In my previous column, I cited the Supreme Court decision which declared that print media and broadcast media cannot be treated in the same league in terms of free speech regulation.
The reason for the differential treatment of broadcast media vis-à-vis print media is broadcast spectrum scarcity. If there is to be any effective communication by broadcast frequency, “only a few can be licensed and the rest must be barred from the airwaves,” lest there will be interference or overlapping of signals.
The government must therefore decide on whom to allocate broadcast frequencies from a beeline of applicants. In so doing, Congress is guided by certain criteria which are consistent with not just its sovereign power, but also the goals of public service and the principles of free speech.
As I wrote last week, the democratic state’s sovereign power to grant or not to grant a broadcast franchise cannot be treated as a blank check for a government susceptible to using various legal disguises to hit back at a critical press.
The United States Supreme Court opinions (from where Philippine constitutional provisions on free speech are based) can guide us. US First Amendment jurisprudence insists that “if the government must engage in licensing, it may not rely on informal, vague, or discretionary criteria and procedures.” Licensing criteria must be sharp-edged and objective, said the US Supreme Court in Forsyth County vs. Nationalist Movement (1992).
Government licensing of speakers in accordance with vague or uncertain standards generally violates the First Amendment because it "makes it difficult to distinguish . . . between a licensor's legitimate denial of a permit and its illegitimate abuse of censorial power," and intimidates would-be speakers into "censoring their own speech," said the US Supreme Court in City of Lakewood v. Plain Dealer Publishing Co. (1988).
In our own Philippine case of Divinagracia vs. CBS (2009), the Supreme Court upheld the sovereign power of the state to regulate the broadcast media. But it cautioned that imposing the same regulations to print media is clearly “antithetical to democratic values and the free expression clause” of the Constitution.
The Court, however, stopped short of laying down the specific guidelines or limitations on the State’s power to determine who should be worthy to be accorded the license to broadcast from a scarce spectrum. It merely cited the “public good” criterion. Now it’s quite clear to me that the "scarcity of broadcast spectrum" doctrine must be read in the context of the greater principle of free speech.
The problem, however, is that even in more mature or advanced democracies like in the United States, legal scholars cite the vagueness of “public interest” or “public good” as a main criterion in broadcast regulation. “Broadcast regulation is marked by a crucial procedural failing-it relies on ad hoc, situationally sensitive judgments by regulators seeking to advance a vaguely defined "public interest," wrote Jonathan Weinberg in the California Law Review (1993).
The result is government arbitrariness and bias. This seems to be what we are seeing right now. That is why the battle field is not in the legal framework itself but in the hearts and minds of the public.
In this manner, ABS-CBN ultimately has the edge against those wishing for its fall. With its audience, assets, employees, competence, track record and years of service in the industry, and despite its imperfections, ABS-CBN is too big to fail – and too risky for government to be seen as deliberately having a hand in destroying the country’s biggest broadcast company.