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G.R. No. 168338 - ASSOCIATE JUSTICE SANDOVAL GUTIERREZ CONCURRING OPINION

G.R. No. 168338 - ASSOCIATE JUSTICE SANDOVAL GUTIERREZ CONCURRING OPINION

PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. NO. 168338 : February 15, 2008]

FRANCISCO CHAVEZ, Petitioner, v. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), Respondents.

CONCURRING OPINION

SANDOVAL GUTIERREZ, J.:

"Where they have burned books,
they will end in burning human beings."

These are the prophetic words of the German Author Heinrich Heine when the Nazis fed to the flames the books written by Jewish authors. True enough, the mass extermination of Jews followed a few years later. What was first a severe form of book censorship ended up as genocide.

Today, I vote to grant the writs of certiorari and prohibition mindful of Heine's prophecy. The issuance of the Press Release by the National Telecommunications Commission (NTC) is a form of censorship. To allow the broast media to be burdened by it is the first misstep leading to the strangling of our citizens. We must strike this possibility while we still have a voice.

I fully concur with the well-written ponencia of Mr. Chief Justice Reynato S. Puno and that of Mr. Justice Antonio T. Carpio.

The Universal Declaration of Human Rights guarantees that "everyone has the right to freedom of opinion and expression." Accordingly, this right "includes the freedom to hold opinions without interference and impart information and ideas through any media regardless of frontiers." 1 At the same time, our Constitution mandates that "no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances."

These guarantees are testaments to the value that humanity accords to the above-mentioned freedoms - commonly summed up as freedom of expression. The justifications for this high regard are specifically identified by Justice Mclachlin of the Canadian Supreme Court in Her Majesty The Queen v. Keegstra,2 to wit: (1) Freedom of expression promotes the free flow of ideas essential to political democracy and democratic institutions, and limits the ability of the State to subvert other rights and freedoms; (2) it promotes a marketplace of ideas, which includes, but is not limited to, the search for truth; (3) it is intrinsically valuable as part of the self-actualization of speakers and listeners; and (4) it is justified by the dangers for good government of allowing its suppression.

These are the same justifications why censorship is anathema to freedom of expression. Censorship is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey.3 Censorship may come in the form of prior restraint or subsequent punishment. Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.4 Its most blatant form is a system of licensing administered by an executive officer.5 Similar to this is judicial prior restraint which takes the form of an injunction against publication.6 And equally objectionable as prior restraint is the imposition of license taxes that renders publication or advertising more burdensome.7 On the other hand, subsequent punishment is the imposition of liability to the individual exercising his freedom. It may be in any form, such as penal, civil or administrative penalty.

I

The Issuance of the Press Release
Constitutes Censorship

In the case at bar, the first issue is whether the Press Release of the NTC constitutes censorship. Reference to its pertinent portions is therefore imperative. Thus:

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 broast 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 broast/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 said companies.

x xx : x x x

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.

The threat of suspension, revocation and/or cancellation of the licenses or authorization hurled against radio and television stations should they air the Garci Tape is definitely a form of prior restraint. The license or authorization is the life of every media station. If withheld from them, their very existence is lost. Surely, no threat could be more discouraging to them than the suspension or revocation of their licenses. In Far Eastern Broasting v. Dans,8 while the need for licensing was rightly defended, the defense was for the purpose, not of regulation of broast content, but for the proper allocation of airwaves. In the present case, what the NTC intends to regulate are the contents of the Garci Tapes - the alleged taped conversation involving the President of the Philippines and a Commissioner of the Commission on Election. The reason given is that it is a "false information or willful misrepresentation." As aptly stated by Mr. Justice Antonio T. Carpio that "the NTC action in restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the message of the Garci Tapes."

