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.
DECISION
PUNO, C.J.:
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and so
inextricably woven into the right to free speech and free expression, that any
attempt to restrict it must be met with an examination so critical that only a
danger that is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom.
We have struck down laws and issuances meant to curtail this right, as
in Adiong v. COMELEC,1Burgos v. Chief of Staf,2Social Weather Stations v.
COMELEC,3 and Bayan v. Executive Secretary Ermita.4When on its face, it is
clear that a governmental act is nothing more than a naked means to
prevent the free exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004
national and local elections. 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 Philippines, Gloria Macapagal Arroyo,

and a high-ranking official of the Commission on Elections (COMELEC). The

conversation was audiotaped allegedly through wire-tapping. 5 Later, in
a Malacaang press briefing, Secretary Bunye produced two versions of the
tape, one supposedly the complete version, and the other, a spliced,
doctored or altered version, which would suggest that the President had
instructed the COMELEC official to manipulate the election results in the
Presidents favor. 6 It seems that Secretary Bunye admitted that the voice
was that of President Arroyo, but subsequently made a retraction. 7
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty.
Alan Paguia, subsequently 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.8
3. 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.9
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the
National Bureau of Investigation (NBI) to go after mediaorganizations 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 withInq7.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. 10
5. On June 11, 2005, the NTC issued this press release:

11

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 countrys 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 Philippines
and a Commissioner of the COMELEC regarding supposed violation of
election laws.
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.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of
the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured
the KBP that the press release did not violate the constitutional freedom of
speech, of expression, and of the press, and the right to information.
Accordingly, NTC and KBP issued a Joint Press Statement which states,
among others, that: 12

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.
NTC did not issue any MC [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.
What is being asked by NTC is that the exercise of press freedom [be] done
responsibly.
KBP has program standards that KBP members will observe in the treatment
of news and public affairs programs. These include verification of sources,
non-airing of materials that would constitute inciting to sedition and/or
rebellion.
The KBP Codes also require that no false statement or willful
misrepresentation is made in the treatment of news or commentaries.
The supposed wiretapped tapes should be treated with sensitivity and
handled responsibly giving due consideration to the process being
undertaken to verify and validate the authenticity and actual content of the
same.

C. The Petition
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.13
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,14 petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents
committed or made since June 6, 2005 until the present that curtail the
publics 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. 15
Respondents16 denied that the acts transgress the Constitution, and
questioned petitioners legal standing to file the petition. Among the
arguments they raised as to the validity of the fair warning issued by
respondent NTC, is that broadcast media enjoy lesser constitutional
guarantees compared to print media, and the warning was issued pursuant
to the NTCs mandate to regulate the telecommunications industry. 17 It was
also stressed that most of the [television] and radio stations continue, even
to this date, to air the tapes, but of late within the parameters agreed upon
between the NTC and KBP. 18
D. The Procedural Threshold: Legal Standing
To be sure, the circumstances of this case make the constitutional challenge
peculiar. Petitioner, who is not a member of the broadcast media, prays that
we strike down the acts and statements made by respondents as violations
of the right to free speech, free expression and a free press. For another, the
recipients of the press statements have not come forwardneither
intervening nor joining petitioner in this action. Indeed, as a group, they
issued a joint statement with respondent NTC that does not complain about
restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing,
having failed to allege such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the Court so largely depends for
illumination of difficult constitutional questions. 19

But as early as half a century ago, we have already held 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. 20 Subsequently, this
Court has repeatedly and consistently refused to wield procedural barriers as
impediments to its addressing and resolving serious legal questions that
greatly impact on public interest,21 in keeping with the Courts duty under the
1987 Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution and
the laws and that they have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case
involves an issue of overarching significance to our society, 22we therefore
brush aside technicalities of procedure and take cognizance of this
petition,23 seeing as it involves a challenge to the most exalted of all the civil
rights, the freedom of expression. The petition raises other issues like
the extent of the right to information of the public. It is
fundamental, however, that we need not address all issues but only
the most decisive one which in the case at bar is whether the acts of
the respondents abridge freedom of speech and of the press.
But aside from the primordial issue of determining whether free
speech and freedom of the press have been infringed, the case at
bar also gives this Court the opportunity: (1) to distill the essence of
freedom of speech and of the press now beclouded by the vagaries
of motherhood statements; (2) to clarify the types of speeches and
their differing restraints allowed by law; (3) to discuss the core
concepts of prior restraint, content-neutral and content-based
regulations and their constitutional standard of review; (4) to
examine the historical difference in the treatment of restraints
between print and broadcast media and stress the standard of
review governing both; and (5) to call attention to the ongoing
blurring of the lines of distinction between print and broadcast
media.
E. Re-examining The law on freedom of speech,
of expression and of the press

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.24
Freedom of expression has gained recognition as a fundamental principle of
every democratic government, and given a preferred right that stands on a
higher level than substantive economic freedom or other liberties. The
cognate rights codified by Article III, Section 4 of the Constitution, copied
almost verbatim from the First Amendment of the U.S. Bill of Rights, 25 were
considered the necessary consequence of republican institutions and the
complement of free speech.26 This preferred status of free speech has also
been codified at the international level, its recognition now enshrined in
international law as a customary norm that binds all nations.27
In the Philippines, the primacy and high esteem accorded freedom of
expression is a fundamental postulate of our constitutional system. 28 This
right was elevated to constitutional status in the 1935, the 1973 and the
1987 Constitutions, reflecting our own lesson of history, both political and
legal, that freedom of speech is an indispensable condition for nearly every
other form of freedom.29 Moreover, our history shows that the struggle to
protect the freedom of speech, expression and the press was, at bottom, the
struggle for the indispensable preconditions for the exercise of other
freedoms.30 For it is only when the people have unbridled access to
information and the press that they will be capable of rendering enlightened
judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be
free and ignorant.
E.1. Abstraction of Free Speech
Surrounding the freedom of speech clause are various concepts that we have
adopted as part and parcel of our own Bill of Rights provision on this basic
freedom.31 What is embraced under this provision was discussed
exhaustively by the Court in Gonzales v. Commission on Elections, 32 in which
it was held:
At the very least, free speech and free press may be identified with 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. 33
Gonzales further explained that the vital need of a constitutional democracy
for freedom of expression is undeniable, whether as a means of assuring
individual self-fulfillment; of attaining the truth; of assuring participation by
the people in social, including political, decision-making; and of maintaining
the balance between stability and change.34 As early as the 1920s, the trend
as reflected in Philippine and American decisions was to recognize the
broadest scope and assure the widest latitude for this constitutional
guarantee. The trend represents a profound commitment to the principle
that debate on public issue should be uninhibited, robust, and wide-open. 35
Freedom of speech and of the press means something more than the right to
approve existing political beliefs or economic arrangements, to lend support
to official measures, and to take refuge in the existing climate of opinion on
any matter of public consequence.36 When atrophied, the right becomes
meaningless.37 The right belongs as wellif not moreto those who
question, who do not conform, who differ. 38 The ideas that may be expressed
under this freedom are confined not only to those that are conventional or
acceptable to the majority. To be truly meaningful, freedom of speech and of
the press should allow and even 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. 39 To paraphrase Justice Holmes, it is
freedom for the thought that we hate, no less than for the thought that
agrees with us. 40
The scope of freedom of expression is so broad that it 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. The constitutional protection assures the broadest
possible exercise of free speech and free press for religious, political,
economic, scientific, news, or informational ends, inasmuch as the
Constitutions basic guarantee of freedom to advocate ideas is not confined
to the expression of ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The

protection afforded free speech extends to speech or publications that are
entertaining as well as instructive or informative. Specifically, in Eastern
Broadcasting Corporation (DYRE) v. Dans,41this Court stated that all forms of
media, whether print or broadcast, are entitled to the broad protection of the
clause on freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of
freedom of expression clause, the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the freedom
accorded to newspapers and other print media, as will be
subsequently discussed.
E.2. Differentiation: The Limits & Restraints of Free Speech
From the language of the specific constitutional provision, it would appear
that the right to free speech and a free press is not susceptible of any
limitation. But the realities of life in a complex society preclude a literal
interpretation of the provision prohibiting the passage of a law that would
abridge such freedom. For freedom of expression is not an absolute, 42 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.
Thus, all speech are not treated the same. 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.43 The difference in treatment is expected
because the relevant interests of one type of speech, e.g., political speech,
may vary from those of another, e.g.,obscene speech. Distinctions have
therefore been made in the treatment, analysis, and evaluation of the
permissible scope of restrictions on various categories of speech. 44 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.45
Moreover, the techniques of reviewing alleged restrictions on speech
(overbreadth, vagueness, and so on) have been applied differently to each
category, either consciously or unconsciously. 46 A study of free speech
jurisprudencewhether here or abroadwill reveal that courts have
developed different tests as to specific types or categories of speech in
concrete situations; i.e., subversive speech; obscene speech; the speech of

the broadcast media and of the traditional print media; libelous speech;
speech affecting associational rights; speech before hostile audiences;
symbolic speech; speech that affects the right to a fair trial; and speech
associated with rights of assembly and petition. 47
Generally, restraints on freedom of speech and expression are evaluated by
either or a combination of three tests, i.e., (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; 48 (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; 49 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. 50
As articulated in our jurisprudence, we have applied either the dangerous
tendency doctrine or clear and present danger test to resolve free
speech challenges. More recently, we have concluded that we have generally
adhered to the clear and present danger test. 51
E.3. In Focus: Freedom of the Press
Much has been written on the philosophical basis of press freedom as part of
the larger right of free discussion and expression. Its practical importance,
though, is more easily grasped. It is the chief source of information on
current affairs. It is the most pervasive and perhaps most powerful vehicle of
opinion on public questions. It is the instrument by which citizens keep their
government informed of their needs, their aspirations and their grievances. It
is the sharpest weapon in the fight to keep government responsible and
efficient. Without a vigilant press, the mistakes of every administration would
go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United
States v. Bustos:52
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.
Its contribution to the public weal makes freedom of the press deserving of
extra protection. Indeed, the press benefits from certain ancillary rights. The
productions of writers are classified as intellectual and proprietary. Persons
who interfere or defeat the freedom to write for the press or to maintain a
periodical publication are liable for damages, be they private individuals or
public officials.
E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and
Content-Based Regulations
Philippine jurisprudence, even as early as the period under the 1935
Constitution, has recognized four aspects of freedom of the press. These are
(1) freedom from prior restraint; (2) freedom from punishment subsequent to
publication; 53 (3) freedom of access to information; 54 and (4) freedom of
circulation.55
Considering that petitioner has argued that respondents press statement
constitutes a form of impermissible prior restraint, a closer scrutiny of this
principle is in order, as well as its sub-specie of content-based (as
distinguished from content-neutral) regulations.
At this point, it should be noted that respondents in this case deny that their
acts constitute prior restraints. This presents a unique tinge to the present
challenge, considering that the cases in our jurisdiction involving prior
restrictions on speech never had any issue of whether the governmental act
or issuance actually constituted prior restraint. Rather, the determinations
were always about whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there is an
impermissible restraint on the freedom of speech has always been based on
the circumstances of each case, including the nature of the restraint. And in
its application in our jurisdiction, the parameters of this principle
have been etched on a case-to-case basis, always tested by
scrutinizing the governmental issuance or act against the
circumstances in which they operate, and then determining the
appropriate test with which to evaluate.

Prior restraint refers to official governmental restrictions on the press or

other forms of expression in advance of actual publication or
dissemination.56 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. 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. 57 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.
Given that deeply ensconced in our fundamental law is the hostility against
all prior restraints on speech, and any act that restrains speech is presumed
invalid,58 and any act that restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed brows, 59 it is important to
stress not all prior restraints on speech are invalid. Certain previous
restraints may be permitted by the Constitution, but determined only
upon a careful evaluation of the challenged act as against the appropriate
test by which it should be measured against.
Hence, it is not enough to determine whether the challenged act constitutes
some form of restraint on freedom of speech. 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; 60 or (2) a contentbased restraint or censorship, i.e., the restriction is based on the subject
matter of the utterance or speech. 61 The cast of the restriction determines
the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation,
only a substantial governmental interest is required for its validity. 62 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 approachsomewhere between the mere rationality that
is required of any other law and the compelling interest standard applied to

content-based restrictions.63 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. The
intermediate approach has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incident restriction on
alleged [freedom of speech & expression] is no greater than is essential to
the furtherance of that interest. 64
On the other hand, a governmental action that restricts freedom of speech or
of the press based on content is given the strictest scrutinyin 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,65 with
the government having the burden of overcoming the presumed
unconstitutionality.
Unless the government can overthrow this presumption, the contentbased restraint will be struck down.66
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 harmotherwise
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.67 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.68
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. 69
Also, the incidental restriction on speech must be no greater than what is
essential to the furtherance of that interest. 70 A restriction that is so broad
that it encompasses more than what is required to satisfy the governmental

interest will be invalidated. 71 The regulation, therefore, must be reasonable

and narrowly drawn to fit the regulatory purpose, with the least restrictive
means undertaken. 72
Thus, when the prior restraint partakes of a content-neutral regulation, it
is
subjected
to
an
intermediate
review.
A
content-based
73
regulation, however, bears a heavy presumption of invalidity and is
measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague. 74
Applying the foregoing, it is clear that 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 objecta specific contentfixed 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.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents argument that the challenged act is valid on the
ground that broadcast media enjoys free speech rights that are lesser in
scope to that of print media. We next explore and test the validity of this
argument, insofar as it has been invoked to validate a content-based
restriction on broadcast media.
The regimes presently in place for each type of media differ from
one other. Contrasted with the regime in respect of books, newspapers,
magazines and traditional printed matter, broadcasting, film and video have
been subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the
United States. There, broadcast radio and television have been held to
have limited First
Amendment
protection,75 and
U.S.
Courts
have excluded broadcast media from the application of the strict scrutiny
standard
that
they
would
otherwise
apply
to
content-based
76
restrictions. 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]; 77 (b) its pervasiveness as a

medium; and (c) its unique accessibility to children. 78 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,79they are
decided on whether the governmental restriction is narrowly
tailored to further a substantial governmental interest, 80 or the
intermediate test.
As pointed out by respondents, Philippine jurisprudence has also echoed a
differentiation
in
treatment
between
broadcast
and
print
media. Nevertheless, a review of Philippine case law on broadcast
media will show thatas we have deviated with the American
conception of the Bill of Rights81we likewise did not adopt
en masse the U.S. conception of freespeech as it relates to broadcast
media, particularly as to which test would govern content-based
prior restraints.
Our cases show two distinct features of this dichotomy. First, the difference
in treatment, in the main, is in the regulatory scheme applied to broadcast
media that is not imposed on traditional print media, and narrowly confined
to unprotected speech (e.g., obscenity, pornography, seditious and inciting
speech), or is based on a compelling government interest that also has
constitutional protection, such as national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is
subjected to, the Court has consistently held that the clear and present
danger test applies to content-based restrictions on media, without making a
distinction as to traditional print or broadcast media.
The distinction between broadcast and traditional print media was first
enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,82wherein it
was held that [a]ll forms of media, whether print or broadcast, are entitled
to the broad protection of the freedom of speech and expression clause. The
test for limitations on freedom of expression continues to be the clear and
present danger rule83
Dans was a case filed to compel the reopening of a radio station which had
been summarily closed on grounds of national security. Although the issue
had become moot and academic because the owners were no longer
interested to reopen, the Court still proceeded to do an analysis of the case
and made formulations to serve as guidelines for all inferior courts and

bodies exercising quasi-judicial functions. Particularly, the Court made a

detailed exposition as to what needs be considered in cases involving
broadcast media. Thus:84
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for
limitations on freedom of expression continues to be the clear and
present danger rule,that words 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 the lawmaker has a right to prevent, In
his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice
Enrique M. Fernando cites at least nine of our decisions which apply the test.
More recently, the clear and present danger test was applied in J.B.L. Reyes
in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present
danger test, however, does not lend itself to a simplistic and all embracing
interpretation applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated
among qualified users. A broadcast corporation cannot simply appropriate a
certain frequency without regard for government regulation or for the rights
of others.
All forms of communication are entitled to the broad protection of the
freedom of expression clause. Necessarily, however, the freedom of
television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and indecent
regular radio program, explained why radio broadcasting, more than other
forms of communications, receives the most limited protection from the free
expression clause. First, broadcast media have established a uniquely
pervasive presence in the lives of all citizens, Material presented over the
airwaves confronts the citizen, not only in public, but in the privacy of his
home. Second, broadcasting is uniquely accessible to children. Bookstores
and motion picture theaters may be prohibited from making certain material
available to children, but the same selectivity cannot be done in radio or
television, where the listener or viewer is constantly tuning in and out.

