ARTICLE III Bill of Rights. SECTION 4.

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

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 Malacañang 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 President’s 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 media organizations “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 with Inq7.net, a joint venture between the Philippine Daily Inquirer and
GMA7 television network, because by the very nature of the Internet me- dium, 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 country’s 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.

Chavez vs. Gonzales

Case
G.R. No. 168338
Ponente
PUNO, C.J
Decision Date
Feb 15, 2008
In Chavez v. Gonzales, the court ruled that warnings issued by the National Telecommunications
Commission and the Secretary of Justice constituted unconstitutional prior restraint on freedom
of speech and the press, emphasizing the need for strict scrutiny and a compelling government
interest to justify any restriction on these freedoms.
Case Background and Parties Involved
The case of Chavez v. Gonzales involves a petition filed against the Secretary of the Department
of Justice and the National Telecommunications Commission (NTC).
The petitioner is Francisco Chavez, a Filipino citizen, taxpayer, and law practitioner.
The respondents are the Secretary of Justice, Raul Gonzales, and the National
Telecommunications Commission (NTC).
Allegations and Constitutional Violations
The petition alleges that the respondents violated freedom of expression, freedom of the press,
and the right to information.
The violations were alleged to have occurred through the issuance of warnings and orders
against individuals and media organizations in possession of an audiotape obtained through
wiretapping.
Importance of Freedom of Speech and Press
The court emphasizes the importance of freedom of speech and the press in a democratic
society.
Any law or regulation that restricts these freedoms must pass the strict scrutiny test and be
necessary to achieve a compelling government interest.
Court's Ruling and Findings
The court ruled in favor of the petitioner, declaring the actions of the respondents as censorship
and prior restraint.
The court found that the NTC's warning of subsequent punishment was equally objectionable.
The government had not shown sufficient justification for the enforcement of the prior restraint
and censorship.
Case Details and Arguments
Petition and Constitutional Violations
The case involves a petition filed by Francisco Chavez against the NTC and the DOJ Secretary.
The petition argues that the respondents violated the constitutional provisions on freedom of
expression, freedom of the press, and the right to information.
The case revolves around the issuance of a press release by the NTC warning radio and
television stations about the airing of the controversial "Garci tapes."
Importance of Freedom of Expression
The court discusses the importance of freedom of expression in a democratic society.
Any system of prior restraint on expression is presumed unconstitutional.
The government bears a heavy burden of proving the constitutionality of such restraint.
Analysis of NTC Press Release
The court concludes that the NTC press release constitutes a content-based prior restraint on
protected expression.
The NTC warning is directed at the message of the Garci Tapes and exceeds the NTC's power to
impose such content-based prior restraint.
The NTC warning is not justified by any compelling state interest.
Authority to Impose Prior Restraint
The court argues that only the courts have the power to impose content-based prior restraint
on unprotected expression.
The NTC does not have the authority to do so.
Chilling Effect and Fair Warning
The court rejects the argument that the NTC warning is a mere fair warning and not a prior
restraint.
The warning has a chilling effect on the media and constitutes a classic form of prior restraint.
Court's Decision and Conclusion
The court grants the petition and declares the NTC warning unconstitutional.
The NTC is enjoined from enforcing the warning.
The court emphasizes the importance of protecting freedom of expression in a democratic
society.
Case Details and Questions at Hand
The case involves a petition challenging the actions of the DOJ Secretary and the NTC in relation
to the airing and dissemination of the "Garci tapes."
The questions at hand are whether the DOJ Secretary can be enjoined from prosecuting or
threatening to prosecute individuals for possessing or broadcasting the tapes, and whether the
NTC can be enjoined from sanctioning or threatening to sanction broadcast media outlets for
airing the tapes.
Differences between DOJ Secretary and NTC Actions
The court notes that there are critical differences between the actions of the DOJ Secretary and
the NTC.
The NTC issued a press release that raises the possibility of sanctioning broadcast media, but
does not immediately impose any sanctions.
The DOJ Secretary made statements threatening prosecution without any suspensive
conditions.
The court highlights the difference in the breadth of their ability to infringe on the right to free
expression.
Importance of the Right to Free Expression
The court emphasizes the importance of the right to free expression and its connection to
liberty.
Only traditionally recognized unprotected expressions can be restricted.
For all other protected expressions, there can be no content-based regulation, prior restraint, or
subsequent punishment.
Majority Opinion and Dissenting Opinion
The majority opinion concludes that there was no infringement on the right to free expression
and the right to information.
The dissenting opinion argues that there was a violation of these rights.
The majority opinion emphasizes the limited scope of the NTC's regulatory authority and the
need for evidence of a chilling effect in claims of infringement on free expression.
Court's Analysis of NTC Actions
The court concludes that the NTC's press release does not constitute prior restraint.
It argues that the warning itself is a form of restraint but finds a lack of evidence of a chilling
effect on the broadcast media.
Court's Analysis of DOJ Secretary's Actions
The court finds that the threats of prosecution and imprisonment constitute an infringement of
the right to free expression.
The threats alone already chilled the atmosphere of free speech and expression.
Court's Decision and Implications
The court grants the petition against the DOJ Secretary and dismisses it in relation to the NTC.
The NTC's press release is nullified.
The court highlights the broader implications of the case, particularly in relation to the right to
possess and disseminate information without fear of reprisal.
In Chavez v. Gonzales, the court ruled that warnings issued by the National
Telecommunications Commission and the Secretary of Justice constituted unconstitutional prior
restraint on freedom of speech and the press, emphasizing the need for strict scrutiny and a
compelling government interest to justify any restriction on these freedoms.
OutlineParagraph
Facts:
Petition filed against the Secretary of the Department of Justice and the National
Telecommunications Commission (NTC) for violating freedom of expression, freedom of the
press, and the right to information.
Respondents issued warnings and orders against individuals and media organizations in
possession of an audiotape obtained through wiretapping.
Petitioner argues that these actions restrict the freedoms of speech and the press.
Case involves the issuance of press releases and statements by the NTC and the Secretary of
Justice warning radio and television stations against airing taped conversations allegedly
between the President and a high-ranking official of the Commission on Elections (COMELEC).
Petitioner filed a petition to nullify these warnings, claiming that they constitute
unconstitutional prior restraint on freedom of speech.
Issue:
Whether the warnings issued by the NTC and the Secretary of Justice constitute prior restraint
on freedom of speech.
Ruling:
The warnings issued by the NTC and the Secretary of Justice do constitute prior restraint on
freedom of speech.
There can be no content-based prior restraint on protected expression.
The NTC warning, which threatens suspension or revocation of licenses for airing the tapes, is a
classic form of prior restraint.
The warnings do not meet the strict scrutiny test, as there is no compelling state interest
justifying the prior restraint.
The petition is granted, and the writs of certiorari and prohibition are issued to nullify the
official statements made by the respondents.
The warnings constitute unconstitutional prior restraint on the exercise of freedom of speech
and of the press.
Ratio:
Any law or regulation that restricts freedom of speech and the press must pass the strict
scrutiny test and be necessary to achieve a compelling government interest.
Prior restraint and censorship are not justified in this case.
Evidence presented by the respondents did not satisfy the clear and present danger test, which
is used to determine if a restriction on speech is justified.
The court upholds the exercise of freedom of speech and the press
3 tests:
Restraints on freedom of expression are also evaluated by either or a combination of the
following theoretical tests, to wit: (a) the dangerous tendency doctrine,[28] which were used in
early Philippine case laws; (b) the clear and present danger rule,[29] which was generally adhered
to in more recent cases; and (c) the balancing of interests test,[30] which was also recognized in
our jurisprudence.