History teaches us that licensing has been one of the most potent tools of censorship. This powerful bureaucratic system of censorship in Medieval Europe was the target of John Milton's speech Areopagita to the Parliament of England in 1644.9 Under the Licensing Act of 1643, all printing presses and printers were licensed and nothing could be published without the prior approval of the State or the Church Authorities. Milton vigorously opposed it on the ground of freedom of the press. His strong advocacy led to its collapse in 1695. In the U.S., the first encounter with a law imposing a prior restraint is in Near v. Minnesota.10 Here, the majority voided the law authorizing the permanent enjoining of future violations by any newspaper or periodical if found to have published or circulated an "obscene, lewd and lascivious" or "malicious, scandalous and defamatory" issue. While the dissenters maintained that the injunction constituted no prior restraint, inasmuch as that doctrine applied to prohibitions of publication without advance approval of an executive official, the majority deemed the difference of no consequence, since in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge. In other similar cases, the doctrine of prior restraint was frowned upon by the U.S. Court as it struck down loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them, and as it voided other restrictions on First Amendment rights.11 Then there came the doctrine that prior licensing or permit systems were held to be constitutionally valid so long as the discretion of the issuing official is limited to questions of times, places and manners.12 And in New York Times Company v. United States,13 the same Court, applying the doctrine of prior restraint from Near, considered the claims that the publication of the Pentagon Papers concerning the Vietnam War would interfere with foreign policy and prolong the war too speculative. It held that such claim could not overcome the strong presumption against prior restraints. Clearly, content-based prior restraint is highly abhorred in every jurisdiction.

Another objectionable portion of the NTC's Press Release is the warning that it will not hesitate "to apply with full force the provisions of the Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators. This is a threat of a subsequent punishment, an equally abhorred form of censorship. This should not also be countenanced. It must be stressed that the evils to be prevented are not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.14 There is logic in the proposition that the liberty of the press will be rendered a "mockery and a delusion" if, while every man is at liberty to publish what he pleases, the public authorities might nevertheless punish him for harmless publications. In this regard, the fear of subsequent punishment has the same effect as that of prior restraint.

It being settled that the NTC's Press Release constitutes censorship of broast media, the next issue is whether such censorship is justified.

II

The Issuance of the Press Release
Constitutes an Unjustified Form of Censorship

Settled is the doctrine that any system of prior restraint of expression comes to this Court bearing a presumption against its constitutional validity.15 The Government thus carries a heavy burden of showing justification for the enforcement of such a restraint.16

Various tests have been made to fix a standard by which to determine what degree of evil is sufficiently substantial to justify a resort to abridgment of the freedom of expression as a means of protection and how clear and imminent and likely the danger is. Among these tests are the Clear and Present Danger, Balancing, Dangerous Tendency, Vagueness, Overbreadth, and Least Restrictive Means.

Philippine jurisprudence shows that we have generally adhered to the clear and present danger test. Chief Justice Puno, in his ponencia, has concluded that the Government has not hurdled this test. He cited four (4) reasons to which I fully concur.

The justification advanced by the NTC in issuing the Press Release is that "the taped Conversations have not been duly authenticated nor could it be said at this time that the tape contains an accurate and truthful representation of what was recorded therein" and that "its continuous airing or broast is a continuing violation of the Anti-Wiretapping Law."

To prevent the airing of the Garci Tapes on the premise that their contents may or may not be true is not a valid reason for its suppression. In New York Times v. Sullivan,17 Justice William Brennan, Jr. states that the authoritative interpretation of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth 'whether administered by judges, jurists, or administrative officials - - and especially not one that puts the burden of proving truth on the speaker. He stressed that "the constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and belief which are offered." Moreover, the fact that the tapes were obtained through violation of the Anti-Wiretapping Law does not make the broast media privy to the crime. It must be stressed that it was a government official who initially released the Garci Tapes, not the media.

In view of the presence of various competing interests, I believe the present case must also be calibrated using the balancing test. As held in American Communication Association v. Douds,18 "when a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demand the greater protection under the circumstances presented. In the present case, perched at the one hand of the scale is the government's interest to maintain public order, while on the other hand is the interest of the public to know the truth about the last national election and to be fully informed. Which of these interests should be advanced? I believe it should be that of the people.

