EN BANC G.R. No. 168338 February 15, 2008 FRANCISCO CHAVEZ, petitioner, vs. RA ! ". GONZA!

ES, #$ %#& 'a(a'#)y a& )%e Se're)ary o* )%e +e(ar),e$) o* -u&)#'e. a$/ NA0IONA! 0E!ECO"" NICA0IONS CO""ISSION 1N0C2, respondents. SE3ARA0E CONC RRING O3INION CAR3IO, J.4 0%e Ca&e This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales and the !ational Teleco""unications #o""ission (!T# , particularly an !T# "press release" dated $$ June %&&', warnin( radio and television stations a(ainst airin( taped conversations alle(edly between )resident Gloria Macapa(al*+rroyo and #o""ission on ,lections (#-M,.,# #o""issioner /ir(ilio Garcillano (Garcillano 1 under pain of suspension or revocation of their airwave licenses. 0%e Fa')& -n %0 June %&&0, #on(ress, actin( as national board of canvassers, proclai"ed )resident +rroyo winner in the %&&0 presidential elections.2 )resident +rroyo received a total of $%,1&',2&2 votes, $,$%3,'45 "ore than the votes of her nearest rival, 6ernando )oe, Jr. So"eti"e before 5 June %&&', the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed "ri((in(" the results of the %&&0 elections to favor )resident +rroyo. -n 5 June %&&', )residential spo7esperson 8(nacio 9unye (9unye held a press conference in Malaca:an( )alace, where he played before the presidential press corps two co"pact disc recordin(s of conversations between a wo"an and a "an. 9unye identified the wo"an in both recordin(s as )resident +rroyo but clai"ed that the contents of the second co"pact disc had been "spliced" to "a7e it appear that )resident +rroyo was tal7in( to Garcillano. ;owever, on 1 June %&&', 9unye bac7trac7ed and stated that the wo"an<s voice in the co"pact discs was not )resident +rroyo=s after all. 3 Meanwhile, other individuals went public, clai"in( possession of the (enuine copy of the Garci Tapes.4 Respondent Gonzalez ordered the !ational 9ureau of 8nvesti(ation to investi(ate "edia or(anizations which aired the Garci Tapes for possible violation of Republic +ct !o. 0%&& or the +nti*>iretappin( .aw. -n $$ June %&&', the !T# issued a press release warnin( radio and television stations that airin( the Garci Tapes is a "cause for the suspension, revocation and?or cancellation of the licenses or authorizations" issued to the". 5 -n $0 June %&&', !T# officers "et with officers of the broadcasters (roup, Kapisanan ng mga Broadcasters sa Pilipinas (@9) , to dispel fears of censorship. The !T# and @9) issued a Aoint press state"ent eBpressin( co""it"ent to press freedo".6 -n %$ June %&&', petitioner 6rancisco 8. #havez (petitioner , as citizen, filed this petition to nullify the "acts, issuances, and orders" of the !T# and respondent Gonzalez (respondents on the followin( (roundsC ($ respondents= conduct violated freedo" of eBpression and the ri(ht of the people to infor"ation on "atters of public concern under Section 4, +rticle 888 of the #onstitution, and (% the !T# acted ultra vires when it warned radio and television stations a(ainst airin( the Garci Tapes. 8n their #o""ent to the petition, respondents raised threshold obAections that ($ petitioner has no standin( to liti(ate and (% the petition fails to "eet the case or controversy reDuire"ent in constitutional adAudication. -n the "erits, respondents clai" that ($ the !T#<s press release of $$ June %&&' is a "ere "fair warnin(," not censorship, cautionin( radio and television networ7s on the lac7 of authentication of the Garci Tapes and of the conseDuences of airin( false or fraudulent "aterial, and (% the !T# did not act ultra vires in issuin( the warnin( to radio and television stations. 8n his Reply, petitioner belied respondents< clai" on his lac7 of standin( to liti(ate, contendin( that his status as a citizen assertin( the enforce"ent of a public ri(ht vested hi" with sufficient interest to "aintain this suit. )etitioner also contests respondents< clai" that the !T# press release of $$ June %&&' is a "ere warnin( as it already preAud(ed the Garci Tapes as inauthentic and violative of the +nti*>iretappin( .aw, "a7in( it a "cleverly dis(uised B B B (a(