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."

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.

What is prior restraint? Prior restraint generally restricts speech before it happens, but it goes
further than that. It also is when the government requires any review or approval process
before the speech or expression occurs. Simply put: A prior restraint is anytime the government
acts as a gatekeeper to free expression.

A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e.,
merely concerned with the incidents of speech, or one that merely controls the time, place, or
manner, and under well[-]defined standards; or (2) a content-based restraint or censorship, i.e.,
the restriction is based on the subject matter of the utterance or speech. The cast of the
restriction determines the test by which the challenged act is assayed with.
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 content-based 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 approach—somewhere 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

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REPUBLIC ACT No. 4200

AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY
COMMUNICATION, AND FOR OTHER PURPOSES.
Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or
word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record
communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or w
or tape recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding se
knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any comm
or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to r
same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furni
transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any
thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be c
this prohibition.
Elements: 1. There is a private communication
2. offender willfully or knowingly taps any wire or cable or uses device or arrangement
Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts d
be unlawful in the preceding section or who violates the provisions of the following section or of any order issued ther
aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than
or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the of
public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to depor
proceedings.
Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, w
authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preced
in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in
seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to comm
inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No.
punishing espionage and other offenses against national security: Provided, That such written order shall only b
granted upon written application and the examination under oath or affirmation of the applicant and the witnes
produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated her
has been committed or is being committed or is about to be committed: Provided, however, That in cases involv
offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to c
sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts o
as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe
evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention
such crimes; and (3) that there are no other means readily available for obtaining such evidence.
The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversat
discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telepho
communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace off
authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the
offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effe
period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless exte
renewed by the court upon being satisfied that such extension or renewal is in the public interest.
All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in t
deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the pea
granted such authority stating the number of recordings made, the dates and times covered by each recording, the nu
tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part the
been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the
envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their cont
revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportu
heard to the person or persons whose conversation or communications have been recorded.
The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jur
acts for which authority is applied for are to be executed.
Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of
any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding
this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or inves
Section 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly amended.
Section 6. This Act shall take effect upon its approval.
Approved: June 19, 1965

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