Similar considerations apply in the area of national security.

The broadcast media have also established a uniquely pervasive presence in
the lives of all Filipinos. Newspapers and current books are found only in
metropolitan areas and in the poblaciones of municipalities accessible to fast
and regular transportation. Even here, there are low income masses who find
the cost of books, newspapers, and magazines beyond their humble means.
Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television
set is also becoming universal. Their message may be simultaneously
received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person
of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to
inflammatory or offensive speech would be difficult to monitor or predict. The
impact of the vibrant speech is forceful and immediate. Unlike readers of the
printed work, the radio audience has lesser opportunity to cogitate analyze,
and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular
circumstances of broadcast media into account. The supervision of radio
stations-whether by government or through self-regulation by the industry
itself calls for thoughtful, intelligent and sophisticated handling.
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.
(6) The freedom to comment on public affairs is essential to the vitality of a
representative democracy. In the 1918 case of United States v. Bustos (37
Phil. 731) this Court was already stressing 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 an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of
media by the due process and freedom of expression clauses of the
Constitution. [Citations omitted]
It is interesting to note that the Court in Dans adopted the arguments found
in U.S. jurisprudence to justify differentiation of treatment (i.e.,the scarcity,
pervasiveness and accessibility to children), but only after categorically
declaring that the test for limitations on freedom of expression
continues to be the clear and present danger rule, for all forms of
media, whether print or broadcast. Indeed, a close reading of the abovequoted provisions would show that the differentiation that the Court
in Dans referred to was narrowly restricted to what is otherwise deemed as
unprotected speech (e.g., obscenity, national security, seditious and
inciting speech), or to validate a licensing or regulatory scheme necessary to
allocate the limited broadcast frequencies, which is absent in print media.
Thus, when this Court declared in Dans that the freedom given to broadcast
media was somewhat lesser in scope than the freedom accorded to
newspaper and print media, it was not as to what test should be applied,
but the context by which requirements of licensing, allocation of airwaves,
and application of norms to unprotected speech. 85
In the same year that the Dans case was decided, it was reiterated
in Gonzales v. Katigbak,86 that the test to determine free expression
challenges was the clear and present danger, again without distinguishing
the media.87Katigbak, strictly speaking, does not treat of broadcast media
but motion pictures. Although the issue involved obscenity standards as
applied to movies,88 the Court concluded its decision with the following obiter
dictum that a less liberal approach would be used to resolve obscenity issues
in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court that
where television is concerned, a less liberal approach calls for observance.

This is so because unlike motion pictures where the patrons have to pay their
way, television reaches every home where there is a set. Children then will
likely be among the avid viewers of the programs therein shown..It cannot
be denied though that the State as parens patriae is called upon to manifest
an attitude of caring for the welfare of the young.
More recently, in resolving a case involving the conduct of exit polls and
dissemination of the results by a broadcast company, we reiterated that the
clear and present danger rule is the test we unquestionably adhere to issues
that involve freedoms of speech and of the press.89
This is not to suggest, however, that the clear and present danger
rule has been applied to all cases that involve the broadcast
media.The rule applies to all media, including broadcast, but only when the
challenged act is a content-based regulation that infringes on free speech,
expression and the press. Indeed, in Osmena v. COMELEC,90which also
involved broadcast media, the Court refused to apply the clear and present
danger rule to a COMELEC regulation of time and manner of advertising of
political advertisements because the challenged restriction was contentneutral.91 And in a case involving due process and equal protection issues,
the Court inTelecommunications and Broadcast Attorneys of the Philippines
v. COMELEC92 treated a restriction imposed on a broadcast media as a
reasonable condition for the grant of the medias franchise, without going
into which test would apply.
That broadcast media is subject to a regulatory regime absent in print media
is observed also in other jurisdictions, where the statutory regimes in place
over broadcast media include elements of licensing, regulation by
administrative bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print
media differ in a number of respects, but have a common historical basis.
The stricter system of controls seems to have been adopted in answer to the
view that owing to theirparticularimpact on audiences, films, videos and
broadcasting require a system of prior restraints, whereas it is now accepted
that books and other printed media do not. These media are viewed as
beneficial to the public in a number of respects, but are also seen as possible
sources of harm.93
Parenthetically,
these
justifications
are
now
the
subject
of
debate. Historically, the scarcity of frequencies was thought to provide a

rationale. However, cable and satellite television have enormously

increased the number of actual and potential channels. Digital
technology will further increase the number of channels available. But still,
the argument persists that broadcasting is the most influential means of
communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects
children in a way that the print media normally does not, that regulation is
said to be necessary in order to preserve pluralism. It has been argued
further that a significant main threat to free expressionin terms of diversity
comes not from government, but from private corporate bodies. These
developments show a need for a reexamination of the traditional notions of
the scope and extent of broadcast media regulation. 94
The emergence of digital technologywhich has led to the convergence of
broadcasting, telecommunications and the computer industryhas likewise
led to the question of whether the regulatory model for broadcasting will
continue to be appropriate in the converged environment. 95 Internet, for
example, remains largely unregulated, yet the Internet and the broadcast
media share similarities, 96 and the rationales used to support broadcast
regulation apply equally to the Internet. 97 Thus, it has been argued that
courts, legislative bodies and the government agencies regulating media
must agree to regulate both, regulate neither or develop a new regulatory
framework and rationale to justify the differential treatment. 98
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on
broadcast media, let us go to its application to the case at bar. To
recapitulate, 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.
This outlines the procedural map to follow in cases like the one at bar as it
spells out the following: (a) the test; (b) the presumption; (c) the burden of
proof; (d) the party to discharge the burden; and (e) the quantum of
evidence necessary. 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 antiwiretapping 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 whos and the hows of the wiretapping act is
ambivalent, especially considering the tapes 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 persons 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.

This is not all the faultline in the stance of the respondents. We slide to the
issue of whether the mere press statements of the Secretary of Justice
and of the NTC in question constitute a form of content-based prior restraint
that has transgressed the Constitution. In resolving this issue, we hold that
it 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.
There is enough evidence of chilling effect of the complained acts on
record. The warnings given to media came from no less the NTC, a
regulatory agency that can cancel the Certificate of Authority of the radio
and broadcast media. They also came from the Secretary of Justice, the alter
ego of the Executive, who wields the awesome power to prosecute those
perceived to be violating the laws of the land.After the warnings, the KBP
inexplicably joined the NTC in issuing an ambivalent Joint Press Statement.
After the warnings, petitioner Chavez was left alone to fight this battle for
freedom of speech and of the press. This silence on the sidelines on the part
of some media practitioners is too deafening to be the subject of
misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts
should always be exercised with care and in light of the distinct facts of each
case. For there are no hard and fast rules when it comes to slippery
constitutional questions, and the limits and construct of relative freedoms
are never set in stone. Issues revolving on their construct must be decided
on a case to case basis, always based on the peculiar shapes and shadows of
each case. But in cases where the challenged acts are 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.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and
prohibition are hereby issued, nullifying the official statements made by
respondents on June 8, and 11, 2005 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
SO ORDERED.
REYNATO S. PUNO
Chief Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNAR
Associate

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

ANTONIO T.
Associate

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. C
Associate

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. A
Associate

DANTE O. TINGA
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
RUBEN T. REYES TERESITA
Associate Justice
CERTIFICATION

MINITA V. CHIC
Associate

ANTONIO EDUARD
Associate

LEONARDO-D
Associate

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Notes:
1

G.R. No. 103956, March 31, 1992, 207 SCRA 712.

218 Phil. 754 (1984).

G.R. No. 147571, May 5, 2001, 357 SCRA 496.

G.R. No. 169838, April 25, 2006, 488 SCRA 226.

Rollo, pp. 6-7 (citing the Philippine Daily Inquirer (PDI), June 7, 2005, pp. A1,
A18; PDI, June 14, 2005, p. A1); and p. 58.
6

Id. at 7-8 (citing the Manila Standard, June 10, 2005, p. A2); and 58.

Id. at 7-8 and 59.

Id.

Id. at 8-9 and 59.

10

Id. at 9.

11

Id. at 10-12, 43-44, 60-62.

12

Id. at 62-63, 86-87.

13

Id. at 6.

14

Respondents have committed blatant violations of the freedom of

expression and of the press and the right of the people to information on
matters of public concern enshrined in Article III, Sections 4 and 7 of the
1987 Constitution. Id. at 18. Petitioner also argued that respondent NTC
acted beyond its powers when it issued the press release of June 11, 2005.
Id.

15

Id. at 6.

16

Through the Comment filed by the Solicitor-General. Id. at 56-83.

17

Id. at 71-73.

18

Id. at 74-75.

19

The Court will exercise its power of judicial review only if the case is
brought before it by a party who has the legal standing to raise the
constitutional or legal question. Legal standing means a personal and
substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the government act that is being
challenged. The term interest is material interest, an interest in issue and
to be affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest. Pimentel v. Executive
Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622, citing Joya vs.
Presidential Commission on Good Government, G.R. No. 96541, August 24,
1993, 225 SCRA 568. See Kilosbayan, Inc. v. Morato, G.R. No. 118910, July
17, 1995, 246 SCRA 540, 562563; and Agan v. PIATCO (Decision), 450 Phil.
744 (2003).
20

Araneta v. Dinglasan, 84 Phil. 368, 373 (1949), cited in Osmea v.

COMELEC, G.R. No. 100318, July 30, 1991, 199 SCRA 750.
21

See Agan v. PIATCO (Decision), 450 Phil. 744 (2003).

22

Philconsa v. Jimenez, 122 Phil. 894 (1965); Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317;Guingona v.
Carague, G.R. No. 94571, April 22, 1991, 196 SCRA 221; Osmea v.
COMELEC, G.R. No. 100318, July 30, 1991, 199 SCRA 750; Basco v.
PAGCOR, 274 Phil. 323 (1991); Carpio v. Executive Secretary, G.R. No. 96409,
February 14, 1992, 206 SCRA 290; Del Mar v. PAGCOR, 400 Phil. 307 (2000).
23

Basco v. PAGCOR, 274 Phil. 323 (1991), citing Kapatiran ng mga

Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, G.R. No. L-81311, June
30, 1988, 163 SCRA 371.
24

1987 Phil. Const. Art.III, 4.

25

U.S. Bill of Rights, First Amendment. (Congress shall make no law

abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances.)
26

The First Amendment was so crafted because the founders of the American
government believedas a matter of history and experiencethat the
freedom to express personal opinions was essential to a free
government. See Larry Kramer, The People Themselves: Popular Constitution
and Judicial Review (2004).
27

Article 19 of the 1948 Universal Declaration on Human Rights (UDHR)

states: Everyone has the right to freedom of opinion and expression; this
right includes the right to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless
of frontiers. Although the UDHR is not binding as a treaty, many of its
provisions have acquired binding status on States and are now part of
customary international law. Article 19 forms part of the UDHR principles that
have been transformed into binding norms. Moreover, many of the rights in
the UDHR were included in and elaborated on in the International Covenant
on Civil and Political Rights (ICCPR), a treaty ratified by over 150 States,
including the Philippines. The recognition of freedom of expression is also
found in regional human rights instruments, namely, the European
Convention on Human Rights (Article 10), the American Convention on
Human Rights (Article 10), and the African Charter on Human and Peoples
Rights (Article 9).
28

Gonzales v. COMELEC, 137 Phil. 471, 492 (1969).

29

Salonga v. Cruz-Pano, G.R. 59524, February 18, 1985, 134 SCRA 458459; Gonzales v. COMELEC, 137 Phil. 489, 492-3 (1969); Philippine Blooming
Mills Employees Organization v. Philippine Blooming Mills Co., 151-A Phil.
676-677 (1973); National Press Club v. COMELEC, G.R. No. 102653, March 5,
1992, 207 SCRA 1, 9; Adiong v. COMELEC, G.R. No. 103956, March 31, 1992,
207 SCRA 712, 715.
30

Indeed, the struggle that attended the recognition of the value of free
expression was discussed by Justice Malcolm in the early caseUnited States
v. Bustos, 37 Phil. 731, 739 (1918). Justice Malcolm generalized that the
freedom of speech as cherished in democratic countries was unknown in the
Philippine Islands before 1900. Despite the presence of pamphlets and books

early in the history of the Philippine Islands, the freedom of speech was alien
to those who were used to obeying the words of barangay lords and,
ultimately, the colonial monarchy. But ours was a history of struggle for that
specific right: to be able to express ourselves especially in the governance of
this country. Id.
31

Id.

32

137 Phil. 471, 492 (1969).

33

Id.

34

Id. at 493, citing Thomas I. Emerson, Toward a General Theory of the First
Amendment, 72 Yale Law Journal 877 (1963).
35

Id. citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964).

36

Id.

37

Id.

38

Id.

39

Id. citing Terminiello v. City of Chicago, 337 US 1, 4 (1949).

40

Id. citing U.S. v. Schwimmer, 279 US 644, 655 (1929).

41

G.R. No. L-59329, July 19, 1985, 137 SCRA 628.

42

Gonzales v. COMELEC, 137 Phil. 471, 494(1969).

43

Hector S. De Leon, I Philippine Constitutional Law: Principles and Cases 485

(2003) [Hereinafter De Leon, Constitutional Law].
44

See John E. Nowak & Ronald D. Rotunda, Constitutional Law 16.1, 1131
(7 ed.2000 [Hereinafter Nowak & Rotunda, Constitutional Law].
th

45

De Leon, Constitutional Law at 485. Laws have also limited the freedom of
speech and of the press, or otherwise affected the media and freedom of
expression. The Constitution itself imposes certain limits (such as Article IX
on the Commission on Elections, and Article XVI prohibiting foreign media
ownership); as do the Revised Penal Code (with provisions on national

security, libel and obscenity), the Civil Code (which contains two articles on
privacy), the Rules of Court (on the fair administration of justice and
contempt) and certain presidential decrees. There is also a shield law, or
Republic Act No. 53, as amended by Republic Act No. 1477. Section 1 of this
law provides protection for non-disclosure of sources of information, without
prejudice to ones liability under civil and criminal laws. The publisher, editor,
columnist or duly accredited reporter of a newspaper, magazine or periodical
of general circulation cannot be compelled to reveal the source of any
information or news report appearing in said publication, if the information
was released in confidence to such publisher, editor or reporter unless the
court or a Committee of Congress finds that such revelation is demanded by
the security of the state.
46

See Nowak & Rotunda, Constitutional Law 16.1, 1131 (7th ed.2000).

