Sunday, December 23, 2007 Bautista: Media Access To News Source By Jun Bautista Straight Views
THE arrest of several journalists during the foiled November 29 uprising led by Sen. Antonio Trillanes IV and Army Brig. Gen. Danilo Lim has put into issue, in the Philippine context, the clash between media and the state regarding the right of a free press to access information.
This is one of the major talking points during the Senate committee on justice and human rights hearing last December 12 where prominent media personalities, particularly form GMA, ABS-CBN, Malaya, National Press Club and Manila Overseas Press Club, gave their views on the government's manhandling of journalists.
There is, of course, no doubt that the Philippine Constitution guarantees the freedom of the press and the public's right to information. The right to access information is an important corollary of these rights for the obvious reason that the media cannot report any information it does not possess. As the US Supreme Court said in the landmark case of Branzburg v. Hayes, 408 US 665 (1972), the right to a free press "could be eviscerated" if there were no corollary right to gather news.
The pivotal question is where do we draw the line between media's right to access information or gather news vis-à-vis the authorities' duty to enforce the law? The Senate hearing has confirmed that not only is our police ill-prepared in dealing with media access during an emergency situation, be it a crime or disaster, but there are also no regulations that clearly address the issue.
We hope that for all the pomposity and the opportunity for grandstanding that legislative hearings usually provide, not to mention the improvident use of taxpayers' money that they entail, this Senate hearing will result in a reasonable, well-crafted legislation that will guide both parties in dealing with similar incidents in the future.
Without necessarily justifying the action of the police during the Manila Pen uprising, the incident of journalists being arrested while covering news stories is not something new and certainly not solely confined in the Philippines, as claimed by some of the media personalities who attended the Senate hearing. In the United States alone, which is considered to have one of the most liberal views of a free press, dozens of journalists are arrested each year, according to a report from Virginia-based Reporters Committee for Freedom of the Press.
In a summer 2000 report by "The News Media and the Law," an online and print magazine regularly published by Reporters Committee for Freedom of the Press and which deals about all aspects of media law and how journalists cover news, the rate of journalists being arrested while gathering news is rising. The journalists are usually charged with violation of some obstruction ordinance or statute, but these charges are always dropped in the majority of cases.
The arrest can be attributed to a variety of factors, such as misunderstanding or simple miscommunication between the police and journalists, the law enforcer's zealousness in performing his duties, ignorance by the police of existing regulations on media access, or simply outright disregard of journalists' rights.
In the well-publicized Elian Gonzales case in 2000, which involved a custody battle over a Cuban boy who got into the US from Cuba after being saved by fisherman from a stalled boat, LA Times photographer Carolyn Cole, along with several other reporters, was arrested while covering a protest of the US immigration service's decision to return the boy to Cuba. The police alleged that Cole threw rocks at the police and took photographs of the commotion she caused.
In June of this year, New York-based freelance reporter Matt Lepacek was arrested by New Hampshire police upon order of US presidential candidate Rudy Guiliani's press secretary during a press conference. Lepacek was arrested after asking questions about Guiliani's alleged prior knowledge of the World Trade Center collapse during the 9/11 incident. Early this December, Arkansas reporter and photographer Bill Lawson of Stephens Media Group was arrested and charged with criminal misdemeanor after he attempted to capture photos of firefighters battling a fire in Milwaukee, Arkansas. The state trooper who arrested Lawson claimed that he was obstructing governmental operations.
In Russia, Andrei Babitsky of Radio Liberty was arrested while covering the Chechnya war. Babitsky was said to be consorting with the rebels and allegedly lacked proper accreditation. He was eventually ordered released by Russian President Vladimir Putin.
Of course there are also scores of journalists arrested or even tortured and killed in conflict-ridden countries like Sudan while covering news stories, but the conditions in these areas are entirely different.
Considering the lack, or more accurately inadequacy, of laws or regulations in our country dealing with media access to news stories, I am again constrained to train my search on our favorite model for laws and jurisprudence, the United States. As already mentioned in my previous columns, our very own Supreme Court occasionally extends its arm to look for precedents in the US when confronted with cases of first impression. An examination of Philippine case law, especially in constitutional issues, will reveal that our jurisprudence has a plethora of US case law citations.
The first case that comes to mind is Barnzburg v. Hayes. Although the case deals primarily with the right of a journalist to protect his source, the US Supreme Court had occasion to talk about the right of the media to access information for a news story. According to the US Supreme Court, it "has generally been held that the First Amendment [which includes press freedom] does not guarantee the press a constitutional right of special access to information not available to the public generally. . . [n]ewsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded." Citing a case previously decided by it, Zemel v. Rusk, 381 US 1, 16-17 (1965), the Court further stated that "[t]he right to speak and publish does not carry with it the unrestrained right to gather information."
In the United States, therefore, the rule is settled that the media does not have the unrestricted right to gather news. Although the US Supreme Court has recognized the right to gather news as implicit under the First Amendment right to a free press, this right may very well be regulated by the State. Thus, in Pell v. Procunier, 417 US 817 (1974), the US Supreme Court denied a petition of four California prison inmates and three journalists which sought to invalidate a California Department of Corrections Manual that prohibits face-to-face press and media interviews with specific inmates. The Court arrived at the same conclusion in Saxbe v. Washington Post, 417 US 843 (1974), which also involved the prohibition of face-to-face media interviews with certain inmates, but this time in federal prisons.
A later case, this time access to prison facilities (Alameda County Jail) by the media being at issue, received an even more unequivocal ruling from the US Supreme Court. In its stern language, the Court held in Houchins v. KQED, Inc., 438 U.S. 1 (1978), that "[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. . . until the political branches decree otherwise, as they are free to do, the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally."
