G.R. No.
168338 February 15, 2008 (545 SCRA 441) Held : When expression may be subject to prior restraint, apply in this jurisdiction
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
SANDOVAL–GUTIERREZ, J.:
"Where they have burned books,
they will end in burning human beings."
Facts :
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 Malacañang 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. 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
Issue :
WON the NTC warning embodied in the press release of 11 June 2005
constitutes an impermissible prior restraint on freedom of expression
to only four categories of expression, namely: pornography, false or misleading
advertisement, advocacy of imminent lawless action, and danger to national
security. All other expression is not subject to prior restrain Expression not
subject to prior restraint is protected expression or high-value expression. Any
content-based prior restraint on protected expression is unconstitutional without
exception. A protected expression means what it says – it is absolutely protected
from censorship 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 prior restraint is not aimed at the message
or idea of the expression, it is content-neutral even if it burdens expression 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 NTC’s
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 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. The content of the
Garci Tapes affects gravely the 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. 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. 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. 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.