Freedom Of The Press
Justice O'CONNOR delivered the opinion of the Court. *
MINNEAPOLIS STAR AND TRIBUNE COMPANY, Appellant v. MINNESOTA
COMMISSIONER OF REVENUE.
460 U.S. 575 (103 S.Ct. 1365, 75 L.Ed.2d 295)
MINNEAPOLIS STAR AND TRIBUNE COMPANY, Appellant v. MINNESOTA
COMMISSIONER OF REVENUE.
No. 81-1839.
Decided: March 29, 1983.
Syllabus
While exempting periodic publications from its general sales and use tax, Minnesota
imposes a "use tax" on the cost of paper and ink products consumed in the
production of such a publication, but exempts the first $100,000 worth of paper and
ink consumed in any calendar year. Appellant newspaper publisher brought an
action seeking a refund of the ink and paper use taxes it had paid during certain
years, contending that the tax violates, inter alia, the guarantee of the freedom of
press in the First Amendment. The Minnesota Supreme Court upheld the tax.
Held: The tax in question violates the First Amendment. Pp. 579-593.
(a) There is no legislative history, and no indication, apart from the structure of the
tax itself, of any impermissible or censorial motive on the part of the Minnesota
Legislature in enacting the tax. Grosjean v. American Press Co., 297 U.S. 233, 56
S.Ct. 444, 80 L.Ed. 660 distinguished. Pp. 579-580.
(b) But by creating the special use tax, which is without parallel in the State's tax
scheme, Minnesota has singled out the press for special treatment. When a State so
singles out the press, the political constraints that prevent a legislature from
imposing crippling taxes of general applicability are weakened, and the threat of
burdensome taxes becomes acute. That threat can operate as effectively as a
censor to check critical comment by the press, thus undercutting the basic
assumption of our political system that the press will often serve as an important
restraint on government. Moreover, differential treatment, unless justified by some
special characteristic of the press, suggests that the goal of the regulation is not
unrelated to suppression of expression, and such goal is presumptively
unconstitutional. Differential treatment of the press, then, places such a burden on
the interests protected by the First Amendment that such treatment cannot be
countenanced unless the State asserts a counterbalancing interest of compelling
importance that it cannot achieve without differential taxation. Pp. 581-585.
(c) Minnesota has offered no adequate justification for the special treatment of
newspapers. Its interest in raising revenue, standing alone, cannot justify such
treatment, for the alternative means of taxing businesses generally is clearly
available. And the State has offered no explanation of why it chose to use a
substitute for the sales tax rather than the sales tax itself. A rule that would
automatically allow the State to single out the press for a different method of
taxation as long as the effective burden is no different from that on other taxpayers
or, as Minnesota asserts here, is lighter than that on other businesses, is to be
avoided. The possibility of error inherent in such a rule poses too great a threat to
concerns at the heart of the First Amendment. Pp. 586-590.
(d) Minnesota's ink and paper tax violates the First Amendment not only because it
singles out the press, but also because it targets a small group of newspapers. The
effect of the $100,000 exemption is that only a handful of publishers in the State
pay any tax at all, and even fewer pay any significant amount of tax. To recognize a
power in the State not only to single out the press but also to tailor the tax so that it
singles out a few members of the press presents such a potential for abuse that no
interest suggested by Minnesota can justify the scheme. Pp. 591-592.
314 N.W.2d 201 (Minn.1981), reversed.
Lawrence C. Brown, Minneapolis, Minn., for appellant.
Paul R. Kempainen, St. Paul, Minn., for appellee.
TOP
This case presents the question of a State's power to impose a special tax on the
press and, by enacting exemptions, to limit its effect to only a few newspapers.
* Since 1967, Minnesota has imposed a sales tax on most sales of goods for a price
in excess of a nominal sum. 1 Act of June 1, 1967, ch. 32, art. XIII, 2, 1967
Minn.Laws Sp.Sess. 2143, 2179, codified at Minn.Stat. 297A.02 (1982). In general,
the tax applies only to retail sales. Ibid. An exemption for industrial and agricultural
users shields from the tax sales of components to be used in the production of
goods that will themselves be sold at retail. 297A.25(1)(h). As part of this general
system of taxation and in support of the sales tax, see Minn.Code of Agency Rules,
Tax & U 300 (1979), Minnesota also enacted a tax on the "privilege of using,
storing or consuming in Minnesota tangible personal property." This use tax applies
to any nonexempt tangible personal property unless the sales tax was paid on the
sales price. Minn.Stat. 297A.14 (1982). Like the classic use tax, this use tax
protects the State's sales tax by eliminating the residents' incentive to travel to
States with lower sales taxes to buy goods rather than buying them in Minnesota.
297A.14, 297A.24.
The appellant, Minneapolis Star and Tribune Company "Star Tribune", is the publisher
of a morning newspaper and an evening newspaper in Minneapolis. From 1967 until
1971, it enjoyed an exemption from the sales and use tax provided by Minnesota for
periodic publications. 1967 Minn.Laws Sp.Sess. 2187, codified at Minn.Stat.
297A.25(1)(i). In 1971, however, while leaving the exemption from the sales tax in
place, the legislature amended the scheme to impose a "use tax" on the cost of
paper and ink products consumed in the production of a publication. Act of October
31, 1971, ch. 31, art. I, 5, 1971 Minn.Laws Sp.Sess. 2561, 2565, codified with
modifications at Minn.Stat. 297A.14, 297A.25(1)(i) (1982). Ink and paper used in
publications became the only items subject to the use tax that were components of
goods to be sold at retail. In 1974, the legislature again amended the statute, this
time to exempt the first $100,000 worth of ink and paper consumed by a publication
in any calendar year, in effect giving each publication an annual tax credit of $4,000.
Act of May 24, 1973, ch. 650, art. XIII, 1, 1973 Minn.Laws 1606, 1637, codified at
Minn.Stat. 297A.14 (1982). 2Publications remained exempt from the sales tax, 2,
1973 Minn.Laws 1639.
After the enactment of the $100,000 exemption, 11 publishers, producing 14 of the
388 paid circulation newspapers in the State, incurred a tax liability in 1974. Star
Tribune was one of the 11, and, of the $893,355 collected, it paid $608,634, or
roughly two-thirds of the total revenue raised by the tax. See 314 N.W.2d 201, 203
and n. 4 (1981). In 1975, 13 publishers, producing 16 out of 374 paid circulation
papers, paid a tax. That year, Star Tribune again bore roughly two-thirds of the total
receipts from the use tax on ink and paper. Id., at 204 and n. 5.
Star Tribune instituted this action to seek a refund of the use taxes it paid from
January 1, 1974 to May 31, 1975. It challenged the imposition of the use tax on ink
and paper used in publications as a violation of the guarantees of freedom of the
press and equal protection in the First and Fourteenth Amendments. The Minnesota
Supreme Court upheld the tax against the federal constitutional challenge. 314
N.W.2d 201 (1981). We noted probable jurisdiction, --- U.S. ---, 102 S.Ct. 2955, 73
L.Ed.2d 1347 (1982), and we now reverse.
II
Star Tribune argues that we must strike this tax on the authority of Grosjean v.
American Press Co., Inc., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936). Although
there are similarities between the two cases, we agree with the State that Grosjean
is not controlling.
In Grosjean, the State of Louisiana imposed a license tax of 2% of the gross receipts
from the sale of advertising on all newspapers with a weekly circulation above
20,000. Out of at least 124 publishers in the State, only 13 were subject to the tax.
After noting that the tax was "single in kind" and that keying the tax to circulation
curtailed the flow of information, id., at 250-251, 56 S.Ct., at 449, this Court held the
tax invalid as an abridgment of the freedom of the press. Both the brief and the
argument of the publishers in this Court emphasized the events leading up to the
tax and the contemporary political climate in Louisiana. See Arg. for Appellees, 297
U.S., at 238, 56 S.Ct., at 445; Brief for Appellees, O.T. 1936, No. 303, pp. 8-9, 30. All
but one of the large papers subject to the tax had "ganged up" on Senator Huey
Long, and a circular distributed by Long and the governor to each member of the
state legislature described "lying newspapers" as conducting "a vicious campaign"
and the tax as "a tax on lying, 2c sic a lie." Id., at 9. Although the Court's opinion did
not describe this history, it stated, "The tax is bad because, in the light of its history
and of its present setting, it is seen to be a deliberate and calculated device in the
guise of a tax to limit the circulation of information," 297 U.S., at 250, 56 S.Ct., at
449, an explanation that suggests that the motivation of the legislature may have
been significant.
Our subsequent cases have not been consistent in their reading of Grosjean on this
point. Compare United States v. O'Brien, 391 U.S. 367, 384-385, 88 S.Ct. 1673,
1683, 20 L.Ed.2d 672 (1968) (stating that legislative purpose was irrelevant in
Grosjean ) with Houchins v. KQED, Inc., 438 U.S. 1, 9-10, 98 S.Ct. 2588, 2594, 57
L.Ed.2d 553 (1978) (plurality opinion) (suggesting that purpose was relevant in
Grosjean ); Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413
U.S. 376, 383, 93 S.Ct. 2553, 2557, 37 L.Ed.2d 669 (1973) (same). Commentators
have generally viewed Grosjean as dependent on the improper censorial goals of the
legislature. See T. Emerson, The System of Freedom of Expression 419 (1970); L.
Tribe, American Constitutional Law 592 n. 8, 724 n. 10 (1978). We think that the
result in Grosjean may have been attributable in part to the perception on the part
of the Court that the state imposed the tax with an intent to penalize a selected
group of newspapers. In the case currently before us, however, there is no
legislative history 3 and no indication, apart from the structure of the tax itself, of
any impermissible or censorial motive on the part of the legislature. We cannot
resolve the case by simple citation to Grosjean. Instead, we must analyze the
problem anew under the general principles of the First Amendment.
