Saturday, October 20, 2012

SEPARATE CONCURRING OPINION CARPIO, J.:

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. No society can remain free, open and democratic without freedom of expression. Freedom of expression guarantees full, spirited, and even contentious discussion of all social, economic and political issues. To survive, a free and democratic society must zealously safeguard freedom of expression.
Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows citizens to make informed choices of candidates for public office. Freedom of expression crystallizes important public policy issues, and allows citizens to participate in the discussion and resolution of such issues. Freedom of expression allows the competition of ideas, the clash of claims and counterclaims, from which the truth will likely emerge. Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence from marginalized groups who otherwise would not be heard by government. Freedom of expression provides a civilized way of engagement among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he might use his fist instead.
Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or otherwise. It is the freedom to express to others what one likes or dislikes, as it is the freedom of others to express to one and all what they favor or disfavor. It is the free expression for the ideas we love, as well as the free expression for the ideas we hate.9 Indeed, the function of freedom of expression is to stir disputes:
[I]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.10
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. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of necessity.
The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography,11 false or misleading advertisement,12 advocacy of imminent lawless action,13 and danger to national security.14 All other expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal Communication Commission, "[T]he First Amendment (Free Speech Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals."15
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. Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution.
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 content-based prior restraint is directed at protected expression, courts will strike down the restraint as unconstitutional because there can be no content-based prior restraint on protected expression. The analysis thus turns on whether the prior restraint is content-based, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the recognized categories of unprotected expression.
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-based23 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. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving the constitutionality of the prior restraint.25
Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression.26 The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn - only to the extent necessary to protect or attain the compelling State interest.
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. Thus, the publication of election surveys cannot be subject to prior restraint,28 but an aggrieved person can sue for redress of injury if the survey turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows which offend any race or religion" cannot be used to justify prior restraint on religious expression, this provision can be invoked to justify subsequent punishment of the perpetrator of such offensive shows.29
Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or "hate speech" against a religious minority is not subject to subsequent punishment in this jurisdiction,30 such expression cannot be subject to prior restraint.
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.
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 - is the clear and present danger test.32 The expression restrained must present a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be grave and imminent.33
Prior restraint on unprotected expression takes many forms - it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits.34 The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies.
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.

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