On the Constitutionality of the New Public Information Law

Legal experts have in fact stated that the new law can parallel any European norms, and that furthermore, the law itself wouldn’t be very detrimental, were it not for the punitive provisions written in it. It is difficult to agree with such a position. In fact, the law’s lack of constitutional basis can be traced in its preamble.

The argument is based on articles 35 and 36, sections 1 and 2 of the federal constitution, which emphasize the freedom of speech, as well as freedom of the press and other media. The articles also give every citizen the right to freely express their views in the media. The law’s article 3, section 1, states that the media is free "to broadcast or publish all opinions and views about which citizens have an interest to be informed." Particular views are not specified. However, opinions and views are not identical concepts. By conventional wisdom, a view is considered to be a statement which does contain a degree of conviction, but could be valid or otherwise. An opinion is a process, and a view is a concrete position on a particular issue. In opinions one considers, and in views one decides. That is why an opinion is a more broad and less binding concept, while a view is more rigid, psychological and logical phenomenon. Opinions may include or imply indecisiveness, assumptions, possibilities, symbolism, intuition, trust, and debate. It is a process which produces a view. From the standpoint of accuracy, an opinion can rarely be verified for accuracy. A view, on the other hand, aims to give a position on which is right, and which is wrong. When the constitution explicitly protects the freedom of expression, and a law is passed which redefines that freedom, it is obvious that this is no longer an innocent substitution of synonyms, but the conscious distinction between the two concepts.

This is not a confusion in the law’s diction; it is apparent that its wording differentiates the two very well. Article 8, section 2, bans the prevention of public media from publishing facts and views, which reaffirms the language of Article 3, section 1. Article 7, section 2, however, calls for a "limit on the flow of views and opinions." An opinion then, is no longer defined as a synonym for a view, directly linked to public information, but as an abstract mental process, which may not be related to public access of information. The sentence thus limits the access to public information, in addition to changing the aforementioned rights from being absolute and constitutionally enumerated, to allowing various legal restrictions.

The law in essence restricts a constitutionally protected right. The limitation is implied in article 4, section 1, which reads: "The media is required to inform the public in a comprehensive, truthful and timely fashion. Stating opinions does not imply any of the attributed above. An opinion can be wrong, incomplete, and untimely, and it is thus impossible to abuse their expression. In addition, it would be impossible to find any public medium which could exclusively disseminate opinions.

The entire law is based on the idea that the tolerance of this right is contingent on the accuracy of their expression. From the wording, one discerns that the freedom is imposed to strictly measurable statements, such as facts and views. Article 11, section 3, calls for a strict scrutiny such subjective measures in respect to the person’s knowledge or capacity to know, which may affect the accuracy.

The law’s prohibition of disseminating misinformation when informing the public (article 4, section 2), believing that the opinions can be separated into valid and invalid, only encourages arbitrary interpretations of the content, which contradicts the words of the constitution that the right is absolute, and cannot be limited by the government. Experience teaches us that solidifying the truth into absolutes in the public eye, can only be a precursor to outlawing political opposition, and the conversion of the media into propaganda.

Furthermore, the law does not regard the freedom of expression and the freedom of the media as absolutes, and as an opportunity for those who wish to exercise the right and express their views and opinions. Instead, it treats it as a condition dependent on the reaction of the recipients of the message, the citizens and the intermediary body which will determine the public interest, and whose functions and procedures are not clearly defined in this law. This runs against the Yugoslav constitution, which clearly states that enumerated rights can be limited only to not infringe the inalienable rights of others (article 9, section 4). The constitution does not limit freedoms like the law’s article 3, section 1, and the right to express view freely, clearly supersedes the right of others to not be informed about information which is not in their interest. The law does contain liberal norms as well, but legally, they do not take higher priority than the enumerated restrictions.