Clearly, the First Amendment does not prohibit all regulation of the press. It is
beyond dispute that the States and the Federal Government can subject newspapers
to generally applicable economic regulations without creating constitutional
problems. See, e.g., Citizens Publishing Co. v. United States, 394 U.S. 131, 139, 89
S.Ct. 927, 931, 22 L.Ed.2d 148 (1969) (antitrust laws); Lorain Journal Co. v. United
States, 342 U.S. 143, 155-156, 72 S.Ct. 181, 187, 96 L.Ed. 162 (1951) (same);
Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 921, 95 L.Ed. 1233 (1951) (prohibition of
door-to-door solicitation); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186,
192-193, 66 S.Ct. 494, 497-98, 90 L.Ed. 614 (1946) (Fair Labor Standards Act);
Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607
(1946) (same); Associated Press v. United States, 326 U.S. 1, 6-7, 19-20, 65 S.Ct.
1416, 1418, 1424, 89 L.Ed. 2013 (1945) (antitrust laws); Associated Press v.
NLRB, 301 U.S. 103, 132-133, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937) (NLRA); see
also Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626
(1972) (enforcement of subpoenas). Minnesota, however, has not chosen to apply its
general sales and use tax to newspapers. Instead, it has created a special tax that
applies only to certain publications protected by the First Amendment. Although the
State argues now that the tax on paper and ink is part of the general scheme of
taxation, the use tax provision, quoted in note 2, supra, is facially discriminatory,
singling out publications for treatment that is, to our knowledge, unique in
Minnesota tax law.
Minnesota's treatment of publications differs from that of other enterprises in at
least two important respects: 4 it imposes a use tax that does not serve the function
of protecting the sales tax, and it taxes an intermediate transaction rather than the
ultimate retail sale. A use tax ordinarily serves to complement the sales tax by
eliminating the incentive to make major purchases in States with lower sales taxes;
it requires the resident who shops out-of-state to pay a use tax equal to the sales tax
savings. E.g., National Geographic Society v. California Board of Equalization, 430
U.S. 551, 555, 97 S.Ct. 1386, 1389, 51 L.Ed.2d 631 (1977); P. Hartman, Federal
Limitations on State and Local Taxation 10:1, 10:5 (1981); Warren & Schlesinger,
Sales and Use Taxes: Interstate Commerce Pays Its Way, 38 Colum.L.Rev. 49, 63
(1938). Minnesota designed its overall use tax scheme to serve this function. As the
regulations state, "The 'use tax' is a compensatory or complementary tax."
Minn.Code of Agency Rules, Tax & U 300 (1979); see Minn.Stat. 297A.24 (1982).
Thus, in general, items exempt from the sales tax are not subject to the use tax, for,
in the event of a sales tax exemption, there is no "complementary function" for a
use tax to serve. See DeLuxe Check Printers, Inc. v. Commissioner of Tax, 295 Minn.
76, 203 N.W.2d 341, 343 (1972). But the use tax on ink and paper serves no such
complementary function; it applies to all uses, whether or not the taxpayer
purchased the ink and paper in-state, and it applies to items exempt from the sales
tax.
Further, the ordinary rule in Minnesota, as discussed above, is to tax only the
ultimate, or retail, sale rather than the use of components like ink and paper. "The
statutory scheme is to devise a unitary tax which exempts intermediate transactions
and imposes it only on sales when the finished product is purchased by the ultimate
user." Standard Packaging Corp. v. Commissioner of Revenue, 288 N.W.2d 234
(Minn.1979). Publishers, however, are taxed on their purchase of components, even
though they will eventually sell their publications at retail.
By creating this special use tax, which, to our knowledge, is without parallel in the
State's tax scheme, Minnesota has singled out the press for special treatment. We
then must determine whether the First Amendment permits such special taxation. A
tax that burdens rights protected by the First Amendment cannot stand unless the
burden is necessary to achieve an overriding governmental interest. See, e.g.,
United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982). Any tax
that the press must pay, of course, imposes some "burden." But, as we have
observed, see p. 581, supra, this Court has long upheld economic regulation of the
press. The cases approving such economic regulation, however, emphasized the
general applicability of the challenged regulation to all businesses, e.g., Oklahoma
Press Publishing Co. v. Walling, supra, 327 U.S., at 194, 66 S.Ct., at 498; Mabee v.
White Plains Publishing Co., supra, 327 U.S., at 184, 66 S.Ct., at 514; Associated
Press v. NLRB, supra, 301 U.S., at 132-133, 57 S.Ct., at 655-56, 5 suggesting that a
regulation that singled out the press might place a heavier burden of justification on
the State, and we now conclude that the special problems created by differential
treatment do indeed impose such a burden.
There is substantial evidence that differential taxation of the press would have
troubled the Framers of the First Amendment. 6 The role of the press in mobilizing
sentiment in favor of independence was critical to the Revolution. When the
Constitution was proposed without an explicit guarantee of freedom of the press, the
Antifederalists objected. Proponents of the Constitution, relying on the principle of
enumerated powers, responded that such a guarantee was unnecessary because
the Constitution granted Congress no power to control the press. The remarks of
Richard Henry Lee are typical of the rejoinders of the Antifederalists:
"I confess I do not see in what cases the congress can, with any pretence of right,
make a law to suppress the freedom of the press; though I am not clear, that
congress is restrained from laying any duties whatever on printing, and from laying
duties particularly heavy on certain pieces printed." R. Lee, Observation Leading to a
Fair Examination of the System of Government, Letter IV, reprinted in 1 B. Schwartz,
The Bill of Rights: A Documentary History 466, 474 (1971).
See also A Review of the Constitution Proposed by the Late Convention by a Federal
Republican, reprinted in 3 H. Storing, The Complete Anti-Federalist 65, 81-82 (1981);
M. Smith, Address to the People of New York on the Necessity of Amendments to the
Constitution, reprinted in 1 B. Schwartz, supra, 566, 575-576; cf. The Federalist No.
84, p. 440 and n. 1 (A. Hamilton) (M. Beloff ed. 1948) (recognizing and attempting to
refute the argument). The concerns voiced by the Antifederalists led to the adoption
of the Bill of Rights. See 1 B. Schwartz, supra, at 527.
The fears of the Antifederalists were well-founded. A power to tax differentially, as
opposed to a power to tax generally, gives a government a powerful weapon against
the taxpayer selected. When the State imposes a generally applicable tax, there is
little cause for concern. We need not fear that a government will destroy a selected
group of taxpayers by burdensome taxation if it must impose the same burden on
the rest of its constituency. See Railway Express Agency v. New York, 336 U.S. 106,
112-113, 69 S.Ct. 463, 467, 93 L.Ed. 533 (1949) (Jackson, J., concurring). When the
State singles out the press, though, the political constraints that prevent a
legislature from passing crippling taxes of general applicability are weakened, and
the threat of burdensome taxes becomes acute. That threat can operate as
effectively as a censor to check critical comment by the press, undercutting the
basic assumption of our political system that the press will often serve as an
important restraint on government. See generally, Stewart, "Or of the Press," 26
Hastings L.J. 631, 634 (1975). "An untrammeled press is a vital source of public
information," Grosjean, 297 U.S., at 250, 56 S.Ct., at 449, and an informed public is
the essence of working democracy.
Further, differential treatment, unless justified by some special characteristic of the
press, suggests that the goal of the regulation is not unrelated to suppression of
expression, and such a goal is presumptively unconstitutional. See, e.g., Police
Department of the City of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286,
2289-90, 33 L.Ed.2d 212 (1972); cf. Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523,
71 L.Ed.2d 732 (1982) (First Amendment has its "fullest and most urgent"
application in the case of regulation of the content of political speech). Differential
taxation of the press, then, places such a burden on the interests protected by the
First Amendment that we cannot countenance such treatment unless the State
asserts a counterbalancing interest of compelling importance that it cannot achieve
without differential taxation. 7
The main interest asserted by Minnesota in this case is the raising of revenue. Of
course that interest is critical to any government. Standing alone, however, it cannot
justify the special treatment of the press, for an alternative means of achieving the
same interest without raising concerns under the First Amendment is clearly
available: the State could raise the revenue by taxing businesses
generally, 8avoiding the censorial threat implicit in a tax that singles out the press.
Addressing the concern with differential treatment, Minnesota invites us to look
beyond the form of the tax to its substance. The tax is, according to the State,
merely a substitute for the sales tax, which, as a generally applicable tax, would be
constitutional as applied to the press. 9 There are two fatal flaws in this reasoning.
First, the State has offered no explanation of why it chose to use a substitute for the
sales tax rather than the sales tax itself. The court below speculated that the State
might have been concerned that collection of a tax on such small transactions would
be impractical. 314 N.W.2d, at 207. That suggestion is unpersuasive, for sales of
other low-priced goods are not exempt, see note 1, supra. 10 If the real goal of this
tax is to duplicate the sales tax, it is difficult to see why the State did not achieve
that goal by the obvious and effective expedient of applying the sales tax.
