EN BANC

G.R. No. 168338; February 15, 2008

FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents.

SEPARATE OPINION

CHICO-NAZARIO, J.:

With all due respect, I vote to dismiss the present Petition for the simple reason that the assailed press statements made by the National Telecommunications Commission (NTC) and the Secretary of Justice Raul Gonzales (Gonzales) do not constitute prior restraint that impair freedom of speech. There being no restraint on free speech, then there is even no need to apply any of the tests, i.e, the dangerous tendency doctrine, the balancing of interests test, and the clear and present danger rule, to determine whether such restraint is valid.

The assailed press statements must be understood and interpreted in the proper perspective. The statements must be read in their entirety, and interpreted in the context in which they were made.

A scrutiny of the "fair warning" issued by the NTC on 11 June 2005 reveals that it is nothing more than that, a fair warning, calling for sobriety, care, and circumspection in the news reporting and current affairs coverage by radio and television stations. It reminded the owners and operators of the radio stations and television networks of the provisions in NTC Memorandum Circulars No. 11-12-85 and 22-89, which are also stated in the authorizations and permits granted to them by the government, that they shall not use their stations for the broadcasting or telecasting of false information or willful misrepresentation. It must be emphasized that the NTC is merely reiterating the very same prohibition already contained in its previous circulars, and even in the authorizations and permits of radio and television stations. The reason thus escapes me as to why said prohibition, when it was stated in the NTC Memorandum Circulars and in the authorizations and permits, was valid and acceptable, but when it was reiterated in a mere press statement released by the NTC, had become a violation of the Constitution as a prior restraint on free speech.

In the midst of the media frenzy that surrounded the Garci tapes, the NTC, as the administrative body tasked with the regulation of radio and television broadcasting companies, cautioned against the airing of the unauthenticated tapes. The warning of the NTC was expressed in the following manner, "[i]f it has been (sic) subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies." According to the foregoing sentence, before any penalty could be imposed on a radio or television company for airing the Garci tapes, the tapes must have been established to be false and fraudulent after prosecution and investigation. The warning is nothing new for it only verbalizes and applies to the particular situation at hand an existing prohibition against spreading false information or willful misrepresentation by broadcast companies. In fact, even without the contested "fair warning" issued by the NTC, broadcast companies could still face penalties if, after investigation and prosecution, the Garci tapes are established to be false and fraudulent, and the airing thereof was done to purposely spread false information or misrepresentation, in violation of the prohibition stated in the companies’ authorizations and permits, as well as the pertinent NTC Memorandum Circulars.

Moreover, we should not lose sight of the fact that just three days after its issuance of its "fair warning," or on 14 June 2005, the NTC again released another press statement, this time, jointly made with the Kapisanan ng Broadcasters sa Pilipinas (KBP), to the effect that:

JOINT PRESS STATEMENT: NTC AND KBP

• CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND OBSERVANCE OF LAW, AND THE RADIO AND TELEVISION CODES.
• NTC RESPECTS AND WILL NOT HINDER FREEDOM OF THE PRESS AND THE RIGHT TO INFORMATION ON MATTERS OF PUBLIC CONCERN. KBP & ITS MEMBERS HAVE ALWAYS BEEN COMMITTED TO THE EXERCISE (sic) PRESS FREEDOM WITH HIGH SENSE OF RESPONSIBILITY AND DISCERNING JUDGMENT OF FAIRNESS AND HONESTY.
• NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A RESTRAINT OF PRESS FREEDOM OR CENSORSHIP. NTC FURTHER DENIES AND DOES NOT INTEND TO LIMIT OR RESTRICT THE INTERVIEW OF MEMBERS OF THE OPPOSITION OR FREE EXPRESSION OF VIEWS.
• WHAT IS BEING ASKED BY NTC IS THAT THE EXERCISE OF PRESS FREEDOM IS DONE RESPONSIBLY.
• KBP HAS PROGRAM STANDARDS THAT KBP MEMBERS WILL OBSERVE IN THE TREATMENT OF NEWS AND PUBLIC AFFAIRS PROGRAMS. THESE INCLUDE VERIFICATION OF SOURCES, NON-AIRING OF MATERIALS THAT WOULD CONSTITUTE INCITING TO SEDITION AND/OR REBELLION.
• THE KBP CODES ALSO REQUIRE THAT NO FALSE STATEMENT OR WILLFUL MISREPRESENTATION IS MADE IN THE TREATMENT OF NEWS OR COMMENTARIES.
• THE SUPPOSED WIRETAPPED (sic) TAPES SHOULD BE TREATED WITH SENSITIVITY AND HANDLED RESPONSIBLY GIVING DUE CONSIDERATION TO THE PROCESSES BEING UNDERTAKEN TO VERIFY AND VALIDATE THE AUTHENTICITY AND ACTUAL CONTENT OF THE SAME.

The relevance of the afore-quoted press statement cannot be downplayed. It already categorically settles what NTC meant and how the KBP understood the 11 June 2005 NTC press statement. We cannot insist to give a different and more sinister interpretation to the first press statement, when the second press statement had already particularly defined the context by which it should be read.

Neither should we give much merit to the statements made by Secretary Gonzales to the media that he had already instructed the National Bureau of Investigation (NBI) to monitor all radio stations and television networks for possible violations of the Anti-Wiretapping Law. Secretary Gonzales is one of media’s favorite political personalities, hounded by reporters, and featured almost daily in newspapers, radios, and televisions, for his "quotable quotes," some of which appeared to have been uttered spontaneously and flippantly. There was no showing that Secretary Gonzales had actually and officially ordered the NBI to conduct said monitoring of radio and television broadcasts, and that the NBI acted in accordance with said order. Which leads me to my next point.

We should be judicious in giving too much weight and credence to press statements. I believe that it would be a dangerous precedent to rule that press statements should be deemed an official act of the administrative agency or public official concerned. Press statements, in general, can be easily manufactured, prone to alteration or misinterpretation as they are being reported by the media, and may, during some instances, have to be made on the spot without giving the source much time to discern the ramifications of his statements. Hence, they cannot be given the same weight and binding effect of official acts in the form of, say, memorandum orders or circulars.

Even if we assume arguendo that the press statements are official issuances of the NTC and Secretary Gonzales, then the petitioner alleging their unconstitutionality must bear the burden of proving first that the challenged press statements did indeed constitute prior restraint, before the presumption of invalidity of any system of prior restraint on free speech could arise. Until and unless the petitioner satisfactorily discharges the said burden of proof, then the press statements must similarly enjoy the presumption of validity and constitutionality accorded to statutes, having been issued by officials of the executive branch, a co-equal. The NTC and Secretary Gonzales must likewise be accorded the presumption that they issued the questioned press statements in the regular performance of their duties as the regulatory body for the broadcasting industry and the head of the principal law agency of the government, respectively.

Significantly also, please allow me to observe that the purported chilling effect of the assailed press statements was belied by the fact that the owners and operators of radio stations and television networks, who were supposed to feel most threatened by the same, did not find it necessary to go to court. They should have been the ones to have felt and attested to the purported chilling effect of said press statements. Their silence in all this speaks for itself.

In view of the foregoing, I vote for the denial of the present petition.

MINITA V. CHICO-NAZARIO
Associate Justice

Batas Pinas