47

Id.

48

Cabansag v. Fernandez, 102 Phil. 151 (1957); Gonzales v. COMELEC, 137

Phil. 471 (1969). See People v. Perez, 4 Phil. 599 (1905); People v.
Nabong, 57 Phil. 455 (1933); People v. Feleo, 57 Phil. 451 (1933).
49

This test was used by J. Ruiz-Castro in his Separate Opinion in Gonzales v.

COMELEC, 137 Phil. 471, 532-537 (1969).
50

Cabansag v. Fernandez, 102 Phil. 151 (1957).

51

ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (2000).

52

53

See U.S. v. Bustos, 37 Phil. 731 (1918).

The
aspect
of freedom
from
liability
subsequent
to
publication precludes liability for completed publications of views
traditionally held innocent. Otherwise, the prohibition on prior restraint would
be meaningless, as the unrestrained threat of subsequent punishment, by
itself, would be an effective prior restraint. Thus, opinions on public issues
cannot be punished when published, merely because the opinions are novel
or controversial, or because they clash with current doctrines. This fact does
not imply that publishers and editors are never liable for what they print.
Such freedom gives no immunity from laws punishing scandalous or obscene
matter, seditious or disloyal writings, and libelous or insulting words. As
classically expressed, the freedom of the press embraces at the very least

the freedom to discuss truthfully and publicly matters of public concern,

without previous restraint or fear of subsequent punishment. For discussion
to be innocent, it must be truthful, must concern something in which people
in general take a healthy interest, and must not endanger some important
social end that the government by law protects. See Joaquin G. Bernas, S.J.,
The 1987 Constitution of the Republic of the Philippines: A Commentary, 225
(2003 ed.).
54

Freedom of access to information regarding matters of public interest is

kept real in several ways. Official papers, reports and documents, unless held
confidential and secret by competent authority in the public interest, are
public records. As such, they are open and subject to reasonable regulation,
to the scrutiny of the inquiring reporter or editor. Information obtained
confidentially may be printed without specification of the source; and that
source is closed to official inquiry, unless the revelation is deemed by the
courts, or by a House or committee of Congress, to be vital to the security of
the State. Id.
55

Freedom of circulation refers to the unhampered distribution of

newspapers and other media among customers and among the general
public. It may be interfered with in several ways. The most important of
these is censorship. Other ways include requiring a permit or license for the
distribution of media and penalizing dissemination of copies made without it;
[55] and requiring the payment of a fee or tax, imposed either on the
publisher or on the distributor, with the intent to limit or restrict circulation.
These modes of interfering with the freedom to circulate have been
constantly stricken down as unreasonable limitations on press freedom.
Thus, imposing a license tax measured by gross receipts for the privilege of
engaging in the business of advertising in any newspaper, or charging
license fees for the privilege of selling religious books are impermissible
restraints on the freedom of expression. Id. 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). It has
been held, however, even in the Philippines, that publishers and distributors
of newspapers and allied media cannot complain when required to pay
ordinary taxes such as the sales tax. The exaction is valid only when the
obvious and immediate effect is to restrict oppressively the distribution of
printed matter.
56

Id at 225.

57

Burgos v. Chief of Staf, 218 Phil. 754 (1984).

58

Gonzales v. COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v.

COMELEC, 380 Phil. 780, 795 (2000) (Doctrinally, the Court has always ruled
in favor of the freedom of expression, and any restriction is treated an
exemption.); Social Weather Stations v. COMELEC,G.R. No. 147571, May 5,
2001, 357 SCRA 496 ([A]ny system of prior restraint comes to court bearing
a heavy burden against its constitutionality. It is the government which must
show justification for enforcement of the restraint.). See also Iglesia ni
Cristo v. Court of Appeals, 328 Phil. 893 (1996) (religious speech falls within
the protection of free speech).
59

Iglesia ni Cristo v. CA, 328 Phil. 893, 928 (1996), citing Near v.
Minnesota, 283 US 697 (1931); Bantam Books Inc. v. Sullivan, 372 US 58
(1963); New York Times v. United States, 403 US 713 (1971).
60

See J.B.L. Reyes v. Bagatsing, 210 Phil. 457 (1983), Navarro v.

Villegas, G.R. No. L-31687, February 18, 1970, 31 SCRA 730; Ignacio v. Ela,99
Phil. 346 (1956); Primicias v. Fugosa, 80 Phil. 71 (1948).
61

Determining if a restriction is content-based is not always obvious. A

regulation may be content-neutral on its face but partakes of a contentbased restriction in its application, as when it can be shown that the
government only enforces the restraint as to prohibit one type of content or
viewpoint. In this case, the restriction will be treated as a content-based
regulation. The most important part of the time, place, or manner standard is
the requirement that the regulation be content-neutral both as written and
applied. See Nowak & Rotunda, Constitutional Law 16.1, 1133 (7th ed.2000).
62

See Osmea v. COMELEC, 351 Phil. 692, 718 (1998). The Court looked
to Adiong v. COMELEC, G.R. No. 103456, March 31, 1992, 207 SCRA 712,
which had cited a U.S. doctrine, viz. A governmental regulation is sufficiently
justified if it is within the constitutional power of the Government, if it
furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and
if the incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.
63

Nowak & Rotunda, Constitutional Law 16.1, 1133 (7 th ed.2000). This was
also called a deferential standard of review in Osmea v. COMELEC, 351
Phil. 692, 718 (1998). It was explained that the clear and present danger

rule is not a sovereign remedy for all free speech problems, and its
application to content-neutral regulations would be tantamount to using a
sledgehammer to drive a nail when a regular hammer is all that is needed.
Id. at 478.
64

Osmea v. COMELEC, 351 Phil. 692, 717, citing Adiong v. COMELEC, G.R.
No. 103956, March 31, 1992, 207 SCRA 712. It was noted that the test was
actually formulated in United States v. OBrien, 391 U.S. 367 (1968), which
was deemed appropriate for restrictions on speech which are contentneutral.
65

Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996). In this case, it was
found that the act of respondent Board of Review for Motion Pictures and
Television of rating a TV program with Xon the ground that it offend[s]
and constitute[s] an attack against other religions which is expressly
prohibited by lawwas a form of prior restraint and required the application
of the clear and present danger rule.
66

Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996); Gonzales v.

COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v.
COMELEC, 380 Phil. 780 (2000); Social Weather Stations v. COMELEC, G.R.
No. 147571, May 5, 2001, 357 SCRA 496.
67

Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996).

68

Schenke v. United States, 249 U.S. 47, 52 (19191), cited in Cabansag v.

Fernandez, 102 Phil. 151 (1957); and ABS-CBN Broadcasting Corp. v.
COMELEC, 380 Phil. 780, 794 (2000).
69

Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, cited
in ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795 (2000).
70

See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712,
and Gonzales v. COMELEC, 137 Phil. 471 (1969), cited in ABS-CBN
Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795 (2000).
71

See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712.

72

See Osmea v. COMELEC, 351 Phil. 692 (1998).

73

Parenthetically, there are two types of content-based restrictions. First, the

government may be totally banning some type of speech for content (total
ban). Second, the government may be requiring individuals who wish to put
forth certain types of speech to certain times or places so that the type of
speech does not adversely affect its environment. See Nowak & Rotunda,
Constitutional Law 16.1, 1131 (7thed.2000). Both types of conten-based
regulations are subject to strict scrutiny and the clear and present danger
rule.
74

Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996); Gonzales v.

COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v.
COMELEC, 380 Phil. 780 (2000); Social Weather Stations v. COMELEC, G.R.
No. 147571, May 5, 2001, 357 SCRA 496.
75

This is based on a finding that broadcast regulation involves unique

considerations, and that differences in the characteristics of new media
justify differences in the First Amendment standards applied to them. Red
Lion Broad.Co. v. Federal Communications Commission [FCC], 395 U.S. 367,
386(1969). See generally National Broadcasting Co. v. United States, 319
U.S. 190, 219 (1943) (noting that the public interest standard denoted to the
FCC is an expansive power).
76

See Federal Communications Commission [FCC] v. Pacifica Foundation, 438

U.S. 726 (1978); Sable Communications v. FCC, 492 U.S. 115 (1989);
and Reno v. American Civil Liberties Union [ACLU], 521U.S. 844, 874 (1997).
In these cases, U.S. courts disregarded the argument that the offended
listener or viewer could simply turn the dial and avoid the unwanted
broadcast [thereby putting print and broadcast media in the same footing],
reasoning that because the broadcast audience is constantly tuning in and
out, prior warnings cannot protect the listener from unexpected program
content.
77

Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969). Red Lion involved the
application of the fairness doctrine and whether someone personally
attacked had the right to respond on the broadcast medium within the
purview of FCC regulation. The court sustained the regulation. The Court in
Red Lion reasoned that because there are substantially more individuals who
want to broadcast than there are frequencies available, this scarcity of the
spectrum necessitates a stricter standard for broadcast media, as opposed
to newspapers and magazines. See generally National Broadcasting v. United

States, 319 U.S. 190, 219 (1943) (noting that the public interest standard
denoted to the FCC is an expansive power).
78

See Federal Communications Commission v. Pacifica Foundation, 438 U.S.

726 (1978); Sable Communications v. FCC, 492 U.S. 115 (1989); and Reno v.
American Civil Liberties Union [ACLU], 521 U.S. 844, 874 (1997). In FCC v.
Pacifica Foundation, involving an FCC decision to require broadcasters to
channel indecent programming away from times of the day when there is a
reasonable risk that children may be in the audience, the U.S. Court found
that the broadcast medium was an intrusive and pervasive one. In
reaffirming that this medium should receive the most limited of First
Amendment protections, the U.S. Court held that the rights of the public to
avoid indecent speech trump those of the broadcaster to disseminate such
speech. The justifications for this ruling were two-fold. First, the regulations
were necessary because of the pervasive presence of broadcast media in
American life, capable of injecting offensive material into the privacy of the
home, where the right to be left alone plainly outweighs the First
Amendment rights of an intruder. Second, the U.S. Court found that
broadcasting is uniquely accessible to children, even those too young to
read. The Court dismissed the argument that the offended listener or viewer
could simply turn the dial and avoid the unwanted broadcast, reasoning that
because the broadcast audience is constantly tuning in and out, prior
warnings cannot protect the listener from unexpected program content.
79

FCC v. League of Women Voters, 468 U.S. 364, 376 (1984).

80

Id. at 380.

81

See Estrada v. Escritor (Resolution), A.M. No. P-02-1651, June 22, 2006
(free exercise of religion); and Osmea v. COMELEC, 351 Phil. 692, 718
(1998) (speech restrictions to promote voting rights). The Court in Osmea v.
COMELEC, for example, noted that it is a foreign notion to the American
Constitution that the government may restrict the speech of some in order to
enhance the relative voice of others [the idea being that voting is a form of
speech]. But this Court then declared that the same does not hold true of the
Philippine Constitution, the notion being in fact an animating principle of
that document. 351 Phil. 692, 718 (1998).
82

G.R. No. L-59329, July 19, 1985, 137 SCRA 628.

83

Id.

84

Id. at 634-637.

85

There is another case wherein the Court had occasion to refer to the
differentiation between traditional print media and broadcast media, but of
limited application to the case at bar inasmuch as the issues did not invoke a
free-speech challenge, but due process and equal protection.
See Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
COMELEC, 352 Phil. 153 (1998) (challenge to legislation requiring broadcast
stations to provide COMELEC Time free of charge).
86

G.R. No. L-69500, July 22, 1985, 137 SCRA 717. In this case, the
classification of a movie as For Adults Only was challenged, with the issue
focused on obscenity as basis for the alleged invasion of the right to freedom
on artistic and literary expression embraced in the free speech guarantees of
the Constitution. The Court held that the test to determine free expression
was the clear and present danger rule. The Court found there was an abuse
of discretion, but did not get enough votes to rule it was grave. The decision
specifically stated that the ruling in the case was limited to concept of
obscenity applicable to motion pictures. Id. at 723-729.
87

Id. at 725.

88

Id.

89

ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (COMELEC

Resolution restraining ABS-CBN, a corporation engaged in broadcast media of
television and radio, from conducting exit surveys after the 1998 elections).
Although the decision was rendered after the 1998 elections, the Court
proceeded to rule on the case to rule on the issue of the constitutionality of
holding exit polls and the dissemination of data derived therefrom. The Court
ruled that restriction on exit polls must be tested against the clear and
present danger rule, the rule we unquestionably adhere to. The framing of
the guidelines issued by the Court clearly showed that the issue involved not
only the conduct of the exit polls but also its dissemination by broadcast
media. And yet, the Court did not distinguish, and still applied the clear and
present danger rule.
90

351 Phil. 692 (1998) (challenge to legislation which sought to equalize

media access through regulation).
91

Id. at 718.

92

Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.

COMELEC, 352 Phil. 153 (1998) (challenge to legislation requiring broadcast
stations to provide COMELEC Time free of charge).
93

Helen Fenwick, Civil Liberties and Human Rights 296 (3rd ed. 2002).

94

Id.

95

Stephen J. Shapiro, How Internet Non-Regulation Undermines The

Rationales Used To Support Broadcast Regulation, 8-FALL Media L. & Poly 1,
2 (1999).
96

Technological advances, such as software that facilitates the delivery of

live, or real-time, audio and video over the Internet, have enabled Internet
content providers to offer the same services as broadcasters. Indeed, these
advancements blur the distinction between a computer and a television. Id.
at 13.
97

Id.

98

The current rationales used to support regulation of the broadcast media

become unpersuasive in light of the fact that the unregulated Internet and
the regulated broadcast media share many of the same features. Id. In other
words, as the Internet and broadcast media become identical, for all intents
and purposes, it makes little sense to regulate one but not the other in an
effort to further First Amendment principles. Indeed, as Internet technologies
advance, broadcasters will have little incentive to continue developing
broadcast programming under the threat of regulation when they can
disseminate the same content in the same format through the unregulated
Internet. In conclusion, the theory of partial regulation, whatever its merits
for the circumstances of the last fifty years, will be unworkable in the media
landscape of the future. Id. at 23.