Further, even assuming that the legislature did have valid reasons for substituting
another tax for the sales tax, we are not persuaded that this tax does serve as a
substitute. The State asserts that this scheme actually favors the press over other
businesses, because the same rate of tax is applied, but, for the press, the rate
applies to the cost of components rather than to the sales price. We would be
hesitant to fashion a rule that automatically allowed the State to single out the press
for a different method of taxation as long as the effective burden was no different
from that on other taxpayers or the burden on the press was lighter than that on
other businesses. One reason for this reluctance is that the very selection of the
press for special treatment threatens the press not only with the current differential
treatment, but with the possibility of subsequent differentially more burdensome
treatment. Thus, even without actually imposing an extra burden on the press, the
government might be able to achieve censorial effects, for "the threat of sanctions
may deter the exercise of First Amendment rights almost as potently as the actual
application of sanctions." NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9
L.Ed.2d 405 (1963). 11
A second reason to avoid the proposed rule is that courts as institutions are poorly
equipped to evaluate with precision the relative burdens of various methods of
taxation. 12 The complexities of factual economic proof always present a certain
potential for error, and courts have little familiarity with the process of evaluating
the relative economic burden of taxes. In sum, the possibility of error inherent in the
proposed rule poses too great a threat to concerns at the heart of the First
Amendment, and we cannot tolerate that possibility. 13 Minnesota, therefore, has
offered no adequate justification for the special treatment of newspapers. 14
Minnesota's ink and paper tax violates the First Amendment not only because it
singles out the press, but also because it targets a small group of newspapers. The
effect of the $100,000 exemption enacted in 1974 is that only a handful of
publishers pay any tax at all, and even fewer pay any significant amount of
tax. 15 The State explains this exemption as part of a policy favoring an "equitable"
tax system, although there are no comparable exemptions for small enterprises
outside the press. Again, there is no legislative history supporting the State's view of
the purpose of the amendment. Whatever the motive of the legislature in this case,
we think that recognizing a power in the State not only to single out the press but
also to tailor the tax so that it singles out a few members of the press presents such
a potential for abuse that no interest suggested by Minnesota can justify the
scheme. It has asserted no interest other than its desire to have an "equitable" tax
system. The current system, it explains, promotes equity because it places the
burden on large publications that impose more social costs than do smaller
publications and that are more likely to be able to bear the burden of the tax. Even if
we were willing to accept the premise that large businesses are more profitable and
therefore better able to bear the burden of the tax, the State's commitment to this
"equity" is questionable, for the concern has not led the State to grant benefits to
small businesses in general. 16 And when the exemption selects such a narrowly
defined group to bear the full burden of the tax, the tax begins to resemble more a
penalty for a few of the largest newspapers than an attempt to favor struggling
smaller enterprises.
VI
We need not and do not impugn the motives of the Minnesota legislature in passing
the ink and paper tax. Illicit legislative intent is not the sine qua non of a violation of
the First Amendment. See NAACP v. Button, 371 U.S., at 439, 83 S.Ct., at 341;
NAACP v. Alabama, 357 U.S. 449, 461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958);
Lovell v. Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668-69, 82 L.Ed. 949 (1938). We
have long recognized that even regulations aimed at proper governmental concerns
can restrict unduly the exercise of rights protected by the First Amendment. E.g.,
Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). A tax that
singles out the press, or that targets individual publications within the press, places
a heavy burden on the State to justify its action. Since Minnesota has offered no
satisfactory justification for its tax on the use of ink and paper, the tax violates the
First Amendment, 17 and the judgment below is
Reversed.
VICENTE SOTTO January 21, 1949
In re VICENTE SOTTO, for contempt of court.
Vicente Sotto in his own behalf.
FERIA, J.:
This is a proceeding for contempt of our court against the respondent Atty. Vicente
Sotto, who was required by their Court on December 7, 1948, to show cause why he
should not be punished for contempt to court for having issued a written statement
in connection with the decision of this Court in In re Angel Parazo for contempt of
court, which statement, as published in the Manila Times and other daily
newspapers of the locality, reads as follows:
As author of the Press Freedom Law (Republic Act No. 53.) interpreted by the
Supreme Court in the case of Angel Parazo, reporter of a local daily, who now has to
suffer 30 days imprisonment, for his refusal to divulge the source of a news
published in his paper, I regret to say that our High Tribunal has not only erroneously
interpreted said law, but that it is once more putting in evidence the incompetency
of narrow mindedness o the majority of its members, In the wake of so many
mindedness of the majority deliberately committed during these last years, I believe
that the only remedy to put an end to so much evil, is to change the members of the
Supreme Court. To his effect, I announce that one of the first measures, which as its
objects the complete reorganization of the Supreme Court. As it is now constituted, a
constant peril to liberty and democracy. It need be said loudly, very loudly, so that
even the deaf may hear: the Supreme Court very of today is a far cry from the
impregnable bulwark of Justice of those memorable times of Cayetano Arellano,
Victorino Mapa, Manuel Araullo and other learned jurists who were the honor and
glory of the Philippine Judiciary.
Upon his request, the respondent was granted ten days more besides the five
originally given him to file his answer, and although his answer was filed after the
expiration of the period of time given him the said answer was admitted. This Court
could have rendered a judgment for contempt after considering his answer, because
he does not deny the authenticity of the statement as it has been published. But, in
order to give the respondent ample opportunity to defend himself or justify the
publication of such libelous statement, the case was set for hearing or oral argument
on January 4, the hearing being later postponed to January 10, 1949. As the
respondent did not appear at the date set for hearing, the case was submitted for
decision.
In his answer, the respondent does not deny having published the above quoted
threat, and intimidation as well as false and calumnious charges against this
Supreme Court. But he therein contends that under section 13, Article VIII of the
Constitution, which confers upon this Supreme Court the power to promulgate rules
concerning pleading, practice, and procedure, "this Court has no power to impose
correctional penalties upon the citizens, and that the Supreme Court can only
impose fines and imprisonment by virtue of a law, and has to be promulgated by
Congress with the approval of the Chief Executive." And he also alleges in his
answer that "in the exercise of the freedom of speech guaranteed by the
Constitution, the respondent made his statement in the press with the utmost good
faith and with no intention of offending any of the majority of the honorable
members of this high Tribunal, who, in his opinion, erroneously decided the Parazo
case; but he has not attacked, or intended to attack the honesty or integrity of any
one.' The other arguments set forth by the respondent in his defenses observe no
consideration.
Rules 64 of the rules promulgated by this court does not punish as for contempt of
court an act which was not punishable as such under the law and the inherent
powers of the court to punish for contempt. The provisions of section 1 and 3 of said
Rule 64 are a mere reproduction of section 231 and 232 of the old Code of Civil
Procedure, Act No. 190, amended, in connection with the doctrine laid down by this
Court on the inherent power if the superior courts to punish for contempt is several
cases, among them In re Kelly, 35 Phil., 944. That the power to punish for contempt
is inherent in all courts of superior statue, is a doctrine or principle uniformly
accepted and applied by the courts of last resort in the United States, which is
applicable in this jurisdiction since our Constitution and courts of justice are
patterned as expounded in American Jurisprudence is as follows:
The power of inflicting punishment upon persons guilty of contempt of court may be
regarded as an essential element of judicial authority, IT is possessed as a part of
the judicial authority granted to courts created by the Constitution of the United
States or by the Constitutions of the several states. It is a power said to be inherent
in all courts general jurisdiction, whether they are State or Federal; such power
exists in courts of general jurisdiction independently of any special express grant of
statute. In many instances the right of certain courts of tribunals to punish for
contempt is expressly bestowed by statue, but such statutory authorization is
unnecessary, so far as the courts of general jurisdiction are concerned, and in
general adds nothing statutory authority may be necessary as concerns the inferior
courts statutory authority may be necessary to empower them to act. (Contempt, 12
Jur., pp. 418, 419.)
In conformity with the principle enunciated in the above quotation from American
Jurisprudence, this Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause,
respecting the same, has always been considered as misbehavior, tending to
obstruct the administration of justice, and subjects such persons to contempt
proceedings. Parties have a constitutional right to have their fairly in court, by an
impartial tribunal, uninfluenced by publications or public clamor. Every citizen has a
profound personal interest in the enforcement of the fundamental right to have
justice administered by the courts, under the protection and forms of law, free from
outside coercion or interference. Any publication, pending a suit, reflecting upon the
upon court, the parties, the officers of the court, the counsel, etc., with reference to
the suit, or tending to influence the decision of the controversy, is contempt of court
and is punishable. The power to punish for contempt is inherent in all court. The
summary power to commit and punish for contempt tending to obstructed or
degrade the administration of justice, as inherent in courts as essential to the
execution of their powers and to the maintenance of their authority is a part of the
law of the land. (In re Kelly, 35 Phil., 944, 945.)
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good faith may
be tolerated; because if well founded it may enlighten the court and contribute to
the correction of an error if committed; but if it is not well taken and obviously
erroneous, it should, in no way, influence the court in reversing or modifying its
decision. Had the respondent in the present case limited himself to as statement
that our decision is wrong or that our construction of the intention of the law is not
correct, because it is different from what he, as proponent of the original bill which
became a law had intended, his criticism might in that case be tolerated, for it could
not in any way influence the final disposition of the Parazo case by the court;
inasmuch as it is of judicial notice that the bill presented by the respondent was
amended by both Houses of Congress, and the clause "unless the court finds that
such revelation is demanded by the interest of the State" was added or inserted;
and that, as the Act was passed by Congress and not by any particular member
thereof, the intention of Congress and not that of the respondent must be the one to
be determined by this Court in applying said act.
But in the above-quoted written statement which he caused to be published in the
press, the respondent does not merely criticize or comment on the decision of the
Parazo case, which was then and still is pending reconsideration by this Court upon
petition of Angel Parazo. He not only intends to intimidate the members of this Court
with the presentation of a bill in the next Congress, of which he is one of the
members, reorganizing the Supreme Court and reducing the members, reorganizing
the Supreme Court and reducing the members of Justices from eleven to seven, so
as to change the members of this Court which decided the Parazo case, who
according to his statement, are incompetent and narrow minded, in order to
influence the final decision of said case by this Court, and thus embarrass or
obstruct the administration of justice. But the respondent also attacks the honesty
and integrity of this Court for the apparent purpose of bringing the Justices of this
Court into disrepute and degrading the administration of justice, for in his above-
quoted statement he says:
In the wake of so many blunders and injustices deliberately committed during these
last years, I believe that the only remedy to put an end to so much evil, is to change
the members of the Supreme Court. To this effect, I announce that one of the first
measures, which I will introduce in the coming congressional sessions, will have as
its object the complete reorganization of the Supreme Court. As it is now the
Supreme Court of today constitutes a constant peril to liberty and democracy.
