FRANCISCO CHAVEZ vs. RAUL M.

GONZALES, Secretary of the Department of Justice; and NATIONAL

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 elections.2 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
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.

However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs was not
President Arroyo’s 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.

 Ultra vires acts are any acts that lie beyond the authority of a corporation to perform

Respondents objections that

(1) petitioner has no standing to litigate and

(2) the petition fails to meet the case or controversy requirement in constitutional adjudication.

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

Whether the NTC warning embodied in the press release of 11 June 2005 constitutes an impermissible prior
restraint on freedom of expression.
HELD.

Petition granted. NTC’s warning as unconstitutional prior restraint on protected expression, NTC enjoined to
enforce the same.

1. Standing to File Petition

Petitioner has standing to file this petition. 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.

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.

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 condition8 to the exercise of almost all other civil and political rights

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.

The exceptions, when expression may be subject to prior restraint:

1. Pornography

2. false or misleading advertisement

3. advocacy of imminent lawless action

4. danger to national security.14 

All other expression is not subject to prior restraint. 

PROTECTED EXPRESSION – expression not subject to prior restraint. 

Content-based - if the restraint is aimed at the message or idea of the expression. Result is
UNCONCSTITUTIONAL.

Content-neutral restraint - if the prior restraint is not directed at the message or idea of expression; restraint
that regulates the time, place and manner of expression in public places. Ex: Rally

Unprotected expression or low value expression - expression that may be subject to prior restraint; restraint
is imposed because of the content itself.

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 content-neutral 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 board’s 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-based 23 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. 

First, such prior restraint is presumed unconstitutional. 

Second, the government bears a heavy burden of proving the constitutionality of the prior restraint. 25

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.

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.

CLEAR AND PRESENT DANGER TEST - The prevailing test in this jurisdiction to determine the
constitutionality of government action imposing prior restraint on three categories of unprotected expression –
pornography,31 advocacy of imminent lawless action, and danger to national security.

FORMS OF PRIOR RESTRAINT: law, administrative regulation, or impermissible pressures like threats of
revoking licenses or withholding of benefits.3

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.

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 Anti-Wiretapping Law.

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.

There is also the issue of whether a wireless cellular phone conversation is covered by the Anti-
Wiretapping 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

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. 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 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.

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 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.

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. 

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 people’s 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 Anti-Wiretapping 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 Anti-Wiretapping Law.

6. Only the Courts May Impose Content-Based Prior Restraint

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 content-neutral 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

In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on the
public airing of the Garci Tapes. 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.

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 effect – a prior restraint on constitutionally protected expression.

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 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 

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.

HELD:
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.