Chavez vs PCGG

G.R. No. 130716.  December 9, 1998

Facts:  Petitioner, invoking his constitutional right to information and the correlative

duty of the state to disclose publicly all its transactions involving the national interest,
demands that respondents make public any and all negotiations and agreements
pertaining to PCGG’s task of recovering the Marcoses’ ill-gotten wealth.  He claims
that any compromise on the alleged billions of ill-gotten wealth involves an issue of
“paramount public interest,” since it has a “debilitating effect on the country’s
economy” that would be greatly prejudicial to the national interest of the Filipino
people.  Hence, the people in general have a right to know the transactions or deals
being contrived and effected by the government.

Respondents, on the other hand, do not deny forging a compromise agreement with
the Marcos heirs.  They claim, though, that petitioner’s action is premature, because
there is no showing that he has asked the PCGG to disclose the negotiations and the
Agreements.  And even if he has, PCGG may not yet be compelled to make any
disclosure, since the proposed terms and conditions of the Agreements have not
become effective and binding.

Issues: Whether the constitutional right to information may prosper against

respondents’ argument that the “should be disclosed” proposed terms and conditions
of the Agreements are not yet effective and binding

Held: Yes.

Considering the intent of the framers of the Constitution, we believe that it is

incumbent upon the PCGG and its officers, as well as other government
representatives, to disclose sufficient public information on any proposed
settlement they have decided to take up with the ostensible owners and
holders of ill-gotten wealth, subject to some of the following recognized
restrictions:  (1) national security matters and intelligence information, (2) trade
secrets and banking transactions, (3) criminal matters, and (4) other confidential
information.

WHEREFORE, the petition is GRANTED.  The General and Supplemental

Agreements dated December 28, 1993, which PCGG and the Marcos heirs entered
into are hereby declared NULL  AND VOID for being contrary to law and the
Constitution.  Respondent PCGG, its officers and all government functionaries and
officials who are or may be
directly  or  indirectly  involved  in  the  recovery  of  the  alleged ill-gotten wealth of
the Marcoses and their associates are DIRECTED to disclose to the public the terms
of any proposed compromise settlement, as well as the final agreement, relating to
such alleged ill-gotten wealth, in accordance with the discussions embodied in this
Decision.

CASE DIGEST : Chavez Vs Gonzales

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.

Facts : 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.
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

Issue : WON the NTC warning embodied in the press release of 11 June 2005 constitutes an
impermissible prior restraint on freedom of expression

Held : When expression may be subject to prior restraint, apply in this jurisdiction to only four
categories of expression, namely: pornography, false or misleading advertisement, advocacy of
imminent lawless action, and danger to national security. All other expression is not subject to prior
restrain 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 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 prior restraint is not aimed at the
message or idea of the expression, it is content-neutral even if it burdens expression 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 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.
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.
Public discussion on the credibility of the electoral process is one of the highest political
expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy
of protected expressions, political expression would occupy the highest rank. 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. Of course, if the
courts determine that the subject matter of a wiretapping, illegal or not, endangers the security of
the State, the public airing of the tape becomes unprotected expression that may be subject to
prior restraint. However, there is no claim here by respondents that the subject matter of the Garci
Tapes involves national security and publicly airing the tapes would endanger the security of the
State. The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior
restraint on the airing of the Garci Tapes because the Constitution expressly prohibits the
enactment of any law, and that includes anti-wiretapping laws, curtailing freedom of expression.
The only exceptions to this rule are the four recognized categories of unprotected expression.
However, the content of the Garci Tapes does not fall under any of these categories of
unprotected expression.

Facts: 
In 1994, instead of having only 7 members, an eighth member was added to
the JBC as two representatives from Congress began sitting in the JBC – one
from the House of Representatives and one from the Senate, with each
having one-half (1/2) of a vote. Then, the JBC En Banc, in separate meetings
held in 2000 and 2001, decided to allow the representatives from the Senate
and the House of Representatives one full vote each. Senator Francis Joseph
G. Escudero and Congressman Niel C. Tupas, Jr. (respondents)
simultaneously sit in the JBC as representatives of the legislature. It is this
practice that petitioner has questioned in this petition. Respondents argued
that the crux of the controversy is the phrase “a representative of Congress.”
It is their theory that the two houses, the Senate and the House of
Representatives, are permanent and mandatory components of “Congress,”
such that the absence of either divests the term of its substantive meaning as
expressed under the Constitution. Bicameralism, as the system of choice by
the Framers, requires that both houses exercise their respective powers in the
performance of its mandated duty which is to legislate. Thus, when Section
8(1), Article VIII of the Constitution speaks of “a representative from
Congress,” it should mean one representative each from both Houses which
comprise the entire Congress.