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been
deciding in favor of one party knowing that the law and justice is on the part of the
adverse party and not on the one in whose favor the decision was rendered, in many
cases decided during the last years, would tend necessarily to undermine the
confidence of the people in the honesty and integrity of the members of this Court,
and consequently to lower or degrade the administration of justice by this Court. The
Supreme Court of the Philippines is, under the Constitution, the last bulwark to
which the Filipino people may repair to obtain relief for their grievances or protection
of their rights when these are trampled upon, and if the people lose their confidence
in the honesty and integrity of the members of this Court and believe that they
cannot expect justice therefrom, they might be driven to take the law into their own
hands, and disorder and perhaps chaos might be the result. As a member of the bar
and an officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to
uphold the dignity and authority of this Court, to which he owes fidelity according to
the oath he has taken as such attorney, and not to promote distrust in the
administration of justice. Respect to the courts guarantees the stability of other
institutions, which without such guaranty would be resting on a very shaky
foundation.
Respondent's assertion in his answer that "he made his statement in the press with
the utmost good faith and without intention of offending any of the majority of the
honorable members of this high Tribunal," if true may mitigate but not exempt him
from liability for contempt of court; but it is belied by his acts and statements during
the pendency of this proceeding. The respondent in his petition of December 11,
alleges that Justice Gregorio Perfecto is the principal promoter of this proceeding for
contempt, conveying thereby the idea that this Court acted in the case through the
instigation of Mr. Justice Perfecto.
It is true that the constitutional guaranty of freedom of speech and the press must
be protected to its fullest extent, but license or abuse of liberty of the press and of
the citizen should not be confused with liberty in its true sense. As important as the
maintenance of an unmuzzled press and the free exercise of the right of the citizen,
is the maintenance of the independence of the judiciary. As Judge Holmes very
appropriately said U. S vs Sullens (1929), 36 Fed. (2nd), 230, 238, 239: "The
administration of justice and the freedom of the press, though separate and distinct,
are equally sacred, and neither should be violated by the other. The press and the
courts have correlative rights and duties and should cooperate to uphold the
principles of the Constitution and laws, from which the former receives its
prerogatives and the latter its jurisdiction. The right of legitimate publicity must be
scrupulously recognized and care taken at all times to avoid impinging upon it. In a
clear case where it is necessary, in order to dispose of judicial business unhampered
by publications which reasonably tend to impair the impartiality of verdicts, or
otherwise obstruct the administration of justice, this court will not hesitate to
exercise its undoubted power to punish for contempt. This Court must be permitted
to proceed with the disposition if its business in an orderly manner free from outside
interference obstructive of its constitutional functions. This right will be insisted
upon as vital to an impartial court, and, as a last resort, as a individual exercises the
right of self-defense, it will act to preserve its existence as an unprejudiced
tribunal. . . ."
It is also well settled that an attorney as an officer of the court is under special
obligation to be respectful in his conduct and communication to the courts, he may
be removed from office or stricken from the roll of attorneys as being guilty of
flagrant misconduct (17 L. R. A. [N.S.], 586, 594).
In view of all the foregoing, we find the respondent Atty. Vicente Sotto guilty of
contempt of this Court by virtue of the above-quoted publication, and he is hereby
sentenced to pay, within the period of fifteen days from the promulgation of this
judgment, a fine of P1,000, with subsidiary imprisonment in case of insolvency.
The respondent is also hereby required to appear, within the same period, and show
cause to this Court why he should not be disbarred form practicing as an attorney-
at-law in any of the courts of this Republic, for said publication and the following
statements made by him during the pendency of the case against Angel Parazo for
contempt of Court.
In his statement to the press as published in the Manila Times in its issue of
December 9, 1948, the respondent said "The Supreme Court can send me to jail, but
it cannot close my mouth; " and in his other statement published on December 10,
1948, in the same paper, he stated among others: "It is not the imprisonment that is
degrading, but the cause of the imprisonment." In his Rizal day speech at the
Abellana High School in Cebu, published on January 3, 1949, in the Manila Daily
Bulletin, the respondent said that "there was more freedom of speech when
American Justices sat in the Tribunal than now when it is composed of our
countrymen;" reiterated that "even if it succeeds in placing him behind bars, the
court can not close his mouth," and added: "I would consider imprisonment a
precious heritage to leave for those who would follow me because the cause is noble
and lofty." And the Manila Chronicle of January 5 published the statement of the
respondent in Cebu to the effect that this Court "acted with malice" in citing him to
appear before this Court on January 4 when "the members of this Court know that I
came here on vacation." In all said statements the respondent misrepresents to the
public the cause of the charge against him for contempt of court. He says that the
cause is for criticizing the decision of this Court in said Parazo case in defense of the
freedom of the press, when in truth and in fact he is charged with intending to
interfere and influence the final disposition of said case through intimidation and
false accusations against this Supreme Court. So ordered.
._________________________________________________________________
A.M. No. 07-09-13-SC August 8, 2008
IN THE MATTER OF THE ALLEGATIONS CONTAINED IN THE COLUMNS OF MR. AMADO
P. MACASAET PUBLISHED IN MALAYA DATED SEPTEMBER 18, 19, 20 AND 21, 2007.
D E C I S I O N REYES, R.T., J.:
FREEDOM of the press and judicial independence (kalayaan ng pamamahayag at
kalayaang panghukuman) two constitutional values which unfortunately clash in
this case for indirect contempt of court have to be weighed and balanced against
each other.
The Antecedents
The case stemmed from certain articles that appeared in the "Business Circuit"
column of Amado P. Macasaet in the Malaya, a newspaper of general circulation of
which he is the publisher. The articles, containing statements and innuendoes about
an alleged bribery incident in the Supreme Court, came out in four (4) issues of the
newspaper on September 18, 19, 20 and 21, 2007, reproduced as follows:
September 18, 2007
Bribery in the Court
A lady justice (I have not been told whether she is from the Supreme Court or the
Court of Appeals) did not report for a day last week.
Her secretary received a gift-wrapped box about the size of two dozen milk cans.
Believing that the "gift" might be something perishable, she opened the box. Indeed,
it was a gift estimated at P10 million. Posthaste, the secretary informed the
magistrate about the gift. She thought she was doing her job. The lady justice fired
her instead.
She would not have anybody catch her accepting a bribe. But she practically did.
The stupidity here is that the bribe-giver what else would we call him or her did
not check whether the lady justice was in the office or not. Better still he or she
could have the box full of money delivered to her home. But then her family would
get to know about and ask who was the kind soul that was so liberal with money a
boxful of it.
The Supreme Court cannot let this pass. A full investigation should be conducted.
The magistrate who was sent the bribe should be impeached.
The gift gives proof to the pernicious rumor that the courts are dirty. This time, the
lady justice is with a higher court.
The court is like a basket of apples. There a few which are rotten that makes the
whole basket rotten.
The names and reputation of highly-respected jurists must be saved from suspicions
they are thieves.
Heres the clue
The Court employee who was fired by the lady jurist is a niece of another lady
justice who earlier retired. The worker was inherited by the incumbent lady justice.
My problem with this report is that while my source is definite about the employee
opening a gift-wrapped box that contained at least P10 million, he wont confide to
me the identity of the jurist.
Unless the employee who was fired talks against her boss and she should as a
matter of duty we will never know who this justice really is. The members of the
Supreme Court, the Court of Appeals, the Sandiganbayan are all called justices.
The head of the Office of Government Corporate Counsel is also honored by being
addressed as such. So is the head of the Court of Tax Appeals.
Since the employee was fired for opening the box which she thought contained
perishable goods but turned out there was an estimated P10 million in it, she should
be loyal to her duty of telling the truth.
That way, she would have rendered a great service to the justice system. Without
her talking, every lady with the title of Justice is suspect. There are more than a
dozen of them in different courts but only one was caught red-handed taking a
bribe. Her name should be known so that the Supreme Court can act swiftly on a
clear case of bribery.
Otherwise, this case becomes one where the pot calls the kettle black. Or is that the
reason the employee would not talk, that her former boss could spill the beans on
her peers?
September 19, 2007
The Bribe Giver
I learned from some lawyers that the bribe money given to a lady justice came from
a Chinese-Filipino businessman who has been criminally charged.
It is funny that the delivery of five boxes of money (I said only one earlier) coincided
on the day the lady justice, obviously acting as ponente, acquitted the prospect.
The secretary of the lady justice who took the bribe made five trips to the
guardhouse to pick up the boxes.
Incidentally, this secretary is a namesake of her aunt, a deceased associate justice
of the Supreme Court.
I dare say that if her name is Cecilia, it is entirely possible that the lady justice is a
member of the Supreme Court. The late justice Cecilia Muoz-Palma is the only lady
justice I know who retired and died at a ripe old age and left behind a reputation of
decency and integrity.
We are coming closer and closer to the truth. The lady justice shamed her court. She
should resign or be impeached.
That is the only way the soiled reputation of the Highest Court could be restored.
September 20, 2007
Cecilia, please save the court
I have established the lady justices secretary who opened one of the five milk boxes
containing bribe money is a niece of the late, respected and honorable Associate
Justice Cecilia Muoz Palma from Batangas.
The secretary is a niece of the late justice and a namesake.
Cecilia, you have a duty to honor the memory of your aunt, who, during her stay in
the court, was known for having balls.
More important than that, you have a duty to save the sagging reputation of the
Supreme Court.
Cecilia, you must tell the Court en banc everything you know about the money that
was sent in five boxes to your boss.
Not in retaliation for your dismissal, but for no other reason than as a duty to your
country and, I must again say, to honor the memory of your late illustrious aunt, a
legal luminary and staunch defender of the Constitution.
