6. State Regulation of Different Types of Media

Can print media be compelled to allocate free space?

No. Print media may not be compelled to allocate free space to the Commission. Such would amount to a taking of property without just compensation. (Philippine Press Institute v. COMELEC, G.R. No 119694, May 22, 1995)

Concept

Historically, Cabansag stated the dangerous-tendency formulation: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. (Cabansag v. Fernandez, G.R. No. L8974, Oct. 18, 1957) For restrictions on media expression, the governing test is clear and present danger.

STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA

Motion Pictures Censorship

When the MTRCB classified the movie Kapit sa Patalim as "For-Adults-Only," the Supreme Court found an abuse of discretion in the Board's perception of obscenity, but dismissed this petition for certiorari solely on the ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification.

The test to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present.

• There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident.
• Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable.

The basic postulate, wherefore, is that where the movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned — included as they are in freedom of expression — censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public morals, public health or any other legitimate public interest. (Gonzales v. Katigbak, G.R. No. L-69500 July 22, 1985)

A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of a public character. The right of privacy cannot be invoked to resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. (Ayer v. Capulong, G.R. No. 82380 April 29, 1988, On the proposed motion picture entitled "The Four Day Revolution" involving Sen. Juan Ponce Enrile)

Rationale

Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery. The state interest in compensating injury to the reputation of private individuals is therefore greater than for public officials and public figures.

To extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation and would occasion the additional difficulty of forcing courts to decide on an ad hoc basis which publications and broadcasts address issues of general or public interest and which do not. (Gertz v. Welch, 418 U.S. 323, June 25, 1974)

State Regulation of Different Types of Mass Media

1987 Constitution, SECTION 11(2), ARTICLE XVI. xxx The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. xxx

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Print vs. Broadcast Media

While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television, and radio broadcasting is somewhat lesser than the freedom accorded to newspapers and other print media [Chavez v. Gonzales, supra].

Radio and television are accorded less protection because of:

• The scarcity of the frequencies by which the medium operates, i.e., airwaves are physically limited while print medium may be limitless;
• Its pervasiveness as a medium; and
• Its unique accessibility to children [FCC v. Pacifica Foundation, 438 U.S. 726 (1978)].

But all forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of expression clause. The test for limitations on freedom of expression continues to be the clear and present danger test [Eastern Broadcasting v. Dans, Jr., supra].

Tests to Determine Obscenity

• Roth v. US [354 U.S. 476 (1957)]: Whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.
• Miller v. California [413 U.S. 15 (1973)]: A work is considered obscene if:
• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.