order." ISS E The principal issue for resolution is whether the !T# warnin( e"bodied in the press release of $$ June %&&' constitutes an i"per"issible prior restraint on freedo" of eBpression. 8 vote to ($ (rant the petition, (% declare the !T# warnin(, e"bodied in its press release dated $$ June %&&', an unconstitutional prior restraint on protected eBpression, and (3 enAoin the !T# fro" enforcin( the sa"e. $. Standin( to 6ile )etition )etitioner has standin( to file this petition. >hen the issue involves freedo" of eBpression, as in the present case, any citizen has the ri(ht to brin( suit to Duestion the constitutionality of a (overn"ent action in violation of freedo" of eBpression, whether or not the (overn"ent action is directed at such citizen. The (overn"ent action "ay chill into silence those to who" the action is directed. +ny citizen "ust be allowed to ta7e up the cud(els for those who have been cowed into inaction because freedo" of eBpression is a vital public ri(ht that "ust be defended by everyone and anyone. 6reedo" of eBpression, bein( funda"ental to the preservation of a free, open and de"ocratic society, is oftranscendental importance that "ust be defended by every patriotic citizen at the earliest opportunity. >e have held that any concerned citizen has standin( to raise an issue of transcendental importance to the nation ,7 and petitioner in this present petition raises such issue. %. -verview of 6reedo" of ,Bpression, )rior Restraint and SubseDuent )unish"ent 6reedo" of eBpression is the foundation of a free, open and de"ocratic society. 6reedo" of eBpression is an indispensable condition8 to the eBercise of al"ost all other civil and political ri(hts. !o society can re"ain free, open and de"ocratic without freedo" of eBpression. 6reedo" of eBpression (uarantees full, spirited, and even contentious discussion of all social, econo"ic and political issues. To survive, a free and de"ocratic society "ust zealously safe(uard freedo" of eBpression. 6reedo" of eBpression allows citizens to eBpose and chec7 abuses of public officials. 6reedo" of eBpression allows citizens to "a7e infor"ed choices of candidates for public office. 6reedo" of eBpression crystallizes i"portant public policy issues, and allows citizens to participate in the discussion and resolution of such issues. 6reedo" of eBpression allows the co"petition of ideas, the clash of clai"s and counterclai"s, fro" which the truth will li7ely e"er(e. 6reedo" of eBpression allows the airin( of social (rievances, "iti(atin( sudden eruptions of violence fro" "ar(inalized (roups who otherwise would not be heard by (overn"ent. 6reedo" of eBpression provides a civilized way of en(a(e"ent a"on( political, ideolo(ical, reli(ious or ethnic opponents for if one cannot use his ton(ue to ar(ue, he "i(ht use his fist instead. 6reedo" of eBpression is the freedo" to disse"inate ideas and beliefs, whether co"petin(, confor"in( or otherwise. 8t is the freedo" to eBpress to others what one li7es or disli7es, as it is the freedo" of others to eBpress to one and all what they favor or disfavor. 8t is the free eBpression for the ideas we love, as well as the free eBpression for the ideas we hate.9 8ndeed, the function of freedo" of eBpression is to stir disputesC E8Ft "ay indeed best serve its hi(h purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to an(er. Speech is often provocative and challen(in(. 8t "ay stri7e at preAudices and preconceptions and have profound unsettlin( effects as it presses for acceptance of an idea.10 Section 0, +rticle 888 of the #onstitution prohibits the enact"ent of any law curtailin( freedo" of eBpressionC !o law shall be passed abrid(in( the freedo" of speech, of eBpression, or the press, or the ri(ht of the people peaceably to asse"ble and petition the (overn"ent for redress of (rievances. Thus, the rule is that eBpression is not subAect to any prior restraint or censorship because the #onstitution co""ands that freedo" of eBpression shall not be abrid(ed. -ver ti"e, however, courts have carved out narrow and well defined eBceptions to this rule out of necessity. The eBceptions, when expression may be subject to prior restraint, apply in this Aurisdiction to only four cate(ories of eBpression, na"elyC porno(raphy, 11 false or "isleadin( advertise"ent,12 advocacy of i""inent lawless action, 13 and dan(er to national security. 14 A55 o)%er e6(re&&#o$ #& $o) &ub7e') )o (r#or re&)ra#$). +s stated in Turner