The other reason you must spill the beans is that if you do not, other lady justices
are suspects. That is not fair to them.
September 21, 2007
Wrong date, same facts
On verification, I discovered that the secretary of a lady justice of the Supreme Court
who was said to have accepted five milk boxes of money, was fired as early as
March. Not last week as I mistakenly reported.
It turns out that Cecilia Muoz-Delis from Bicol picked up the last five boxes several
times in March.
She never opened the first four boxes which she picked up from the guardhouse of
the Court.
She opened the last and saw the money because the lady justice was absent on that
day. Forthwith, she was fired. Cecilia, who is from Bicol, never opened any of the first
four boxes delivered on various dates (I have not been told when). She picked up all
of them from the Supreme Court guardhouse and left them with the lady justice. She
wouldnt dare open the first four because the lady justice was in her office. She
opened the fifth one because the lady justice did not report for work on that day.
Cecilia thought that the gift-wrapped box contained some perishables like food.
What she found was money instead. She was fired.
Whenever a gift for lady justice comes, she would order Cecilia to pick it up from the
guardhouse. So the fifth she picked up was one of those errands.
Where is Cecilia?
I cannot get any information on the present whereabouts of Cecilia. However, if the
Supreme Court has intentions to investigate what I have been saying, maybe the
Chief Justice himself should find out where she could be sent an invitation to appear
before an investigation group in the Court.
Better still, as I said, yesterday, Cecilia should disclose everything she knows
regarding the box before the Court en banc.
Farthest thing from my mind is to embarrass the lady justice whose identity I do not
know up to now.
It is my conviction that the Court should investigate reports of wrongdoing by any of
its peers. Justice is served that way.
The Chief Justice and the rest of the justices should not have a problem finding out
who she is.
It is a simple job of asking a clerk to go to personnel department of the Court and
find out who Cecilia worked for.1
The September 18, 2007 article, the first of the series of articles, caught the
attention of Assistant Court Administrator (ACA) Jose Midas P. Marquez, Chief of the
Supreme Court Public Information Office, in the course of his monitoring the daily
news reports and columns in major newspapers. However, since it was "vague about
which court was being referred to, whether the Supreme Court, the Court of
Appeals, the Sandiganbayan, or the Court of Tax Appeals,"2 ACA Marquez opted to
merely note it.3
The succeeding two articles, however, gave an indication that the supposed bribery
happened in the Supreme Court. Respondent Macasaet, in his September 19, 2007
article, wrote, among others, that "I dare say that if her name is Cecilia, it is entirely
possible that the lady justice is a member of the Supreme Court x x x. We are
coming closer and closer to the truth. The lady justice shamed her court. She should
resign or be impeached. That is the only way the soiled reputation of the Highest
Court could be restored."
Similarly, in his September 20, 2007 article, respondent said that Cecilia had "a duty
to save the sagging reputation of the Supreme Court."
Also on September 20, 2007, at around 6:00 p.m., Marites Daguilan-Vitug, Editor in
Chief of Newsbreak, faxed a letter to Supreme Court Associate Justice Consuelo
Ynares-Santiago asking for three things
1. In (sic) April 13, 2007, you concurred with a decision penned by Justice Romeo
Callejo, Sr. ruling that the Sandiganbayan Fifth Division did not commit a grave
abuse of discretion by finding probable cause against Henry Go. However, five
months later (September 3, 2007), acting on Gos motion for reconsideration, you
reversed yourself and ordered the dismissal of the graft case against Go. Please
explain the circumstances that led to this reversal.
2. We have gathered from three sources that you received a cash gift of P10 million
after you issued the decision early September. Please comment.
3. Were checking if this is accurate. Your secretary, who opened the gift-wrapped
box thinking that it contained perishable items, found cash instead. It was after this
incident that you removed her.4
Upon receipt of the faxed letter, Mme. Justice Ynares-Santiago called for ACA
Marquez, showed him the letter of Daguilan-Vitug, and requested him to tell
Daguilan-Vitug that she (Mme. Justice Ynares-Santiago) had been consistent on her
position in the Go case, that she never reversed herself, that she never received a
cash gift, and that no secretary was terminated for opening a gift-wrapped box
containing money. Accordingly, ACA Marquez went back to his office, called up
Daguilan-Vitug and told her what Mme. Justice Ynares-Santiago told him.5
That same evening, at around seven, Daguilan-Vitug faxed "the corrected version
of the earlier letter"
1. On April 13, 2007, you dissented against the decision penned by Justice Romeo
Callejo, Sr. ruling that the Sandiganbayan Fifth Division did not commit a grave
abuse of discretion by finding probable cause against Henry Go. The vote was 3-2 in
favor of Callejas (sic) decision. Five months later (September 3, 2007), acting on
Gos motion for reconsideration (by that time, Callejo had already retired), you
ordered the dismissal of the graft case against Go. I understand the exchanges were
bitter and the deliberations long. Please explain the contentious issues.
2. We have gathered from three sources that you received a cash gift of P10 million
in March 2007 in the midst of deliberations on the case. Please comment.
3. Were checking if this is accurate. Your secretary, who opened the gift-wrapped
box thinking that it contained perishable items, found cash instead. It was after this
incident that you removed her in March 2007.6
The following day, September 21, 2007, respondent Macasaet, in his column, named
the supposed secretary who was "forthwith x x x fired" allegedly after opening the
box of money: "It turns out that Cecilia Muoz Delis from Bicol picked up the last five
boxes several times in March."
From the foregoing series of articles, respondent Macasaet has painted a clear
picture: a Chinese-Filipino businessman who was acquitted of a crime supposedly
left P10 million in five different boxes with the security guard at the Supreme Court
guardhouse, which was picked up by Cecilia Muoz Delis who was forthwith fired for
opening one of the boxes.
Upon the request of Mme. Justice Ynares-Santiago, the Chief Justice instructed ACA
Marquez to have the 18th, 19th, 20th, and 21st September 2007 Business Circuit
columns of respondent Macasaet included in the September 25, 2007 agenda of the
Court En Banc,7 which case was docketed as A.M. No. 07-09-13-SC. (Re: In the
Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published in
Malaya dated September 18, 19, 20, and 21, 2007).
On September 24, 2007, Daisy Cecilia Muoz Delis, accompanied by the Clerk of
Court En Banc, Hon. Ma. Luisa D. Villarama, went to see Mme. Justice Ynares-
Santiago and gave the latter copies of her letter to respondent Macasaet and her
affidavit. Delis, in her letter to respondent Macasaet, described his articles as
"baseless reports." "In other words," she wrote respondent Macasaet, "the scenario
you painted and continue to paint is improbable and could only have emanated from
a polluted source, who, unfortunately, chose me to be a part of this fictional charge."
She clarified that she was a Judicial Staff Officer, and not a secretary as the articles
claimed she was; that she voluntarily resigned from office and was not fired; that as
a matter of procedure, she would not have been tasked to receive boxes, as such
was a duty assigned to their utility personnel; that it was "highly unlikely for
something as blatant as [a] bribery attempt to have been done right in the doors of
the Court."8 Delis ended her letter to respondent Macasaet with a plea
My family and I have been suffering ever since your article came out last Tuesday,
because I was being alluded to. This suffering has increased because the name of
my beloved aunt x x x has been drawn into a controversy that should not have
involved me or any member of my family in the first place.
And so, I ask you, Sir, to please cease from mentioning my name or any of my
relatives, living or deceased, in order to promote your tabloid journalism. If your
source is as reliable as you believe, I suggest you practice better judgment and
journalistic responsibility by verifying your data before printing anything and
affecting the lives of innocent people. If this is some kind of war you are waging
against the lady justice, we do not want to be collateral damage.9
In her affidavit, Delis stated that she "had nothing to do with, nor did x x x have any
knowledge of such alleged attempted bribery,"10 and that she executed her
affidavit "to allow Justice Consuelo Ynares-Santiago to defend her honor,"11 and "for
the purpose of correcting the erroneous information of Mr. Macasaet."12
That same morning, too, despite the prior telephone conversation between ACA
Marquez and Daguilan-Vitug, Newsbreak posted an on-line article written by
Danguilan-Vitug herself and Aries Rufo, which was regularly updated, entitled
"Supreme Court Justice Suspected of Accepting Payoff (update)"13 with the picture
of Mme. Justice Ynares-Santiago
We pieced the story of the alleged bribery from accounts of various sources within
and outside the Supreme Court who have requested not to be named because of
their sensitive disclosures.
In March this year, Ynares-Santiago fired her staff member, Cecilia Delis, supposedly
after the latter opened a gift-wrapped box delivered to their office, thinking that it
contained perishable items. Delis, however, found wads of peso bills instead. The
amount, two sources say, is estimated at P10 million.14
Later that morning, Mme. Justice Ynares-Santiago called ACA Marquez to her office
and gave him copies of her written statement "categorically deny(ing) the
accusations and insinuations, all malicious and unfounded, published in Malaya and
in Newsbreak;" and underscoring "that these are blatant lies clearly aimed at
smearing and maligning my character and person, and the integrity of the Judiciary
which (she has) been faithfully serving for 34 years now."15 Mme. Justice Ynares-
Santiago also gave ACA Marquez copies of Delis letter to respondent Macasaet and
her affidavit, which Delis herself had brought to Mme. Justice Ynares-Santiago earlier
that morning.16
In the afternoon of September 24, 2007, ACA Marquez held a press conference and
released to the media copies of Delis letter to respondent Macasaet, her affidavit,
and the written statement of Mme. Justice Santiago.17
On September 25, 2007, the Court En Banc issued a resolution stating
Upon evaluation of the columns "Business Circuit" of Amado P. Macasaet in the
September 18, 19, 20, and 21, 2007 issues of the Malaya, it appears that certain
statements and innuendoes therein tend, directly or indirectly, to impede, obstruct,
or degrade the administration of justice, within the purview of Section 3(d), Rule 71
of the 1997 Rules of Civil Procedure.
