II. REVIEW OF RELATED LITERATURE

The Philippines is a former United States territory, and its legal

system was modeled in large part on the U.S. legal system.  Many Philippine

laws are derived from the laws of the United States and are very similar, if

not identical, to their U.S. counterparts. One of the many laws of the

Philippines that is patterned with American law is one which is commonly

known as and embodied in the First Amendment or the freedom of speech,

expression and of the press mandated in Article III section ___ of the 1987

Philippine Constitution. Thus the extent of the studies and literature that will

be cited in this review will include first amendment principles, and origins.

According to Wayne Overbeck in his book Major Principles of Media

Law, the evolution of the freedom of speech traces back from England 400

years ago. England was caught up between mixed politics and religion.

Leaders on both side both understand the significance of printing press and

sometimes resorted to heavy-handed efforts to censor ideas they considered

dangerous. Official censorship was enforced through licensing system, the

licensing denied access to printing presses to people with unacceptable

ideas, but it also enable the government to preview and pre-censor materials

before publication. Authors and publishers has protested to the system of

censorship prevalent to England during that period. John Milton in his book

Aeropagitica argues that an open market place of ideas advanced the

interests of society and mankind. Aeropagitica, one of the classics of liberal

thinking, is a plea for freedom to publish, requiring the revocation of

licensing and censorship of printing because it suppressed the personal

freedom to think and to choose. (Splichal, 2002)

Benedict Spinoza, another seventeenth-century thinker argues in

Tractus Theologici-Politicus that it is a natural consequence that “in a Free

State every man may think what he likes, and Say what he Thinks,”.

Governments should not be allowed to control human minds, since it would

represent an abuse of sovereignty and usurpation of the rights of subjects.

Spinoza recognizes the authority of the State to impose “any commands it

pleases” because it is unlikely that a sovereign would impose completely

irrational commands. In democracy, according to Spinoza, the individual

does not transfer his natural rights to the government “so absolutely that he

has no further voice in his affairs, he only hands it over to the majority of a

society, whereof he is a unit (p.206). Individuals have to abdicate their right

to act entirely on their own judgment and transfer their rights (but never all

individual’s rights) to the sovereign power in order to preserve peace in

society. Thus the individuals cede the right of free action to the sovereign

power, but not the right of free thought and expression if it is grounded in

reason. If the power of free judgment is withheld from individuals, this is a

clear deviation from the natural condition of mankind and a dangerous

approach to a tyrannical government. (Splichal, 2002)

The role of mass media as an independent and powerful force in

society is and enduring and controversial issue (Dennis & Merril). In The

Fouth Estate, one of the earliest books on the press, Frederick Knight Hunt

came to the conclusion :

the power and value of the Press have made it a fourth estate… By the

value and fidelity of these various services… the Newspaper has

earned its power and position; has grown with increasing years, and

strengthened with increasing rectitude, until it has received the

cognomen, and wields the power of a Fourth Estate. (Hunt 1850, vii,

8)

In comparison, with the concept of the fourth estate, the watchdog

concept of the press is the most generalized idealization of the function of

the press in society—its acting on behalf of the public to bring to its

attention any political, economic, or administrative abuses of power

(Splichal, 2002). Hunt (1850) praised the newspaper as “a daily and

sleepless watchman that reports to every danger which menaces the

institutions of your country, and its interests at home and abroad”. Such

“unique role” of the press was particularly in the interest of publishers, who

“argued that newspapers require special protections under the freedom of the

press because the institution of the press had a duty to gather and report

information about the operation of the government and other matters of

public interest. The “watchdog” concept of the press assumes

nonpartisanship of newspapers, which ought to gather news and report it

objectively to their readers, thus making the public believe it has access to

government information through the press (Splichal, 2002). Accordingly,

Justice Potter Stewart believed the press had a particular, unique and special

role under the Constitution (US). He said the Framers of the Constitution

singled out the press as the only business with a specific guarantee of

freedom from government restraint because this protection was essential to

the robust functioning of press criticism so vital to democracy. He wrote

that, according to the Framers:

Free press was not just a neutral vehicle for the balanced discussion of

diverse ideas. Instead, the free press meant an organized, expert

scrutiny of government. The press was a conspiracy of the intellect,

with the courage of numbers. This formidable check on official power

was what the British Crown had feared—and what the American

Founders decided to risk,1

Some justices of the US Supreme Court believe free expression

warrants specific constitutional protection because it is a fundamental

natural right outside the reach of government. (Trager, Russomanno, &

Ross, 2010). Ideally, A free and vigorous press is a both a symbol and

guarantor of democracy; by contrast, increased control of the media and the

muzzling of journalists accompany the coming to power of authoritarian

regimes, as surely as night follows day. The emergence of a free and critical

press is a key indicator of the transformation to democracy (Scammel &

Semetko, 2000). On the other hand, other justices believe freedom of

expression is protected only to the extent that it advances other extremely

important interests, such as self-governance, self-expression, and self-

fulfillment. As a consequence, the Court has not set down one clear, fixed

description of the freedoms of speech and press. Instead, the Court allows

the exact parameters of First Amendment freedoms to respond to social

changes. This leads to a system in which the Constitution provides different

degrees of protection both to different speakers and to different types of

speech (Trager, Russomanno, & Ross, 2010).

1 Potter Stewart, Or of the Press, 26 HASTINGS L.J. 631,634

As an important step into an inclusive and more tolerant society,

university students has begun to participate in the political, economic, and

social issues through their freedom of speech. Universities in the United

States began adopting and strengthening campus speech codes in the 1980’s.

Campus speech codes as defined by Foundation for Individual Rights in

Education provides that: “any university regulation or policy that prohibits

expression that would be protected by the First Amendment in society at

large. Any policy—such as a harassment policy, a student conducts code, or

a posting policy—can be a speech code if it prohibits protected speech or

expression.”2

2 http://thefire.org/code/whatarespeechcodes/