Broadcasting System v. Federal Communication Commission, "ETFhe 6irst +"end"ent (6ree Speech #lause , subAect only to narrow and well understood eBceptions, does not countenance (overn"ental control over the content of "essa(es eBpressed by private individuals."15 ,Bpression not subAect to prior restraint is protected expression or hi(h*value eBpression. Any content-based prior restraint on protected expression is unconstitutional without exception. + protected eBpression "eans what it says G it is absolutely protected fro" censorship. Thus, there can be no prior restraint on public debates on the a"end"ent or repeal of eBistin( laws, on the ratification of treaties, on the i"position of new taB "easures, or on proposed a"end"ents to the #onstitution. )rior restraint on eBpression is content*based if the restraint is ai"ed at the "essa(e or idea of the eBpression. #ourts will subAect to strict scrutiny content*based restraint. 8f the content*based prior restraint is directed at protected eBpression, courts will stri7e down the restraint as unconstitutional because there can be no content*based prior restraint on protected eBpression. The analysis thus turns on whether the prior restraint is content*based, and if so, whether such restraint is directed at protected eBpression, that is, those not fallin( under any of the reco(nized cate(ories of unprotected eBpression. 8f the prior restraint is not ai"ed at the "essa(e or idea of the eBpression, it is content*neutral even if it burdens eBpression. + content*neutral restraint is a restraint which re(ulates the ti"e, place or "anner of the eBpression in public places16 without any restraint on the content of the eBpression. #ourts will subAect content*neutral restraints to inter"ediate scrutiny.17 +n eBa"ple of a content*neutral restraint is a per"it specifyin( the date, ti"e and route of a rally passin( throu(h busy public streets. + content*neutral prior restraint on protected eBpression which does not touch on the content of the eBpression enAoys the presu"ption of validity and is thus enforceable subAect to appeal to the courts. 18#ourts will uphold ti"e, place or "anner restraints if they are content*neutral, narrowly tailored to serve a si(nificant (overn"ent interest, and leave open a"ple alternative channels of eBpression.19 8n content*neutral prior restraint on protected speech, there should be no prior restraint on the content of the eBpression itself. Thus, sub"ission of "ovies or pre*taped television pro(ra"s to a (overn"ent review board is constitutional only if the review is for classification and not for censorin( any part of the content of the sub"itted "aterials.20 ;owever, failure to sub"it such "aterials to the review board "ay be penalized without re(ard to the content of the "aterials. 21 The review board has no power to reAect the airin( of the sub"itted "aterials. The review board=s power is only to classify the "aterials, whether for (eneral patrona(e, for adults only, or for so"e other classification. The power to classify eBpressions applies only to "ovies and pre*taped television pro(ra"s 22but not to live television pro(ra"s. +ny classification of live television pro(ra"s necessarily entails prior restraint on eBpression. ,Bpression that "ay be subAect to prior restraint is unprotected expression or low*value eBpression. 9y definition, prior restraint on unprotected eBpression is content*based 23 since the restraint is i"posed because of the content itself. 8n this Aurisdiction, there are currently only four cate(ories of unprotected eBpression that "ay be subAect to prior restraint. This #ourt reco(nized false or "isleadin( advertise"ent as unprotected eBpression only in -ctober %&&4. 