Francisco Chavez v. Raul M. Gonzales and National Telecommunications Commission, G.R. No. 168338, February 15, 2008

D E C I S I O N
(En Banc)

PUNO, J.:

I.      THE FACTS

As a consequence of the public release of copies of the “Hello Garci” compact disc audiotapes involving a wiretapped mobile phone conversation between then-President Gloria Arroyo and Comelec Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales warned reporters that those who had copies of the CD and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody. Finally, he stated that he had ordered 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 a tape.” 

Meanwhile, respondent NTC warned in a press release all radio stations and TV 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 they shall not use their stations for the broadcasting or telecasting of false information or willful misrepresentation. The NTC stated that the continuous airing or broadcast of the “Hello Garci” taped conversations by radio and TV stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority.  It warned that their broadcast/airing of such false information and/or willful misrepresentation shall be a just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said media establishments.

Subsequently, a dialogue was held between the NTC and the Kapisanan ng mga Brodkaster sa Pilipinas (KBP) which resulted in the issuance of a Joint Press Statement which stated, among others, that the supposed wiretapped tapes should be treated with sensitivity and handled responsibly.

Petitioner Chavez filed a petition under Rule 65 against respondents Secretary Gonzales and the NTC directly with the Supreme Court.

II.    THE ISSUES

1.    Will a purported violation of law such as the Anti-Wiretapping Law justify straitjacketing the exercise of freedom of speech and of the press?

2.    Did the mere press statements of respondents DOJ Secretary and the NTC constitute a form of content-based prior restraint that has transgressed the Constitution? 

III.   THE RULING

[The Court voted 10-5 (CJ Puno, joined by JJ. Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Azcuna, Reyes and Tinga in the majority, as against JJ. Corona, Chico-Nazario, Nachura, Leonardo-De Castro and Velasco in the minority)  in granting the petition insofar as respondent Secretary Gonzalez’s press statement was concerned. Likewise, it voted 10-5 (CJ Puno, joined by JJ. Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Azcuna, Reyes and Velasco in the majority, as against JJ. Corona, Chico-Nazario, Nachura, Leonardo-De Castro and Tinga in the minority) in granting the same insofar as NTC’s press statement was concerned.]

1.    NO, a purported violation of law such as the Anti-Wiretapping Law will NOT justify straitjacketing the exercise of freedom of speech and of the press.

A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media.

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. [T]he 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.

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. In fine, violation of law is just a factor, a vital one to be sure, 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 alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

2.    YES, the mere press statements of respondents DOJ Secretary and the NTC constituted a form of content-based prior restraint that has transgressed the Constitution.

[I]t  is  not  decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is 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.  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 constitute impermissible forms of prior restraints on the right to free speech and press.