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 CONCURRING OPINION
AZCUNA, J.:
I vote to GRANT the petition on the ground that the challenged NTC and DOJ
warnings violate Sec. 10, Art. XVI of the Constitution which states:
Sec. 10. The State shall provide the policy environment for the full
development of Filipino capability and the emergency of communication
structures suitable to the needs and aspirations of the nation and the
balanced flow of information into, out of, and across the country, in
accordance with a policy that respects the freedom of speech and of the
press.
This provision was precisely crafted to meet the needs and opportunities of
the emerging new pathways of communications, from radio and tv broadcast
to the flow of digital information via cables, satellites and the internet.
The purpose of this new statement of directed State policy is to hold the
State responsible for a policy environment that provides for (1) the full
development of Filipino capability, (2) the emergence of communication
structures suitable to the needs and aspirations of the nation and the
balanced flow of information, and (3) respect for the freedom of speech and
of the press.
The regulatory warnings involved in this case work against a balanced flow of
information in our communication structures and do so without respecting
freedom of speech by casting a chilling effect on the media. This is definitely
not the policy environment contemplated by the Constitution.
ADOLFO S. AZCUNA
Associate Justice

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 CONCURRING OPINION
CARPIO, J.:
The Case
This is a petition for the writs of certiorari and prohibition to set aside acts,
issuances, and orders of respondents Secretary of Justice Raul M. Gonzalez
(respondent Gonzales) and the National Telecommunications Commission
(NTC), particularly an NTC press release dated 11 June 2005, warning radio
and television stations against airing taped conversations allegedly between
President Gloria Macapagal-Arroyo and Commission on Elections (COMELEC)
Commissioner Virgilio Garcillano (Garcillano) 1 under pain of suspension or
revocation of their airwave licenses.
The Facts
On 24 June 2004, Congress, acting as national board of canvassers,
proclaimed
President
Arroyo
winner
in
the
2004
presidential
2
elections. President Arroyo received a total of 12,905,808 votes, 1,123,576
more than the votes of her nearest rival, Fernando Poe, Jr. Sometime before 6
June 2005, the radio station dzMM aired the Garci Tapes where the parties to
the conversation discussed rigging the results of the 2004 elections to
favor President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio

Bunye (Bunye) held a press conference in Malacaang Palace, where he

played before the presidential press corps two compact disc recordings of
conversations between a woman and a man. Bunye identified the woman in
both recordings as President Arroyo but claimed that the contents of the
second compact disc had been spliced to make it appear that President
Arroyo was talking to Garcillano.
However, on 9 June 2005, Bunye backtracked and stated that the womans
voice in the compact discs was not President Arroyos after all. 3 Meanwhile,
other individuals went public, claiming possession of the genuine copy of the
Garci Tapes.4 Respondent Gonzalez ordered the National Bureau of
Investigation to investigate media organizations which aired the Garci Tapes
for possible violation of Republic Act No. 4200 or the Anti-Wiretapping Law.
On 11 June 2005, the NTC issued a press release warning radio and television
stations that airing the Garci Tapes is a cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to them. 5 On 14
June 2005, NTC officers met with officers of the broadcasters
group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of
censorship. The NTC and KBP issued a joint press statement expressing
commitment to press freedom.6
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed
this petition to nullify the acts, issuances, and orders of the NTC and
respondent Gonzalez (respondents) on the following grounds: (1)
respondents conduct violated freedom of expression and the right of the
people to information on matters of public concern under Section 7, Article III
of the Constitution, and (2) the NTC acted ultra vires when it warned radio
and television stations against airing the Garci Tapes.
In their Comment to the petition, respondents raised threshold objections
that (1) petitioner has no standing to litigate and (2) the petition fails to
meet the case or controversy requirement in constitutional adjudication. On
the merits, respondents claim that (1) the NTCs press release of 11 June
2005 is a mere fair warning, not censorship, cautioning radio and television
networks on the lack of authentication of the Garci Tapes and of the
consequences of airing false or fraudulent material, and (2) the NTC did not
act ultra vires in issuing the warning to radio and television stations.
In his Reply, petitioner belied respondents claim on his lack of standing to
litigate, contending that his status as a citizen asserting the enforcement of

a public right vested him with sufficient interest to maintain this suit.
Petitioner also contests respondents claim that the NTC press release of 11
June 2005 is a mere warning as it already prejudged the Garci Tapes as
inauthentic and violative of the Anti-Wiretapping Law, making it a cleverly
disguised x x x gag order.
ISSUE
The principal issue for resolution is whether the NTC warning embodied in
the press release of 11 June 2005 constitutes an impermissible prior restraint
on freedom of expression.
I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its
press release dated 11 June 2005, an unconstitutional prior restraint on
protected expression, and (3) enjoin the NTC from enforcing the same.
1. Standing to File Petition
Petitioner has standing to file this petition. When the issue involves freedom
of expression, as in the present case, any citizen has the right to bring suit to
question the constitutionality of a government action in violation of freedom
of expression, whether or not the government action is directed at such
citizen. The government action may chill into silence those to whom the
action is directed. Any citizen must be allowed to take up the cudgels for
those who have been cowed into inaction because freedom of expression is a
vital public right that must be defended by everyone and anyone.
Freedom of expression, being fundamental to the preservation of a free, open
and democratic society, is of transcendental importance that must be
defended by every patriotic citizen at the earliest opportunity. We have held
that any concerned citizen has standing to raise an issue of transcendental
importance to the nation,7 and petitioner in this present petition raises such
issue.
2. Overview of Freedom of Expression, Prior Restraint and Subsequent
Punishment
Freedom of expression is the foundation of a free, open and democratic
society. Freedom of expression is an indispensable condition 8 to the exercise
of almost all other civil and political rights. No society can remain free, open
and democratic without freedom of expression. Freedom of expression

guarantees full, spirited, and even contentious discussion of all social,

economic and political issues. To survive, a free and democratic society must
zealously safeguard freedom of expression.
Freedom of expression allows citizens to expose and check abuses of public
officials. Freedom of expression allows citizens to make informed choices of
candidates for public office. Freedom of expression crystallizes important
public policy issues, and allows citizens to participate in the discussion and
resolution of such issues. Freedom of expression allows the competition of
ideas, the clash of claims and counterclaims, from which the truth will likely
emerge. Freedom of expression allows the airing of social grievances,
mitigating sudden eruptions of violence from marginalized groups who
otherwise would not be heard by government. Freedom of expression
provides a civilized way of engagement among political, ideological, religious
or ethnic opponents for if one cannot use his tongue to argue, he might use
his fist instead.
Freedom of expression is the freedom to disseminate ideas and beliefs,
whether competing, conforming or otherwise. It is the freedom to express to
others what one likes or dislikes, as it is the freedom of others to express to
one and all what they favor or disfavor. It is the free expression for the ideas
we love, as well as the free expression for the ideas we hate. 9 Indeed, the
function of freedom of expression is to stir disputes:
[I]t may indeed best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger. Speech is often provocative and challenging. It may strike at
prejudices and preconceptions and have profound unsettling effects as it
presses for acceptance of an idea.10
Section 4, Article III of the Constitution prohibits the enactment of any law
curtailing freedom of expression:
No law shall be passed abridging the freedom of speech, of expression, or
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
Thus, the rule is that expression is not subject to any prior restraint or
censorship because the Constitution commands that freedom of expression
shall not be abridged. Over time, however, courts have carved out narrow
and well defined exceptions to this rule out of necessity.

The exceptions, when expression may be subject to prior

restraint, apply in this jurisdiction to only four categories of expression,
namely: pornography,11 false or misleading advertisement,12 advocacy of
imminent lawless action,13 and danger to national security.14All other
expression is not subject to prior restraint. As stated in Turner
Broadcasting System v. Federal Communication Commission, [T]he First
Amendment (Free Speech Clause), subject only to narrow and well
understood exceptions, does not countenance governmental control over the
content of messages expressed by private individuals.15
Expression not subject to prior restraint is protected expression or highvalue expression. Any content-based prior restraint on protected
expression is unconstitutional without exception. A protected
expression means what it saysit is absolutely protected from censorship.
Thus, there can be no prior restraint on public debates on the amendment or
repeal of existing laws, on the ratification of treaties, on the imposition of
new tax measures, or on proposed amendments to the Constitution.
Prior restraint on expression is content-based if the restraint is aimed at the
message or idea of the expression. Courts will subject to strict scrutiny
content-based restraint. If the content-based prior restraint is directed at
protected expression, courts will strike down the restraint as unconstitutional
because there can be no content-based prior restraint on protected
expression. The analysis thus turns on whether the prior restraint is contentbased, and if so, whether such restraint is directed at protected expression,
that is, those not falling under any of the recognized categories of
unprotected expression.
If the prior restraint is not aimed at the message or idea of the expression, it
is content-neutral even if it burdens expression. A content-neutral restraint is
a restraint which regulates the time, place or manner of the expression in
public places16 without any restraint on the content of the expression. Courts
will subject content-neutral restraints to intermediate scrutiny.17
An example of a content-neutral restraint is a permit specifying the date,
time and route of a rally passing through busy public streets. A contentneutral prior restraint on protected expression which does not touch on the
content of the expression enjoys the presumption of validity and is thus
enforceable subject to appeal to the courts. 18 Courts will uphold time, place
or manner restraints if they are content-neutral, narrowly tailored to serve a

significant government interest, and leave open ample alternative channels

of expression.19
In content-neutral prior restraint on protected speech, there should be no
prior restraint on the content of the expression itself. Thus, submission of
movies or pre-taped television programs to a government review board is
constitutional only if the review is for classification and not for censoring any
part of the content of the submitted materials. 20 However, failure to submit
such materials to the review board may be penalized without regard to the
content of the materials.21 The review board has no power to reject the airing
of the submitted materials. The review boards power is only to classify the
materials, whether for general patronage, for adults only, or for some other
classification. The power to classify expressions applies only to movies and
pre-taped television programs22 but not to live television programs. Any
classification of live television programs necessarily entails prior restraint on
expression.
Expression that may be subject to prior restraint is unprotected
expression or low-value expression. By definition, prior restraint on
unprotected expression is content-based23 since the restraint is imposed
because of the content itself. In this jurisdiction, there are currently only four
categories of unprotected expression that may be subject to prior restraint.
This Court recognized false or misleading advertisement as unprotected
expression only in October 2007.24
Only
unprotected
expression
may
be
subject
to
prior
restraint. However, any such prior restraint on unprotected expression must
hurdle
a
high
barrier. First, such
prior
restraint
is
presumed
unconstitutional. Second, the government bears a heavy burden of proving
the constitutionality of the prior restraint.25
Courts will subject to strict scrutiny any government action imposing prior
restraint on unprotected expression. 26 The government action will be
sustained if there is a compelling State interest, and prior restraint is
necessary to protect such State interest. In such a case, the prior restraint
shall be narrowly drawnonly to the extent necessary to protect or attain
the compelling State interest.
Prior restraint is a more severe restriction on freedom of expression than
subsequent punishment. Although subsequent punishment also deters

expression, still the ideas are disseminated to the public. Prior restraint
prevents even the dissemination of ideas to the public.
While there can be no prior restraint on protected expression, such
expression may be subject to subsequent punishment,27 either civilly or
criminally. Thus, the publication of election surveys cannot be subject to prior
restraint,28 but an aggrieved person can sue for redress of injury if the survey
turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised
Penal Code punishing shows which offend any race or religion cannot be
used to justify prior restraint on religious expression, this provision can be
invoked to justify subsequent punishment of the perpetrator of such
offensive shows.29
Similarly, if the unprotected expression does not warrant prior restraint, the
same expression may still be subject to subsequent punishment, civilly or
criminally. Libel falls under this class of unprotected expression. However, if
the expression cannot be subject to the lesser restriction of subsequent
punishment, logically it cannot also be subject to the more severe restriction
of prior restraint. Thus, since profane language or hate speech against a
religious minority is not subject to subsequent punishment in this
jurisdiction,30 such expression cannot be subject to prior restraint.
If the unprotected expression warrants prior restraint, necessarily the same
expression is subject to subsequent punishment. There must be a law
punishing criminally the unprotected expression before prior restraint on
such expression can be justified. The legislature must punish the unprotected
expression because it creates a substantive evil that the State must prevent.
Otherwise, there will be no legal basis for imposing a prior restraint on such
expression.
The prevailing test in this jurisdiction to determine the constitutionality of
government action imposing prior restraint on three categories of
unprotected expressionpornography,31 advocacy of imminent lawless
action, and danger to national securityis the clear and present danger
test.32 The expression restrained must present a clear and present danger of
bringing about a substantive evil that the State has a right and duty to
prevent, and such danger must be grave and imminent.33
Prior restraint on unprotected expression takes many formsit may be a law,
administrative regulation, or impermissible pressures like threats of revoking
licenses or withholding of benefits.34 The impermissible pressures need not

be embodied in a government agency regulation, but may emanate from

policies, advisories or conduct of officials of government agencies.
3. Government Action in the Present Case
The government action in the present case is a warning by the NTC that
the airing or broadcasting of the Garci Tapes by radio and television
stations is a cause for the suspension, revocation and/or
cancellation of the licenses or authorizations issued to radio and
television stations. The NTC warning, embodied in a press release, relies on
two grounds. First, the airing of the Garci Tapes is a continuing violation of
the Anti-Wiretapping Law and the conditions of the Provisional Authority
and/or Certificate of Authority issued to radio and TV stations. Second, the
Garci Tapes have not been authenticated, and subsequent investigation may
establish
that
the
tapes
contain
false
information
or
willful
misrepresentation.
Specifically, the NTC press release contains the following categorical
warning:
Taking into consideration the countrys unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and
television networks owners/operators that the conditions of the
authorizations and permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority explicitly provides that
said companies shall not use its stations for the broadcasting or telecasting
of false information or willful misrepresentation. Relative thereto, it has come
to the attention of the Commission that certain personalities are in
possession of alleged taped conversation which they claim, (sic) involve the
President of the Philippines and a Commissioner of the COMELEC regarding
their supposed violation of election laws. These personalities have admitted
that the taped conversations are product 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, (sic) it is
the position of the Commission 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. If it has been

(sic) 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. (Boldfacing and underscoring supplied)
The NTC does not claim that the public airing of the Garci Tapes constitutes
unprotected expression that may be subject to prior restraint. The NTC does
not specify what substantive evil the State seeks to prevent in imposing prior
restraint on the airing of the Garci Tapes. The NTC does not claim that the
public airing of the Garci Tapes constitutes a clear and present danger of a
substantive evil, of grave and imminent character, that the State has a right
and duty to prevent.
The NTC did not conduct any hearing in reaching its conclusion that the
airing of the Garci Tapes constitutes a continuing violation of the AntiWiretapping Law. At the time of issuance of the NTC press release, and even
up to now, the parties to the conversations in the Garci Tapes have not
complained that the wire-tapping was without their consent, an essential
element for violation of the Anti-Wiretapping Law. 35 It was even the Office of
the President, through the Press Secretary, that played and released to
media the Garci Tapes containing the alleged spliced conversation between
President Arroyo and Commissioner Garcillano. There is also the issue of
whether a wirelesscellular phone conversation is covered by the AntiWiretapping Law.
Clearly, the NTC has no factual or legal basis in claiming that the airing of the
Garci Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and
television stations were not even given an opportunity to be heard by the
NTC. The NTC did not observe basic due process as mandated in Ang Tibay v.
Court of Industrial Relations.36
The NTC claims that the Garci Tapes, after a prosecution or the appropriate
investigation,
may
constitute
false
information
and/or
willful
misrepresentation. However, the NTC does not claim that such possible
false information or willful misrepresentation constitutes misleading
commercial advertisement. In the United States, false or deceptive
commercial speech is categorized as unprotected expression that may be

subject to prior restraint. Recently, this Court upheld the constitutionality of

Section 6 of the Milk Code requiring the submission to a government
screening committee of advertising materials for infant formula milk to
prevent false or deceptive claims to the public. 37 There is, however, no claim
here by respondents that the Garci Tapes constitute false or misleading
commercial advertisement.
The NTC concedes that the Garci Tapes have not been authenticated as
accurate or truthful. The NTC also concedes that only after a prosecution or
appropriate investigation can it be established that the Garci Tapes
constitute false information and/or willful misrepresentation. Clearly, the
NTC admits that it does not even know if the Garci Tapes contain
false information or willful misrepresentation.
4. Nature of Prior Restraint in the Present Case
The NTC action restraining the airing of the Garci Tapes is a content-based
prior restraint because it is directed at the message of the Garci Tapes. The
NTCs claim that the Garci Tapes might contain false information and/or
willful misrepresentation, and thus should not be publicly aired, is
an admission that the restraint is content-based.
5. Nature of Expression in the Present Case
The public airing of the Garci Tapes is a protected expression because it
does not fall under any of the four existing categories of unprotected
expression recognized in this jurisdiction. The 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 right after the close of voting in the last presidential elections.
Obviously, the content of the Garci Tapes affects gravelythe sanctity of
the ballot. Public discussion on the sanctity of the ballot is indisputably a
protected expression that cannot be subject to prior restraint. 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,38 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.