24 Only unprotected expression may be subject to prior restraint. ;owever, any such prior restraint on unprotected eBpression "ust hurdle a hi(h barrier. First, such prior restraint is presu"ed unconstitutional.Second, the (overn"ent bears a heavy burden of provin( the constitutionality of the prior restraint.25 #ourts will subAect to strict scrutiny any (overn"ent action i"posin( prior restraint on unprotected eBpression. 26The (overn"ent action will be sustained if there is a co"pellin( State interest, and prior restraint is necessary to protect such State interest. 8n such a case, the prior restraint shall be narrowly drawn * only to the eBtent necessary to protect or attain the co"pellin( State interest. )rior restraint is a more severe restriction on freedo" of eBpression than subseDuent punish"ent. +lthou(h subseDuent punish"ent also deters eBpression, still the ideas are disse"inated to the public. )rior restraint prevents even the disse"ination of ideas to the public. >hile there can be no prior restraint on protected eBpression, such eBpression "ay be subAect to subseDuent punish"ent,27 either civilly or cri"inally. Thus, the publication of election surveys cannot be subAect to prior restraint,28 but an a((rieved person can sue for redress of inAury if the survey turns out to be fabricated. +lso, while +rticle %&$ (% (b (3 of the Revised )enal #ode punishin( "shows which offend any race or reli(ion" cannot be used to Austify prior restraint on reli(ious eBpression, this provision can be invo7ed to Austify subseDuent punish"ent of the

perpetrator of such offensive shows.29 Si"ilarly, if the unprotected eBpression does not warrant prior restraint, the sa"e eBpression "ay still be subAect to subseDuent punish"ent, civilly or cri"inally. .ibel falls under this class of unprotected eBpression. ;owever, if the eBpression cannot be subAect to the lesser restriction of subseDuent punish"ent, lo(ically it cannot also be subAect to the "ore severe restriction of prior restraint. Thus, since profane lan(ua(e or "hate speech" a(ainst a reli(ious "inority is not subAect to subseDuent punish"ent in this Aurisdiction, 30 such eBpression cannot be subAect to prior restraint. 8f the unprotected eBpression warrants prior restraint, necessarily the sa"e eBpression is subAect to subseDuent punish"ent. There "ust be a law punishin( cri"inally the unprotected eBpression before prior restraint on such eBpression can be Austified. The le(islature "ust punish the unprotected eBpression because it creates a substantive evil that the State "ust prevent. -therwise, there will be no le(al basis for i"posin( a prior restraint on such eBpression. The prevailin( test in this Aurisdiction to deter"ine the constitutionality of (overn"ent action i"posin( prior restraint on three cate(ories of unprotected eBpression G porno(raphy, 31 advocacy of i""inent lawless action, and dan(er to national security * is the clear and present dan(er test. 32 The eBpression restrained "ust present a clear and present dan(er of brin(in( about a substantive evil that the State has a ri(ht and duty to prevent, and such dan(er "ust be (rave and i""inent.33 )rior restraint on unprotected eBpression ta7es "any for"s * it "ay be a law, ad"inistrative re(ulation, or i"per"issible pressures li7e threats of revo7in( licenses or withholdin( of benefits. 34 The i"per"issible pressures need not be e"bodied in a (overn"ent a(ency re(ulation, but "ay e"anate fro" policies, advisories or conduct of officials of (overn"ent a(encies. 3. Govern"ent +ction in the )resent #ase The (overn"ent action in the present case is a warning by the !" that the airing or broadcasting o# the $arci !apes by radio and television stations is a %cause #or the suspension, revocation and&or cancellation o# the licenses or authori'ations% issued to radio and television stations. The !T# warnin(, e"bodied in a press release, relies on two (rounds. 