Mass Com 422: ETHICS OF THE MASS MEDIA

Reading No. 3


LIMITATIONS ON THE FREEDOM OF MASS MEDIA

LIMITATIONS IN GENERAL
 

Legal limitations

Social ends preferred to free discussion in case of conflict introduce limitations to the liberty of discussion.  There are limitations beyond which the freedom of the press ceases to serve public purposes and instead produces public or private harm.  In these cases, restriction is deemed valid.  The government steps in with restraints and penalties, justifying its interference not by logic or theory but by physical necessity.  It hearkens to the experience of mankind as to the effects of certain kinds of publication; and where the evil seems to outweigh the good resulting, it can legitimately prohibit and punish, as it does in fact.

Social retribution through the legal machinery falls upon persons responsible when the publication in question is held by competent authority to be injurious (1) to the public order or security, (2) to the public morals, (3) to private reputation and the right of privacy, or (4) to the integrity or efficiency of public bodies like Congress and the courts.  We shall briefly examine the extent to which each of these social ends limits the freedom of the press.
 

Extra-legal limitations

There is one main source of restrictions on which the right of the citizens to freely discuss questions in print, which is seldom within the power of the law to correct. The peculiarities of our economic system allows a minority of private persons almost unlimited discretion in determining newspaper policies.  Newspapers require the use of much capital; and to all practical intent, it is inevitable in our society that control over the papers be in the hands of big business.

But press freedom is not thereby made illusory.  There are circumstances which in practice limit then discretion of publishers and which affect to a great degree the free play of opinions on public questions. Diversity of ownership even in a single newspaper, the need for popular patronage, conflicting interests of powerful advertisers, the presence of respected and independent columnists, and competition among newspapers themselves all combine to bring about general fairness and accuracy of reports as well as adequate representation of opposing views.

Nevertheless, it is futile to deny the limiting power which big business has over the opportunity of private persons to put forth their views in print.  As owner, it could and does refuse publicity to opinions it does not like; and as advertiser, it could pressure and sometimes successfully, for the exclusion of views it does not share.  Whatever be the decision, he discretion is complete. Our laws do not afford remedy to one whose opinions have been denied publicly.

In the end, the fairness and impartiality of the press is a responsibility of the public. As in government, a people gets what media it deserves.  It is after all the main consumer of publications and it is hoped that whatever it has the intelligence to digest and the wisdom to demand, it will get in the long run.  Newspapers are in business and will mend their bad habits should the public threaten withdrawal of patronage unless they do.
 
 

NATIONAL SECURITY AND PUBLIC ORDER
 

Inciting to war

It is wholly possible for the mass media, through inflammatory and provocative articles or other publications to give occasion for war involving the Philippines, or give occasion for reprisals against Filipinos living abroad.

REVISED PENAL CODE

Art. 118.  Inciting to war or giving motives of reprisals – The penalty of reclusion temporal shall be imposed upon any public officer or employee, and that of prision mayor upon any private individual, who, by unlawful or unauthorized acts provokes or gives occasion for a war involving or liable to involve the Philippine Islands or exposes Filipino citizens to reprisals on their persons or property


Inciting to rebellion

Mass media are liable to criminal prosecution if they incite others to the execution of any act of rebellion or open hostility to the government.

REVISED PENAL CODE

Art. 139. Sedition – How committed – The crime of sedition is committed by persons who publicly and tumultuously in order to attain by force, intimidation, or by other means outside of legal methods, any of the following object:

1. To prevent the promulgation or execution of any law or the holding of any popular election;
2. To prevent the National Government or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order;
3. To inflict any act of hate or revenge upon the person or property of any public officer or employee;
4. To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and
5. To despoil, for any political or social end, any person, municipality, or province, or the National Government of all its property or any part thereof.

Art. 142 – Inciting to sedition – The penalty of prision correctional in its maximum period and a fine not exceeding 2,000 pesos shall be imposed upon any person who, without taking direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitutes sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities, or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices.


Clear and present danger rule

A vital question arises in the enforcement of these provisions.  When is an article critical of the government or of its officers merely expressive of an opinion and therefore not a reason for punishment?  When is there incitement to disorder or violence, and when in contrast is there mere discussion?  The lines between forbidden and permissible publications are difficult to draw and so far no thoroughly satisfactory test has been devised.

In the United States, the view prevails that if the words complained of are to be properly the basis of penalty, they must be used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the government has a right to prevent.  Thus rules Justice Holmes and so the US courts still hold. In order that publication can be considered seditious under the clear and present danger rule, it must be of such a nature that by its circulation, there is danger of a public uprising and that such danger must be clear and imminent.

Lately, though, there has been a modification of this test. If the danger resulting from the publication is clear and probable according to circumstances brought before the court for its consideration, the defendant would be liable.  Imminence of the danger feared seems not to be strictly required.
 

Dangerous tendency doctrine

In the Philippines, a much looser test prevails. Our Supreme Court had decided preference for the bad or dangerous tendency doctrine.  Under this test, it is not required that the danger of public uprising arising from the publication be clear and present, or, as modified, clear and probable.  The words of the statute itself suggests the degree of imminence required. If the language used tends to incite people to take up arms against the constituted authorities and to rise against the established government, if it incites or produces a feeling incompatible with a disposition to remain loyal to the government and obedient to the laws, or if it tends to overthrow or undermine the security of the government, or to weaken the confidence of the people in the government, liability attaches and the editor or the author will be punished.  Conviction then is easier under this test than under the American standards.
 

Espionage Act

The security or safety of the State from foreign conquest also requires limitations on press freedom.  Publication of materials like blueprints depicting installations classified as top secret by the President of the Philippines pursuant to law, is heavily punished, unless prior to publication, permission has been given, or censorship of the material published has been made by proper authority.

During wartime, certain acts committed through publications may be disloyal and are therefore punished.  Penalized are (1) false statements or reports with the intent to interfere with the operation or success of the Armed Forces of the Philippines; (2) publications which cause or attempt to cause insubordination and other forms of disloyalty among members of the Armed Forces with the intent to promote the success of the enemies of the Republic; and (3) publications which willfully obstruct the recruiting of enlistment in the Armed Forces to the prejudice of the service.
 

Acts against state interest

Also penalized are publications which cause damage to the interest or credit of the State, or which endanger public order, or which foments disobedience or resistance to the law or to the civil authorities.

REVISED PENAL CODE:

Art. 154. Unlawful use of means of publication and unlawful utterances – The penalty of arresto mayor and a fine ranging from 200 to 1,000 pesos shall be imposed upon:
1. Any person who by means of printing, lithography, or any other means of publication shall publish or cause to be published as news any false news which may endanger the public order, or cause damage to the interest or credit of the State.
2. Any person who by the same means, or by words, utterances or speeches, shall encourage disobedience to the law or to the constituted authorities or praise, justify or extol any act punished by law.
3. Any person who shall maliciously publish or cause to be published any official resolution or document without proper authority, or before they have been published officially; or
4. Any person who shall print, publish or distribute or cause to be printed, published, or distributed books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous.


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