Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 168338 February 15, 2008
FRANCISCO CHAVEZ, petitioner,
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents.
SEPARATE OPINION
(DISSENTING AND CONCURRING)
TINGA, J.:
This case, involving as it does the perennial clash between fundamental individual freedoms and state power, confronts the Court with a delicate and difficult balancing task.
With all due respect with a little more forbearance, the petition could have been conduced to a denouement of congruity but without diminishing the level of scrutiny that the crucial stakes demand. I trust though that future iterations of this Court, more divorced from some irrational aspects of the passions of these times, will further refine the important doctrines laid down today.
Several considerations guide my vote to grant the petition - to issue the quested writ against the respondent Department of Justice Secretary Raul M. Gonzalez (DOJ Secretary), but not as to respondent National Telecommunications Commission (NTC).
I.
I begin with some observations on the petition itself filed by former Solicitor General Francisco Chavez, brought forth in his capacity "as a citizen, taxpayer and a law practitioner" against the DOJ Secretary and the NTC. At a crucial point during the deliberations on this case, much of the focus within the Court was on the aspect of the case concerning the NTC, to the exclusion of the aspect concerning the DOJ Secretary. However, the petition itself only minimally dwells on the powers of the National Telecommunications Commission (NTC).
The petition was filed on 21 June 2005, less than a month after the so-called Hello Garci tapes (Garci tapes) hit the newstands. The petition narrates that a few days after reports on the Garci tapes became public, respondent DOJ Secretary "threatened that everyone found to be in possession of the controversial audio tape, as well as those broadcasting it or printing its contents, were liable for violation of the Anti-Wiretapping Law,"1 and subsequently he 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 the said tape.
Then, a Press Release was issued by respondent NTC, essentially warning broadcast stations, "[i]f it has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation…[,] 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."2 These essentially are the antecedent facts raised in the petition.
Petitioner presents two general arguments for our determination: that respondents violated the constitutional provisions on the freedom of expression and of the press,3 and of the right of the people to information on matters of public concern;4 and that the NTC acted beyond its powers as a regulatory body when it warned broadcast stations of consequences if they continued to air the contents of the disputed tapes.5
Fifteen (15) pages are assigned to the first issue, while four (4) pages are allotted to the second issue concerning the NTC. In the context of arguing that there had been prior restraint, petitioner manifests that "the threat of crackdown on media and the public were calculated to sow fear and terror in advance of actual publication and dissemination of the contents of the controversial tapes."6 Because of such "fear and terror," the public was denied free access to information as guaranteed by the Constitution.7
Only four (4) pages are devoted to whether the NTC exceeded its discretion when it issued the Press Release. About two (2) of the four (4) pages are utilized to cite the statutory provisions delineating the powers and functions of the NTC. The citations are geared toward the claim that "NTC is independent in so far as its regulatory and quasi-judicial functions are concerned."8 Then the petition argues that nothing in the functions of the NTC "warrants the pre-emptive action it took on June 11, 2005 of declaring in a Press Release that airing of the contents of the controversial tape already constituted a violation of the Anti-Wire Tapping Law."9 The petition also states that "[w]orse, the judgment of NTC was outright, without a hearing to determine the alleged commission of a crime and violation of the certificate of authority issued to radio and television stations,"10 though this point is neither followed up nor bolstered by appropriate citations which should be plenty.
One relevant point of fact is raised in the Comment filed by the Office of the Solicitor General (OSG) in behalf of respondents. Three (3) days after the issuance of the Press Release, the NTC and the Kapisanan ng mga Brodkaster sa Pilipinas (KBP) issued a Joint Statement crafted after a dialogue between them. The Joint Statement declares:
2. NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty.
3. NTC did not issue any Memorandum Circular or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views.
4. What is being asked by NTC is that the exercise of press freedom be done responsibly.11
II.