6irst, the airin( of the Garci Tapes "is a continuin( violation of the +nti*>iretappin( .aw and the conditions of the )rovisional +uthority and?or #ertificate of +uthority issued to radio and T/ stations." Second, the Garci Tapes have not been authenticated, and subseDuent investi(ation "ay establish that the tapes contain false infor"ation or willful "isrepresentation. Specifically, the !T# press release contains the followin( cate(orical warnin(C Ta7in( into consideration the country=s unusual situation, and in order not to unnecessarily a((ravate the sa"e, the !T# warns all radio stations and television networ7s owners?operators that the conditions of the authorizations and per"its issued to the" by Govern"ent li7e the )rovisional +uthority and?or #ertificate of +uthority eBplicitly provides that said co"panies shall not use its stations for the broadcastin( or telecastin( of false infor"ation or willful "isrepresentation. Relative thereto, it has co"e to the attention of the #o""ission that certain personalities are in possession of alle(ed taped conversation which they clai", (sic involve the )resident of the )hilippines and a #o""issioner of the #-M,.,# re(ardin( their supposed violation of election laws. These personalities have ad"itted that the taped conversations are product of ille(al wiretappin( operations. #onsiderin( that these taped conversations have not been duly authenticated nor could it be said at this ti"e that the tapes contain an accurate or truthful representation of what was recorded therein, (sic #) #& )%e (o&#)#o$ o* )%e Co,,#&&#o$ )%a) )%e 'o$)#$uou& a#r#$8 or broa/'a&) o* )%e &a#/ )a(e/ 'o$9er&a)#o$& by ra/#o a$/ )e5e9#&#o$ &)a)#o$& #& a 'o$)#$u#$8 9#o5a)#o$ o* )%e A$)#:;#re)a((#$8 !a< a$/ )%e 'o$/#)#o$& o* )%e 3ro9#&#o$a5 Au)%or#)y a$/=or Cer)#*#'a)e o* Au)%or#)y #&&ue/ )o )%e&e ra/#o a$/ )e5e9#&#o$ &)a)#o$&. I* #) %a& bee$ 1&#'2 &ub&e>ue$)5y e&)ab5#&%e/ )%a) )%e &a#/ )a(e& are *a5&e a$/=or *rau/u5e$) a*)er a (ro&e'u)#o$ or a((ro(r#a)e #$9e&)#8a)#o$, )%e 'o$'er$e/ ra/#o a$/ )e5e9#&#o$ 'o,(a$#e& are %ereby <ar$e/ )%a) )%e#r broa/'a&)=a#r#$8 o* &u'% *a5&e #$*or,a)#o$ a$/=or <#55*u5 ,#&re(re&e$)a)#o$ &%a55 be 7u&) 'au&e *or )%e &u&(e$&#o$, re9o'a)#o$ a$/=or 'a$'e55a)#o$ o* )%e 5#'e$&e& or au)%or#?a)#o$& #&&ue/ )o )%e &a#/ 'o,(a$#e&. (9oldfacin( and underscorin( supplied The !T# does not clai" that the public airin( of the Garci Tapes constitutes unprotected eBpression that "ay be subAect to prior restraint. The !T# does not specify what substantive evil the State see7s to prevent in i"posin( prior

restraint on the airin( of the Garci Tapes. The !T# does not clai" that the public airin( of the Garci Tapes constitutes a clear and present dan(er of a substantive evil, of (rave and i""inent character, that the State has a ri(ht and duty to prevent. The !T# did not conduct any hearin( in reachin( its conclusion that the airin( of the Garci Tapes constitutes a continuin( violation of the +nti*>iretappin( .aw. +t the ti"e of issuance of the !T# press release, and even up to now, the parties to the conversations in the Garci Tapes have not co"plained that the wire*tappin( was without their consent, an essential ele"ent for violation of the +nti*>iretappin( .aw. 35 8t was even the -ffice of the )resident, throu(h the )ress Secretary, that played and released to "edia the Garci Tapes containin( the alle(ed "spliced" conversation between )resident +rroyo and #o""issioner Garcillano. There is also the issue of whether a wireless cellular phone conversation is covered by the +nti* Wiretapping .aw. #learly, the !T# has no factual or le(al basis in clai"in( that the airin( of the Garci Tapes constitutes a violation of the +nti*>iretappin( .aw. The radio and television stations were not even (iven an opportunity to be heard by the !T#. The !T# did not observe basic due process as "andated in Ang Ti ay v. Court o! "ndustrial #elations.36 The !T# clai"s that the Garci Tapes, "after a prosecution or the appropriate investi(ation," "ay constitute "false infor"ation and?or willful "isrepresentation." ;owever, the !T# does not clai" that such possible false infor"ation or willful "isrepresentation constitutes "isleadin( co""ercial advertise"ent. 8n the Hnited States, false or deceptive co""ercial speech is cate(orized as unprotected eBpression that "ay be subAect to prior restraint. Recently, this #ourt upheld the constitutionality of Section 5 of the Mil7 #ode reDuirin( the sub"ission to a (overn"ent screenin( co""ittee of advertisin( "aterials for infant for"ula "il7 to prevent false or deceptive clai"s to the public. 