"If the press is not free, if speech is not independent and untrammeled, if the mind is shackled or made impotent through fear, it makes no difference under what form of government you live, you are a subject and not a citizen." - William E. Borah
In 2005, the Supreme Court decided the case of MTRCB vs. ABS-CBN. It said that freedom of expression and the press "has no preferred status" under the Constitution. In an earlier 1985 case, Far Eastern Broadcasting vs. Dans Jr., the Supreme Court said that "freedom of broadcast media is lesser in scope than the press because of their pervasive presence in the lives of all Filipinos." Notwithstanding this, however, the Supreme Court still emphasized that
All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule - that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent. (Far Eastern Broadcasting vs. Dans Jr. 137 SCRA 628)
One of the greatest protections of freedom of speech is the prohibition against prior restraint. This means "official governmental restriction on the press or other forms of expression in advance of actual publication or dissemination." (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009 edition Page 232).
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. (Concurring opinion of Justice Carpio in Chavez vs. Gonzales G.R. No. 168338 February 15, 2008)
In a more recent 2009 case, Soriano vs. La Guardia et al, the Supreme Court said that there can be other exceptions if compelling circumstances warrant. In the Soriano case, a program classified as "for general patronage" aired at a time accessible to viewing children and anchored by a host using foul language, was meted out a preventive suspension by the MTRCB. This was considered allowable "prior restraint" as the "balancing of interest" tilts in favor of the interest of the children not to be exposed to foul and belligerent language. Ultimately however, the Supreme Court simply meted out penalties for the host but did not maintain the suspension of the show.
Recently, the hit TV5 show "T3" hosted by the three Tulfo brothers was meted out a preventive suspension order by the MTRCB for a period of 20 days. The preventive suspension had already prevented the airing of the show. It had already effectively curtailed TV5's, the show's producers' and creators' right to express their thoughts and advocacy as reflected by what has officially been done in the show.
Whether one uses the clear-and–present-danger rule or the balancing-of-interest rule, the special circumstances of this case must still be resolved in favor of freedom of speech.
The objective of the show is obviously one of public service and news. It is not pornography and does not involve false and misleading advertisement. Neither does it endanger national security nor advocate imminent lawless action. Arguably, while the anchors who were suspended by TV5 may have uttered "threatening" statements in a matter of about 4 minutes in a 30 minute-show (directed not to the general public but to two individuals), their utterances do not reflect the advocacy of the show itself, which is designed to help and assist the needy especially against abusive or negligent government officials.
There is clearly no imminent danger of substantive evil that will affect the State should "T3" be allowed to continue. And this became very evident from the fact that, after the anchors' suspension by TV5 management, temporary hosts were made to fill their places. As usual, the show went through with its public service advocacy. It did not endanger the State.
Indeed, the show hosted by the alternate-anchors even aided the State in its program of providing justice for all. The show was able to have a public official, who had been withholding the release of another public official's salary, commit such release to the aggrieved party. Also, the show was instrumental in advising the mother of a murdered rape victim on their remedial actions. The clear-and-present danger rule evidently is not applicable to justify the preventive suspension order issued the MTRCB against the showing of "T3".
The balancing-of-interest-rule likewise is of no help to curtail the constitutional right of expression in this instance. This test mandates that the conflicting rights and obligations “are to be judged in the concrete, not on the basis of abstractions." (Soriano vs. La Guardia et al). Important factors have to be importantly considered in weighing the conflicting rights. One of these is "whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom." (Soriano)
These are the concrete facts. "T3" is a show approved by the MTRCB. Its advocacy is to provide news and also public service. It is rated not for general patronage but for strict parental guidance. It is aired 5:15 in the afternoon. Its lasts 30 minutes. The show has actually helped needy people. The Mon Tulfo incident occurred at the airport. Video showed his mauling. Thereafter the three Tulfo brothers saw the video and, for more or less four minutes they made remarks that seem to suggest retaliation. TV5 promptly suspended the three Tulfo brothers. And three temporary anchors were placed in their stead and continued the advocacy of the program. Then MTRCB called a conference and, thereafter on the same day, promptly issued the preventive suspension order for 20 days.
Just what contending and compelling public interest overrides freedom of the press or expression in this "T3" case is not clear. At the most, any "public interest" here is an abstraction or a general concept of some kind of public good. This is not enough when allowable infringement of constitutional rights is the issue. It must be judged in the concrete. Moreover, is there "some other measure less restrictive of the protected freedom" that will adequately safeguard this undefined "public interest" which MTRCB should or must have found? Or, considering the imposition immediately after the meeting, was there any determination at all of this "public interest"? The excessiveness of the the 20-day preventive suspension highlights the arbitrariness of the preventive-suspension order.
The news-and public-affairs advocacy of "T3" which have helped a lot of needy people should have been distinguished from the particular and personal motive of the three-Tulfo brothers regarding a private matter which, unfortunately, manifested on TV. Should the fate of T3 as a show with a clear and unmistakable mission be made equivalent to the motives of the erring anchors? Surely it should not. And if this is so, then it is clear that the penalty for the anchors cannot be the penalty for the show.
As a lawyer and professor of law, I have always been suspect of any act infringing upon our freedom of speech on the ostensible excuse of saving some general good. When the issue is about freedom of speech, the presumption must always be in favor of its expression and against censorship or any of its forms and nuances.
What makes T3's preventive suspension more frightening is the fact that the curtailing-decision was, in reality, made by men and women who are equally fallible like any of us. I am not saying that they are not qualified as MTRCB members. Perhaps they are. Their motivation may even be in good faith. But having been given a mandate to "monitor" speech, they must be discerning enough to know that they must be patriotic enablers of speech and not its censors.
For the MTRCB to immediately prevent "T3" from airing, despite the very clear detectible root of the problem which is separable from the advocacy of T3 as a platform-program, is to effectively control free thought, speech and expression arbitrarily.
Commendable therefore is the decision of TV5 President Atty. Ray Espinosa and TV5 News/Current Affairs Chief Luchi Cruz Valdes to question what appears to be a grave abuse of power by the MTRCB.
Finally, let me quote former US Associate Justice William Douglas:
"What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness to infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another, larger surrender..."
source: interaksyon.com