The rule, which recognizes no exception, is that there can be no

content-based prior restraint on protected expression. On this
ground alone, the NTC press release is unconstitutional. Of course, if
the courts determine that the subject matter of a wiretapping, illegal or not,
endangers the security of the State, the public airing of the tape becomes
unprotected expression that may be subject to prior restraint. However,
there is no claim here by respondents that the subject matter of the Garci
Tapes involves national security and publicly airing the tapes would endanger
the security of the State.39
The alleged violation of the Anti-Wiretapping Law is not in itself a ground to
impose a prior restraint on the airing of the Garci Tapes because the
Constitution expressly prohibits the enactment of any law, and that includes
anti-wiretapping laws, curtailing freedom of expression. 40 The only exceptions
to this rule are the four recognized categories of unprotected expression.
However, the content of the Garci Tapes does not fall under any of these
categories of unprotected expression.
The airing of the Garci Tapes does not violate the right to privacy because
the content of the Garci Tapes is a matter of important public concern. The
Constitution guarantees the peoples right to information on matters of
public concern.41 The remedy of any person aggrieved by the public airing of
the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping
Law after the commission of the crime. Subsequent punishment, absent a
lawful defense, is the remedy available in case of violation of the AntiWiretapping Law.
The present case involves a prior restraint on protected expression. Prior
restraint on protected expression differs significantly from subsequent
punishment of protected expression. While there can be no prior restraint on
protected expression, there can be subsequent punishment for protected
expression under libel, tort or other laws. In the present case, the NTC action
seeks prior restraint on the airing of the Garci Tapes, not punishment of
personnel of radio and television stations for actual violation of the AntiWiretapping Law.
6. Only the Courts May Impose Content-Based Prior Restraint
The NTC has no power to impose content-based prior restraint on expression.
The charter of the NTC does not vest NTC with any content-based censorship
power over radio and television stations.

In the present case, the airing of the Garci Tapes is a protected expression
that can never be subject to prior restraint. However, even assuming for the
sake of argument that the airing of the Garci Tapes constitutes unprotected
expression, only the courts have the power to adjudicate on the factual and
legal issue of whether the airing of the Garci Tapes presents a clear and
present danger of bringing about a substantive evil that the State has a right
and duty to prevent, so as to justify the prior restraint.
Any order imposing prior restraint on unprotected expression requires
prior adjudication by the courts on whether the prior restraint is
constitutional. This is a necessary consequence from the presumption of
invalidity of any prior restraint on unprotected expression. Unless ruled by
the courts as a valid prior restraint, government agencies cannot implement
outright such prior restraint because such restraint is presumed
unconstitutional at inception.
As an agency that allocates frequencies or airwaves, the NTC may regulate
the bandwidth position, transmitter wattage, and location of radio and
television stations, but not the content of the broadcasts. Such contentneutral prior restraint may make operating radio and television stations more
costly. However, such content-neutral restraint does not restrict the content
of the broadcast.
7. Government Failed to Overcome Presumption of Invalidity
Assuming that the airing of the Garci Tapes constitutes unprotected
expression, the NTC action imposing prior restraint on the airing is presumed
unconstitutional. The Government bears a heavy burden to prove that the
NTC action is constitutional. The Government has failed to meet this burden.
In their Comment, respondents did not invoke any compelling State interest
to impose prior restraint on the public airing of the Garci Tapes. The
respondents claim that they merely fairly warned radio and television
stations to observe the Anti-Wiretapping Law and pertinent NTC circulars on
program standards. Respondents have not explained how and why the
observance by radio and television stations of the Anti-Wiretapping Law and
pertinent NTC circulars constitutes a compelling State interest justifying prior
restraint on the public airing of the Garci Tapes.
Violation of the Anti-Wiretapping Law, like the violation of any criminal
statute, can always be subject to criminal prosecution after the violation is

committed. Respondents have not explained why there is a need in the

present case to impose prior restraint just to prevent a possible future
violation of the Anti-Wiretapping Law. Respondents have not explained how
the violation of the Anti-Wiretapping Law, or of the pertinent NTC circulars,
can incite imminent lawless behavior or endanger the security of the State.
To allow such restraint is to allow prior restraint on all future broadcasts that
may possibly violate any of the existing criminal statutes. That would be the
dawn of sweeping and endless censorship on broadcast media.
8. The NTC Warning is a Classic Form of Prior Restraint
The NTC press release threatening to suspend or cancel the airwave permits
of radio and television stations constitutes impermissible pressure amounting
to prior restraint on protected expression. Whether the threat is made in an
order, regulation, advisory or press release, the chilling effect is the same:
the threat freezes radio and television stations into deafening silence. Radio
and television stations that have invested substantial sums in capital
equipment and market development suddenly face suspension or
cancellation of their permits. The NTC threat is thus real and potent.
In Burgos v. Chief of Staf,42 this Court ruled that the closure of the We
Forum newspapers under a general warrant is in the nature of a previous
restraint or censorship abhorrent to the freedom of the press guaranteed
under the fundamental law. The NTC warning to radio and television stations
not to air the Garci Tapes or else their permits will be suspended or cancelled
has the same effecta prior restraint on constitutionally protected
expression.
In the recent case of David v. Macapagal-Arroyo,43 this Court declared
unconstitutional government threats to close down mass media
establishments that refused to comply with government prescribed
standards on news reporting following the declaration of a State of
National Emergency by President Arroyo on 24 February 2006. The Court
described these threats in this manner:
Thereafter, a
wave
of
warning[s]
came
from
government
officials. Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was meant to show a strong presence, to tell media outlets
not to connive or do anything that would help the rebels in bringing down
this government. Director General Lomibao further stated that if they do
not follow the standardsand the standards are if they would contribute to

instability in the government, or if they do not subscribe to what is in General

Order No. 5 and Proc. No. 1017we will recommend a takeover.' National
Telecommunications Commissioner Ronald Solis urged television
and radio networks to cooperate with the government for the
duration of the state of national emergency. He warned that his
agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage during times
when the national security is threatened.44 (Emphasis supplied)
The Court struck down this wave of warning[s] as impermissible
restraint on freedom of expression. The Court ruled that the imposition of
standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles
for publication and other materials, are declared UNCONSTITUTIONAL.45
The history of press freedom has been a constant struggle against the censor
whose weapon is the suspension or cancellation of licenses to publish or
broadcast. The NTC warning resurrects the weapon of the censor. The NTC
warning is a classic form of prior restraint on protected expression, which
in the words of Near v. Minnesota is the essence of censorship. 46 Long
before the American Declaration of Independence in 1776, William
Blackstone had already written in his Commentaries on the Law of
England, The liberty of the press x x x consists in laying no previous
restraints upon publication x x x.47
Although couched in a press release and not in an administrative regulation,
the NTC threat to suspend or cancel permits remains real and effective, for
without airwaves or frequencies, radio and television stations will fall silent
and die. The NTC press release does not seek to advance a legitimate
regulatory objective, but to suppress through coercion information on a
matter of vital public concern.
9. Conclusion
In sum, the NTC press release constitutes an unconstitutional prior restraint
on protected expression. There can be no content-based prior restraint on
protected expression. This rule has no exception.
I therefore vote to (1) grant the petition, (2) declare the NTC warning,
embodied in its press release dated 11 June 2005, an unconstitutional prior

restraint on protected expression, and (3) enjoin the NTC from enforcing the
same.
ANTONIO T. CARPIO
Associate Justice
Notes:
1

The taped conversations are referred to here as the Garci Tapes.

Report of the Joint Committee on the Canvass of Votes for the Presidential
and Vice-Presidential Candidates in the May 10, 2004 Elections, dated 23
June 2004.
3

In their Comment to the petition, the NTC and respondent Gonzalez only
mentioned Bunyes press conference of 6 June 2005. However, respondents
do not deny petitioners assertion that the 9 June 2005 press conference also
took place.
4

On 7 June 2005, Atty. Alan Paguia, counsel of former President Joseph

Ejercito Estrada, gave to a radio station two tapes, including the Garci Tapes,
which he claimed to be authentic. On 10 June 2005, Samuel Ong, a high
ranking official of the National Bureau of Investigation, presented to the
media the alleged master tape of the Garci Tapes.
5

The press release reads in its entirety:

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/
OPERATORS TO OBSERVE ANTI-WIRE TAPPING LAW AND PERTINENT
NTC CIRCULARS ON PROGRAM STANDARDS

In view of the unusual situation the country is in today, The (sic) National
Telecommunications Commission (NTC) calls for sobriety among the
operators and management of all radio and television stations in the country
and reminds them, especially all broadcasters, to be careful and circumspect
in the handling of news reportage, coverages [sic] of current affairs and
discussion of public issues, by strictly adhering to the pertinent laws of the
country, the current program standards embodied in radio and television
codes and the existing circulars of the NTC.

The NTC said that now, more than ever, the profession of broadcasting
demands a high sense of responsibility and discerning judgment of fairness
and honesty at all times among broadcasters amidst all these rumors of
unrest, destabilization attempts and controversies surrounding the alleged
wiretapping of President GMA (sic) telephone conversations.
Taking into consideration the countrys unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and
television networks owners/operators that the conditions of the
authorizations and permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority explicitly provides that
said companies shall not use its stations for the broadcasting or telecasting
of false information or willful misrepresentation. Relative thereto, it has come
to the attention of the Commission that certain personalities are in
possession of alleged taped conversation which they claim, (sic) involve the
President of the Philippines and a Commissioner of the COMELEC regarding
their supposed violation of election laws. These personalities have admitted
that the taped conversations are product 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, (sic) it is
the position of the Commission 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. If it has been (sic) 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 Commission reiterates the pertinent NTC
circulars on program standards to be observed by radio and television
stations. NTC Memorandum Circular No. 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 and/or telecast if 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 in 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 Commission will not hesitate, after observing the requirements of due
process, to apply with full force the provisions of the said Circulars and their
accompanying sanctions or erring radio and television stations and their
owners/operators.
6

The joint press statement reads (Rollo, pp. 62-63):

JOINT PRESS STATEMENT: THE NTC AND KBP

1. Call for sobriety, responsible journalism, and of law, and the radio and
television Codes.
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 MC [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 is done
responsibly.
5. KBP has program standards that KBP members will observe in the
treatment of news and public affairs programs. These include verification of
sources, non-airing of materials that would constitute inciting to sedition
and/or rebellion.
6. The KBP Codes also require that no false statement or willful
misrepresentation is made in the treatment of news or commentaries.

7. The supposed wiretapped tapes should be treated with sensitivity and

handled responsibly giving due consideration to the process being
undertaken to verify and validate the authenticity and actual content of the
same.
7

David v. Macapagal-Arroyo, G.R. No. 1713396, 3 May 2006, 489 SCRA 160.

In Palko v. Connecticut, 302 U.S. 319 (1937), Justice Benjamin Cardozo

wrote that freedom of expression is the matrix, the indispensable condition,
of nearly every other form of freedom.
9

See dissenting opinion of Justice Oliver Wendell Holmes in United States v.

Schwimmer, 279 U.S. 644 (1929).
10

Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

11

Gonzales v. Kalaw-Katigbak, No. L-69500, 22 July 1985, 137 SCRA 717.

12

Pharmaceutical and Health Care Association of the Philippines v. Health

Secretary Francisco T. Duque III, G.R. No. 173034, 9 October 2007. Another
fundamental ground for regulating false or misleading advertisement is
Section 11(2), Article XVI of the Constitution which states: The advertising
industry is impressed with public interest, and shall be regulated by law for
the protection of consumers and the promotion of the general welfare.
13

Eastern Broadcasting Corporation v. Dans, No. L-59329, 19 July 1985, 137

SCRA 628.
14

Id.

15

512 U.S. 622, 640 (1994).

16

Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, G.R.

Nos. 169838, 169848 and 156881, 25 April 2006, 488 SCRA 2260.
17

Constitutional Law, Erwin Chemerinsky, pp. 902, 936 (2nd Edition).

18

Ruiz v. Gordon, 211 Phil. 411 (1983).

19

United States v. Grace, 461 U.S. 171 (1983).

20

Gonzalez v. Kalaw-Katigbak,see Note 11. The Court declared, It is the

opinion of this Court, therefore, that to avoid an unconstitutional taint on its
creation, the power of respondent Board is limited to the
classification of films.
21

Movie and Television Review and Classification Board v. ABS-CBN

Broadcasting Corporation, G.R. No. 155282, 17 January 2005, 448 SCRA
5750.
22

A case may be made that only television programs akin to motion pictures,
like tele-novelas, are subject to the power of review and classification by a
government review board, and such power cannot extend to other pre-taped
programs like political shows.
23

Constitutional Law, Chemerinsky, see Note 17, p. 903.

24

See Note 12.

25

Iglesia ni Cristo (INC) v. Court of Appeals, Board of Review for Motion

Pictures and Television, G.R. No. 119673, 26 July 1996, 259 SCRA 529; New
York Times v. United States, 403 U.S. 713 (1971).
26

Id.

27

Ayer Productions Pty. Ltd. v. Capulong, G.R. No. L-82380, 29 April 1988, 160
SCRA 861.
28

29

Social Weather Station, et al. v. COMELEC, 409 Phil. 571 (2001).

See Note 25.

30

VRS Publications, Inc. v. Islamic Dawah Council of the Philippines, Inc., 444
Phil. 230 (2003). In effect, this makes hate speech against a religious or
ethnic minority a protected expression.
31

In pornography or obscenity cases, the ancillary test is the contemporary

community standards test enunciated in Roth v. United States(354 U.S. 476
[1957]), which asks: whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a whole
appeals to prurient interest. See Gonzalez v. Kalaw-Katigbak, Note 11.

32

See notes 12 and 13. In false or misleading advertisement cases, no test

was enunciated in Pharmaceutical and Health Care Association of the
Philippines v. Health Secretary (see Note 12) although the Concurring and
Separate Opinion of Chief Justice Reynato S. Puno advocated the four-part
analysis in Central Hudson Gas & Electric v. Public Service Commission (447
U.S. 557 [1980]), to wit: (1) the advertisement must concern lawful activity
and not be misleading; (2) the asserted governmental interest must be
substantial; (3) the state regulation directly advances the governmental
interest asserted; and (4) the restriction is no more extensive than is
necessary to serve that interest.
33

Bayan v. Ermita,see Note 16. In the United States, the prevailing test is the
Brandenburg standard (Brandenburg v. Ohio, [395 U.S. 444 1969]) which
refined the clear and present danger rule articulated by Justice Oliver
Wendell Holmes in Schenck v. United States (249 U.S. 47 [1919]) by limiting
its application to expressions where there is imminent lawless action.
See American Constitutional Law, Otis H. Stephen, Jr. and John M. Scheb II,
Vol. II, p. 133 (4th Edition).
34

Federal Communications Commission v. League of Women Voters, 468 U.S.

