Francisco Chavez vs Raul M.

Gonzales (Obligation To Do or Not to Do)

G.R. No. 168338, February 15, 2008
Carpio, J.:

Doctrine:
Any content-based prior restraint on protected expression will be strike down by the Court as
unconstitutional without exception. It is absolutely protected from restraint or censorship.

Facts:
Congress, acting as national board of canvassers, proclaimed President Arroyo winner
in the 2004 presidential elections. Sometime before June 6, 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 June 6, 2005, Ignacio Bunye (Bunye), presidential spokesperson, conducted a press

conference in Malacañang Palace, where he presented two compact disc recordings of
discussions between a lady and a man in front of the presidential press corps. Bunye
recognized the woman in both recordings as President Arroyo, but stated that the second
compact disc's contents had been "spliced" to make it look like President Arroyo was speaking
to Garcillano. Secretary of Justice Raul M. Gonzalez, herein respondent, ordered the NBI to
investigate media organizations which aired the Garci Tapes for possible violation of RA 4200 or
the Anti-Wiretapping Law.

On June 11, 2005, 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 June 21, 2005, Chavez, as citizen, filed this petition to nullify the "acts, issuances,
and orders" of the NTC and respondent Gonzalez; that 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 NTC acted beyond its powers when it warned radio
and television stations against airing the Garci Tapes.

Issue:
Whether the NTC warning contained in the press release dated June 11, 2005
constitutes an impermissible prior restraint on freedom of expression

Ruling:

The NTC press release constitutes an unconstitutional prior restraint on protected

expression. The NTC action restraining the airing of Garci Tapes is a content-based prior
restraint because it is directed at the message of the Garci Tapes which is further categorized
as a protected expressions because it does not fall under any of the four existing categories of
unprotected expressions.

Moreover, the NTC failed to clearly specify what substantive evil the State has a duty to
prevent in imposing prior restraint on the airing of the Garci Tapes. Without a doubt, the NTC
has no legal basis in claiming that the airing of the same constitutes a violation of the Anti-
Wiretapping Law.

The rule is that there can be no content-based prior restraint on protected expression
without exception. The Court enjoined NTC to enforce the said order.
Additional Notes:
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. As an agency that allocates frequencies or airwaves, the NTC may regulate the
bandwidth position, transmitter wattage, and location of radio and television stations, but not the
content of the broadcasts. Only the courts have the power to adjudicate on the factual and legal
issue of whether theairing of the Garci Tapes presents a clear and present danger of bringing
about a substantive evil that the State hasa right and duty to prevent, so as to justify the prior
restraint.

Freedom of expression is the foundation of a free, open and democratic society. It is an

indispensable condition to the exercise of almost all other civil and political rights. In this case, it
allows citizens to expose and check abuses of public officials and to make informed choices of
candidates for public office. That is why our Constitution commands that freedom of expression
shall not be abridged. However, courts have carved out narrow and well-defined exceptions to
this rule out of necessity.

The Rule:
An expression is not subject to any prior restraint or censorship. It is called as protected
expression or high-value expression. Any content-based prior restraint on protected
expression will be strike down by the Court as unconstitutional without exception. It is
absolutely protected from censorship.

While there can be no prior restraint on protected expression, there can be subsequent
punishment for protected expression under libel, tort or other laws.

Examples: No restraint on the following:

1. public debates on the amendment or repeal of existing laws,
2. ratification of treaties,
3. imposition of new tax measures,
4. proposed amendments to the Constitution

Expression with restraint/censorship:

When expression may be subject to prior restraint (unprotected expressions), the four
kinds of expression are relevant in this jurisdiction, namely:
a. Pornography
b. false or misleading advertisement
c. advocacy of imminent lawless action, and
d. danger to national security.

All other expression is not subject to prior restraint. 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 may be directed on the following classification:

1. Content-based restraint - a 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 is 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.
2. Content-neutral restraint- If the prior restraint is not aimed at the message or idea of the
expression even if it burdens expression. It 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. It enjoys the presumption
of validity and is thus enforceable subject to appeal to the courts.

Example is a permit specifying the date, time and route of a rally passing through busy public
streets.