WHEREFORE, Amado P. Macasaet is ORDERED to EXPLAIN why no sanction should be
imposed on him for indirect contempt of court in accordance with Section 3(d), (Rule
71) of the 1997 Rules of Civil Procedure, within five (5) days from receipt hereof.
Ynares-Santiago, J., no part.18
The following day, September 26, 2007, Newsbreak posted its on-line article entitled
"Supreme Court Orders Malaya Publisher to Explain Stories" with a banner headline,
"This is not meant to chill the media."
On October 16, 2007, the Court En Banc noted respondent Macasaets Explanation
dated October 1, 2007,19 and directed the Clerk of Court to include in the records of
the case the affidavit of Delis dated September 24, 2007. The High Court also
created an investigating committee composed of retired Supreme Court justices,
namely, Justice Carolina Grio-Aquino as Chairperson; and Justices Vicente V.
Mendoza and Romeo J. Callejo, Sr., as members, "to receive the evidence from all
parties concerned. The Committee may, on its own, call such persons who can shed
light on the matter. It shall be endowed with all the powers necessary to discharge
its duty." The Committee was likewise directed "to submit its report and
recommendation within thirty (30) days from the start of its hearing."20 Retired
Justices Mendoza and Callejo, however, both begged off and were eventually
replaced by retired Supreme Court Justices Jose C. Vitug21 and Justo P. Torres.22
The Investigation
From October 30, 2007 to March 10, 2008, the Investigating Committee held
hearings and gathered affidavits and testimonies from the parties concerned.
The Committee invited respondent Macasaet, Daguilan-Vitug, Delis, and ACA
Marquez to a preliminary meeting, in which they were requested to submit their
respective affidavits which served as their testimonies on direct examination.23
They were then later cross-examined on various dates: respondent Macasaet on
January 10, 2008, Daguilan-Vitug on January 17, 2008, Delis on January 24, 2008,
and ACA Marquez on January 28, 2008. The Chief of the Security Services and the
Cashier of the High Court likewise testified on January 22 and 24, 2008, respectively.
According to the Committee
AMADO P. MACASAET testified on January 10, 2008 but, as expected, he invoked his
right under R.A. No. 53, as amended by R.A. No. 1477 to refuse to disclose the
source/s of his story regarding the rumored bribery of a Lady Justice (later identified
as Justice Consuelo Ynares-Santiago) of a high court (later revealed as the Supreme
Court) who allegedly received Php 10 million contained in a gift-wrapped Carnation
carton box (later changed to five [5] gift-wrapped boxes), for deciding a criminal
case in favor of a rich Chinese-Filipino businessman. (Pls. see columns of September
18 and 19, 2007)
The pay-off was allegedly discovered when Cecilia Muoz-Delis (not the Lady
Justices secretary but a judicial staff officer V of the PET or Presidential Electoral
Tribunal) who is a niece and namesake of retired Supreme Court Justice Cecilia
Muoz Palma, allegedly opened the "last" box (according to his column of
September 21, 2007 titled "Wrong date same facts"); but the "first" (according to his
testimony on January 10, 2008, pp. 71, 89, 92, 125, tsn).
By his "own conclusion," the boxes of money were delivered on different dates
because "I dont think a bribe giver will deliver five boxes at the same time" (87, tsn,
January 10, 2008).
Macasaet testified that his "source" is not a relative of his, nor a government
employee, certainly not an employee of the judiciary, and, that he (Macasaet) has
known him for some 10 to 15 years (12-20, tsn, January 10, 2008).
Significantly, in his column of September 19, 2007, Macasaet revealed that he did
not have only one source, but several sources, i.e., "some lawyers," who told him
"that the bribe money given to a lady justice came from a Chinese-Filipino
businessman who has been criminally charged."
He emphatically declared on the witness chair that he trusts his source "with my
heart and soul" and believes his word "as coming straight out of the Bible" (94, 113,
tsn, January 10, 2008; 14, tsn, January 17, 2008). But because this source did not
have direct knowledge of the bribery (26, tsn, January 10, 2008), he allegedly tried
to verify from other sources the information he had received, but "I could not get
confirmation" (29, tsn, January 10, 2008).
Notwithstanding the lack of confirmation and the paucity of details as to the identity
of the Lady Justice and of the High Court where she sits, Macasaet believes that "the
bribery had actually taken place" because "I trust my source with my heart and soul"
(93-94, 113, tsn, January 10, 2008).
He decided to go ahead and publish the story because he "thought that eventually
my effort at consistently x x x exposing the alleged bribery, one day sooner or later
somebody will come up and admit or deny (it). And I think that (was) what really
happened" (29, tsn, January 10, 2008).
He found out that the Lady Justice involved is Justice Consuelo Ynares-Santiago of
the Supreme Court, after he received a letter dated September 21, 2007 from Cecilia
Muoz-Delis, the "Cecilia" mentioned in his columns, denying any knowledge of the
alleged bribery or boxes of money for she had already resigned (not dismissed) from
the Court on March 15, 2007, six (6) months before the alleged bribery supposedly
occurred a week before Macasaet wrote about it in his column of September 18,
2007. (Annex "A," Letter dated September 21, 2007 of Cecilia Delis to Macasaet)
So, when did the bribery happen? The date was never made certain, for in his first
column of September 18, 2007, Macasaet stated that the gift-wrapped box of money
was delivered to the office of the Lady Justice, "a day last week" when the Lady
Justice did not report for work. That must have been sometime on September 10-14,
2007 the week before September 18, 2007.
However, the next day, September 19, 2007, he wrote in his column that the
delivery of five boxes (not just one box) of money, "coincided on the day that the
Lady Justice, acting as ponente, dismissed the criminal case against Chinese-Filipino
businessman Henry T. Go in the Sandiganbayan. That must be September 3, 2007
because the Resolution in G.R. No. 172602 "Henry T. Go versus The Fifth Division,
Sandiganbayan, et al." was promulgated on that date. This he affirmed when he
testified on January 10, 2008 (46, 74, tsn, January 10, 2008).
However, when he returned to the witness chair on January 17, 2008, after going
back to his informant (on his own request) to ascertain the dates when the boxes of
money were delivered to the Office of Justice Santiago, so that the Investigating
Committee could subpoena the relevant logbooks of the Security Services of the
Court to verify the truth of the alleged deliveries, Macasaet again changed his
earlier testimonies on date/dates of the deliveries. He informed the Committee that,
according to his informant, the deliveries were made "between November 2006 and
March 2007"; "before Cecilia Delis resigned or was dismissed from the Court."24
On March 11, 2008 the Investigating Committee submitted to the Office of the Chief
Justice its March 10, 2008 Report and Recommendation,25 with the following
findings of facts on the subject columns
The following statements in Macasaets columns appear to the Supreme Court to be
"innuendoes (that) tend, directly or indirectly, to impede, obstruct, or degrade the
administration of justice, within the purview of Section 3(d), Rule 71 of the 1997
Rules of Civil Procedure."
1) From the column of Tuesday, September 18, 2007
"The gift gives proof to the pernicious rumor that the courts are dirty. This time, the
lady justice is with a higher court.
The court is like a basket of apples. There (are) a few which are rotten. That makes
the whole basket rotten.
The names and reputation of highly-respected jurists must be saved from suspicion
that they are thieves.
Her name should be known so that the Supreme Court can act swiftly on a clear
case of bribery. Otherwise, this case becomes one where the pot calls the kettle
black. Or, is that the reason the employee would not talk, that her former boss could
spill the beans on her peers?"
2) From the column of Wednesday, September 19, 2007
"The lady justice shamed her court. She should resign or be impeached. That is the
only way the soiled reputation of the Highest Court could be restored."
3) From the column of Thursday, September 20, 2007
"Cecilia x x x you have a duty to save the sagging reputation of the Supreme Court."
Inasmuch as Macasaets snide remarks about the courts, particularly the Highest
Court, and about the justices being suspected as thieves, appear to have [been]
provoked by the rumored bribery in the Court, the Investigating Committee was
constrained to find out how true the accusations were and whether the columnist
had exercised due care and diligence in checking out the credibility of his informant
and the veracity of the derogatory information fed to him before he published it in
his columns in the Malaya.26
Additional observations and conclusion were submitted, like the following
The Committee finds that neither Macasaets columns in Malaya, nor Ms. Vitugs
story in Newsbreak, about the pay-off of Php 10 million to Justice Consuelo Ynares-
Santiago for rendering a Resolution favorable to Henry T. Go in his petition against
the Sandiganbayan (according to Macasaet), or, a decision favoring Barque against
Manotok in a big land case (according to Ms. Vitug), have a leg to stand on. As
Justice Vitug has observed during the last hearing before the Committee, everything
that has been heard thus far would appear to be hearsay. Ms. Vitug admitted "there
is no paper trail" to support the charge of bribery against Justice Santiago, for
although her sources had pointed to Cecilia Muoz Delis as the "root source" of the
story, the information she received was "second-hand or may be third-hand"
because none of her sources had talked with Delis herself (70, 72 tsn Jan. 17, 2008).
Delis had refused to be interviewed by her, and had emphatically denied in her
letter and affidavit any knowledge of the alleged bribery because she was no longer
working in the Court when it supposedly happened.
Macasaets sources likewise fed him double hearsay information from a source that
refused to reveal the identity of the Lady Justice nor a high court but alleged that the
Php 10 million bribe was discovered by her secretary named Cecilia, a niece and
namesake of the late Justice Cecilia Muoz Palma, who was fired from her job on
account of it.
