LA CUENCA DEL GUADALQUIVIR

Feb. 15, 2008 G.R. No. 168338

Petitioner: Francisco Chavez

Respondent: Raul Gonzales (Sec. of DOJ), National Telecommunications Commission (NTC)

Important Point: Freedom of the press is crucial and often linked to the right to free speech and free expression. Given this, any attempt to restrict it must present sufficient danger that is clear and present.

Summary: After the 2004 National Elections, a controversy came out after cassette tapes that allegedly recorded conversations involving PGMA and Garcillano went on air.

Given that such conversations were being aired all over broadcast media, Pres.

Secretary Ignacio Bunye and the NTC, on separate occasions, issued warnings against broadcast companies to stop airing such information. Petitioner Chavez asked that such warnings be declared null and void for violating freedom of speech, expression, and the press. The court agreed with the petitioner given that the warnings which were content-based restrictions failed to pass the strict scrutiny standard and the clear and present danger test. The evidence of the respondents fell short of satisfying such standards required.

Note: Guys, yung blue part, hindi talaga siya decision. Rather, explanations siya of the terms used in the decision. Must read siya to understand the tests, standards, and types

of restrictions talked about in the decision. Once you’ve read it once, pwede mo na siyang i-skip pag nirereview mo yung case 

Facts:

o The case originates from events that happened after the 2004 national elections

 In 2005, Pres. Sec. Ignacio Bunye told reporters that the opposition had a plan to destabilize the Arroyo administration by releasing an audiotape of a mobile phone conversation allegedly between Arroyo and a high ranking official of the COMELEC

 Taken through wire-tapping

 Later on, Bunye produced two versions of the tape

 Complete version

 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

 Note: it seems that Bunye already admitted that it was GMA's voice, but subsequently made a retraction

 Estrada's lawyer, Atty. Paguia released an alleged authentic tape recording of the wiretap which included the conversations between GMA, Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers

o DOJ Secretary Raul Gonzales warned reporters that those who had copies and those broadcasting and publishing its contents could be held liable under the Anti-Wiretapping Act

 Including Paguia and Bunye

 Those possessing or airing are committing a "continuing offense" subject to arrest by anybody who had personal knowledge of the crime

o Gonzales instructed the NBI to go after media organizations found to have caused the spreading, playing, and printing the contents of the tape

 He said that he was starting with Inq7.net - joint venture between PDI and GMA 7

o Later on, NTC issued a press release giving the same warning to all radio and television owners/operators

 Just cause for suspension, revocation, or cancellation of licenses o NTC held a dialogue with the Kapisanan ng mga Brodkaster sa Pilipinas (KBP)

 Accordingly, NTC and KBP issued a joint press statement

 NTC - respects freedom of the press and the right to information on matters of public concern

 KBP - exercise of freedom of the press with a high sense of responsibility and discerning judgement of fairness and honesty o Petitioner Chavez filed under Rule 65 of the Rules of Court against Gonzales and

the NTC

 Writs of certiorari and prohibition

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 Annul void proceedings

 Prevent unlawful exercise of authority of the respondents

 He alleged that the acts of the 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

o Respondents answered:

 Petitioner does not have standing

 They gave a "fair warning"

 Broadcast media enjoy lesser constitutional guarantees compared to print media

 Most of the broadcast stations continue to air the tapes despite the agreements made by the NTC and the KBP

o Thus, this petition

Issues:

o Standing? (YES)

o Valid restriction on Speech? (NO)

Held/ Ratio:

o Standing (YES)

 Petitioner is not a member of the broadcast media

 It would seem that he does not have standing

 However, if the case involves serious constitutional questions, the transcendental importance to the public demands that the cases be settled promptly and definitely, brushing aside technicalities of procedure

 Given this, the court decided to address the issues raised regarding freedom of speech and of the press

o Freedom of Speech, Expression, and of the Press

 Gonzales v. Comelec: 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

 The ideas expressed under this freedom are confined not only to those that are conventional and acceptable to the majority but also those that present the articulation of the unorthodox view, though it be hostile to or derided by others

 The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication

 Assures the broadest possible exercise of free speech and free press to advocate ideas not confined to those which are conventional or shared by a majority

 However, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media.

o Differentiation: Limits and Restraints of Free Speech

 All speech are not treated the same

 Some may be regulated by the state through the use of police power

 e.g. Libel, slander, obscene speech are not entitled to the constitutional protection

 Three tests that determine the validity of restraints on freedom of speech and expression

 Dangerous tendency doctrine - permits limitations once a rational connection has been established between the speech restrained and the danger contemplated