Based on the petition, the determinative questions appear to be: (1) whether the DOJ Secretary may be enjoined from prosecuting or threatening to prosecute any person for possessing or broadcasting the contents of the Garci tapes, an act which allegedly violates the free expression clause if not also the right to information clause; and (2) whether the NTC may be enjoined from sanctioning or threatening to sanction any broadcast media outlet for broadcasting the Garci tapes, an action also alleged to infringe the aforementioned constitutional rights.
It should be stressed that there are critical differences between the factual and legal milieu of the assailed act of the DOJ Secretary, on one hand, and that of the questioned conduct of the NTC, on the other. The act complained of the NTC consists in the issuance of a Press Release, while that of the DOJ Secretary is not encapsulated in a piece of paper but comprised in utterances which nonetheless were well documented by the news reports at that time. There is an element of caution raised in the Press Release in that it does not precisely sanction or threaten to immediately sanction the broadcast media for airing the Garci tapes, but it raises that possibility on the condition that "it has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation." No such suspensive condition is embodied in the assailed acts of the DOJ Secretary.
And most critical in my view is the distinction between the NTC and the DOJ Secretary with respect to the breadth and reach of their ability to infringe upon the right to free expression. The NTC is a quasi-judicial regulatory body attached to the Department of Transportation and Communications exercising regulatory jurisdiction over a limited set of subjects: the broadcast media, telecommunications companies, etc. In the scope of its regulatory jurisdiction, it concededly has some capacity to impose sanctions or otherwise perform acts that could impinge on the right of its subjects of regulation to free expression, although the precise parameters of its legal authority to exercise such actions have not yet been fully defined by this Court.
In contrast, the ability of the DOJ Secretary and the office that he heads to infringe on the right to free expression is quite capacious. Unlike the NTC whose power of injunction and sanction is limited to its subjects of regulation, the DOJ Secretary heads the department of government which has the premier faculty to initiate and litigate the prosecution of just about anybody.
III.
It should be assumed without controversy that the Garci tapes fall within the protection of the free expression clause.
Much has been said in homage to the right to free expression. It is precisely the underlying reason I can write this submission, and the reader can read this opinion or any news account concerning the decision and its various separate opinions. The revolutions we celebrate in our history books were animated in part by an insistence that this right should be recognized as integral.12 The right inheres in the first yawl of the newborn infant, and allows a person to speak honestly in the throes of death.
In 20th century American jurisprudence, the right to free speech and expression has been rightly linked to the inalienable right to liberty under the due process clause.13 Indeed, liberty cannot be actualized unless it encompasses liberty of speech and expression. As a consequence, the same methodology as applied to due process and equal protection cases may hold as well to free expression cases.
In my view, the operative principles that should govern the adjudication of free expression cases are uncomplicated. The infringement on the right by the State can take the mode of a content-based regulation or a content-neutral regulation. With respect to content-based regulations, the only expressions that may be proscribed or punished are the traditionally recognized unprotected expressions - those that are obscene, pose danger to national security or incite imminent lawless action, or are defamatory.14 In order that such unprotected expressions may be restrained, it must be demonstrated that they pose a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, such danger being grave and imminent as well. But as to all other protected expressions, there can be no content-based regulation at all. No prior restraint, no subsequent punishment.
For as long as the expression is not libelous or slanderous, not obscene, or otherwise not dangerous to the immediate well-being of the State and of any other's, it is guaranteed protection by the Constitution. I do not find it material whether the protected expression is of a political, religious, personal, humorous or trivial nature - they all find equal comfort in the Constitution. Neither should it matter through what medium the expression is conveyed, whether through the print or broadcast media, through the Internet or through interpretative dance. For as long as it does not fall under the above-mentioned exceptions, it is accorded the same degree of protection by the Constitution.
