Mass Com 422: ETHICS OF THE MASS MEDIA

Reading No. 2


CHAPTER II

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.
 

Extra-legal censorship

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.
 

Radio licensing

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.
 

Movie censorship

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 PUNISHMENT
 

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.
b. Fair and true reports of official acts performed in the regular course of public business.
c. Fair and true reports of matters of public concern, especially those pertaining to government affairs.
d. Fair comment on matters of public interest.
2. Matters of legitimate public concern and interest, including:
a. Reports of current news.
b. Reports on public personages.
3. Discussions or advocacy of novel or alien doctrines or ideas so long as the utterance does not, under the circumstances, constitute a “clear and present danger” to national security of public order.

4. Narration of facts or fiction in literary form, so long as the same are not so patently offensive or so appealing to the prurient interest as to be obscene.

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.
 American experience pinpoints two other ways by which attempts to curtail this right may be made.  First is requiring a permit for the distribution of media and penalizing dissemination of copies made without it.  Second is requiring the payment of a fee or tax, imposed either on the publisher or on the distributor, with the intent to limit or restrict circulation. Both modes of interfering with the freedom to circulate have been constantly stricken down as unreasonable limitations on press freedom.  It has been held, however, that door to door canvassing for subscriptions may be validly prohibited by ordinance.  And publishers and distributors of newspapers and allied media cannot complain when required to pay ordinary taxes such as sales tax.
 

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.
 

Invalid licensing

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.
 

Invalid taxation

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.
 

Invalid prohibition

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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