The right of the people to know matters pertaining to the integrity of the election process is of paramount importance. It cannot be sideswiped by the mere speculation that a public disturbance will ensue. Election is a sacred instrument of democracy. Through it, we choose the people who will govern us. We entrust to them our businesses, our welfare, our children, our lives. Certainly, each one of us is entitled to know how it was conducted. What could be more disheartening than to learn that there exists a tape containing conversations that compromised the integrity of the election process. The doubt will forever hang over our heads, doubting whether those who sit in government are legitimate officials. In matters such as these, leaving the people in darkness is not an alternative course. People ought to know the truth. Yes, the airing of the Garci Tapes may have serious impact, but this is not a valid basis for suppressing it. As Justice Douglas explained in his concurring opinion in the New York Times, "the dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. A debate of large proportions goes in the nation over our posture in Vietnam. Open debate and discussion of public issues are vital to our national health."

More than ever, now is the time to uphold the right of the Filipinos to information on matters of public concern. As Chief Justice Hughes observed: "The administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and liberty by criminal alliances and official neglect, emphasize the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any less necessary the immunity of the press from previous restraint in dealing with official misconduct."19 Open discussions of our political leaders, as well as their actions, are essential for us to make informed judgments. Through these, we can influence our government's actions and policies. Indeed, no government can be responsive to its citizens who have refrained from voicing their discontent because of fear of retribution.

III

A free press is an indispensable component of
a democratic and free society.

Burke once called the Press the Fourth Estate in the Parliament. This is because its ability to influence public opinion made it an important source in the governance of a nation. It is considered one of the foundations of a democratic society. One sign of its importance is that when a tyrant takes over a country, his first act is to muzzle the press. Courts should therefore be wary in resolving cases that has implication on the freedom of the press - - to the end that the freedom will never be curtailed absent a recognized and valid justification.

In fine let it be said that the struggle for freedom of expression is as ancient as the history of censorship. From the ancient time when Socrates was poisoned for his unorthodox views to the more recent Martial Law Regime in our country, the lesson learned is that censorship is the biggest obstacle to human progress. Let us not repeat our sad history. Let us not be victims again now and in the future.

WHEREFORE, I vote to CONCUR with the majority opinion.

Endnotes:


1 Article 19, Adopted on December 10, 1948.

2 3 S.C.R. 697 (1990)

3 Separate Opinion of Chief Justice Hilario G. Davide Jr. (ret.), in Kapisanan ng mga Brodkasters sa Pilipinas, G.R. No. 102983. March 5, 1992.

4 Bernas, The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 ed., p. 225.

5 Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961); Freedman v. Maryland, 380 U.S. 51 (1965).

6 Near v. Minnesota, 283 U.S. 697 (1931); New York Times Co. v. United States, 403 U.S. 713 (1971).

7 Supra, footnote 4, citing Grosjean v. American Press Co., 297 U.S. 233 (1936), Murdock v. Pennsylvania, 319 U.S. 105 (1943) and American Bible Society v. City of Manila, 101 Phil. 386 (1957).

8 137 SCRA 628 (1985).

9 http://www.beacon for freedom.org/about_project/history.html, The Long History of Censorship, p. 3.

10 283 U.S. 697 (1931).

11 Lovell v. Griffin, 303 U.S. 444 (1938); Cantwell v. Connecticut, 310 U.S. 296 (1940); Kunz v. New York, 340 U.S. 290 (1951); Nietmotko v. Maryland, 340 U.S. 268 (1951); Staub v. City of Baxley, 355 U.S. 313 (1958).

12 Cox v. New Hampshire, 312 U.S. 569 (1941); Paulos v. New Hampshire, 345 U.S. 395 (1953).

13 403 U.S. 713. 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971).

14 T. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative powers of the States of the American Union 885-86 (8th ed. 1927).

15 Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

16 Supra, p. 228, footnote 4.

17 376 U.S. 254 (1964).

18 339 U.S. 382 (1950).

19 Near v. Minnesota, 179 Minn. 40; 228 N.W. 326.

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