The case of CHAVEZ vs. Gonzales, G.R. No. 168338,February 15, 2008, once again upheld Philippine press freedom.
The Philippine Supreme Court issued the writs of certiorari and prohibition against the respondent public officials, nullifying their official statements “warning the media on airing” the alleged wiretapped conversation between the President and other personalities, “for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press”
On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the
On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.
On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents “could be held liable under the Anti-Wiretapping Act”. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a “continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence”.
On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations “found to have caused the spread, the playing and the printing of the contents of a tape” of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, “I [have] asked the NBI to conduct a tactical interrogation of all concerned.”
On June 11, 2005, the NTC issued this press release:
“NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the
These personalities have admitted that the taped conversations are products of illegal wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that “all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition.” The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators.”
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, “praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.” Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern, petitioner specifically asked this Court: “For the nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the public’s rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents”.
As to the procedural issue of locus standi of the petitioner, who is not a media practitioner, the Court stated that “where serious constitutional questions are involved, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure.”
As to the main issue of press freedom, the Court cited the Constitution provision that commands that no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
Free speech and free press is the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. “There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent”.
To be truly meaningful, freedom of speech and of the press should allow and encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
The scope of freedom of expression extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period.
Freedom of expression is not an absolute, nor is it an “unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”
Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as “fighting words” are not entitled to constitutional protection and may be penalized.
Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests:
(a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated;
(b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; and
(c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.”
The Court noted that the
It stated that the interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. “The sharp incision of its probe relieves the abscesses of officialdom”. Men in public life may suffer under a hostile and unjust accusation; “the wound can be assuaged with the balm of clear conscience”.
Philippine jurisprudence has recognized four (4) aspects of freedom of the press:
(1) freedom from prior restraint;
(2) freedom from punishment subsequent to publication;
(3) freedom of access to information; and
Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government.
The Court stated: “Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.”
A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech.
When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach—somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression.
On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down.
With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about— especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, “but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.” As formulated, “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression.
A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken.
Applying the foregoing, according to the Court, the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one object—a specific content— fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression.
According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; (b) its “pervasiveness” as a medium; and (c) its unique accessibility to children. Because cases involving broadcast media need not follow “precisely the same approach that [U.S. courts] have applied to other media,” nor go “so far as to demand that such regulations serve ‘compelling’ government interests,” they are decided on whether the “governmental restriction” is narrowly tailored to further a substantial governmental interest,” or the intermediate test.
In the
The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection.
On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press, failed to hurdle the clear and present danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar, however, are confused and confusing, and respondents’ evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a “complete” version and the other, an “altered” version. Thirdly, the evidence of the respondents on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law.
The Court ruled that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents to offer proof to satisfy the clear and present danger test, the Court upheld the exercise of free speech and free press. There was no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.
Another issue is whether mere press statements of the Secretary of Justice and of the NTC constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, the Court held that it was not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It was sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. The Court held that any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constituted impermissible forms of prior restraints on the right to free speech and press.
In fine, the Court concluded that in cases where the challenged acts were patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. “A blow too soon struck for freedom is preferred than a blow too late”, it stressed.
By:
Atty. Manuel J. Laserna Jr.
Las