364 (1984).
35

Section 1, Republic Act No. 4200.

36

69 Phil. 635 (1940).

37

See Note 12.

38

Some commentators, including Prof. Robert Bork, argue that political

expression is the only expression protected by the Free Speech Clause. The
U.S. Supreme Court has rejected this view. Constitutional Law,
Chemerinsky, see Note 17, p. 897.
39

See Commonwealth Act No. 616 and Article 117 of the Revised Penal Code.

40

See Bartnicki v. Vopper, 532 U.S. 514 (2001). In this case, the U.S.
Supreme Court held that an anti-wiretapping law violates the First
Amendment if it prohibits disclosure of intercepted information that is of
significant public concern.
41

Section 7, Article III, Constitution.

42

218 Phil. 754 (1984).

43

See Note 7.

44

Id. at 268.

45

Id. at 275.

46

283 U.S. 697 (1931).

47

American Constitutional Law, Ralph A. Rossum and G. Alan Tass, vol. II, p.
183 (7th Edition).

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
CHICO-NAZARIO, J.:
With all due respect, I vote to dismiss the present Petition for the simple
reason that the assailed press statements made by the National
Telecommunications Commission (NTC) and the Secretary of Justice Raul
Gonzales (Gonzales) do not constitute prior restraint that impair freedom of
speech. There being no restraint on free speech, then there is even no need
to apply any of the tests, i.e, the dangerous tendency doctrine, the balancing
of interests test, and the clear and present danger rule, to determine
whether such restraint is valid.

The assailed press statements must be understood and interpreted in the

proper perspective. The statements must be read in their entirety, and
interpreted in the context in which they were made.
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. It reminded the owners and operators of the radio
stations and television networks of the provisions in NTC Memorandum
Circulars No. 11-12-85 and 22-89, which are also stated in the authorizations
and permits granted to them by the government, that they shall not use their
stations for the broadcasting or telecasting of false information or willful
misrepresentation. It must be emphasized that the NTC is merely reiterating
the very same prohibition already contained in its previous circulars, and
even in the authorizations and permits of radio and television stations. The
reason thus escapes me as to why said prohibition, when it was stated in the
NTC Memorandum Circulars and in the authorizations and permits, was valid
and acceptable, but when it was reiterated in a mere press
statement released by the NTC, had become a violation of the Constitution
as a prior restraint on free speech.
In the midst of the media frenzy that surrounded the Garci tapes, the NTC, as
the administrative body tasked with the regulation of radio and television
broadcasting
companies,
cautioned
against
the
airing
of
the unauthenticated tapes. The warning of the NTC was expressed in the
following manner, [i]f it has been (sic) 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.
According to the foregoing sentence, before any penalty could be
imposed on a radio or television company for airing the Garci tapes,
the tapes must have been established to be false and fraudulent
after prosecution and investigation. The warning is nothing new for it
only verbalizes and applies to the particular situation at hand an existing
prohibition against spreading false information or willful misrepresentation by
broadcast companies. In fact, even without the contested fair warning
issued by the NTC, broadcast companies could still face penalties if, after
investigation and prosecution, the Garci tapes are established to be false and

fraudulent, and the airing thereof was done to purposely spread false
information or misrepresentation, in violation of the prohibition stated in the
companies authorizations and permits, as well as the pertinent NTC
Memorandum Circulars.
Moreover, we should not lose sight of the fact that just three days after its
issuance of its fair warning, or on 14 June 2005, the NTC again released
another press statement, this time, jointly made with the Kapisanan ng
Broadcasters sa Pilipinas (KBP), to the effect that:
JOINT PRESS STATEMENT: NTC AND KBP

CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND OBSERVANCE OF LAW,

AND THE RADIO AND TELEVISION CODES.
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 (sic) PRESS
FREEDOM WITH HIGH SENSE OF RESPONSIBILITY AND DISCERNING
JUDGMENT OF FAIRNESS AND HONESTY.
NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A RESTRAINT OF
PRESS FREEDOM OR CENSORSHIP. NTC FURTHER DENIES AND DOES NOT
INTEND TO LIMIT OR RESTRICT THE INTERVIEW OF MEMBERS OF THE
OPPOSITION OR FREE EXPRESSION OF VIEWS.
WHAT IS BEING ASKED BY NTC IS THAT THE EXERCISE OF PRESS FREEDOM IS
DONE RESPONSIBLY.
KBP HAS PROGRAM STANDARDS THAT KBP MEMBERS WILL OBSERVE IN THE
TREATMENT OF NEWS AND PUBLIC AFFAIRS PROGRAMS. THESE INCLUDE
VERIFICATION OF SOURCES, NON-AIRING OF MATERIALS THAT WOULD
CONSTITUTE INCITING TO SEDITION AND/OR REBELLION.
THE KBP CODES ALSO REQUIRE THAT NO FALSE STATEMENT OR WILLFUL
MISREPRESENTATION IS MADE IN THE TREATMENT OF NEWS OR
COMMENTARIES.
THE SUPPOSED WIRETAPPED (sic) TAPES SHOULD BE TREATED WITH
SENSITIVITY AND HANDLED RESPONSIBLY GIVING DUE CONSIDERATION TO
THE PROCESSES BEING UNDERTAKEN TO VERIFY AND VALIDATE THE
AUTHENTICITY AND ACTUAL CONTENT OF THE SAME.

The relevance of the afore-quoted press statement cannot be downplayed. It

already categorically settles what NTC meant and how the KBP understood
the 11 June 2005 NTC press statement. We cannot insist to give a different
and more sinister interpretation to the first press statement, when the
second press statement had already particularly defined the context by
which it should be read.

Neither should we give much merit to the statements made by Secretary

Gonzales to the media that he had already instructed the National Bureau of

Investigation (NBI) to monitor all radio stations and television networks for
possible violations of the Anti-Wiretapping Law. Secretary Gonzales is one of
medias favorite political personalities, hounded by reporters, and featured
almost daily in newspapers, radios, and televisions, for his quotable
quotes, some of which appeared to have been uttered spontaneously and
flippantly. There was no showing that Secretary Gonzales had actually and
officially ordered the NBI to conduct said monitoring of radio and television
broadcasts, and that the NBI acted in accordance with said order. Which
leads me to my next point.
We should be judicious in giving too much weight and credence to press
statements. I believe that it would be a dangerous precedent to rule that
press statements should be deemed an official act of the administrative
agency or public official concerned. Press statements, in general, can be
easily manufactured, prone to alteration or misinterpretation as they are
being reported by the media, and may, during some instances, have to be
made on the spot without giving the source much time to discern the
ramifications of his statements. Hence, they cannot be given the same
weight and binding effect of official acts in the form of, say, memorandum
orders or circulars.
Even if we assume arguendo that the press statements are official issuances
of the NTC and Secretary Gonzales, then the petitioner alleging their
unconstitutionality must bear the burden of proving first that the challenged
press statements did indeed constitute prior restraint, before the
presumption of invalidity of any system of prior restraint on free speech
could arise. Until and unless the petitioner satisfactorily discharges the said
burden of proof, then the press statements must similarly enjoy the
presumption of validity and constitutionality accorded to statutes, having
been issued by officials of the executive branch, a co-equal. The NTC and
Secretary Gonzales must likewise be accorded the presumption that they
issued the questioned press statements in the regular performance of their
duties as the regulatory body for the broadcasting industry and the head of
the principal law agency of the government, respectively.
Significantly also, please allow me to observe that the purported chilling
effect of the assailed press statements was belied by the fact that the
owners and operators of radio stations and television networks, who were
supposed to feel most threatened by the same, did not find it necessary to
go to court. They should have been the ones to have felt and attested to the

purported chilling effect of said press statements. Their silence in all this
speaks for itself.
In view of the foregoing, I vote for the denial of the present petition.
MINITA V. CHICO-NAZARIO
Associate Justice

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.
DISSENTING OPINION
NACHURA, J.:
I respectfully register my dissent to the majority opinion penned by the
esteemed Chief Justice. The assailed press releases and statements do not
constitute a prior restraint on free speech. It was not improper for the NTC to
warn the broadcast media that the airing of taped materials, if subsequently
shown to be false, would be a violation of law and of the terms of their
certificate of authority, and could lead, after appropriate investigation, to the
cancellation or revocation of their license.
The Facts

This case arose from events that transpired a year after the 2004 national
and local elections, a period marked by disquiet and unrest; events that
rocked the very foundations of the present administration.
To recall, on June 5, 2005, Press Secretary Ignacio Bunye conveyed to
reporters that the opposition was planning to destabilize the administration
by releasing an audiotape of a bugged mobile phone conversation allegedly
between the President of the Republic of the Philippines and a high-ranking
official of the Commission on Elections (COMELEC).1
The following day, June 6, 2005, Secretary Bunye presented and played two
compact discs (CDs) to the Malacaan Press Corps, and explained that the
first contained the wiretap, while the second, the spliced, doctored, and
altered version which would suggest that during the 2004 National and Local
Elections the President instructed the COMELEC official to manipulate in her
favor the election results.2
Atty. Alan Paguia, former counsel of then President Joseph E. Estrada,
subsequently released, on June 7, 2005, the alleged authentic tape
recordings of the wiretap. Included, among others, in the tapes were
purported conversations of the President, First Gentleman Jose Miguel Arroyo,
COMELEC Commissioner Virgilio Garcillano, and the late Senator Robert
Barbers.3
On June 8, 2005, respondent Secretary of the Department of Justice (DOJ),
Raul Gonzalez, informed news reporters that persons in possession of copies
of the wiretap and media outlets broadcasting, or publishing the contents
thereof, could be held liable under the Anti-Wiretapping Act [Republic Act No.
42004]. He further told newsmen, on the following day, that he had already
instructed the National Bureau of Investigation (NBI) to monitor all radio
stations and television networks for possible violations of the said law.5
Then, on June 10, 2005, former NBI Deputy Director Samuel Ong presented
to the media the alleged master tape recordings of the wiretap or the socalled mother of all tapes, and disclosed that their contents were
wiretapped by T/Sgt. Vidal Doble of the Intelligence Service of the Armed
Forces of the Philippines (ISAFP). Ong then called for the resignation of the
President.6
On June 11, 2005, after several news reports, respondent National
Telecommunications Commission (NTC) issued the following press release:

Contact:
Office
of
the
National
Telecommunications
BIR
Road,
East
Triangle,
Diliman,
Tel.
E-mail: [email protected]

Commissioner
Commission
Quezon
City
924-4048/924-4037

NTC GIVES FAIR WARNING TO RADIO AND

TELEVISION OWNERS/OPERATORS TO OBSERVE
ANTI-WIRETAPPING LAW AND PERTINENT NTC
CIRCULARS ON PROGRAM STANDARDS
In view of the unusual situation the country is in today, The (sic) National
Telecommunications Commission (NTC) calls for sobriety among the
operators and management of all radio and television stations in the country
and reminds them, especially all broadcasters, to be careful and circumspect
in the handling of news reportage, coverages of current affairs and
discussion of public issues, by strictly adhering to the pertinent laws of the
country, the current program standards embodied in radio and television
codes and the existing circulars of the NTC.
The NTC said that now, more than ever, the profession of broadcasting
demands a high sense of responsibility and discerning judgment of fairness
and honesty at all times among broadcasters amidst all these rumors of
unrest, destabilization attempts and controversies surrounding the alleged
wiretapping of President GMA (sic) telephone conversations.
Taking into consideration the countrys unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and
television networks owners/operators that the conditions of the
authorizations and permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority explicitly provides that
said companies shall not use its stations for the broadcasting or telecasting
of false information or willful misrepresentation. Relative thereto, it has come
to the attention of the Commission that certain personalities are in
possession of alleged taped conversation which they claim, (sic) involve the
President of the Philippines and a Commissioner of the COMELEC regarding
their supposed violation of election laws. These personalities have admitted
that the taped conversations are product 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, (sic) it is
the position of the Commission 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. If it has been (sic) 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 Commission reiterates the pertinent NTC
circulars on program standards to be observed by radio and television
stations. NTC Memorandum Circular No. 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 and/or telecast if 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 in 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 Commission will not hesitate, after observing the requirements of due
process, to apply with full force the provisions of the said Circulars and their
accompanying sanctions on erring radio and television stations and their
owners/operators.7
On June 14, 2005, respondent NTC held a dialogue with the Officers and
Board of Directors of the Kapisanan ng mga Broadcasters sa Pilipinas (KBP)
to clarify the said press release. As a result, the NTC and the KBP issued a
joint press release which reads:8
JOINT PRESS STATEMENT: NTC AND KBP

CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND OBSERVANCE OF LAW,

AND THE RADIO AND TELEVISION CODES.
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 (SIC) PRESS
FREEDOM WITH HIGH SENSE OF RESPONSIBILITY AND DISCERNING
JUDGMENT OF FAIRNESS AND HONESTY.
NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A RESTRAINT OF
PRESS FREEDOM OR CENSORSHIP. NTC FURTHER DENIES AND DOES NOT
INTEND TO LIMIT OR RESTRICT THE INTERVIEW OF MEMBERS OF THE
OPPOSITION OR FREE EXPRESSION OF VIEWS.
WHAT IS BEING ASKED BY NTC IS THAT THE EXERCISE OF PRESS FREEDOM IS
DONE RESPONSIBLY.
KBP HAS PROGRAM STANDARDS THAT KBP MEMBERS WILL OBSERVE IN THE
TREATMENT OF NEWS AND PUBLIC AFFAIRS PROGRAMS. THESE INCLUDE
VERIFICATION OF SOURCES, NON-AIRING OF MATERIALS THAT WOULD
CONSTITUTE INCITING TO SEDITION AND/OR REBELLION.
THE KBP CODES ALSO REQUIRE THAT NO FALSE STATEMENT OR WILLFUL
MISREPRESENTATION IS MADE IN THE TREATMENT OF NEWS OR
COMMENTARIES.
THE SUPPOSED WIRETAPPED (SIC) TAPES SHOULD BE TREATED WITH
SENSITIVITY AND HANDLED RESPONSIBLY GIVING DUE CONSIDERATION TO
THE PROCESSES BEING UNDERTAKEN TO VERIFY AND VALIDATE THE
AUTHENTICITY AND ACTUAL CONTENT OF THE SAME.9

