B.

The Facts
1.The case originates from events that occurred
a year after the 2004 national and local
elections. On June 5, 2005, Press Secretary
Ignacio Bunye told reporters that the
opposition was planning to destabilize the
administration by releasing an audiotape of a
mobile phone conversation allegedly between
the President of the Philippines, Gloria
Macapagal Arroyo, and a high-ranking official
of the Commission on Elections (COMELEC).
The conversation was audiotaped allegedly
through wire-tapping.[5] Later, in
a Malacañang press briefing, Secretary Bunye
produced two versions of the tape, one
supposedly the complete version, and the
other, a spliced, “doctored” or altered version,
which would suggest that the President had
instructed the COMELEC official to manipulate
the election results in the President’s offense,
 subject to arrest by anybody who had personal
knowledge if the crime was committed or was
being committed in their presence.[9]
On June 9, 2005, in another press briefing,
Secretary Gonzales ordered the National Bureau of
Investigation (NBI) to go after media organizations
“found to have caused the spread, the playing and
the printing of the contents of a tape” of an alleged
wiretapped conversation involving the President
about fixing votes in the 2004 national elections.
Gonzales said that he was going to start
with Inq7.net, a joint venture between
the Philippine Daily Inquirer and GMA7 television
network, because by the very nature of the
Internet medium, it was able to disseminate the
contents of the tape more widely. He then
expressed his intention of inviting the editors and
managers of Inq7.net A. Precis
2.favor.[6] It seems that Secretary Bunye
admitted that the voice was that of President
Arroyo, but subsequently made a retraction.[7]
3.On June 7, 2005, former counsel of deposed
President Joseph Estrada, Atty. Alan Paguia,
subsequently released an alleged authentic
tape recording of the wiretap. Included in the
tapes were purported conversations of the
President, the First Gentleman Jose Miguel
Arroyo, COMELEC Commissioner Garcillano,
and the late Senator Barbers.[8]
4.On June 8, 2005, respondent Department of
Justice (DOJ) Secretary Raul Gonzales warned
reporters that those who had copies of the
compact disc (CD) and those broadcasting or
publishing its contents could be held liable
under the Anti-Wiretapping Act. These persons
included Secretary Bunye and Atty. Paguia. He
also stated that persons possessing or airing
said tapes were committing a continuing
In this jurisdiction, it is established that
freedom of the press is crucial and so
inextricably woven into the right to free speech
and free expression, that any attempt to
restrict it must be met with an examination so
critical that only a danger that is clear and
present would be allowed to curtail it.

Indeed, we have not wavered in the duty to

uphold this cherished freedom. We have struck
down laws and issuances meant to curtail this
right, as in Adiong v. COMELEC,[1] Burgos v.
Chief of Staff,[2] Social Weather Stations v.
COMELEC,[3] and Bayan v. Executive Secretary
Ermita.[4] When on its face, it is clear that a
governmental act is nothing more than a
naked means to prevent the free exercise of
speech, it must be nullified.
 5.and GMA7 to a probe, and supposedly
declared, “I [have] asked the NBI to conduct a
tactical interrogation of all concerned.”[10]
6.On June 11, 2005, the NTC issued this press
release:[11]

NTC GIVES FAIR WARNING TO RADIO AND

TELEVISION OWNERS/OPERATORS TO
OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM
STANDARDS
xxx xxx xxx

Taking into consideration the country’s unusual

situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio
stations and television network owners/operators
that the conditions of the authorization and
permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority
explicitly provides that said companies shall not
use [their] stations for the broadcasting or
telecasting of false information or willful
misrepresentation. Relative thereto, it has come to
the attention of the [NTC] that certain personalities
are in possession of alleged taped conversations
which they claim involve the President of the
Philippines and a Commissioner of the COMELEC
regarding supposed violation of election laws.

These personalities have admitted that the taped

conversations are products of illegal wiretapping
operations.

Considering that these taped conversations have

not been duly authenticated nor could it be said at
this time that the tapes contain an accurate or
truthful representation of what was recorded
therein, it is the position of the [NTC] that the
continuous airing or broadcast of the said taped
conversations by radio and television stations is a
continuing violation of the Anti-Wiretapping Law
and the conditions of the Provisional Authority
and/or Certificate of Authority issued to these radio
and television stations. It has been 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.

In addition to the above, the [NTC] reiterates the

pertinent NTC circulars on program standards to be
observed by radio and television stations. NTC
Memorandum Circular 111-12-85 explicitly states,
among others, that “all radio broadcasting and
television stations shall, during any broadcast or
telecast, cut off from the air the speech, play, act
or scene or other matters being broadcast or
telecast the tendency thereof is to disseminate
false information or such other willful
misrepresentation, or to propose and/or incite
treason, rebellion or sedition.” The foregoing
directive had been reiterated by NTC Memorandum
Circular No. 22-89, which, in addition thereto,
prohibited radio, broadcasting and television
stations from using their stations to broadcast or
telecast any speech, language or scene
disseminating false information or willful
misrepresentation, or inciting, encouraging or
assisting in subversive or treasonable acts.

