Joaquin G. Bernas, S.J.
When the big guns of the opposition group UNA visited the embattled Governor Garcia, one would have expected them to make noisy political capital not only of the suspension of the Governor but also of the closure of the television station and of the newspaper office. But nothing of the sort seem to have happened. They seemed simply to have projected themselves as the good guys performing a Christian act of mercy by visiting someone in prison -– even if self-imprisoned. The Palace voice in turn also played a good guy role saying with a smile that nothing will be done on Garcia until after the holidays.
What is really happening? Should we attribute this seemingly friendly spirit to the Christmas atmosphere? Or is this just the calm before the storm?
Perhaps it is understandable that nothing vigorous was said by the UNA leaders about the suspension of the Governor. Presumably they just wanted to project their respect for the legal process because the Governor has already brought her suspension to the Court of Appeals.
But what about the closure of the television and ratio stations? Padlocking a television station and a newspaper publishing office is not an ordinary occurrence in a democracy. Such action takes place either during martial law or in the heat of political contest. It is normally regarded as an act of prior restraint and therefore presumed to be unconstitutional. Could it be that UNA has accepted Acting Governor Magpale’s explanation?
The Acting Governor has justified the closure by saying that the object of the closure was not to restrain speech or communication but to review the operation of the outfits. In other words her defense is the jurisprudential distinction between content-neutral regulations, i.e., concerned not with the message but merely with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards; and a content-based restraint or censorship, i.e., the restriction based on the subject matter of the utterance or speech.
Content-based laws or regulations are generally treated as more suspect than content-neutral laws because of judicial concern about its effect on freedom of expression. Jurisprudence requires that content based regulation be justified by the existence of a grave and present danger of an evil which the state has the right to prevent. Content-neutral regulations of speech or of conduct that may amount to speech are subject to lesser but still heightened scrutiny.
This distinction between content based regulation of speech and content neutral regulation was also appealed to by Cauayan City in Isabela when the city closed Newsound, a radio station operated by Bombo Radyo. The closure, according to the city, was in conformity with zoning regulations and was in no way connected with the broadcasts made by the station. But the pretense of content neutral regulation was rejected on the evidence that the radio station was an aggressive critic of the ruling administration. Hence the closure was declared invalid.
Unlike Newsound, however, which was privately owned, the Cebu stations in controversy are, I am told, run by the government. And owned by the government, I suppose. Acting Governor Magpale’s argument therefore comes down to saying that the province, in the exercise of its right not to speak, simply decided to gag itself. There is, after all, a constitutionally recognized right not to speak. But her supporters seem to be undermining her defense by giving the added reason that the stations were being used to support the candidacy of opponents. Presumably, therefore, those running the stations were not exactly friends of the Acting Governor. They too have been effectively gagged. And this makes reliance on the right not to speak less than credible.
Even, however, during this season of good cheer when good guys sheath their daggers, let us recall what bad guys did in the past with the constitutional prohibition of prior restraint. Let us hope that what happened then is not anywhere near to being repeated in Cebu and in the nation.
The field of freedom of expression in the martial law decade is a desolate wasteland. Newspapers and magazines and radios closed by the regime at the start of martial law remained closed, and so total was the regime's hold on media that none of these closures occasioned a single freedom of expression case until 1984. Later during the martial law regime the closure of the opposition of the newspaper We Forum was followed by charges of rebellion against editors and columnists. But the Court in 1984 did condemn the closure. "Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes virtual denial of petitioners' freedom to express themselves in dissent."
Meanwhile, the President is back from Baguio muscle flexed to grapple with national problems including the red-balloon-carrying bishops! Contrary to what people had thought, he did sign the RH Bill before going to his vacation. And his trip was not a penitential pilgrimage in expiation for having signed the bill.
31 December 2012