Issue:

1.  Are the conditions sine qua non for the exercise of the power of judicial
review have been met in this case?

2. Is the JBC’s practice of having members from the Senate and the House of
Representatives making 8 instead of 7 sitting members unconstitutional?

3. What is the effect of the Court's finding that the current composition of the
JBC is unconstitutional?

Held: 

1. Yes. The Courts’ power of judicial review is subject to several limitations,

namely: (a) there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must have
“standing” to challenge; he must have a personal and substantial interest in
the case, such that he has sustained or will sustain, direct injury as a result of
its enforcement; (c) the question of constitutionality must be raised at the
earliest possible opportunity; and (d) the issue of constitutionality must be the
very lis mota of the case. Generally, a party will be allowed to litigate only
when these conditions sine qua non are present, especially when the
constitutionality of an act by a co-equal branch of government is put in issue.

The Court disagrees with the respondents’ contention that petitioner lost his
standing to sue because he is not an official nominee for the post of Chief
Justice. While it is true that a “personal stake” on the case is imperative to
have locus standi, this is not to say that only official nominees for the post of
Chief Justice can come to the Court and question the JBC composition for
being unconstitutional. The JBC likewise screens and nominates other
members of the Judiciary. Albeit heavily publicized in this regard, the JBC’s
duty is not at all limited to the nominations for the highest magistrate in the
land. A vast number of aspirants to judicial posts all over the country may be
affected by the Court’s ruling. More importantly, the legality of the very
process of nominations to the positions in the Judiciary is the nucleus of the
controversy. The claim that the composition of the JBC is illegal and
unconstitutional is an object of concern, not just for a nominee to a judicial
post, but for all citizens who have the right to seek judicial intervention for
rectification of legal blunders.

2.  Section 8, Article VIII of the 1987 Constitution provides:

Section 8. (1) A Judicial and Bar Council is hereby

created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio
Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio
Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme
Court, and a representative of the private sector.

From a simple reading of the above-quoted provision, it can readily be

discerned that the provision is clear and unambiguous. The first paragraph
calls for the creation of a JBC and places the same under the supervision of
the Court. Then it goes to its composition where the regular members are
enumerated: a representative of the Integrated Bar, a professor of law, a
retired member of the Court and a representative from the private sector. On
the second part lies the crux of the present controversy. It enumerates the ex
officio or special members of the JBC composed of the Chief Justice, who
shall be its Chairman, the Secretary of Justice and “a representative of
Congress.”

The use of the singular letter “a” preceding “representative of Congress” is

unequivocal and leaves no room for any other construction. It is indicative of
what the members of the Constitutional Commission had in mind, that is,
Congress may designate only one (1) representative to the JBC. Had it been
the intention that more than one (1) representative from the legislature would
sit in the JBC, the Framers could have, in no uncertain terms, so provided.

One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation. It is a well-
settled principle of constitutional construction that the language employed in
the Constitution must be given their ordinary meaning except where technical
terms are employed. As much as possible, the words of the Constitution
should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Verba legis non est
recedendum – from the words of a statute there should be no departure.

Applying the foregoing principle to this case, it becomes apparent that the
word “Congress” used in Article VIII, Section 8(1) of the Constitution is used in
its generic sense. No particular allusion whatsoever is made on whether the
Senate or the House of Representatives is being referred to, but that, in either
case, only a singular representative may be allowed to sit in the JBC.

It is worthy to note that the seven-member composition of the JBC serves a

practical purpose, that is, to provide a solution should there be a stalemate in
voting. This underlying reason leads the Court to conclude that a single vote
may not be divided into half (1/2), between two representatives of Congress,
or among any of the sitting members of the JBC for that matter. This
unsanctioned practice can possibly cause disorder and eventually muddle the
JBC’s voting process, especially in the event a tie is reached. The aforesaid
purpose would then be rendered illusory, defeating the precise mechanism
which the Constitution itself createdWhile it would be unreasonable to expect
that the Framers provide for every possible scenario, it is sensible to presume
that they knew that an odd composition is the best means to break a voting
deadlock.