 Balancing of interests tests - used when there is a need to balance conflicting social values and individual interests; requires a conscious and detailed consideration of the interplay of interests observable in a given situation

 Clear and present danger rule - speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has to prevent (substantive, extremely serious danger where the degree of imminence is really high)

 In our jurisprudence, we have applied the 1st and 3rd tests to resolve free speech challenges

 More recently, we have generally adhered to the 3rd one o Freedom of the Press

 Most pervasive and powerful vehicle of opinion on public questions

 Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed

 Given its contributions to the public, the press deserves extra protection o Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-Based

Regulations

 Philippine Jurisprudence's four aspects of freedom of the press

 Freedom from prior restraint

 Freedom from punishment subsequent to publication

 Freedom of access to information

 Freedom of circulation

 Petitioner alleged that the respondents acts constituted a form of impermissible prior restraint

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 Prior restraint is determined 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: official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination

 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

 A distinction must be made whether the restraint is (1) content-neutral regulation - merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; or (2) content-based restraint or censorship - restriction based on the subject matter of the utterance or speech

 When the speech restraints take form of

 A content neutral regulation - only substantial governmental interest is required for its validity

 Regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny buy an intermediate approach (somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based regulations

 Note: test is called intermediate because the Court will not merely rubberstamp the validity of the law buy also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression

 A content-based restrained or censorship - strictest scrutiny

 It has to pass the clear and present danger rule for it to be accepted

 Government has to overcome the presumption of unconstitutionality

 Therefore, in this case, the challenged acts have to pass the clear and present danger rule, as they are content-based restriction

o Dichotomy of Free Press: Print v. Broadcast Media

 U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard because of three major reasons (instead, the intermediate approach applies)

 Scarcity of the frequencies by which the medium operates

 Pervasiveness as a medium

 Unique accessibility to children

 However, our jurisprudence chose to deviate from such judgement of U.S. Courts

 Our cases show two distinct features of this dichotomy

 First, the difference in treatment, 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), or is based on a compelling government interest that also has constitutional protection, such as national security of 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

 Eastern Broadcasting Corporation v. Dans: all forms of media, whether print or broadcast, are entitled to the constitutional protection on free speech and expression

 Same ruling was enunciated in Gonzales v. Katigbak

 Note: the clear and present danger rule does not apply to all cases involving broadcast media - it only applies to those involving content-based restrictions

 In short, there is a distinction but it does not lead to a difference in treatment in terms of the required test

o (FINALLY) The Case at Bar

 Given everything above, the acts of the respondents have to pass the clear and present danger rule and the strict scrutiny standard which places the burden of proof to prove constitutionality on the part of the government

 In cases like this, one hast to follow the proceduaral map shown below

 The test

 The presumption

 The burden of proof

 The party to discharge the burden

 The quantum of evidence necessary

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 The respondents' evidence showing great evil falls short of satisfying the clear and present danger test

 The various statements of Bunye obfuscate the identity of the voices in the tape

 The integrity of the taped conversation is also suspect

 Evidence of the respondents on the who's and how's of the wiretapping act is ambivalent, especially concerning the tape's different versions

 Given all the unsettled facets of the tape, it is even arguable whether its airing violates the anti-wiretapping law

 The need to prevent the violation of law cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils

 It is also 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 they issued such statements while in the exercise of their official functions

 Any act done, such as speech uttered, for and on behalf of the government in an official capacity is covered by the rule 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

7. Newsounds v. Dy

April 2, 2009 PETITIONERS:

 Newsounds Broadcasting

Network Inc.

(Newsounds)

 Consolidated

Broadcasting System, Inc.

(CBS)

RESPONDENTS:

 Hon. Ceasar G. Dy

- brother of Faustino Dy, Jr., governor of Isabela until he was defeated by Grace Padaca, a former assistant station manager at Newsounds

- owned and operated DWDY, a rival AM radio station

 Felicisimo G. Meer – Acting City Administrator

 Bagnos Maximo – City Zoning Administrator Delegate

 Racma Fernandez-Garcia – City Legal Officer

 The City of Cauayan SUMMARY:

Newsounds and CBS run Bombo Radyo DZNC and Star FM which air in Cauayan City, Isabela. In 1996, Newsounds relocated its stations to Minante 2 through its affiliate corporation CDC. The company had no problems acquiring the necessary permits and zoning clearances from 1996-2001. In 2002 however, Maximo denied renewal of the mayor’s permit because there was allegedly no proof that that the property was converted to commercial land. Petitioners were able to get an order from the DAR proving that the land was in fact commercial, but this was declared void by Meer, saying that the proper offices did not have a record of such DAR order. The petitioners tried to seek relief from the COMELEC to enforce the Omnibus Election Code, which prohibited the closure of radio stations during the pendency of the election period. But Meer and Fernandez ordered the closure of the radio station, hence the current petitions.

