CHAVEZ VS.

GONZALES AND NTC

February 15, 2008

Facts:

Respondent Gonzales warned reporters that those who had copies of the alleged
authentic tape recording of conversation between President Arroyo and COMELEC
Commissioner Garcillano about fixing votes in the 2004 national elections and those
broadcasting or publishing its contents could be held liable under the Anti-Wiretapping
Act.

Meanwhile, the NTC issued a press release giving a fair warning to radio and
television owners/operators to observe anti- wiretapping law and warned that their
broadcast/airing of false information or willful misrepresentation shall be just cause
for the suspension, revocation and/or cancellation of their licenses or authorizations.

Petitioner alleged that the acts of Secretary Gonzales and the NTC are violations
of the freedom of expression and of the press, and the right of the people to
information on matters of public concern. Hence this petition under Rule 65.

Issues:
Whether or not a purported violation of law such as the Anti-Wiretapping Law
justify straitjacketing the exercise of freedom of speech and of the press?

Ruling:
No.
A governmental action that restricts freedom of speech or of the press based on
content is given the strictest scrutiny, with 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.

In this case, the 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. The great evil which government wants to prevent is the airing of a tape
recording in alleged violation of the anti-wiretapping law. The records of the case at bar
however are confusing, thus respondents’ evidence falls short of satisfying the clear and
present danger test.

Firstly, the various statements of the Press Secretary obfuscate the identity of the
voices in the tape recording. Secondly, the integrity of the taped conversation is also
suspect. The Press Secretary showed to the public two versions, one supposed to be a
“complete” version and the other, an “altered” version. Thirdly, the evidence of the
respondents on the who’s and the how’s of the wiretapping act is ambivalent, especially
considering the tape’s different versions. The identity of the wire-tappers, the manner
of its commission and other related and relevant proofs are some of the invisibles of
this case. Fourthly, given all these unsettled facets of the tape, it is even arguable
whether its airing would violate the anti-wiretapping law.

By all means, violations of law should be vigorously prosecuted by the State for
they breed their own evil consequence. But to repeat, the need to prevent their
violation cannot per se trump the exercise of free speech and free press, a preferred
right whose breach can lead to greater evils. 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.

Note:
Tests for Restraints on Freedom of Speech and Expression.—Generally, restraints
on freedom of speech and expression are evaluated by either or a combination of three
tests, i.e.,
(a) the dangerous tendency doctrine which permits limitations on speech once a
rational connection has been established between the speech restrained and the danger
contemplated;
(b) the balancing of interests tests, used as a standard when courts need to
balance conflicting social values and individual interests, and requires a conscious and
detailed consideration of the interplay of interests observable in a given situation of
type of situation; and
(c) the clear and present danger rule which rests on the premise that speech may
be restrained because there is substantial danger that the speech will likely lead to an
evil the government has a right to prevent.
This rule requires that the evil consequences sought to be prevented must be
substantive, “extremely serious and the degree of imminence extremely high.”