Law on Mass Media and Communication 5th Exercise Right to Freedom from Prior Restraint (regular and bonus)
Progress of course work: The following chapters have been successfully discussed: Intro (the Constitution, constitutional law terms, legal terms, legal remedies; books of statutes; Supreme Court citations; structure of the judiciary; quasi-judicial agencies); Philosophic Bases of the right to a free press; and the chapter on Rights and Privileges has been started : the topics “right access to information of matters of public concern” (right to freedom of information); and rights under the Shield Law (right not to disclose the source) have been successfully discussed.
In preparation for our discussion on the topic “right to freedom from prior restraint”, the following are the exercises (one regular and one optional bonus) with deadline on September 19, Wednesday, at 5pm.
(class members who will help organize the live, multimedia illustration of prior restraint on Sept. 20 will get additional bonus points … plus a second bonus here if they submit the bonus exercise for this week)
REGULAR EXERCISE
BACKGROUND (New York Times vs. US; US vs. Washington Post, Eastern Broadcasting vs. Minister of Transportation and Communications Dans; Gonzales, Malaya, Brocka, Lacaba vs. BRMPT Kalaw-Katigbak; MTRCB vs. ABS-CBN (2005) )
Please read the following cases as background on the right to freedom from prior restraint (right to freedom from censorship) in the newspaper print media, the broadcast media (radio and television) media, in films and movies, and in the internet/online media:
In New York Times vs. United States (1971) : When the White House (through a district judge) was able to get an injunction to stop the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy”, the U.S. Supreme Court in a vote of 6-3 struck down the injunction stating that: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”
In Eastern Broadcasting vs. Minister of Transport and Comm Dans (1985) : Radio station DYRE was summarily closed down by the NTC. The Philippine Supreme Court in an advisory (the case had become moot) held that a radio station cannot be summarily shut down without observing administrative due process. Broadcast stations are required to acquire a legislative franchise and an NTC permit before they could operate. Particular broadcasts are not required to get a permit, i.e., after the grant of license, specific broadcast shows are not required to get a permit before airing an episode. Further, a licensed broadcast station cannot be closed or shut down by the government without observing the following requisites of administrative due process: Right to hearing, right to present evidence; tribunal must consider evidence; decision based on evidence; evidence must be substantial; independent tribunal; decision in writing where issues and reasons are stated.
In Gonzales, Malaya, Brocka, Lacaba vs. BRMPT Kalaw-Katigbak (1985) : The film “Bayan Ko (Kapit sa Patalim)” was classified R18 and with cuts by the BRMPT (board of censors). The Court held (as an advisory as there were not enough votes to declare grave abuse) : Films for commercial exhibition are required to get a permit from the BRMPT (now MTRCB) before public showing, however, the BRMPT (now MTRCB) is not authorized to delete scenes (not allowed to cut) and is authorized only to classify or to rate films. (note however that ratings in this jurisdiction include X’ing; SC has not passed upon this -blog admin)
In MTRCB vs. ABS-CBN (2005) : The ABS-CBN show The Inside Story aired a report on prostitution, with the school PWU named. PWU filed a complaint with MTRCB against the show and TV station. ABS was then fined by MTRCB P20,000 for not submitting said show / segment for prior review to MTRCB (before airing). The Supreme Court held that the MTRCB can review TV shows and impose fines. Since MTRCB here did not ban the show nor revoke any permit (but just imposed a fine for non-compliance), it was not necessary to rule upon whether or not provisions on prior-review such as Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 (creating the board) were unconstitutional (for not being necessary in the disposition of the case).
Chavez vs. DOJ Secretary (2008) (which includes the internet as media): The then DOJ Secretary in press statements threatened all those who played the Hello Garci tapes with prosecution, arrest, detention. The Supreme Court held: Threats and warnings of prosecution and arrest from the government against media organizations and internet users who play the Hello Garci tapes operate as a form of prior restraint. (please see discussion under the bonus exercise)
FOR THE REGULAR EXERCISE: Please illustrate the right to freedom from prior restraint (or right to freedom from censorship) by searching for and describing any event/ story/ report/account/ article/ narrative on :
1.Any media organization that was closed or shut down by the government from September 21, 1972 to Feb. 25, 1986 such as any newspaper, television station, radio station, television show, radio program, any film, student publication, that was closed down or shut down by the government or any media content that was censored for said period…
or …
2. Any journalist, broadcaster, television personality, writer, campus journalist and student leader/ students, who was arrested/ detained, summarily executed during said period for their activities of speech and expression. You may refer to the following video documentary for more background:
BONUS EXERCISE
FOR THE BONUS EXERCISE, period covered: January 1, 2018 to present date:
Illustrate, through any news event from January 1, 2018 to the present date, the principle laid down in the leading case of Chavez vs. DOJ Sec Raul Gonzales G.R. No. 168338, February 15, 2008 that warnings and threats of prosecution from the government against media organizations and threats of jail from the government against internet users operate as a form of prior restraint.
Background: In Chavez vs. DOJ Secretary, supra, where the then DOJ Secretary and the NTC threatened all those who played the Hello Garci tapes with prosecution and arrest, the Supreme Court speaking through then Chief Justice Puno held:
CJ Puno: “ xxx It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press.
“There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.
“The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.
“xxx (T)he petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press. xxx SO ORDERED.” (Underscoring supplied).
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