It was held that the petitioner’s right to freedom of speech and expression were infringed because the closure was tainted with political agenda, initiated by members of the Dy political dynasty. Acts of the respective LGUs were found to be content-based, and were not sufficiently justified by any compelling reason.

FACTS:

 In Cauayan City Isabela, Newsounds runs Bombo Radyo DZNC, an AM radio broadcast station while CBS runs Star FM, airing on the FM.

 1996 – Newsounds relocated its broadcasting stations to Minante 2, Cauayan City, Isabela owned by CBS Development Corporation (CDC), an affiliate corporation.

 1997-2001 – A building was erected on the property. Both stations secured all the necessary operating documents, including mayor’s permits. CDC paid property taxes based on the classification as commercial.

 2002 – Petitioners applied for renewal of their mayor’s permit but was required by City Zoning Administrator Bagnos Maximo to submit documents showing that the property was converted from prime agricultural land to commercial land. Petitioners had never been required to submit such papers before.

o Petitioners obtained a formal recognition from the DAR of the conversion of the CDC property from agricultural to commercial.

 2003 – Acting City Administrator Felicisimo Meer said that the DAR Order was void because the Regional Center for Land Use Policy Planning and Implementation (RCLUPPI) did not have any record of the DAR Order.

 2004 – The deadline for application for the mayor’s permit lapsed.

Respondents Meer and Racma Fernandez-Garcia, closed the radio stations.

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o Petitioners filed a petition with the COMELEC to enforce the Omnibus Election Code, which prohibited the closure of radio stations during the pendency of the election period and petitioners proceeded to operate the stations the following day.

o Within hours, Mayor Ceasar Dy issued a Closure Order, stating that since petitioners did not have the requisite permits before 17 February 2004, hence the stations were not allowed to operate.

o Through the intervention of the COMELEC, petitioners were thus able to continue operations until 10 June 2004, the day when respondents yet again closed the radio stations. This closure proved to be more permanent.

 2005 – Petitioners lost both cases with the Court of Appeals, ruling that the RTC did not commit any grave abuse of discretion and affirming the right of the respondents to deny petitioners their mayor’s permits. Hence the current petitions (2 consolidated).

ISSUES:

1. What are the rules of adjudication when there exists tension between petitioners’ right to free expression, and respondents’ authority by law to regulate local enterprises (police power)?

a. Petitioners claim that their right to free speech is infringed because the closure of the station is tainted with political color. Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored members of the Dy political dynasty. Also, in an article printed in the Philippine Daily Inquirer, Dy is quoted as intending "to file disenfranchisement proceedings against DZNC-AM."

b. Respondents are capacitated to enact ordinances requiring the obtention of licenses or permits by businesses, under its legal authority and the State’s police power.

2. Whether or not the RTC committed grave abuse of discretion in the implicit denial of the application for preliminary mandatory injunction. - YES

3. Whether the property of CDC had been duly converted or classified for commercial use. - YES

HELD:

 Petitions are GRANTED. The instant petition for mandamus is GRANTED and respondents are directed to immediately issue petitioners’ zoning clearances and mayor’s permits for 2004.

 Respondents Caesar G. Dy, Felicisimo G. Meer, Bagnos Maximo, and Racma Fernandez-Garcia are ORDERED to pay petitioners jointly and severally

₱ 5,500,000.00 in damages.

RATIO:

1. Rules of adjudication regarding free speech cases

a. Free speech and free press – the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no prior 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.

 The comfort offered by the constitutional shelter of free expression is neutral as to personality, affinity, ideology and popularity.

b. Prior restraint – refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.

 Burden of proof – the Government carries a heavy burden of showing justification for the enforcement of such restraint. There is a reversal of the normal presumption of validity that inheres in every legislation. (SWS v. COMELEC) o Strict scrutiny test – content regulation cannot be done in the absence of any compelling reason to infringe the right to free expression.

 Kinds of regulations:

(1) Content-neutral – merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards

o Ex. act of an LGU requiring a business of proof that the property has been zoned for commercial use, since such a regulation would presumably apply to any other radio station or business enterprise within the LGU. (However, the action of the respondents appears to be content-based restraint. See point c.)

(2) Content-based – restraint or censorship based on the subject matter of the utterance or speech.

o generally treated as more suspect than

o generally treated as more suspect than

In document TESIS DOCTORAL (página 101-105)