Still concerning the protection afforded to the tapes, I do take issue with Justice Carpio's view that "[t]he airing of the Garci tapes is essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner…" and that the contents of the tapes "affect gravely the sanctity of the ballot."15 These statements are oriented towards the conclusion that "[i]f 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."16 Yet even the majority opinion acknowledges that "the integrity of the taped conversation is also suspect…" and "[t]he identity of the wire-tappers, the manner of its commission, and other related and relevant proofs are some of the invisibles of this case…given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law."17
To be blunt, it would be downright pretentious for the Court to attribute to the tapes any definitive character, political or otherwise, because there is simply no basis for us to make such conclusion at this point. But even if they are not of a political character, they nonetheless find protection under the free expression clause.
IV.
Given the constitutionally protected character of the tapes, it still falls upon the petition to establish that there was an actual infringement of the right to expression by the two denominated respondents - the DOJ Secretary and the NTC - in order that the reliefs sought may avail. There are two distinct (though not necessarily exclusive) means by which the infringement can be committed by either or both of the respondents - through prior restraint or through an act that creates a chilling effect on the exercise of such right.
I turn first to the assailed acts of the NTC.
It is evident from the Decision and the concurring opinion of Justice Carpio that they give primary consideration to the aspect relating to the NTC, notwithstanding the relative lack of attention devoted by the petition to that issue. The impression they leave thus is that the assailed acts of the NTC were somehow more egregious than those of the DOJ Secretary. Worse, both the Decision and the concurring opinion reach certain conclusions on the nature of the Press Release which are, with due respect, untenable.
IV-A.
As a means of nullifying the Press Release, the document has been characterized as a form of prior restraint which is generally impermissible under the free expression clause. The concept of prior restraint is traceable to as far back as Blackstone's Commentaries from the 18th century. Its application is integral to the development of the modern democracy. "In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare."18 In Nebraska Press Association v. Stuart,19 the United States Supreme Court noted that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights."20
Yet prior restraint "by contrast and by definition, has an immediate and irreversible sanction."21 The assailed act of the NTC, contained in what is after all an unenforceable Press Release, hardly constitutes "an immediate and irreversible sanction." In fact, as earlier noted, the Press Release does not say that it would immediately sanction a broadcast station which airs the Garci tapes. What it does say is that only "if it has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation" that the stations could be subjected to possible suspension. It is evident that the issuance does not prohibit the airing of the Garci tapes or require that the broadcast stations obtain permission from the government or the NTC to air such tapes.
How then have my esteemed colleagues, the Chief Justice and Justice Carpio, arrived at their conclusion that the Press Release operated as a prior restraint? Justice Carpio characterizes the Press Release as a "warning," and the document does use the word "warned," yet a warning is not "an immediate and irreversible sanction." The warning embodied in the Press Release is neither a legally enforceable vehicle to impose sanction nor a legally binding condition precedent that presages the actual sanction. However one may react to the Press Release or the perceived intent behind it, the issuance still does not constitute "an immediate and irreversible sanction".
On the other hand, the Decision discusses extensively what prior restraint is, characterizing it, among others things, as "official government restrictions on the press or other forms of expression in advance of actual publication or dissemination."22 The majority enumerates certain governmental acts which constitute prior restraint, such as the approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; injunctions against publication; the closure of the business or printing offices of certain newspapers; or more generally, "[a]ny law or official [act] that requires some form of permission to be had before publication can be made."23
The Press Release does not fit into any of the acts described above in the majority opinion. Neither can it be identified as an "official government restriction" as it simply does not levy any actual restriction on the subjects of NTC regulation. Still, without undertaking a demonstration how the Press Release actually restrained free expression, the majority surprisingly makes a leap of logic, concluding as it does that such an informal act as a press statement is covered by the prior restraint concept.24 As with Justice Carpio, the majority does not precisely explain how the Press Release could constitute an actual restraint, worded as it was with nary a notion of restriction and given its lack "of an immediate and irreversible sanction."
Absent prior restraint, no presumption of invalidity can arise.
IV-B.
