No violation of press freedom

Press freedom has been a hot topic for several days now. It all started with the arrest of Maria Ressa, one of the founders and the incumbent chief executive officer of Rappler, a modern and unique company that goes beyond journalism by using “all possibilities that technology now makes possible” (Rappler.com).

Ressa and another Rappler officer, Reynaldo Santos, were charged with violation of Republic Act 10175 or the Cybercrime Law by businessman Wilfredo Keng based on an article posted way back in May 2012 linking him to human trafficking and drug smuggling. In said article, Rappler also reported that he was the owner of a black Chevrolet Suburban being allegedly used by then Chief Justice Renato Corona allegedly because one of Keng’s companies had a pending case in the lower court. They were charged with a crime legally denominated as “Cyber Libel”  due to the posting of said article.

Apparently, Ressa is exploiting said case as a violation of the freedom of the press guaranteed by our Constitution more specifically Section 4, Article III which provides that: “No law shall be passed abridging the freedom of speech, of expression, or of the press xxx”.  “Speech”, “expression” and “press” consist of every form of expression whether oral, written, tape or disc recorded including movies, wearing  of an armband as a symbol of protest and peaceful picketing (Bernas, The 1987 Constitutional  Reviewer-Primer p. 62).

Pursuant to the afore-quoted vonstitutional provision, prior restraint and subsequent punishment is prohibited. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. This prohibition was due to attempts to control the press by requiring licenses and permits to publish, judicial injunction against publication, movie censorship, license taxes measured by gross receipts in advertising business of any newspaper or flat license fees for selling religious books (Idem, p.62). Subsequent punishment is also prohibited because it has the effect of unduly curtailing expression. As Fr. Bernas wrote, “if the prohibition consists only of prior restraint, freedom of expression would be a mockery and a delusion (Idem p.64)”.

As held in Salonga vs. Pano, 134 SCRA 438, freedom of expression ranks higher than property in the hierarchy of constitutional rights. So, the norms for the regulation of expression place more stringent limits on State action by setting standards for allowable subsequent punishment of expression. These standards are the dangerous tendency, clear and present danger and balancing of interest rules.

Under the dangerous tendency rule, free speech may be curtailed or punished if there is a rational connection between the speech and the evil apprehended. An example here is the remark made by a citizen in a political discussion at a town hall as follows: “And the Filipinos like myself, must use bolos for cutting off the head of US Governor General Leonard Wood because he recommended a bad thing for the Philippines.” This citizen was prosecuted and convicted for the crime of sedition because the court found in such speech a “seditious tendency” which could easily produce dissatisfaction among the people and  state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws” (People vs Perez, 45 Phil.599).

The second standard, which is the dangerous tendency rule, was explained in a US case (Schenck vs. United States, U.S.47) as follows: “The question in every case is whether the 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 Congress has a right to prevent. Thus “an attempt to overthrow the government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is sufficient for Congress to prevent (Dennis vs. United States, 341 U.S. 494).

The third standard or the “balancing of interest” rule rests on the basis that free speech or expression or freedom of the press are not absolute and may be abridged to some extent to serve appropriate and important interest (Gonzales vs. Comelec, 27, SCRA, 835). An example here is Republic Act (RA) 4880 which prohibits among other things too early political nomination of political candidates and limits the period of political activity (Gonzales vs. Comelec, Idem). Thus the Comelec has the power to regulate time in broadcast media and space in the papers because it will not violate the freedom of expression under the balancing of interest test (UNIDO vs. Comelec 104 SCRA 17).

In Ressa’s case, the crime charged is libel in cyber space. Libel is defined by the Revised Penal Code as “a public and malicious imputation of a crime, or of a vice or a defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause dishonor, discredit or contempt of a natural or juridical person or to blacken the memory of one who is dead” (Article 353). Clearly such crime is not protected by the Constitution under the freedom of speech and of the press. They are not “essential part of any exposition of ideas, and are of such slight social value…such that any benefit derived from them is clearly outweighed by the social interests to preserve order and morality” (Chaplinsky vs. New Hampshire 3125 U.S. 572).

Based on the foregoing laws, rules and decision, the case of Ressa is not a violation of the freedom of the press. In fact she has been afforded the right to be heard and present her defense before the case was filed in Court because there is probable cause to prosecute her. The only problem here is the timing of the service of the warrant of arrest which she is now exploiting and blowing out of proportion. Her case would be a violation of press freedom only if, after trial, she would be convicted even there is no proof beyond reasonable doubt about her guilt.

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