On June 21, 2005, petitioner Francisco Chavez, a Filipino citizen, taxpayer

and law practitioner, instituted the instant Rule 65 Petition10 forcertiorari and
prohibition with a prayer for the issuance of a temporary restraining order on
the following grounds:
RESPONDENTS COMMITTED BLATANT VIOLATIONS OF THE FREEDOM OF
EXPRESSION AND OF THE PRESS AND THE RIGHT OF THE PEOPLE TO
INFORMATION ON MATTERS OF PUBLIC CONCERN ENSHRINED IN ARTICLE III,
SECTIONS 4 AND 7 OF THE 1987 CONSTITUTION.
RESPONDENT NTC ACTED BEYOND ITS POWERS AS A REGULATORY BODY
UNDER EXECUTIVE ORDER 546 AND REPUBLIC ACT NO. 7925 WHEN IT
WARNED RADIO BROADCAST AND TELEVISION STATIONS WITH DIRE
CONSEQUENCES IF THEY CONTINUED TO AIR CONTENTS OF THE
CONTROVERSIAL TAPES OF THE PRESIDENTS CONVERSATION.11
In their Comment12 to the petition, the respondents, through the Office of the
Solicitor General (OSG), countered that: (1) the petitioner had no legal
standing to file, and had no clear case or cause of action to support, the
instant petition as to warrant judicial review; 13 (2) the respondents did not
violate petitioners and/or the publics fundamental liberties of speech, of

expression and of the press, and their right to information on matters of

public concern;14 and (3) the respondent NTC did not commit any grave
abuse of discretion amounting to lack or excess of jurisdiction when it fairly
warned radio and television owners/operators to observe the AntiWiretapping Law and pertinent NTC circulars on program standards.15
The Issues
For the resolution, therefore, of the Court are the following issues: (1)
whether or not petitioner has locus standi; (2) whether or not there exists an
actual case or controversy ripe for judicial review; and (3) whether or not the
respondents gravely abused their discretion to warrant remedial action from
the Court.
On the Procedural Issues
Petitioner has locus standi
Petitioner has standing to file the instant petition. The test is whether the
party has alleged such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult
constitutional questions.16 When suing as a citizen, the person complaining
must allege that he has been or is about to be denied some right or privilege
to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of. 17 When
the issue concerns a public right, it is sufficient that the petitioner is a citizen
and has an interest in the execution of the laws.18
In the case at bench, petitioner Chavez justifies his standing by alleging that
the petition involves the enforcement of the constitutional rights of freedom
of expression and of the press, and to information on matters of public
concern.19 As a citizen of the Republic and as a taxpayer, petitioner has
already satisfied the requisite personal stake in the outcome of the
controversy. In any case, the Court has discretion to relax the procedural
technicality on locus standi, given the liberal attitude it has shown in a
number of prior cases, climaxing in David v. Macapagal-Arroyo.20
The
main
issues
have
been
mooted,
should nonetheless be resolved by the Court

but

the

case

The exercise by this Court of the power of judicial inquiry is limited to the
determination of actual cases and controversies. 21 An actual case or
controversy means an existing conflict that is appropriate or ripe for judicial
determination, one that is not conjectural or anticipatory, otherwise the
decision of the court will amount to an advisory opinion. The power does not
extend to hypothetical questions since any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities.22 Neither will the Court determine a moot question in
a case in which no practical relief can be granted. Indeed, it is unnecessary
to indulge in academic discussion of a case presenting a moot question as a
judgment thereon cannot have any practical legal effect or, in the nature of
things, cannot be enforced.23
In the instant case, it is readily observable that the subsequent joint
statement of the respondent NTC and the Officers and Board of Directors of
the KBP after their June 14, 2005 dialogue not only substantially
diminished24 but, in fact, obliterated the effects of the earlier press warnings,
thus rendering the case moot and academic. Notably, the joint press
statement acknowledged that NTC did not issue any memorandum circular
or order constituting a restraint of press freedom or censorship.
A case becomes moot when its purpose has become stale.25
Be that as it may, the Court should discuss and resolve the fundamental
issues raised herein, in observance of the rule that courts shall decide a
question otherwise moot and academic if it is capable of repetition yet
evasive of review.26
The Dissent
The
assailed
press
statement
does
on the constitutional right to free expression

not

infringe

Petitioner assails the constitutionality of respondents press release and

statements warning radio stations and television networks of the possible
cancellation of their licenses and of potential criminal prosecution that they
may face should they broadcast or publish the contents of the tapes.
Petitioner contends that the assailed press release and statements infringe
on the freedom of expression and of the press.
I do not agree, for the following reasons:

1. The issuance of the press release was a

of the NTCs regulatory authority over broadcast media.

valid

exercise

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.27 Consistent with this principle, the exercise of the
freedom may be the subject of reasonable government regulation.
The broadcast media are no exception. In fact, in Federal Communications
Commission (FCC) v. League of Women Voters in America,28 it was held that

(W)e have long recognized that Congress, acting pursuant to the Commerce
Clause, has power to regulate the use of this scarce and valuable national
resource. The distinctive feature of Congress efforts in this area has been to
ensure through the regulatory oversight of the FCC that only those who
satisfy the public interest, convenience and necessity are granted a license
to use radio and television broadcast frequencies.
In the Philippines, it is the respondent NTC that has regulatory powers over
telecommunications networks. In Republic Act No. 7925, 29 the NTC is
denominated as its principal administrator, and as such shall take the
necessary measures to implement the policies and objectives set forth in the
Act. Under Executive Order 546, 30 the NTC is mandated, among others, to
establish and prescribe rules, regulations, standards and specifications in all
cases related to the issued Certificate of Public Convenience, promulgate
rules and regulations as public safety and interest may require, and
supervise
and
inspect
the
operation
of
radio
stations
and
31
32
telecommunications facilities. The NTC exercises quasi-judicial powers.
The issuance of the press release by NTC was well within the scope of its
regulatory and supervision functions, part of which is to ensure that the radio
and television stations comply with the law and the terms of their respective
authority. Thus, it was not improper for the NTC to warn the broadcast media
that the airing of taped materials, if subsequently shown to be false, would
be a violation of law and of the terms of their certificate of authority, and
could lead, after appropriate investigation, to the cancellation or revocation
of their license.

2.
The
press
release
was
of prior restraint on freedom of expression

not

in

the

nature

Courts have traditionally recognized two cognate and complementary facets

of freedom of expression, namely: freedom from censorship or prior restraint
and freedom from subsequent punishment. The first guarantees
untrammeled right to expression, free from legislative, administrative or
judicial orders which would effectively bar speech or publication even before
it is made. The second prohibits the imposition of any sanction or penalty for
the speech or publication after its occurrence. Freedom from prior restraint
has enjoyed the widest spectrum of protection, but no real constitutional
challenge has been raised against the validity of laws that punish abuse of
the freedom, such as the laws on libel, sedition or obscenity.
Prior restraint is generally understood as an imposition in advance of a
limit upon speech or other forms of expression. 33 In determining whether a
restriction is a prior restraint, one of the key factors considered is whether
the restraint prevents the expression of a message. 34 In Nebraska Press
Association v. Stuart,35 the U.S. Supreme Court declared:
A prior restraint by definition, has an immediate and irreversible sanction.
If 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.
As an aspect of freedom of expression, prior restraint should not be confused
with subsequent punishment. In Alexander v. U.S.,36petitioners complaint
was that the RICO forfeiture provisions on businesses dealing in expressive
materials constituted prior restraint because they may have an improper
chilling effect on free expression by deterring others from engaging in
protected speech. In rejecting the petitioners contention and ruling that the
forfeiture is a permissible criminal punishment and not a prior restraint on
speech, the U.S. Supreme Court said:
The term prior restraint is used to describe administrative and judicial
orders forbidding certain communications when issued in advance of the
time that such communications are to occur. Temporary restraining orders
and permanent injunctionsi.e., court orders that actually forbid speech
activitiesare classic examples of prior restraints.
xxxx

Finally, petitioners proposed definition of the term prior restraint would

undermine the time-honored distinction between barring speech in the future
and penalizing past speech. The doctrine of prior restraint originated in the
common law of England where prior restraints of the press were not
permitted, but punishment after publication was. This very limited
application of the principle of freedom of speech was held inconsistent with
our First Amendment as long ago as Grosjean v. American Press Co. While we
may have given a broader definition to the term prior restraint than was
given to it in English common law, our decisions have steadfastly preserved
the distinction between prior restraints and subsequent punishments.
Though petitioner tries to dismiss this distinction as neither meaningful nor
useful, we think it is critical to our First Amendment jurisprudence. Because
we have interpreted the First Amendment as providing greater protection
from prior restraints than from subsequent punishments, it is important for
us to delineate with some precision the defining characteristics of a prior
restraint. To hold that the forfeiture order in this case constituted a prior
restraint would have the exact opposite effect. It would blur the line
separating prior restraints from subsequent punishments to such a degree
that it would be impossible to determine with any certainty whether a
particular measure is a prior restraint or not.
A survey of free speech cases in our jurisdiction reveals the same disposition:
there is prior restraint when the government act forbids speech, prohibits the
expression of a message, or imposes onerous requirements or restrictions for
the publication or dissemination of ideas. In theses cases, we did not hesitate
to strike down the administrative or judicial order for violating the free
expression clause in the Constitution.
Thus, in Primicias v. Fugoso37 and in Reyes v. Bagatsing,38 the refusal, without
valid cause, of the City Mayor of Manila to issue a permit for a public
assembly was held to have infringed freedom of expression. In Burgos v.
Chief of Staf39 and in Eastern Broadcasting v. Dans,40 the closure of the
printing office of the newspapers, We Forum and Metropolitan Mail, and of
radio station DYRE in Cebu, respectively, was ruled as violation of freedom of
the press.
On election-related restrictions, Mutuc v. COMELEC41 invalidated the
respondents prohibition against the use of taped jingles in mobile units of
candidates; Adiong v. COMELEC42 struck down the COMELECs resolution
limiting the posting of candidates decals and stickers only in designated

areas and not allowing them in private or public vehicles; Sanidad v.

COMELEC43 declared as unconstitutional the COMELEC prohibition on
newspaper columnists and radio commentators to use their columns or
programs to campaign for or against the ratification of the organic act
establishing the Cordillera Autonomous Region; ABS-CBN Broadcasting
Corporation v. COMELEC44 annulled the COMELEC resolution prohibiting the
conduct of exit polls; and Social Weather Stations v. COMELEC 45 nullified
Section 5.4 of Republic Act No. 9006 and Section 24(h) of COMELEC
Resolution 3636 which prohibited the publication of pre-election survey
results within specified periods.
On movies and television, the injunctive writs issued by lower courts against
the movie producers in Ayer Productions Pty. Ltd. v. Capulong46 and in Viva
Productions v. Court of Appeals47 were invalidated, while in Iglesia ni Cristo v.
Court of Appeals,48 the X-rating given by MTRCB to the television show was
ruled as grave abuse of discretion.
But there is no parity between these cases and the case at bench. Unlike the
government acts in the above-cited cases, what we have before us now is
merely a press releasenot an order or a circularwarning broadcast media
on the airing of an alleged taped conversation, with the caveat that should
its falsity be subsequently established, the act could lead to the revocation
or cancellation of their licenses, after appropriate investigation. The warnings
on possible license revocation and criminal prosecution are simply what they
are, mere warnings. They have no compulsive effect, as they do not impose
a limit on speech or other forms of expression nor do they prevent the
expression of a message.
The judicial angle of vision in testing the validity of the assailed press release
against the prior restraint standard is its operation and substance. The
phrase prior restraint is not a self-wielding sword, nor should it serve as a
talismanic test. What is needed is a practical assessment of its operation in
specific or particular circumstances.49
Significant are our own decisions in a number of cases where we rejected the
contention that there was infringement of freedom of expression.
In Lagunzad v. Vda.de Gonzales,50 after balancing the right to privacy of
Padillas family with the right to free expression of the movie producer, we
did not deem the Licensing Agreement for the movie depiction of the life of
Moises Padilla as imposition of an impermissible limit on free speech.

In Presidential
Commission
on
Good
Government
(PCGG)
v.
51
Nepomuceno, we refused to consider the PCGG takeover of radio station
DWRN as an infringement on freedom of the press. In Tolentino v. Secretary
of Finance,52 we did not yield to the proposition of the press that the
imposition of value added tax (VAT) on the gross receipts of newspapers from
advertisements and on their acquisition of paper, ink and services for
publication was an abridgment of press freedom. In Lagunzad, we said that
while the License Agreement allowed the producer to portray in a movie the
life of Moises Padilla, it did not confer poetic license to incorporate fictional
embellishments. The takeover in PCGG was merely intended to preserve the
assets, funds and properties of the station while it maintained its
broadcasting operations. The VAT in Tolentino did not inhibit or impede the
circulation of the newspapers concerned.
Similarly, in the instant case, the issuance of the press release was simply
part of the duties of the NTC in the enforcement and administration of the
laws which it is tasked to implement. The press release did not actually or
directly prevent the expression of a message. The respondents never issued
instructions prohibiting or stopping the publication of the alleged wiretapped
conversation. The warning or advisory in question did not constitute
suppression, and the possible in terrorem effect, if any, is not prior restraint.
It is not prior restraint because, if at all, the feared license revocation and
criminal prosecution come after the publication, not before it, and only after
a determination by the proper authorities that there was, indeed, a violation
of law.
The press release does not have a chilling effect because even
without the press release, existing lawsand rules and regulations
authorize the revocation of licenses of broadcast stations if they
are found to have violated penal laws or the terms of their
authority.53The majority opinion emphasizes the chilling effect of the
challenged press releasesthe fear of prosecution, cancellation or
revocation of license by virtue of the said press statements. 54 With all due
respect, the majority loses sight of the fact that the press statements are not
a prerequisite to prosecution, neither does the petition demonstrate that
prosecution is any more likely because of them. If the prosecutorial arm of
the Government and the NTC deem a media entitys act to be violative of our
penal laws or the rules and regulations governing broadcasters licenses,
they are free to prosecute or to revoke the licenses of the erring
entities with or without the challenged press releases.55

The petitioner likewise makes capital of the alleged prior determination and
conclusion made by the respondents that the continuous airing of the tapes
is a violation of the Anti-Wiretapping Law and of the conditions of the
authority granted to the broadcast stations. The assailed portion of the press
release reads:
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 commission 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.
However, that part of the press statement should not be read in isolation, but
in the context of the entire paragraph, the rest of which reads:
If 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.
Obviously, this latter portion qualifies the earlier part of the paragraph. Only
when it has been sufficiently established, after a prosecution or appropriate
investigation, that the tapes are false or fraudulent may there be a
cancellation or revocation of the stations license. There is no gainsaying that
the airing of false information or willful misrepresentation constitutes a valid
ground for revocation of the license, and so is violation of the AntiWiretapping Law which is a criminal offense. But that such revocation of
license can only be effected after an appropriate investigation clearly shows
that there are adequate safeguards available to the radio and television
stations, and that there will be compliance with the due process clause.
It is noteworthy that in the joint press statement issued on June 14, 2005 by
the NTC and the Kapisanan ng mga Broadcasters sa Pilipinas,there is an
acknowledgement by the parties that NTC did not issue any MC
(Memorandum Circular) or order constituting a restraint of press freedom or
censorship. If the broadcasters who should be the most affected by the
assailed NTC press release, by this acknowledgement, do not feel aggrieved

at all, we should be guided accordingly. We cannot be more popish than the

pope.
Finally, we believe that the clear and present danger rulethe universallyaccepted norm for testing the validity of governmental intervention in free
speechfinds no application in this case precisely because there is no prior
restraint.
3.
The
penal
sanction
in
R.A.
4200
or
the
revocation
of
the
license
for
violation
of
the
terms
and
conditions
of
the
provisional
authority
or
certificate
of
authority
is
permissible
punishment
and
does
not
infringe on freedom of expression.
The Anti-Wiretapping Law (Republic Act 4200) is a penal statute. Over the
years, no successful challenge to its validity has been sustained. Conviction
under the law should fittingly be a just cause for the revocation of the license
of the erring radio or television station.
Pursuant to its regulatory authority, the NTC has issued memorandum
circulars covering Program Standards to be followed by radio stations and
television networks, a common provision of which reads:
All radio broadcasting and television stations shall provide adequate public
service time, shall conform to the ethics of honest enterprise; and shall not
use its stations for the broadcasting or telecasting of obscene or indecent
language, speech and/or scene, or for the dissemination of false
information or willful misrepresentation, or to the detriment of the
public health or to incite, encourage or assist in subversive or treasonable
acts.56
Accordingly, in the Provisional Authority or the Certificate of Authority issued
to all radio, television and cable TV stations, which all licensees must
faithfully abide with, there is incorporated, among its terms and conditions,
the following clause:
Applicant-Grantee shall provide free of charge, a minimum of thirty (30)
hours/month time or access channel thru its radio/television station facilities
to the National Government to enable it to reach the population on important
public issues; assist public information and education; conform with the

ethics of honest enterprise; and shall not use its stations for the
telecasting of obscene or for dissemination of false information or
willful misrepresentation, or do any such act to the detriment of
public welfare, health, morals or to incite, encourage, or assist in
any treasonous, rebellious, or subversive acts/omissions.
Undoubtedly, this is a reasonable standard of conduct demanded of the
media outlets. The sanction that may be imposed for breach thereof
suspension, cancellation or revocation of the stations license after an
appropriate investigation has sufficiently established that there was a breach
is also reasonable. It cannot be characterized as impermissible punishment
which violates freedom of expression.
There
is
no
transgression
of
the
to information on matters of public concern.

peoples

right

With the foregoing disquisition that there was no infringement on freedom of

expression, there is no case for violation of the right to information on
matters of public concern. Indeed, in the context of the prevailing factual
milieu of the case at bench, the petitioners contention can thrive only if
there is a showing that the act of the respondents constituted prior restraint.
There is, therefore, no further need to belabor the point.
NTC
did
not
commit
grave
discretion when it issued the press release

abuse

of

Grave abuse of discretion is defined as such capricious or whimsical exercise

of judgment equivalent to lack of jurisdiction. The abuse of discretion must
be so patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility. 57 For grave abuse of
discretion to be present, petitioner must show that the respondents violated
or ignored the Constitution, the laws or existing jurisprudence.58
As discussed earlier, respondents, in making the questioned press releases,
did not violate or threaten to violate the constitutional rights to free
expression and to information on matters of public concern. No grave abuse
of discretion can be imputed to them.