I fear that the majority especially has unduly fused the concepts of "prior restraint" and "chilling effect." There are a few similarities between the two concepts especially that both come into operation before the actual speech or expression finds light. At the same time, there are significant differences.
A government act that has a chilling effect on the exercise of free expression is an infringement within the constitutional purview. As the liberal lion Justice William Brennan announced, in NAACP v. Button,25 "the threat of restraint, as opposed to actual restraint itself, may deter the exercise of the right to free expression almost as potently as the actual application of sanctions."26 Such threat of restraint is perhaps a more insidious, if not sophisticated, means for the State to trample on free speech. Protected expression is chilled simply by speaking softly while carrying a big stick.
In distinguishing chilling effect from prior restraint, Nebraska Press Association, citing Bickel, observed, "[i]f it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint "freezes" it at least for the time."27 An act of government that chills expression is subject to nullification or injunction from the courts, as it violates Section 3, Article III of the Constitution. "Because government retaliation tends to chill an individual's exercise of his right to free expression, public officials may not, as a general rule, respond to an individual's protected activity with conduct or speech even though that conduct or speech would otherwise be a lawful exercise of public authority.28
On the one hand, Justice Carpio does not bother to engage in any "chilling effect" analysis. On the other hand, the majority does conclude that the acts of the NTC had a chilling effect. Was there truly a chilling effect resulting from the Press Release of the NTC?
While the act or issuance itself may evince the impression of a chilling effect, there still must be factual evidence to support the conclusion that a particular act of government actually engendered a chilling effect. There appears to be no case in American jurisprudence where a First Amendment claim went forward in the absence of evidence that speech was actually chilled.29
In a case decided just last year by a U.S. District Court in Georgia,30 the following summary was provided on the evidentiary requirement in claims of a chilling effect in the exercise of First Amendment rights such as free speech and association:
4. Proof of Chilling Effect
Defendants' argue that Plaintiffs have failed to introduce evidence of a chilling effect, which is required to maintain a First Amendment claim. There is some uncertainty regarding the extent of evidence required to sustain a First Amendment challenge based on the chilling effect of compelled disclosure of protected political activity. See In re Grand Jury Proceeding, 842 F.2d 1229, 1235-36 (11th Cir.1988). The Supreme Court has indicated on several occasions that some evidence of a chilling effect is required.
In NAACP, for example, the Supreme Court accepted that a chilling effect would result from the compelled disclosure of the NAACP's membership lists because of "uncontroverted evidence" in the record that members of the NAACP had suffered past adversity as a result of their known membership in the group. 357 U.S. at 464-65, 78 S.Ct. 1163. The Court in Buckley v. Valeo, however, emphasized, in rejecting a challenge to campaign finance disclosure laws based on its alleged chilling effect on political association, that there was no record evidence of a chilling effect proving a violation of the right to association. Buckley, 424 U.S. at 71-72, 96 S.Ct. 612 (noting that failure to tender evidence of chilling effect lessened scrutiny applied to First Amendment challenge to campaign donation disclosure laws).
Seizing on this apparent evidentiary requirement, several lower courts have rejected right of association challenges for lack of evidence of a chilling effect. See, e.g., Richey v. Tyson, 120 F.Supp.2d 1298, 1324 (S.D.Ala.2000) (requiring, in challenge of campaign finance law, evidence of a "reasonable probability" of threats, harassment, or reprisals "from sources such as specific evidence of past or present harassment of members or of the organization, a pattern of threats, specific manifestations of public hostility, or conduct visited on organizations holding similar views"); Alabama State Federation of Teachers, AFL-CIO v. James, 656 F.2d 193, 197 (5th Cir. Unit B Sept.17, 1981) (rejecting right of association challenge for lack of evidence of chilling effect); Int'l Organization of Masters, Mates, and Pilots, 575 F.2d 896, 905 (D.C.Cir.1978) (same).
