is justified on two grounds. First is that moving pictures,
in comparison with the printed work, has a tremendous capacity for evil,
especially among the young. Second is that confrontation with a view to
a debate on the issues presented is well nigh impossible.
Owing to the limited radio
frequencies available, there is a fixed natural limitation in the use of
radio for broadcast purposes. Hence, if the potentialities of radio
were not to be wasted, regulation is essential. Under statutory authority,
such regulation includes the power to restrict or deny radio facilities
to particular applicants seeking to operate radio stations, on the ground
of “public interest.” Such restrictions or denial, if reasonable and in
furtherance of the statutory purposes, would not constitute an abridgment
of the freedom of speech or of the press.
As already indicated, the
protection even as to previous restraint is not absolutely unlimited.
The Constitution does not require absolute freedom to exhibit every motion
picture of every kind at all times and in all places. Accommodation,
therefore, is permissible. The Constitution allows safeguards which society
may take against evil, provided there is no sacrifice of free expression.
Thus, there is a limited area in which public morals and decency may be
protected from harmful motion pictures, through a system of censorship
under proper criteria and standards. Censorship of films prior to
exhibition is unconstitutional only (1) is unlimited restraining control
is vested in the censor, or (2) if the criteria prescribed for withholding
a permit for exhibition are too vague or loose, or patently unreasonable,
or (3) if the censor has misapplied valid standards of control.
FREEDOM FROM SUBSEQUENT
No liability for harmless publications
This aspect of press freedom
precludes liability for completed publications of views traditionally held
innocent. Opinions on public issues cannot be punished when published,
merely because they are novel or controversial or because they clash with
current doctrines. This does not mean that publishers and editors
are never liable for what they print. This freedom gives no immunity
from laws punishing scandalous or obscene matter, seditious or disloyal
writings, and libelous or insulting words. As classically expressed,
the freedom of the press embraces at the very least freedom to discuss
truthfully and publicly matters of public concern without previous restraint
or fear of subsequent punishment. Discussion to be innocent must
be truthful, must concern something in which people in general take a healthy
interest, and must not endanger some important social end, which the government
by law protects.
Publications exempt from punishment
Under current doctrines,
the following types of publications do not give rise to legal liability:
1. Privileged matters, including:a. Fair and true reports of official proceedings of courts, legislative and administrative bodies.2. Matters of legitimate public concern and interest, including:
FREEDOM OF INFORMATION
Ancillary rights of mass media
Freedom of the press has
been held to include not merely free discussion but also every accessory
right essential to this purpose. The aim is to allow the widest possible
broadcast of the best truth available on problems of public concern for
the enlightenment of both rulers and the ruled. Freedoms of access
to information as well as freedom of circulation have received protection
because they are vital to the education of the public through press publications.
Freedom of access to information
Freedom of access to information
regarding matters of public interest is kept real in several ways.
Official records, reports and documents, unless held confidential and secret
by competent authority in the public interest, are public records and are
open, subject to reasonable regulation, to the scrutiny of the inquiring
reporter or editor. Our Supreme Court has held that an officer in
charge of public records has the duty to allow access thereto by representatives
of the press; in case of refusal, he may be compelled to do so by court
order. The proceedings of public bodies like Congress and the courts
are likewise public and may be reported on in the press, unless for some
special and reasonable cause, sessions are held behind closed doors or
to the exclusion of the public, or proceedings are declared confidential
and matters taken therein closed to publicity. Lastly, information obtained
confidentially may be printed without specification of the source and that
source is closed to official inquiry, unless the revelation is deemed by
the courts or by a House or committee of Congress vital to the security
of the State.
Access to public records
The mass media, through their
appropriate representatives, have a common-law right to inspect public
records for the purpose of securing information or data for publication.
The right exists independently of statutes.
Access to public proceedings
The mass media, through their
representatives, share the right of the general public to be present in
public proceedings, including court trials, legislative sessions and the
like. Accordingly, a member of the press or other media may not be denied
access to a public proceeding so long as it is open to the public. Conversely,
where the proceeding is not public, or where for reasons of sound policy,
the public is temporarily excluded from a proceeding, representatives of
the mass media have no right to be present.
FREEDOM OF CIRCULATION
Prior restraint on circulation
This aspect of press freedom
refers to the unhampered distribution of newspapers and other media among
customers and among the general public. It may be interfered with
in several ways. The most important of these is censorship, either
at the customs or at the mails.
Restraints in Philippine Law
In the Philippines, freedom of circulation seldom meets effective interference. The local governments are generally denied authority to require permits or to impose taxes upon the distribution of printed matter; and it is doubtful whether the national government has made serious attempts to emasculate press freedom in this manner. Entry of publications through customs has been liberally allowed. The free use of the mails has few restraints. Only one case so far has involved the question of exclusion from the mails. The Supreme Court acknowledged in that case the authority of the Directors of Posts under the law to exclude from the mails written or printed matter or photographs of an obscene, lascivious, filthy, indecent or libelous character. It added, however, the caveat that his authority should be sparingly and carefully exercised so that press freedom will not be rendered nugatory. Should the interference of the Director of Posts be felt unjustified, the person aggrieved may appeal the decision to the courts for relief.
Tending the same end
as the power to exclude offensive matter from the mails is the provision
of penal law forbidding the sale or other dissemination of literary materials,
among others, which are injurious to morals. Such is an offense against
decency and good customs and so the restriction is valid, being required
in the public interest.
A licensing system that requires
prior permit for distribution of every type of printed media, regardless
of its character and of the time and place of distribution, and apparently
without any relation to the reasonable purposes of regulation, establishes
a system of censorship that violates the Constitution.
The mass media are in no
wise immune from any ordinary forms of taxation for the support of the
government. But a tax is invalid as imposing an unconstitutional
burden on the constitutional guaranty of free expression where its impact
is limited to the mass media, or a sector of such media, and such tax has
a direct tendency to curtail revenue or to restrict circulation. This is
especially true where the circumstances clearly show that the adoption
of such a tax against the press or other media by the political authority
concerned has a punitive or retaliatory purpose. In such cases, the tax
levied is invalid as laying a previous restraint upon freedom of the press.
The publication as well as sale or distribution of obscene material may be legitimately penalized. In any case, however, the element of sceinter is essential. A statute or ordinance which would penalize the mere possession of an obscene book or magazine, regardless of know ledge by the possessor of its contents, constitutes a previous restraint on the constitutional freedom. ###
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