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Francisco Chavez v. Raul M. Gonzales and NationalTelecommunications Commission, G.R. No. 168338, February 15,2008

D E C I S I O N

(En Banc)

PUNO, J . :

I. THE FACTS

As a consequence of the public release of copies of the Hello Garci compact disc audiotapes involving a wiretapped mobile phone conversation between then-President Gloria Arroyoand Comelec Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales warnedreporters that those who had copies of the CD and those broadcasting or publishing its contentscould be held liable under the Anti-Wiretapping Act. He also stated that persons possessing or airingsaid tapes were committing a continuing offense, subject to arrest by anybody. Finally, he stated thathe had ordered the Nationa l Bureau of Investigation to go after media organizations found to havecaused the spread, the playing and the printing of the contents of a tape .

Meanwhile, respondent NTC warned in a press release all radio stations and TV networkowners/operators that the conditions of the authorization and permits issued to them by governmentlike the Provisional Authority and/or Certificate of Authority explicitly provides that they shall not usetheir stations for the broadcasting or telecasting of false information or willful misrepresentation. TheNTC stated that the continuous airing or broadcast of the Hello Garci taped conversations by radio

and TV stations is a continuing violation of the Anti-Wiretapping Law and the conditions of theProvisional Authority and/or Certificate of Authority. It warned that their broadcast/airing of suchfalse information and/or willful misrepresentation shall be a just cause for the suspension, revocationand/or cancellation of the licenses or authorizations issued to the said media establishments.

Subsequently, a dialogue was held between the NTC and the Kapisanan ng mga Brodkaster sa Pilipinas (KBP) which resulted in the issuance of a Joint Press Statement which stated, amongothers, that the supposed wiretapped tapes should be treated with sensitivity and handledresponsibly.

Petitioner Chavez filed a petition under Rule 65 against respondents Secretary Gonzalesand the NTC directly with the Supreme Court.

II. THE ISSUES

1. Will a purported violation of law such as the Anti-Wiretapping Law justifystraitjacketing the exercise of freedom of speech and of the press?

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2. Did the mere press statements of respondents DOJ Secretary and the NTC constitute a

form of content-based prior restraint that has transgressed the Constitution?

III. THE RULING

[The Court voted 10-5 (CJ Puno, joined by JJ. Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Azcuna, Reyes and Tinga in the majority, asagainst JJ. Corona, Chico-Nazario, Nachura, Leonardo-De Castro and Velasco in the minority) ingranting the petition insofar as respondent Secretary Gonzalezs press statement was concerned.Likewise, it voted 10-5 (CJ Puno, joined by JJ. Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,Carpio, Austria-Martinez, Carpio Morales, Azcuna, Reyes and Velasco in the majority, as against JJ.Corona, Chico-Nazario, Nachura, Leonardo-De Castro and Tinga in the minority) in granting thesame insofar as NTCs press statement was concerned.]

1. NO, a purpor ted v io la t ion o f law suc h as the A nt i -Wiretapping Law wi l l NOT jus t i fy s t ra i t jacket ing the exerc ise of f reedom o f speech and o f the press .

A governmental action that restricts freedom of speech or of the press based on content isgiven the strictest scrutiny, with the government having the burden of overcoming thepresumed unconstitutionality by the clear and present danger rule . This rule applies equallyto all kinds of media, including broadcast media .

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. [T]he great evil which

government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar however are confused and confusing, andrespondents evidence falls short of satisfying the clear and present danger test. Firstly , the variousstatements of the Press Secretary obfuscate the identity of the voices in the taperecording. Secondly , the integrity of the taped conversation is also suspect. The Press Secretaryshowed to the public two versions, one supposed to be a complete version and the other, analtered version. Thirdly , the evidence of the respondents on the wh os and the hows of thewiretapping act is ambivalent, especially considering the tapes different versions. The identity of thewire-tappers, the manner of its commission and other related and relevant proofs are some of theinvisibles 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 themprovide norms of conduct which[,] even if violated[,] have only an adverse effect on a personsprivate comfort but does not endanger national security. There are laws of great significance buttheir violation, by itself and without more , cannot support suppression of free speech and freepress. In fine, violation of law is just a factor , a vital one to be sure, which should be weighed in

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adjudging whether to restrain freedom of speech and of the press. The totality of the injuriouseffects of the violation to private and public interest must be calibrated in light of the preferred statusaccorded by the Constitution and by related international covenants protecting freedom of speechand of the press. In calling for a careful and calibrated measurement of the circumference of allthese factors to determine compliance with the clear and present danger test, the Court should notbe misinterpreted as devaluing violations of law . By all means, violations of law should bevigorously prosecuted by the State for they breed their own evil consequence. But to repeat, theneed to prevent their violation cannot per se trump the exercise of free speech and freepress, a preferred right whose breach can lead to greater evils. For this failure of therespondents alone to offer proof to satisfy the clear and present danger test, the Court has no optionbut to uphold the exercise of free speech and free press. There is no showing that the fearedviolation of the anti-wiretapping law clearly endangers the national security of the State .

2. YES, th e mere press statements of respon dents DOJ Secretary and the NTC const i tu ted a form of con tent -based pr ior res t ra in t tha t has t ransgressed the Const i tu t ion .

[I]t is not decisive that the press statements made by respondents were not reducedin or followed up with formal orders or circulars. It is sufficient that the press statementswere 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 itsstatement as the regulatory body of media. Any act done, such as a speech uttered, for and onbehalf of the government in an official capacity is covered by the rule on prior restraint. Theconcept of an act does not limit itself to acts already converted to a formal order or officialcircular. Otherwise, the non formalization of an act into an official order or circular will resultin 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 rightto free speech and press.