But the Eleventh Circuit has drawn a distinction between challenges to political campaign donation disclosure rules of the sort at issue in Buckley and Richey and challenges to government investigations into "particular political group or groups" of the sort in NAACP and at issue in this case. See In re Grand Jury Proceeding, 842 F.2d at 1236. In doing so, the Eleventh Circuit suggested that a "more lenient" showing applies to targeted investigations because "the government investigation itself may indicate the possibility of harassment." Id.; see also Pollard v. Roberts, 283 F.Supp. 248, 258 (D.C.Ark.1968), aff'd per curiam 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) (finding prosecutor's attempt to subpoena the names of contributors to a political campaign unconstitutional, despite "no evidence of record in this case that any individuals have as yet been subjected to reprisals on account of the contributions in question," because "it would be naive not to recognize that the disclosure of the identities of contributors to campaign funds would subject at least some of them to potential economic or political reprisals of greater or lesser severity"); cf. also Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1366-67 (11th Cir.1999) (concluding, without discussing record evidence of chilling effect, that statute which required disclosure of names of principal stockholders of adult entertainment establishments was abridgement of First Amendment).
In addition, concerns about the economic vulnerabilities of public employees have led courts to more easily find the presence of a chilling effect on disclosure rules imposed on public employees. See, e.g., Local 1814, Int'l Longshoremen's Ass'n, AFL-CIO v. Waterfront Commission of New York Harbor, 667 F.2d 267, 271-72 (2d Cir.1981). Where the government has "pervasive control over the economic livelihood" or "professional destiny" of its employees, it may be obvious that compelling disclosure of organizational affiliations under threat of discipline could create a "substantial danger" of an "inevitable" chilling effect. Id. Thus, when examining freedom of association challenges in the public employment context, courts have applied a "common sense approach." Id. at 272; see also Shelton, 364 U.S. at 486, 81 S.Ct. 247 (noting, in finding questionnaire distributed to public teachers inquiring into their organizational memberships unconstitutional, that burden on teacher's freedom to associate was "conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made," and not discussing evidence of chilling effect); Fraternal Order of Police, 812 F.2d at 119-20 ("We recognize that the record contains no evidence that would support a finding that a required response to this question would chill the applicant's or family member's associational activities. However, in light of the absence of any legitimate interest asserted by the City to justify the inquiry, we conclude that the question would not even withstand a more relaxed scrutiny than that usually applied to questions which seek disclosure of associational ties.").31
It makes utter sense to impose even a minimal evidentiary requirement before the Court can conclude that a particular government action has had a chilling effect on free speech. Without an evidentiary standard, judges will be forced to rely on intuition and even personal or political sentiments as the basis for determining whether or not a chilling effect is present. That is a highly dangerous precedent, and one that clearly has not been accepted in the United States. In fact, in Zieper v. Metzinger,32 the U.S. District Court of New York found it relevant, in ruling against the petitioner, that Zieper "has stated affirmatively that his speech was not chilled in any way."33 "Where a party can show no change in his behavior, he has quite plainly shown no chilling of his First Amendment right to free speech."34
In view of its regulatory jurisdiction over broadcast media, the ability of the NTC to infringe the right to free expression extends only to its subjects of regulation, not to private persons such as petitioner. Thus, to consider at bar whether or not the NTC Press Release had a chilling effect, one must look into the evidence on record establishing the broadcast media's reaction to the Press Release.
The majority states that "[t]here is enough evidence of chilling effect of the complained acts of record," alluding to "the warnings given to media [which] came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media."35 With due respect, I submit that what the record establishes is merely the presence of the cause for chilling (the Press Release), but not the actual chilling effect itself on the broadcast media. In that respect, the Joint Statement of the NTC and the KBP executed just three (3) days after the issuance of the Press Release, becomes material.