37 There is, however, no clai" here by respondents that the Garci Tapes constitute false or "isleadin( co""ercial advertise"ent. The !T# concedes that the Garci Tapes have not been authenticated as accurate or truthful. The !T# also concedes that only "after a prosecution or appropriate investi(ation" can it be established that the Garci Tapes constitute "false infor"ation and?or willful "isrepresentation." "learly, the !" admits that it does not even (now i# the $arci !apes contain #alse in#ormation or will#ul misrepresentation. 0. !ature of )rior Restraint in the )resent #ase The !T# action restrainin( the airin( of the Garci Tapes is a content*based prior restraint because it is directed at the "essa(e of the Garci Tapes. The !T#=s clai" that the Garci Tapes "i(ht contain "false infor"ation and?or willful "isrepresentation," and thus should not be publicly aired, is an admission that the restraint is content*based. '. !ature of ,Bpression in the )resent #ase The public airin( of the Garci Tapes is a (ro)e')e/ e6(re&&#o$ because it does not fall under any of the four eBistin( cate(ories of unprotected eBpression reco(nized in this Aurisdiction. The airin( of the Garci Tapes is essentially a political eBpression because it eBposes that a presidential candidate had alle(edly i"proper conversations with a #-M,.,# #o""issioner ri(ht after the close of votin( in the last presidential elections. -bviously, the content of the Garci Tapes a**e')& 8ra9e5y )%e &a$')#)y o* )%e ba55o). )ublic discussion on the sanctity of the ballot is indisputably a protected eBpression that cannot be subAect to prior restraint. )ublic discussion on the credibility of the electoral process is one of the hi(hest political eBpressions of any electorate, and thus deserves the ut"ost protection. 8f ever there is a hierarchy of protected eBpressions, political eBpression would occupy the hi(hest ran7,38 and a"on( different 7inds of political eBpression, the subAect of fair and honest elections would be at the top. 8n any event, public discussion on all political issues should always re"ain uninhibited, robust and wide open. !he rule, which recogni'es no exception, is that there can be no content-based prior restraint on protected expression. On this ground alone, the !" press release is unconstitutional. -f course, if the courts deter"ine that the subAect "atter of a wiretappin(, ille(al or not, endan(ers the security of the State, the public airin( of the tape beco"es unprotected eBpression that "ay be subAect to prior restraint. ;owever, there is no clai" here by respondents that the subAect "atter of the Garci Tapes involves national security and publicly airin( the tapes would endan(er the security of the State.39 The alle(ed violation of the +nti*>iretappin( .aw is not in itself a (round to i"pose a prior restraint on the airin( of the Garci Tapes because the #onstitution eBpressly prohibits the enact"ent of any law, and that includes anti* wiretappin( laws, curtailin( freedo" of eBpression. 40 The only eBceptions to this rule are the four reco(nized cate(ories of unprotected eBpression. ;owever, the content of the Garci Tapes does not fall under any of these

cate(ories of unprotected eBpression. The airin( of the Garci Tapes does not violate the ri(ht to privacy because the content of the Garci Tapes is a "atter of i"portant public concern. The #onstitution (uarantees the people=s ri(ht to infor"ation on "atters of public concern.41 The re"edy of any person a((rieved by the public airin( of the Garci Tapes is to file a co"plaint for violation of the +nti*>iretappin( .aw a!ter the co""ission of the cri"e. SubseDuent punish"ent, a sent a law!ul de!ense, is the re"edy available in case of violation of the +nti*>iretappin( .aw. The present case involves a prior restraint on protected eBpression. )rior restraint on protected eBpression differs si(nificantly fro" subseDuent punish"ent of protected eBpression. >hile there can be no prior restraint on protected eBpression, there can be subseDuent punish"ent for protected eBpression under libel, tort or other laws. 8n the present case, the !T# action see7s prior restraint on the airin( of the Garci Tapes, not punish"ent of personnel of radio and television stations for actual violation of the +nti*>iretappin( .aw. 5. -nly the #ourts May 8"pose #ontent*9ased )rior Restraint The !T# has no power to i"pose content*based prior restraint on eBpression. The charter of the !T# does not vest !T# with any content*based censorship power over radio and television stations. 