The Committee observed that Macasaets story about the bribery and of Cecilias
role in supposedly discovering it, is full of holes, inconsistencies, and contradictions,
indicating that he did not exercise due diligence, patience, and care in checking the
veracity of the information fed to him, before giving it publicity in his columns. Nor
was he bothered by the damage that his columns would inflict on the reputation of a
member of the Highest Court and on the Court itself. In fact, he was "happy" that he
wrote the columns (103 tsn Jan. 10, 2008). Even if he failed to get confirmation of
the bribery, one day sooner or later, somebody would come up and admit or deny it.
He did not care that he smeared the whole Judiciary to fish her out, because "after
she is fished out, the suspicion on the rest would be removed" (29-30 tsn Jan. 10,
2008).27 (Emphasis supplied)
The Committee likewise noted the inconsistencies and assumptions of Macasaet,
betraying lack of veracity of the alleged bribery
1. For instance, he said that he could not get confirmation of the bribery story given
to him by his source. Later, he said that his sources "told me they had personal
knowledge" but would not reveal the name of the Lady Justice (65, tsn, January 10,
2008).
2. His allegation that the Lady Justice (later identified as Justice Santiago) did not
report for work "last week," i.e., the week before his first column came out on
September 18, 2007, was refuted by the Courts Public Information Officer (PIO) Atty.
Midas Marquez, who testified that no Lady Justice was absent that week.
3. The date when the gift-wrapped box of money was allegedly opened by Cecilia is
also uncertain because of Macasaets conflicting allegations about it. Macasaets
first column of September 18, 2007, stated that it happened "last week," i.e.,
sometime in the week of September 10-14, 2007.
The next day, September 19, 2007, he, however, wrote in his column that "the five
boxes (not one) of money were delivered on the day (September 3, 2007) when the
Lady Justice, acting as ponente, acquitted" the accused Henry T. Go.
But again, because his story about Cecilias role in the discovery of the bribery in
September 2007, was contradicted by the record of Cecilias resignation from the
Court on March 15, 2007 (Annexes "D" and "D-1," Cecilia Delis Letter of Resignation
& Clearance), Macasaet, after consulting his "source" again, changed his story when
he testified on January 17, 2008. He said that, according to his source, the boxes of
money were delivered, not any one time in September 2007, but on different dates
in November 2006 up to March 2007, "before Cecilia resigned or was fired from the
office of Justice Santiago" (5-6, tsn, January 17, 2008).
That allegation is, however, refuted by the logbooks of the Security Services for the
period of November 2006 to March 2007 which contain no record of the alleged
deliveries of boxes of money to the office of Justice Santiago. Danilo Pablo, head of
the Courts Security Services affirmed that in his ten (10) years of service in the
Court, he has not received any report of boxes of money being delivered to any of
the Justices (45-46, tsn, January 22, 2008).28
The Committee further wondered which of the five (5) boxes was opened and
yielded money. It found
1. x x x In his column of September 21, 2007, Macasaet alleged that Cecilia picked
up the five boxes of money "several times in March" ("not last week as I mistakenly
reported"), and "she never opened the first four boxes x x x she opened the last and
saw the money because the Lady Justice was absent on that day."
But when he testified before the Committee on January 10, 2008, Macasaet alleged
that it was "the first one that was opened" according to his source (71, 89, 92, 125,
tsn, January 10, 2008).
2. Contradicting his published story that five (5) boxes of money were delivered "on
the day" the Lady Justice acquitted Henry Go, Macasaet testified at the investigation
that they were delivered "on different occasions according to my source" (70, tsn,
January 10, 2008).
But no sooner had he attributed that information "to my source" than he admitted
that it was only "my own conclusion x x x I assumed that the giver of the money is
not so stupid as to have them delivered all in one trip. As a matter of fact, I even
wondered why said boxes were not delivered in the home of the Lady Justice" (72,
tsn, January 10, 2008).
3. The amount of the bribe is also questionable. For while in his own column of
September 18, 2007, Macasaet stated that the gift was "estimated at Php 10
million," he later testified on January 10, 2008 that "the amount was my own
calculation because I talked to people, I said this kind of box how much money in
One Thousand Pesos bills can it hold, he told me it is ten (million). So that was a
calculation" (77, tsn, January 10, 2008).
He also merely "assumed that the money was in one thousand pesos bills (78, tsn,
January 10, 2008). No one really knows their denomination.
He said he was told that the size of the box where the money was placed was "this
milk called carnation in carton" (79, tsn, January 10, 2008). But, at the final hearing
on February 1, 2008, he denied that said that, "I never said carnation boxes; I said
milk boxes that should make a lot of difference" (84, tsn, February 1, 2008).
4. Since only one gift-wrapped box of money was opened, Macasaet admitted that
he has "no knowledge" of whether the four (4) other boxes were also opened, when
and where they were opened, and by whom they were opened (90, tsn, January 10,
2008). Therefore, no one knows whether they also contained money.
That the five (5) boxes contained a total of ten million pesos, is just another
assumption of Macasaets. "It is a calculation based on estimates obtained from
friends and how much five boxes can hold in one thousand peso bills, more or less
ten million," he explained (91, tsn, January 10, 2008).
The "sin of assumption" which is a cardinal sin in Newsbreaks Guide to Ethical
Journalistic Conduct was repeatedly committed by Macasaet in writing his story
about the bribery of a Lady Justice of the Supreme Court. (Annex "E," page 1,
Newsbreak Guide to Ethical Journalistic Conduct).29
Consequently, the Committee concluded
In view of its tenuous underpinnings, we find the bribery story in Macasaets
columns of September 18-21, 2007, and in Ms. Vitugs Newsbreak issue of
September 25, 2007, unbelievable. Why should five boxes supposedly containing a
total of Php 10 million as bribe money be delivered to the office of a Lady Justice in
the Supreme Court, where it would have to pass examination by the security guards
and the quizzical eyes of her own employees? Why not to her home? Or at some
agreed meeting place outside the Court and her home? Or why not quietly deposit it
in her bank account? And why was she absent from her office on the day of the
presumably agreed date for the payment of the bribe? If the bribe was for dismissing
the information against Henry Go in the Sandiganbayan, why was it paid
prematurely in November 2006-March 2007 when the case of Henry Go was still up
in the air and, in fact, was decided against him on April 13, 2007? The favorable
resolution on his motion for reconsideration, penned by Justice Santiago, was
promulgated on September 3, 2007, almost one year after the pay-off, if there was
such a pay-off?
xxxx
The Committee considers this case not just another event that should pass
unnoticed for it has implications far beyond the allocated ramparts of free speech.
Needless to say, that while we espouse the enjoyment of freedom of expression by
media, particularly, it behooves it to observe great circumspection so as not to
destroy reputations, integrity and character so dear to every individual, more so to a
revered institution like the Supreme Court. Everyone deserves respect and dignity.30
Finding sufficient basis to hold respondent Macasaet in indirect contempt of court,
the Committee recommended
The Committee finds that the statements of respondent Amado P. Macasaet about
the Supreme Court in his "Business Circuit" columns in the September 18-21, 2007
issues of the newspaper Malaya, maligning and degrading the Supreme Court and
tending directly or indirectly to impede, obstruct, or degrade the administration of
justice, to be utterly unjustified.
WHEREFORE, the Committee believes there exist valid grounds for this Honorable
Court, if it is so minded, to cite Amado P. Macasaet for indirect contempt within the
purview of Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.31 (Emphasis
supplied)
Our Ruling
IN view of respondents invocation of his right to press freedom as a defense, it is
essential to first examine the nature and evolution of this preferred liberty, together
with the countervailing interest of judicial independence, which includes the right to
due process of law, the right to a fair trial, and the preservation of public confidence
in the courts for the proper administration of justice.
Nature and History of Press Freedom
Freedom of expression, which includes freedom of speech and of the press, is one of
the hallmarks of a democratic society. It has been recognized as such for centuries.
The history of press freedom dates back to the English Magna Carta, promulgated in
1215, which established the principle that not even the lawmaker should be above
the law. Through the years, many treatises on press freedom arose in reaction to
various measures taken to curtail it.
In the 17th Century, John Milton wrote Areopagitica, a philosophical defense of the
right to free speech. It was a reaction to the Licensing Order of June 14, 1643, which
declared that no "book, pamphlet, paper, nor part of any such book, pamphlet, or
paper, shall from henceforth be printed, bound, stitched or put to sale by any person
or persons whatsoever, unless the same be first approved of and licensed under the
hands of such person or persons as both, or either of the said Houses shall appoint
for the licensing of the same." Milton advocated that a written work should not be
suppressed before publication. Writers of treacherous, slanderous, or blasphemous
materials should first be tried according to law. Only after it has been established
that their writings are of a treacherous, slanderous, or blasphemous nature should
they be subsequently punished for their wrongful acts.
Sir William Blackstone, 19th Century English jurist, in his still widely cited historical
and analytical treatise on English common law, aptly described the twin aspects of
press freedom:
x x x Every freeman has an undoubted right to lay what sentiments he pleases
before the public: to forbid this is to destroy the freedom of the press: but if he
publishes what is improper, mischievous, or illegal, he must take the consequences
of his own temerity. To subject the press to the restrictive power of a licenser, as was
formerly done, both before and since the Revolution, is to subject all freedom of
sentiment to the prejudices of one man, and make him the arbitrary and infallible
judge of all controverted points in learning, religion and government. But to punish
as the law does at present any dangerous or offensive writings, which, when
published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is
necessary for the preservation of peace and good order, of government and religion,
the only solid foundations of civil liberty. Thus, the will of individuals is still left free:
the abuse only of that free will is the object of legal punishment. Neither is any
restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment
is still left; the disseminating, or making public, of bad sentiments destructive to the
ends of society, is the crime which society corrects.32 (Emphasis supplied)
In the United States, press freedom was first put into organic law with the First
Amendment to its Constitution, declaring that "Congress shall make no law x x x
abridging the freedom of speech, or of the press." This set in stone the basis for
virtually all contemporary laws and jurisprudence on the subject of press freedom.