In the employment of the "chilling effect mode of analysis," disregarding the actual effects would mean dispensing with any evidentiary requirement for the constitutional claim. That is a doctrine which does not bode well for the Court's future in constitutional adjudication, and one I expect that will be significantly modified in due time.
In the Joint Statement, the KBP assented to the manifestation that "NTC did not issue any [Memorandum Circular] or Order constituting a restraint of press freedom or censorship, as well as disavowed having acted or intending "to limit or restrict the interview of members of the opposition or free expression of views."36 The Joint Statement can certainly be taken in favor of the NTC as proof that its Press Release did not actually create a chilling effect on the broadcast media. On its face, it evinces the KBP's contentment with the Press Release and all other steps taken by the NTC with respect to the Garci tapes, coupled with the acknowledgment that the NTC had not infringed the right to free expression of its subjects of regulation.
The majority casts aspersions on the KBP for "inexplicably joining the NTC in issuing an ambivalent Joint Press Statement" and on the perceived "silence on the sidelines on the part of some media practitioners."37 Yet these are derogatory conjectures that are not supported by the record. It is quite easy to draw such negative inference, but there is another inference that can be elicited from the evidence on record - that the KBP was so satisfied with the NTC's actions it consented to the averments in the Joint Statement. Since Independence, and outside of the Marcos years, there is no tradition of cowardice on the part of the Philippine media, even in the face of government retribution. Indeed, it is false and incongruous to dilute with aspersions of docility and inertness the true image of the most robust, vigilant and strident media in Asia.
The best indication that the Philippine broadcast media was cowered or chilled by the NTC Press Release, if ever, would have been its initiation of a suit similar to that at bar, or its participation herein. The fact that it did not can lead to the reasonable assumption that the Press Release did not instill fear in the members of the broadcast media, for they have since then, commendably and in true-to-form fashion challenged before the courts other NTC issuances which they perceived as actual threats to their right to free expression.38
It bears adding that I had proposed during the deliberations of this case that the KBP or other large media organizations be allowed to intervene should they be so minded, if only to elicit their views for the record whether the NTC by issuing the Press Release truly chilled the exercise of their rights to expression, notwithstanding the Joint Statement. After all, it would be paternalistic at best, presumptuous at worst, for the Court to assume that conclusion without affording the broadcast media the opportunity to present its views on the question. Yet a majority of the members of the Court declined to take that step, thereby disallowing the introduction of more sufficient evidence to warrant a ruling against the NTC.
Thus, we are left with utter paucity of evidence that the NTC had infringed the press freedom of its subjects of regulation mainly because of the broadcast media's non-participation in the petition at bar. If only on that account, I have to vote against the writ sought against the NTC. To decide otherwise would simply set an injudicious precedent that permits the affirmative relief to constitutional claims without having to bother with the need for evidence.
There is another point raised with respect to the NTC aspect of this case, and that is the question of whether the NTC actually has the statutory authority to enjoin or sanction the broadcast of the tapes. The majority opinion does not conclusively settle that question, and that is for the best, given the absence of comprehensive arguments offered by the petitioner on that issue. I reserve my right to offer an opinion on that question in the appropriate case. Suffice it to say, there are at least two other cases now pending with this Court which raise precisely that question as the central issue and not merely as an afterthought. Those cases, which do offer more copious arguments on that issue than those presented before us, would provide a more fortuitous venue for the settlement of those questions.
IV-C.
The majority and concurring opinions hardly offer any rebuke to the DOJ Secretary even as they vote to grant affirmative relief against his actions. This ensued, I suspect, due to the undue focus placed on the arguments concerning the NTC, even though the petition itself was not so oriented. But for my part, it is the unequivocal threats to prosecute would-be-offenders, made no less by the head of the principal law agency of the government charged with the administration of the criminal justice system,39 that constitute the violation of a fundamental freedom that in turn warrants this Court's intervention.