8n the present case, the airin( of the Garci Tapes is a protected eBpression that can never be subAect to prior restraint. ;owever, even assu"in( for the sa7e of ar(u"ent that the airin( of the Garci Tapes constitutes unprotected eBpression, only the courts have the power to adAudicate on the factual and le(al issue of whether the airin( of the Garci Tapes presents a clear and present dan(er of brin(in( about a substantive evil that the State has a ri(ht and duty to prevent, so as to Austify the prior restraint. +ny order i"posin( prior restraint on unprotected expression reDuires prior adAudication by the courts on whether the prior restraint is constitutional. This is a necessary conseDuence fro" the presu"ption of invalidity of any prior restraint on unprotected eBpression. Hnless ruled by the courts as a valid prior restraint, (overn"ent a(encies cannot i"ple"ent outri(ht such prior restraint because such restraint is presu"ed unconstitutional at inception. +s an a(ency that allocates freDuencies or airwaves, the !T# "ay re(ulate the bandwidth position, trans"itter watta(e, and location of radio and television stations, but not the content of the broadcasts. Such content*neutral prior restraint "ay "a7e operatin( radio and television stations "ore costly. ;owever, such content*neutral restraint does not restrict the content of the broadcast. 4. Govern"ent 6ailed to -verco"e )resu"ption of 8nvalidity +ssu"in( that the airin( of the Garci Tapes constitutes unprotected eBpression, the !T# action i"posin( prior restraint on the airin( is presu"ed unconstitutional. The Govern"ent bears a heavy burden to prove that the !T# action is constitutional. The Govern"ent has failed to "eet this burden. 8n their #o""ent, respondents did not invo7e any co"pellin( State interest to i"pose prior restraint on the public airin( of the Garci Tapes. The respondents clai" that they "erely "fairly warned" radio and television stations to observe the +nti*>iretappin( .aw and pertinent !T# circulars on pro(ra" standards. Respondents have not eBplained how and why the observance by radio and television stations of the +nti*>iretappin( .aw and pertinent !T# circulars constitutes a co"pellin( State interest Austifyin( prior restraint on the public airin( of the Garci Tapes. /iolation of the +nti*>iretappin( .aw, li7e the violation of any cri"inal statute, can always be subAect to cri"inal prosecution a!ter the violation is co""itted. Respondents have not eBplained why there is a need in the present case to i"pose prior restraint Aust to prevent a possible future violation of the +nti*>iretappin( .aw. Respondents have not eBplained how the violation of the +nti*>iretappin( .aw, or of the pertinent !T# circulars, can incite i""inent lawless behavior or endan(er the security of the State. To allow such restraint is to allow prior restraint on all future broadcasts that "ay possibly violate any of the eBistin( cri"inal statutes. That would be the dawn of sweepin( and endless censorship on broadcast "edia. 2. The !T# >arnin( is a #lassic 6or" of )rior Restraint The !T# press release threatenin( to suspend or cancel the airwave per"its of radio and television stations constitutes i"per"issible pressure a"ountin( to prior restraint on protected eBpression. >hether the threat is "ade in an order, re(ulation, advisory or press release, the chillin( effect is the sa"eC the threat freezes radio and television stations into deafenin( silence. Radio and television stations that have invested substantial su"s in capital eDuip"ent and "ar7et develop"ent suddenly face suspension or cancellation of their per"its. The !T# threat is thus real and potent.