One final word. With the benefit of hindsight, it is noted that from the time
the assailed press releases were issued and up to the present, the feared
criminal prosecution and license revocation never materialized. They remain
imagined concerns, even after the contents of the tapes had been much
talked about and publicized.
I therefore vote to dismiss the petition for certiorari and prohibition.
ANTONIO EDUARDO B. NACHURA
Associate Justice
Notes:
1

Rollo, pp. 6-7.

Id. at 7 and 58.

Id. at 8 and 59.

Entitled An Act to Prohibit and Penalize Wire Tapping and Other Related
Violations of the Privacy of Communication, and for Other Purposes.
5

Rollo, pp. 8-9 and 59.

Id. at 10 and 59.

Id. at 109-110.

Id. at 116.

Id. at 111-112.

10

Id. at 3-42.

11

Id. at 18.

12

Id. at 56-83.

13

Id. at 64-67.

14

Id. at 68-75.

15

Id. at 75-82.

16

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA
736, 755.
17

Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003).

18

David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483,

171400, 171489 and 171424, May 3, 2006, 489 SCRA 160, 223.
19

20

Rollo, p. 15.
Supra note 18.

21

Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392,
401. This case explains the standards that have to be followed in the
exercise of the power of judicial review, namely: (1) the existence of an
appropriate case; (2) an interest personal and substantial by the party
raising the constitutional question; (3) the plea that the function be exercised
at the earliest opportunity; and (4) the necessity that the constitutional
question be passed upon in order to decide the case.
22

La Bugal-Blaan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 889-890

(2004).
23

Lanuza, Jr. v. Yuchengco, G.R. No. 157033, March 28, 2005, 454 SCRA 130,
138.
24

See Multimedia Holdings Corporation v. Circuit Court of Florida, St. Johns

County, 544 U.S. 1301, 125 S.Ct. 1624, 1626 (2005).
25

Rufino v. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, 496 SCRA
13, 46.
26

Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22, 2006, 499 SCRA
434, 447.
27

Primicias v. Fugoso, 80 Phil. 71 (1980), quoted in Justice Azcunas ponencia

in Bayan v. Ermita, G.R. No. 169838, April 25, 2006.
28

468 U.S. 364 (1984).

29

An Act to Promote and Govern the Development of Philippine

Telecommunications and the Delivery of Public Telecommunications.
30

Dated July 23, 1979.

31

Section 15(e), (g), (h), Executive Order No. 546.

32

Section 16, Executive Order No. 546.

33

State v. Haley, 687 P.2d 305, 315 (1984).

34

Murray v. Lawson, 138 N.J. 206, 222; 649 A.2d 1253, 1261 (1994).

35

427 U.S. 539, 559 (1976).

36

510 U.S. 909, 114 S.Ct. 295, June 28, 1993.

37

80 Phil. 71 (1948).

38

No. L-65366, November 9, 1983, 125 SCRA 553, 564.

39

No. L-64261, December 26, 1984, 133 SCRA 800, 816.

40

137 SCRA 647.

41

36 SCRA 228.

42

G.R. No. 103956, March 31, 1992, 207 SCRA 712, 715.

43

G.R. No. 90878, January 29, 1990, 181 SCRA 529, 534-535.

44

G.R. No. 133486, January 28, 2000.

45

G.R. No. 147571, May 5, 2001, 357 SCRA 496, 506-507.

46

Nos. L-82380 and L-82398, April 29, 1988, 160 SCRA 861.

47

G.R. No. 123881, March 13, 1997.

48

G.R. No. 119673, July 26, 1996, 259 SCRA 529.

49

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-442; 77 S.Ct. 1325, 1328
(1957).
50

181 Phil. 45.

51

G.R. No. 78750, April 20, 1990, 184 SCRA 449, 462-463.

52

G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852,

115873 and 115931, August 25, 1994, 235 SCRA 630, 675-682; see also
Courts Resolution on the motions for reconsideration, October 30, 1995, 249
SCRA 628, 652-656.
53

Republic Act No. 3846; Executive Order No. 546; see pertinent
memorandum
circulars
at
<http://portal.ntc.gov.ph/wps/portal/!
ut/p/.cmd/cs/.ce/7_0_A/.s/7_0_MA/_s. 7_0_A/7_0_MA> (visited: January 3,
2008); see also terms and conditions of provisional authority and/or
certificate of authority granted to radio and television stations, rollo, pp. 119128.
54

See Multimedia Holdings Corporation v. Circuit Court of Florida, St. Johns

County, supra note 24, at 1626-1627.
55

Id.

56

NTC Memorandum Circular No. 22-89.

57

Defensor-Santiago v. Guingona, 359 Phil. 276, 304 (1998).

58

Republic of the Philippines v. COCOFED, 423 Phil. 735, 774 (2001); Ang
Bagong Bayani-OFW Labor Party v. COMELEC, 412 Phil. 308, 340 (2001).

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.
CONCURRING OPINION
SANDOVALGUTIERREZ, 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 Heines
prophecy. The issuance of the Press Release by the National
Telecommunications Commission (NTC) is a form of censorship. To allow the
broadcast 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 freedomscommonly summed up asfreedom 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 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 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 Broadcasting v. Dans,8 while the need for licensing was rightly
defended, the defense was for the purpose, not of regulation of
broadcastcontent, 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 Miltons 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, contentbased prior restraint is highly abhorred in every jurisdiction.
Another objectionable portion of the NTCs 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 NTCs Press Release constitutes censorship of

broadcast 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 broadcast is a continuing violation of the AntiWiretapping 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 truthwhether administered by
judges, jurists, or administrative officialsand 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 AntiWiretapping Law does not make the broadcast 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
governments 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 governments
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 pressto 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.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
Notes:
1

Article 19, Adopted on December 10, 1948.

3 S.C.R. 697 (1990)

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).

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. vs. 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.

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 socalled 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 contentneutral regulation. With respect to content-based regulations, the only
expressions that may be proscribed or punished are the traditionally
recognized unprotected expressionsthose 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
others, 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 naturethey 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 Carpios 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 casegiven 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 respondentsthe DOJ Secretary and the
NTCin 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 respondentsthrough 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 Blackstones 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. 18In 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 theGarci 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,25the 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 individuals exercise of his right to free
expression, public officials may not, as a general rule, respond to an
individuals 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 Efect
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 NAACPs 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); Intl 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 inNAACP 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), affd per curiam 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14

(1968) (finding prosecutors 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, Intl
Longshoremens Assn, 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 teachers 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 applicants or family members 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 medias 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
Courts 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 KBPs 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 recordthat the KBP was so satisfied with the
NTCs 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 medias 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
Courts 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, petitioners
averments in his petition and other submissions comprise the evidence of
the DOJ Secretarys 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 individuals 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 tapesa 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 Googleowned YouTube, which
has
at
least
20
different
files
of
the
49
tapes. Internationally
popular
websites
such
as
the
online
50
encyclopedia Wikipedia have linked to the tapes as well. 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
Notes:
1

Rollo, p. 8.

Id. at 10-11.

Const., Art. III, Sec. 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.

Id. at 23.

Id. at 24.

Rollo, p. 34.

Id. 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. Spains 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 presswhich are protected by the First Amendment from abridgment by Congressare 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 inGuingging 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

Minnesota, 283 U.S. 697 (1931).
19

427 U.S. 539 (1976).

20

Id. at 559.

21

Id.

U.S.

454

(1907); Near

v.

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

32

Id. at 1294-1296.
Supra note 18.

33

Id. at 526.

34

Id., citing Curly v. Village of Sufern, 268 F.3d 65 (2d Cir. 2001), at 73.

35

Decision, p. 35.

36

Rollo, p. 86.

37

Decision, 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

41

Rollo, pp. 8-10.

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).
50

See Hello Garci scandal (http://en.wikipedia.org/wiki/Hello_Garci).

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.
CONCURRING

and

DISSENTING

OPINIONS

VELASCO, JR., J.:

I concur in the results of the majority opinion penned by Chief Justice Puno,
but only insofar as the NTC aspect of the case is concerned.
The opinion of the Chief Justiceupon which this concurrence hingesis to
the effect that the warning issued by the NTC, by way of a press release, that
the continuous airing or broadcast of the Garci Tapes is a violation of the
Anti-Wiretapping Law, restricts the freedom of speech and of the press and
constitutes a content-based prior restraint impermissible under the
Constitution. The quality of impermissibility comes in owing to the
convergence and combined effects of the following postulates, to wit: the
warning was issued at the time when the Garci Tapes was newspaper
headline and radio/TV primetime material; it was given by the agency
empowered to issue, suspend, or altogether cancel the certificate of
authority of owners or operators of radio or broadcast media; the chilling
effect the warning has on media owners, operators, or practitioners; and
facts are obtaining casting doubt on the proposition that airing the
controversial tape would violate the anti-wiretapping law.
I also agree with the Chief Justices observation that the prior restraining
warning need not be embodied in a formal order or circular, it being
sufficient that such warning was made by a government agency, NTC in this
case, in the performance of its official duties. Press releases on a certain

subject can rightfully be treated as statements of official position or policy,

as the case may be, on such subject.
To me, the facts on record are sufficient to support a conclusion that the
press release issued by NTCwith all the unmistakable threat embodied in it
of a possible cancellation of licenses and/or the filing of criminal cases
against erring media owners and practitionersconstitutes a clear instance
of prior restraint. Not lost on this writer is the fact that five (5) days after it
made the press release in question, NTC proceeded to issue jointly with the
Kapisanan ng mga Broadcasters sa Pilipinas (KBP) another press release to
clarify that the earlier one issued was not intended to limit or restrain press
freedom. With the view I take of the situation, the very fact that the KBP
agreed to come up with the joint press statement that NTC did not issue any
[Memorandum Circular] or order constituting a restraint of press freedom or
censorship tends to prove, rather than disprove, the threatening and chilling
tone of its June 11, 2005 press release. If there was no prior restraint from
the point of view of media, why was there a need to hold a dialogue with KBP
and then issue a clarifying joint statement?
Moreover, the fact that media owners, operators, and practitioners appeared
to have been frozen into inaction, not making any visible effort to challenge
the validity of the NTC press statement, or at least join the petitioner in his
battle for press freedom, can only lead to the conclusion that the chilling
effect of the statement left them threatened.
The full ventilation of the issues in an oral argument would have been ideal,
particularly so since TV and radio operators and owners opted not to
intervene nor were asked to give their comment on the chilling effect of the
NTC press statement. Nonetheless, I find the admissions in the pleadings and
the attachments thereto to be more than sufficient to judiciously resolve this
particular issue. The contents of the June 11, 2005 press release eloquently
spoke for themselves. The NTC warning is in reality a threat to TV and radio
station owners and operators not to air or broadcast the Garci Tapes in any
of their programs. The four corners of the NTCs press statement
unequivocally reveal that the Garci Tapes may not be authentic as they
have yet to be duly authenticated. It is a statement of fact upon which the
regulatory body predicated its warning that its airing or broadcast will
constitute false or misleading dissemination of information that could result
in the suspension or cancellation of their respective licenses or franchises.
The press statement was more than a mere notice of a possible suspension.

Its crafting and thrust made it more of a threata declaration by the

regulatory body that the operators or owners should not air or broadcast the
tapes. Otherwise, the menacing portion on suspension or cancellation of
their franchises to operate TV/radio station will be implemented. Indeed, the
very press statement speaks eloquently on the chilling effect on media. One
has to consider likewise the fact that the warning was not made in an official
NTC circular but in a press statement. The press statement was calculated to
immediately inform the affected sectors, unlike the warning done in a
circular which may not reach the intended recipients as fast.
In all, the NTC statement coupled with other circumstances convince this
writer that there was indeed a chilling effect on the TV/radio owners, in
particular, and media, in general.
While the Court has several pieces of evidence to fall back on and judiciously
resolve the NTC press release issue, the situation is different with respect to
the Department of Justice (DOJ) warning issue. What is at hand are mere
allegations in the petition that, on June 8, 2005, respondent DOJ Secretary
Raul Gonzales warned reporters in possession of copies of the compact disc
containing the alleged Garci wiretapped conversation and those
broadcasting or publishing its contents that they could be held liable under
the Anti-Wiretapping Act, adding that persons possessing or airing said tapes
were committing a continuing offense, subject to arrest by anybody who had
personal knowledge of the crime committed or in whose presence the crime
was being committed.1
There was no proof at all of the possible chilling effect that the alleged
statements of DOJ Secretary Gonzales had on the reporters and media
practitioners. The DOJ Secretary, as head of the prosecution arm of the
government and lead administrator of the criminal justice system under the
Administrative Code2 is, to be sure, impliedly empowered to issue reminders
and warnings against violations of penal statutes. And it is a known fact that
Secretary Gonzales had issued, and still issues, such kind of warnings.
Whether or not he exceeded his mandate under premises is unclear. It is for
this main reason that I found the prior-restraint issue in the DOJ aspect of the
case not yet ripe for adjudication.
I, therefore, register my concurrence with the ponencia of Chief Justice
Reynato S. Puno insofar as it nullifies the official statement made by
respondent NTC on June 11, 2005, but dissent, with regrets, with respect to

the nullification of the June 8, 2005 official statement of respondent

Secretary of Justice.
PRESBITERO J. VELASCO, JR.
Associate Justice
Notes:
1

Rollo, pp. 8-9 & 59.

Sec. 1, Chapter I, Title III of Book IV.

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