The particular acts complained of the DOJ Secretary are explained in detail in the petition,40 narrated in the decision,41 and corroborated by contemporary news accounts published at that time.42 The threats are directed at anybody in possession of, or intending to broadcast or disseminate, the tapes. Unlike the NTC, the DOJ Secretary has the actual capability to infringe the right to free expression of even the petitioner, or of anybody for that matter, since his office is empowered to initiate criminal prosecutions. Thus, petitioner's averments in his petition and other submissions comprise the evidence of the DOJ Secretary's infringement of the freedom of speech and expression.
Was there an actual infringement of the right to free expression committed by the DOJ Secretary? If so, how was such accomplished? Quite clearly, the DOJ Secretary did infringe on the right to free expression by employing "the threat of restraint,"43 thus embodying "government retaliation [that] tends to chill an individual's exercise of his right to free expression."44 The DOJ Secretary plainly and directly threatened anyone in possession of the Garci tapes, or anyone who aired or disseminated the same, with the extreme sanction of criminal prosecution and possible imprisonment. He reiterated the threats as he directed the NBI to investigate the airing of the tapes. He even extended the warning of sanction to the Executive Press Secretary. These threats were evidently designed to stop the airing or dissemination of the Garci tapes - a protected expression which cannot be enjoined by executive fiat.
Tasked with undertaking the defense of the DOJ Secretary, the OSG offered not even a ghost of a contest as soon as the bell for the first round rang. In abject surrender, it squeezed in just one paragraph45 in its 27-page Comment for that purpose.
The arguments offered in that solitary paragraph are meager. It avers that the media reports are without probative value or, at best, inconclusive as the declarations therein may have been quoted inaccurately or out of context.46 Yet the OSG does not deny that the statements were made,47 failing even to offer what may have been the "accurate context." The OSG also points out that the DOJ Secretary has not actually "made any issuance, order or instruction to the NBI to go after such media organizations." Yet the fact that the DOJ Secretary has yet to make operational his threats does not dissuade from the conclusion that the threats alone already chilled the atmosphere of free speech or expression.
V.
By way of epilogue, I note that the Garci tapes have found shelter in the Internet48 after the broadcast media lost interest in airing those tapes, after the newsprint that contained the transcript had dissembled. The tapes are widely available on the Internet and not only in websites maintained by traditional media outfits, but also in such media-sharing sites as Google-owned YouTube, which has at least 20 different files of the tapes.49 Internationally popular websites such as the online encyclopedia Wikipedia have linked to the tapes as well.50 Then there is the fact that excerpts of the tapes were remixed and widely distributed as a popular ringtone for cellular phones.
Indeed, the dimensions of the issue have long extended beyond the Philippine mass media companies and the NTC. This issue was hardly limited to the right of Philippine broadcast media to air the tapes without sanction from the NTC. It involved the right of any person wherever in the world situated to possess and disseminate copies of the tape without fear of reprisal from the Philippine government.
Still, the vitality of the right to free expression remains the highlight of this case. Care and consideration should be employed in presenting such claims before the courts, and the hope is for a growing sophistication and specialization in the litigation of free speech cases.
For all the above, I vote to GRANT the petition against respondent DOJ Secretary and DISMISS the same insofar as the NTC is concerned.
DANTE O. TINGA
Associate Justice
Footnotes
1 Rollo, p. 8.
2 Id. at 10-11.
3 Const., Art. III, Sec. 4.
4 Const., Art. III, Sec. 7. The Decision however has properly refused to dwell on the right to information as central to the case at bar. See Decision, p. 9.
5 Rollo, p. 18.
6 Id. at 23.
7 Id. at 24.
8 Rollo, p. 34.
9Id. at 34.
10 Id. at 37.
11 Id. at 111.
12 "Freedom of expression was a concept unknown to Philippine jurisprudence prior to 1900. It was one of the burning issues during the Filipino campaign against Spain, first, in the writings of the Filipino propagandists, and, finally, in the armed revolt against the mother country. Spain's refusal to recognize the right was, in fact, a prime cause of the revolution." J. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (1996 ed.), at 203-204.