8n Burgos v. Chie! o! Sta!!,42 this #ourt ruled that the closure of the We Forum newspapers under a (eneral warrant "is in the nature of a previous restraint or censorship abhorrent to the freedo" of the press (uaranteed under the funda"ental law." The !T# warnin( to radio and television stations not to air the Garci Tapes or else their per"its will be suspended or cancelled has the sa"e effect G a prior restraint on constitutionally protected eBpression. 8n the recent case of $avid v. %acapagal&Arroyo,43 this #ourt declared unconstitutional (overn"ent threats to close down "ass "edia establish"ents that refused to co"ply with (overn"ent prescribed "standards" on news reportin( followin( the declaration of a State of !ational ,"er(ency by )resident +rroyo on %0 6ebruary %&&5. The #ourt described these threats in this "annerC Thereafter, a <a9e o* <ar$#$8@&A 'a,e *ro, 8o9er$,e$) o**#'#a5&. )residential #hief of Staff Michael Iefensor was Duoted as sayin( that such raid was ""eant to show a <stron( presence,< to tell "edia outlets not to connive or do anythin( that would help the rebels in brin(in( down this (overn"ent." Iirector General .o"ibao further stated that "if they do not follow the standards J and the standards are if they would contribute to instability in the (overn"ent, or if they do not subscribe to what is in General -rder !o. ' and )roc. !o. $&$4 J we will reco""end a <ta7eover.<" Na)#o$a5 0e5e'o,,u$#'a)#o$& Co,,#&&#o$er Ro$a5/ So5#& ur8e/ )e5e9#&#o$ a$/ ra/#o $e)<orB& )o C'oo(era)eC <#)% )%e 8o9er$,e$) *or )%e /ura)#o$ o* )%e &)a)e o* $a)#o$a5 e,er8e$'y. He <ar$e/ )%a) %#& a8e$'y <#55 $o) %e&#)a)e )o re'o,,e$/ )%e '5o&ure o* a$y broa/'a&) ou)*#) )%a) 9#o5a)e& ru5e& &e) ou) *or ,e/#a 'o9era8e /ur#$8 )#,e& <%e$ )%e $a)#o$a5 &e'ur#)y #& )%rea)e$e/.44 (,"phasis supplied The #ourt struc7 down this "<a9e o* <ar$#$8@&A" as i"per"issible restraint on freedo" of eBpression. The #ourt ruled that "the i"position of standards on "edia or any for" of prior restraint on the press, as well as the warrantless search of the Tribune offices and whi"sical seizure of its articles for publication and other "aterials, are declared H!#-!ST8THT8-!+.."45 The history of press freedo" has been a constant stru((le a(ainst the censor whose weapon is the suspension or cancellation of licenses to publish or broadcast. The !T# warnin( resurrects the weapon of the censor. The !T# warnin( is a classic #orm o# prior restraint on protected eBpression, which in the words of 'ear v. %innesota is "the essence of censorship."46 .on( before the +"erican Ieclaration of 8ndependence in $445, >illia" 9lac7stone had already written in his Commentaries on the (aw o! )ngland, "The liberty of the press B B B consists in layin( no previous restraints upon publication B B B."47 +lthou(h couched in a press release and not in an ad"inistrative re(ulation, the !T# threat to suspend or cancel per"its re"ains real and effective, for without airwaves or freDuencies, radio and television stations will fall silent and die. The !T# press release does not see7 to advance a le(iti"ate re(ulatory obAective, but to suppress throu(h coercion infor"ation on a "atter of vital public concern. 1. #onclusion 8n su", the !T# press release constitutes an unconstitutional prior restraint on protected eBpression. There can be no content*based prior restraint on protected eBpression. This rule has no eBception. 8 therefore vote to ($ (rant the petition, (% declare the !T# warnin(, e"bodied in its press release dated $$ June %&&', an unconstitutional prior restraint on protected eBpression, and (3 enAoin the !T# fro" enforcin( the sa"e.