Basis of press freedom
By A.G. Noorani
THE precious right to freedom of the press rests on several subsidiary rights; weaken them and the fundamental right itself is affected. For example, access to newsprint and advertisement, reduced postal rates, protection against onerous taxation and the like. These are rights, not favours from the state.
The courts in Pakistan and India have ruled on some of them, drawing on the rich corpus of American cases which they share. Indian rulings might therefore be of some relevance in Pakistan and vice versa. Esquire
First, as the US Supreme Court said, “liberty of circulation is essential to that (press) freedom … without circulation the publication would be of little value”. Which is why favourable postal rates are granted to dailies and periodicals. When in 1943 the postmaster-general withdrew the concession from , that court ruled that “to withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official”. He had “no power to prescribe standards for the literature or the arts which a mailable periodical disseminates”. The System of Freedom of Expression
As Thomas J. Emerson sums up in his classic , the state is duty-bound to provide facilities if press freedom “implies the use of certain means for its realisation”, state facilities exist to provide those means and it has a monopoly of those facilities, e.g. the post office. “A strong case can be made for the position that the government has not only the power but the duty to make this service available.”
For instance, the state might have the right to control distribution of newsprint if very scarce. But it cannot impose any curb on the number of pages, advertisements or on circulation.
The Supreme Court of India struck down the Newspaper (Price and Page) Act 1956 which fixed a minimum price for a permissible number of pages, as a restriction on the business of publishing to abolish monopolies. It also curtailed space for advertisements.The court ruled: “If the area for advertisements is curtailed the price of the newspaper will be forced up. If that happens, the circulation will inevitably go down. Â…[T]he earnings of a newspaper would go down and it would either have to run at a loss or close down or raise its price. …When a law is intended to bring about this result there would be a direct interference with the right of freedom of speech and expression.”
The court reaffirmed this ruling in a case relating to imposition of import duty on newsprint. Sixty per cent of the expenditure in the production of a newspaper was utilised for buying newsprint. The court ruled that the levy was open to judicial review to determine whether it was a device in the guise of a tax to limit the circulation or its “direct effect” was restriction on the circulation because the levy was “burdensome” enough to affect it.
It added, “Our attention has been particularly drawn to the statement of the finance minister that one of the considerations which prevailed upon the government to levy the customs duty was that the newspapers contained piffles. A piffle means foolish nonsense. It appears that one of the reasons for levying the duty was that certain writings in newspapers appeared to the minister as piffles.
“Such action is not permissible under our constitution for two reasons – (i) that the judgment of the minister about the nature of writings cannot be a true description of the writings and (ii) that even if the writings are piffles it cannot be a ground for imposing a duty which will hinder circulation of newspapers.” Yellow Pages
The state-run telephone services sued Tata Press to restrain them from publishing its , a buyers` guide comprising advertisements by business persons, on the ground that it alone had the right to publish the list of telephone subscribers. The Supreme Court ruled that it was not, but rather a buyers` guide protected as commercial speech. Â“Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent on mass production, mass production is dependent upon volume sales and volume sales are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the lifeblood of free media, paying of the costs and thus making the media widely available. The newspaper industry obtains 60-80 per cent of its revenue from advertising.
“Advertising pays a large portion of the costs supplying the public with newspaper. For a democratic press the advertising `subsidy` is crucial. Without advertising the resources available for expenditure on the `news` would decline which may lead to an erosion of quality and quantity.”
Nor may the state or the public-sector bodies give ads arbitrarily. A state government issued an order listing the criteria for the ads. The high court, in a case cited as an authority, held three of them to be bad in law because they are not susceptible to objective tests – “rabid, abusive”; “character assassination”; and “mischievous gossip-mongering and sensationalism”.
Fundamentally the assets of the state vest in the central and provincial governments strictly for a “public purposeÂ”. Ads which boost ministers personally are liable to be challenged. n
These cases indicate principles which can be extended to attack other attempts at state control.
The writer is an author and a lawyer.