13 Beginning with Gitlow v. New York, 268 U.S. 652 (1925). "For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." Id. at 666. "The incorporation of the other First Amendment rights followed. In 1931, the Supreme Court held squarely that the freedom of the press is within the protection of the 'liberty' guaranteed in the Fourteenth Amendment (Near v. Minnesota, [283 U.S. 697 (1931)] ; in 1937 the right of peaceable assembly was included (DeJonge v. Oregon, 299 U.S. 353); and in 1940 the freedom-of-religion provision was used to invalidate a Connecticut statute requiring a permit for all solicitors for religious and charitable causes (Cantwell v. Connecticut, [310 U.S. 296 (1940)]" A.T Mason & W. Beaney, American Constitutional Law (4th ed.), at 496-497.
14 The views of this writer on the proper interpretation of our libel laws in light of Section 4, Article III of the Constitution were expressed in Guingging v. Court of Appeals, G.R. No. 128959, 30 September 2005, 471 SCRA 516.
15 Separate Concurring Opinion of Justice Carpio, p. 16.
16 Id.
17 Decision, p. 34.
18 See e.g., Patterson v. Colorado, 205 U.S. 454 (1907); Near v. Minnesota, 283 U.S. 697 (1931).
19 427 U.S. 539 (1976).
20 Id. at 559.
21 Id.
22 Decision, p. 19; citing J. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 225 (2003 ed.)
23 Id.
24 Id. at 35.
25 371 U.S. 415 (1963).
26 See NAACP v. Button, 371 U.S. 415, 433 (1963). Emphasis supplied.
27 Supra note 19 at 559; citing A. Bickel, The Morality of Consent (1975).
28 The Baltimore Sun Company v. Ehrlich, No. 05-1297 (U.S. 4th Circuit), 15 February 2006; citing Board of Country Commissioners v. Umbehr, 518 U.S. 668. 674 (1996).
29 "The Court notes, however, that it has found no case in which a First Amendment claim went forward in the absence of allegations or evidence that speech was actually chilled." Zieper v. Metzinger, No. 00 Civ. 5595 (PKC), U.S. District Court, S.D. New York, 22 August 2005; citing Davis v. Village Park II Realty Co., 578 F.2d at 464.
30 Local 491, International Brotherhood of Police Officers v. Gwinnet County, 510 F.Supp. 2d1271.
31 Id. at 1294-1296.
32Supra note 18.
33 Id. at 526.
34 Id., citing Curly v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001), at 73.
35Decision, p. 35.
36 Rollo, p. 86.
37Decision, pp. 35-36.
38 At least one case which has reached this Court challenges the validity of certain issuances of the NTC which were promulgated or reiterated shortly after the February 2006 declaration of a "state of emergency."
39 See Sec. 1, Chapter 1, Title III, Book IV, Administrative Code of 1987, which contains the "Declaration of Policy" of the Department of Justice. "It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; xxx"
40 Rollo, pp. 8-10.
41 Decision, pp. 3-4.
42 See e.g., "DOJ warns media vs. playing tapes" (first published by ABS-CBN News on 10 June 2005), at http://www.abs-cbnnews.com/topofthehour.aspx?StoryId=7564 (last visited, 13 February 2008).
43 See note 26.
44 See note 28.
45 Rollo, p. 75.
46 Id.
47 See also note 42.
48 Already, the U.S. Supreme Court in Reno v. ACLU , 521 U.S. 844 had pronounced that the factors that justify the government regulation of the broadcast medium are not present in cyberspace. It will be inevitable that this Court will soon have to adjudicate a similar issue.
49 See http://www.youtube.com/results?search_query=Hello+Garci. ("Search Results for "Hello Garci").
50See "Hello Garci scandal" (http://en.wikipedia.org/wiki/Hello_Garci).
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