The respondents insist that owing to the bicameral nature of Congress, the
word “Congress” in Section 8(1), Article VIII of the Constitution should be read
as including both the Senate and the House of Representatives. They
theorize that it was so worded because at the time the said provision was
being drafted, the Framers initially intended a unicameral form of Congress.
Then, when the Constitutional Commission eventually adopted a bicameral
form of Congress, the Framers, through oversight, failed to amend Article VIII,
Section 8 of the Constitution.

It is evident that the definition of “Congress” as a bicameral body refers to its

primary function in government – to legislate. In the passage of laws, the
Constitution is explicit in the distinction of the role of each house in the
process. The same holds true in Congress’ non-legislative powers. An inter-
play between the two houses is necessary in the realization of these powers
causing a vivid dichotomy that the Court cannot simply discount. This,
however, cannot be said in the case of JBC representation because no liaison
between the two houses exists in the workings of the JBC. Hence, the term
“Congress” must be taken to mean the entire legislative department.

3. As a general rule, an unconstitutional act is not a law; it confers no rights; it

imposes no duties; it affords no protection; it creates no office; it is inoperative
as if it has not been passed at all. This rule, however, is not absolute. Under
the doctrine of operative facts, actions previous to the declaration of
unconstitutionality are legally recognized. They are not nullified. This is
essential in the interest of fair play.

The doctrine of operative fact, as an exception to the general rule, only

applies as a matter of equity and fair play. It nullifies the effects of an
unconstitutional law by recognizing that the existence of a statute prior to a
determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be
erased by a new judicial declaration. The doctrine is applicable when a
declaration of unconstitutionality will impose an undue burden on those who
have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or
would put in limbo the acts done by a municipality in reliance upon a law
creating it.3

Under the circumstances, the Court finds the exception applicable in this case
and holds that notwithstanding its finding of unconstitutionality in the current
composition of the JBC, all its prior official actions are nonetheless valid.

CHAVEZ VS GONZALES
MARCH 30, 2013 ~ VBDIAZ

FRANCISCO CHAVEZ
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the
Department of Justice; and NTC
G.R. No. 168338, February 15, 2008

FACTS: 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 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. Respondent Gonzalez ordered
the NBI 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. On 14 June 2005, NTC officers met
with officers of the broadcasters group KBP, to dispel fears of
censorship. The NTC and KBP issued a joint press statement
expressing commitment to press freedom
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.

ISSUE: The principal issue for resolution is whether the NTC

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

1. Standing to File Petition

Petitioner has standing to file this petition. When the issue involves
freedom of expression, as in the present case, 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.
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.

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,
false or misleading advertisement,
advocacy of imminent lawless action, and
danger to national security.
All other expression is not subject to prior restraint.

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.
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 places without any restraint on
the content of the expression. Courts will subject content-neutral
restraints to intermediate scrutiny. 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.

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 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.

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.

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. 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, 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 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.

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.
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. 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.

The NTC concedes that the Garci Tapes have not been authenticated
as accurate or truthful. The NTC also concedes that only “after a
prosecution or appropriate investigation” can it be established that
the Garci Tapes constitute “false information and/or willful
misrepresentation.” 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. In any event, public discussion on all political issues should
always remain uninhibited, robust and wide open.

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. Of course, if
the courts determine that the subject matter of a wiretapping, illegal
or not, endangers the security of the State, the public airing of the
tape becomes unprotected expression that may be subject to prior
restraint. However, there is no claim here by respondents that the
subject matter of the Garci Tapes involves national security and
publicly airing the tapes would endanger the security of the State.

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. 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.

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
The NTC has no power to impose content-based prior restraint on
expression. The charter of the NTC does not vest NTC with any
content-based censorship power over radio and television stations.

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.

7. Government Failed to Overcome Presumption of Invalidity

Respondents did not invoke any compelling State interest to impose
prior restraint on the public airing of the Garci Tapes. The
respondents claim that they merely “fairly warned” radio and
television stations to observe the Anti-Wiretapping Law and
pertinent NTC circulars on program standards. 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 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.
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.

9. Conclusion
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.