An Unconstitutional Prior Restraint on Free Speech and Press Freedom

Posted by: Isa Lorenzo | February 15, 2008 at 10:26 pm
Filed under: The Judiciary, Gloriagate, In the News, Media Issues

THE National Telecommunications Commission’s order prohibiting the airing of the “Hello, Garci” tapes and Justice Secretary Raul Gonzalez’s warning constitute unconstitutional prior restraint on free speech and a free press, according to the Supreme Court.

Voting 10 to five, the SC granted former solicitor general Frank Chavez’s petition for writs of certiorari and prohibition nullifying the warnings made by the respondents on airing the alleged wiretapped conversation between President Gloria Macapagal-Arroyo, former Commission on Elections commissioner Virgilio Garcillano, and other personalities.

The tapes prompted an apology from the President, who continued to deny that she had participated in massive electoral fraud. But for her critics, the “Hello, Garci” tapes were concrete proof of widespread fraud during the 2004 elections.

“The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and of the press,” wrote Chief Justice Reynato Puno in his ponencia.

“We rule 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 doubtless, 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,” stressed Puno.

Puno was joined by Associate Justices Leonardo Quisumbing, Consuelo Ynares-Santiago, Angelina Sandoval-Gutierrez, Antonio Carpio, Conchita Carpio-Morales, and Adolfo Azcuna.

Carpio and Sandoval-Gutierrez penned separate concurring opinions.

Carpio maintained that expression may be subject to prior restraint only if it falls under the four categories of pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security.

“All other expression is not subject to prior restraint,” he said, pointing to the content of the “Hello, Garci” tapes as “indisputably a protected expression” as it “affects gravely the sanctity of the ballot.”

“Public discussion on the credibility of the electoral process is one of the highest political expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy of protected expressions, political expression would occupy the highest rank, and among different kinds of political expression, the subject of fair and honest elections would be at the top. In any event, public discussion on all political issues should always remain uninhibited, robust and wide open,” continued Carpio.

Justices Dante Tinga and Presbitero Velasco wrote their own concurring and dissenting opinions. Tinga voted to grant the petition against Gonzalez but dismissed the petition against the NTC, while Velasco voted to do the opposite.

Justices Antonio Nachura, Renato Corona, Minita Chico-Nazario and Teresita de Castro dissented.

In dissenting, Nachura said the issuance of the press release was a valid exercise of the NTC’s regulatory authority over the broadcast media.

“Admittedly, freedom of expression enjoys an exalted place in the hierarchy of constitutional rights. But it is also a settled principle, growing out of the nature of well-ordered civil societies that the exercise of the right is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, not injurious to the rights of the community or society. Consistent with this principle, the exercise of the freedom may be the subject of reasonable government regulation,” argued Nachura.

On the other hand, Chico-Nazario disagreed with the majority that the assailed press statements made by the NTC and Gonzalez do not constitute prior restraint that impair freedom of speech.

“A scrutiny of the ‘fair warning’ issued by the NTC on 11 June 2005 reveals that it is nothing more than that, a fair warning, calling for sobriety, care, and circumspection in the news reporting and current affairs coverage by radio and television stations,” the lady justice said.

After Press Secretary Ignacio Bunye released versions of what would soon come to be known as the “Hello, Garci” tapes in June 2005, warnings from Gonzalez and the NTC swiftly followed.

Gonzalez told reporters that those who had copies of the compact disc of the recordings or those who broadcast and published its contents would be held liable under Republic Act 4200, or the Anti-Wiretapping Act. He added that people who possessed or aired the tapes were committing a continuing offense, and subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.

Gonzalez would later order the National Bureau of Investigation to go after media organizations “found to have caused the spread, the playing and the printing of the contents of [the Hello Garci] tape.”

In March 2006, Gonzalez also announced that the DOJ was monitoring the PCIJ for “posting in their website many things I consider as inciting to sedition.” The PCIJ blog was the first to make the transcript and the three-hour audio recordings available online as a matter of public interest.

“Our intent was to inform the public of the contents of those conversations so that they can make an independent judgment on the allegations of election fraud,” wrote Sheila Coronel, then PCIJ exeuctive director, in response to the justice secretary’s accusations.

The NTC meanwhile warned radio and television stations from airing the tape, saying that doing so was a continuing violation of the anti-wiretapping law. It also warned that the broadcast of the tape “shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies.”

Despite the SC’s decision striking down the warnings, SC spokesperson Midas Marquez said that it was still up to the discretion of media establishments whether or not to play the tapes.

chief justice reynato puno, free press, free speech, gloria macapagal arroyo, hello garci tapes, prior restraint, supreme court
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