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 Arroyo and Comelec Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales warned reporters that those who had copies of the CD and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody. Finally, he stated that he had ordered the NBI to go after media organizations “found to have caused the spread, the playing and the printing of the contents of a tape.” Meanwhile, respondent NTC warned TV and radio stations that their broadcast/airing of such false information and/or willful misrepresentation shall be a just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said media establishments. Petitioner Chavez filed a petition under Rule 65 against respondents Secretary Gonzales and the NTC directly with the Supreme Court.
Issues: (1) Will a purported violation of law such as the Anti-Wiretapping Law justify straitjacketing the exercise of freedom of speech and of the press? (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?
Held: (1) No, a purported violation of law such as the Anti-Wiretapping Law will not justify straitjacketing the exercise of freedom of speech and of the press. A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to 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. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.
(2) Yes, the mere press statements of respondents DOJ Secretary and the NTC constituted a form of content-based prior restraint that has transgressed the Constitution. It is 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 the press statements were made by respondents while in the exercise of their official functions. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint.
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