The [NTC] will not hesitate, after observing the

requirements of due process, to apply with full
force the provisions of said Circulars and their
accompanying sanctions on erring radio and
television stations and their owners/operators.
7.On June 14, 2005, NTC held a dialogue with
the Board of Directors of the Kapisanan ng
mga Brodkaster sa Pilipinas (KBP). NTC
allegedly assured the KBP that the press
release did not violate the constitutional
freedom of speech, of expression, and of the
press, and the right to information.
Accordingly, NTC and KBP issued a Joint Press
Statement which states, among others, that:[12]
o § 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 of press freedom with high
sense of responsibility and discerning
judgment of fairness and honesty.
o § NTC did not issue any MC [Memorandum
Circular] or Order constituting a restraint of
 press freedom or censorship. The NTC
further denies and does not intend to limit
or restrict the interview of members of the
opposition or free expression of views.
o § What is being asked by NTC is that the
exercise of press freedom [be] done
responsibly.
o § 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.
o § The KBP Codes also require that no false
statement or willful misrepresentation is
made in the treatment of news or
commentaries.
o § The supposed wiretapped tapes should
be treated with sensitivity and handled
responsibly giving due consideration to the
 process being undertaken to verify and
validate the authenticity and actual
content of the same.”
C. The Petition

Petitioner Chavez filed a petition under Rule 65 of

the Rules of Court against respondents Secretary
Gonzales and the NTC, “praying for the issuance of
the writs of certiorari and prohibition, as
extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of
authority by the respondents.”[13]

Alleging that the acts of respondents are violations

of the freedom on expression and of the press, and
the right of the people to information on matters of
public concern,[14] petitioner specifically asked this
Court:
[F]or [the] nullification of acts, issuances, and
orders of respondents committed or made since
June 6, 2005 until the present that curtail the
public’s rights to freedom of expression and of the
press, and to information on matters of public
concern specifically in relation to information
regarding the controversial taped conversion of
President Arroyo and for prohibition of the further
commission of such acts, and making of such
issuances, and orders by respondents.[15]
Respondents[16] denied that the acts transgress the
Constitution, and questioned petitioner’s legal
standing to file the petition. Among the arguments
they raised as to the validity of the “fair warning”
issued by respondent NTC, is that broadcast media
enjoy lesser constitutional guarantees compared to
print media, and the warning was issued pursuant
to the NTC’s mandate to regulate the
telecommunications industry.[17] It was also
stressed that “most of the [television] and radio
stations continue, even to this date, to air the
tapes, but of late within the parameters agreed
upon between the NTC and KBP.”[18]

D. The Procedural Threshold: Legal Standing

To be sure, the circumstances of this case make

the constitutional challenge peculiar. Petitioner,
who is not a member of the broadcast media,
prays that we strike down the acts and statements
made by respondents as violations of the right to
free speech, free expression and a free press. For
another, the recipients of the press statements
have not come forward—neither intervening nor
joining petitioner in this action. Indeed, as a group,
they issued a joint statement with respondent NTC
that does not complain about restraints on
freedom of the press.

It would seem, then, that petitioner has not met

the requisite legal standing, having failed to allege
“such a personal stake in the outcome of the
controversy as to assure that concrete
adverseness which sharpens the presentation of
issues upon which the Court so largely depends for
illumination of difficult constitutional questions.” [19]

But as early as half a century ago, we have already

held that where serious constitutional questions
are involved, “the transcendental importance to
the public of these cases demands that they be
settled promptly and definitely, brushing aside if
we must, technicalities of
procedure.”[20] Subsequently, this Court has
repeatedly and consistently refused to wield
procedural barriers as impediments to its
addressing and resolving serious legal questions
that greatly impact on public interest,[21] in keeping
with the Court's duty under the 1987 Constitution
to determine whether or not other branches of
government have kept themselves within the limits
of the Constitution and the laws and that they have
not abused the discretion given to them.

Thus, in line with the liberal policy of this Court

on locus standi when a case involves an issue of
overarching significance to our society,[22] we
therefore brush aside technicalities of procedure
and take cognizance of this petition,[23] seeing as it
involves a challenge to the most exalted of all the
civil rights, the freedom of expression. The petition
raises other issues like the extent of the right to
information of the public. It is fundamental,
however, that we need not address all issues but
only the most decisive one which in the case at bar
is whether the acts of the respondents abridge
freedom of speech and of the press.

But aside from the primordial issue of determining

whether free speech and freedom of the press
have been infringed, the case at bar also gives this
Court the opportunity: (1) to distill the essence of
freedom of speech and of the press now beclouded
by the vagaries of motherhood statements; (2) to
clarify the types of speeches and their differing
restraints allowed by law; (3) to discuss the core
concepts of prior restraint, content-neutral and
content-based regulations and their constitutional
standard of review; (4) to examine the historical
difference in the treatment of restraints between
print and broadcast media and stress the standard
of review governing both; and (5) to call attention
to the ongoing blurring of the lines of distinction
between print and broadcast media.

E. Re-examining The law on freedom of speech, of

expression and of the press
No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition
the government for redress of grievances.[24]
Freedom of expression has gained recognition as a
fundamental principle of every democratic
government, and given a preferred right that
stands on a higher level than substantive
economic freedom or other liberties. The cognate
rights codified by Article III, Section 4 of the
Constitution, copied almost verbatim from the First
Amendment of the U.S. Bill of Rights,[25] were
considered the necessary consequence of
republican institutions and the complement of free
speech.[26] This preferred status of free speech has
also been codified at the international level, its
recognition now enshrined in international law as a
customary norm that binds all nations.[27]

In the Philippines, the primacy and high esteem

accorded freedom of expression is a fundamental
postulate of our constitutional system.[28] This right
was elevated to constitutional status in the 1935,
the 1973 and the 1987 Constitutions, reflecting our
own lesson of history, both political and legal, that
freedom of speech is an indispensable condition
for nearly every other form of freedom.
[29]
Moreover, our history shows that the struggle to
protect the freedom of speech, expression and the
press was, at bottom, the struggle for the
indispensable preconditions for the exercise of
other freedoms.[30] For it is only when the people
have unbridled access to information and the press
that they will be capable of rendering enlightened
judgments. In the oft-quoted words of Thomas
Jefferson, we cannot both be free and ignorant.