Our Constitutions and jurisprudence are no different. Section 4, Article III, 1987
Constitution, which in part provides that "[n]o law shall be passed abridging the
freedom of speech, of expression, or of the press x x x x," is a provision found in the
1935 and the 1973 Constitutions.33
Media and Its Multiplying Roles in Democracy
Due to their preferred position in the hierarchy of civil liberties, the freedoms of
speech, of expression, and of the press have progressed dramatically. As early as
1942, even before the advent of television, the distinguished U.S. appellate court
Judge Learned Hand had already observed that "[t]he hand that rules the press, the
radio, the screen, and the far-spread magazine, rules the country." He concluded
that medias power was an unchangeable fact of life: "Whether we like or not, we
must learn to accept it." There is much truth today in those statements.
One of the notable features of recent years is the accelerated development of the
media. They have grown from strength to strength, and have substantially
influenced people, either favorably or unfavorably, towards those in government.
The use of information technology has firmed up the media networks hold on power.
Traditional media for mass communication newspapers, magazines, radio, and
standard television have been joined by satellite and cable television, electronic
mail, short messaging and multi-media service, and the internet, giving rise to new
opportunities for electronic news and information companies to even intensify their
influence over the general public.
Studies show that people rely heavily on the media for their knowledge of events in
the world and for impressions that form the basis for their own judgments. The
media exert a strong influence on what people think and feel. Certainly, the power of
Philippine media is of no small measure
The power of the press to influence politics is proven. Policy issues and the
implementation of government programs requiring greater public discussion are
sometimes displaced in the government agenda by matters that have been given
more importance in the news. Public officials are obliged to attend to media queries
even if these are not necessarily the most important questions of the day. Nowhere
in Southeast Asia are government officials so accessible to the press. Cabinet
ministers are available from the earliest hours to answer questions from radio show
hosts on the news of the day involving their responsibilities.
Furthermore, television news programs have spawned media celebrities whose
popularity with the masses has catapulted their entry into politics. Medias focus on
celebrity has infected the political culture with exaggerated concern for personality
and color, and the kind of impact associated with sports and entertainment. Political
parties have tended to recruit popular figures from these fields to assure they have
winners in the race for seats in Congress.34
The reach of Philippine media is quite extensive
In the Philippines radio has the biggest audience among all the mass media (85
percent), followed by television at 74 percent, and print, 32 percent. Print, however,
has an 82 percent reach in Metropolitan Manila, which has a population of some 10
million and is the countrys business, political, and cultural center. Print may thus be
surmised to be as influential in the capital as television, which has a reach of 96
percent among residents.35
The mass media in a free society uphold the democratic way of life. They provide
citizens with relevant information to help them make informed decisions about
public issues affecting their lives. Affirming the right of the public to know, they
serve as vehicles for the necessary exchange of ideas through fair and open debate.
As the Fourth Estate in our democracy, they vigorously exercise their independence
and vigilantly guard against infringements. Over the years, the Philippine media
have earned the reputation of being the "freest and liveliest" in Asia.36
Members of Philippine media have assumed the role of a watchdog and have been
protective and assertive of this role. They demand accountability of government
officials and agencies. They have been adversarial when they relate with any of the
three branches of government. They uphold the citizens right to know, and make
public officials, including judges and justices, responsible for their deeds or
misdeeds. Through their watchdog function, the media motivate the public to be
vigilant in exercising the citizens right to an effective, efficient and corrupt-free
government.
Open Justice and Judicial Independence
Closely linked with the right to freedom of speech and of the press is the public right
to scrutinize and criticize government. The freedom to question the government has
been a protected right of long-standing tradition throughout American history. There
is no doubt that the fundamental freedom to criticize government necessarily
includes the right to criticize the courts, their proceedings and decisions. Since the
drafting of their Constitution over 200 years ago, American judges have anticipated
and sometimes even encouraged public scrutiny of themselves, if not of the
judiciary as a whole.37
This open justice principle, which is as fundamental to a democratic society as
freedom of speech, has been an accepted doctrine in several jurisdictions. It is
justified on the ground that if the determination of justice cannot be hidden from the
public, this will provide: (1) a safeguard against judicial arbitrariness or idiosyncrasy,
and (2) the maintenance of the publics confidence in the administration of
justice.38
While most agree that the right to criticize the judiciary is critical to maintaining a
free and democratic society, there is also a general consensus that healthy criticism
only goes so far.39 Many types of criticism leveled at the judiciary cross the line to
become harmful and irresponsible attacks. These potentially devastating attacks
and unjust criticism can threaten the independence of the judiciary.
The debate over the independence of the judiciary is nothing new. More than 200
years ago, the Founding Fathers of the American Constitution engaged in heated
arguments, both before and after the Constitutional Convention, focusing on the
extent and nature of the judiciarys role in the newly-formed government.40 The
signers of the Declaration of Independence, well aware of the oppressive results of
the unchecked political power of the King of England who established absolute
tyranny over American colonies, recognized the importance of creating a stable
system of justice to protect the people.
Cognizant of the need to create a system of checks and balances to ensure that the
rule of law shall rule, the resulting Constitution provided for a three-tiered system of
government, so structured that no branch holds limitless power.
The judicial branch is described as the "least dangerous" branch of government.41
But it holds a special place in the tripartite system, as it is primarily responsible for
protecting basic human liberties from government encroachment. It completes the
nations system of checks and balances. It serves as an arbiter of disputes between
factions and instruments of government.
In our constitutional scheme and democracy, our courts of justice are vested with
judicial power, which "includes the duty x x x to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."42 The
present judicial system allows the people to rely upon our courts with substantial
certainty; it encourages the resolution of disputes in courtrooms rather than on the
streets.
To accomplish these tasks, an independent judiciary is very vital. Judicial
independence is the backbone of democracy. It is essential not only to the
preservation of our justice system, but of government as well. Chief Justice Shirley
Abrahamson of the Wisconsin Supreme Court has observed that judicial
independence encompasses two distinct but related concepts of independence.43
One concept is individual judicial independence, which focuses on each particular
judge and seeks to insure his or her ability to decide cases with autonomy within the
constraints of the law. A judge has this kind of independence when he can do his job
without having to hear or at least without having to take it seriously if he does hear
criticisms of his personal morality and fitness for judicial office. The second
concept is institutional judicial independence. It focuses on the independence of the
judiciary as a branch of government and protects judges as a class.
A truly independent judiciary is possible only when both concepts of independence
are preserved - wherein public confidence in the competence and integrity of the
judiciary is maintained, and the public accepts the legitimacy of judicial authority. An
erosion of this confidence threatens the maintenance of an independent Third
Estate.
For sure, judicial criticism can be constructive, uncovering and addressing a problem
that merits public attention. Public awareness, debate, and criticism of the courts
ensure that people are informed of what they are doing that have broad implications
for all citizens. Informed discussion, comment, debate and disagreement from
lawyers, academics, and public officials have been hallmarks of a great legal
tradition and have played a vital role in shaping the law.
But there is an important line between legitimate criticism and illegitimate attack
upon the courts or their judges. Attacks upon the court or a judge not only risk the
inhibition of all judges as they conscientiously endeavor to discharge their
constitutional responsibilities; they also undermine the peoples confidence in the
courts.
Personal attacks, criticisms laden with political threats, those that misrepresent and
distort the nature and context of judicial decisions, those that are misleading or
without factual or legal basis, and those that blame the judges for the ills of society,
damage the integrity of the judiciary and threaten the doctrine of judicial
independence. These attacks do a grave disservice to the principle of an
independent judiciary and mislead the public as to the role of judges in a
constitutional democracy, shaking the very foundation of our democratic
government.
Such attacks on the judiciary can result in two distinct yet related undesirable
consequences.44 First, the criticism will prevent judges from remaining insulated
from the personal and political consequences of making an unpopular decision, thus
placing judicial independence at risk. Second, unjust criticism of the judiciary will
erode the publics trust and confidence in the judiciary as an institution. Both judicial
independence and the publics trust and confidence in the judiciary as an institution
are vital components in maintaining a healthy democracy.
Accordingly, it has been consistently held that, while freedom of speech, of
expression, and of the press are at the core of civil liberties and have to be
protected at all costs for the sake of democracy, these freedoms are not absolute.
For, if left unbridled, they have the tendency to be abused and can translate to
licenses, which could lead to disorder and anarchy.
Thus, in Gonzales v. Commission on Elections,45 this Court ruled that "[f]rom the
language of the specific constitutional provision, it would appear that the right (to
free expression) is not susceptible of any limitation. No law may be passed abridging
the freedom of speech and of the press. The realities of life in a complex society
preclude, however, a literal interpretation. Freedom of expression is not absolute. It
would be too much to insist that, at all times and under all circumstances, it should
remain unfettered and unrestrained. There are other societal values that press for
recognition."46
In Lagunzad v. Vda. De Gonzales,47 it was held that while the right of freedom of
expression occupies a preferred position in the hierarchy of civil liberties, it is not
without limitations. As the revered Holmes once said, the limitation on ones right to
extend ones fist is when it hits the nose of another.
Indeed, freedom of speech cannot be absolute and unconditional. In legal, political,
and philosophical contexts, it is always regarded as liable to be overridden by
important countervailing interests, such as state security, public order, safety of
individual citizens, protection of reputation, and due process of law, which
encompasses not only the right to a fair trial, but also the preservation of public
confidence in the proper administration of justice.
As early as 1930, this Court, speaking through Mr. Justice George Malcolm, declared
that "[a]s important as is the maintenance of an unmuzzled press and the free
exercise of the rights of the citizen is the maintenance of the independence of the
judiciary."48
In Zaldivar v. Gonzalez,49 the Court said that "freedom of speech and expression,
like all constitutional freedoms, is not absolute and that freedom of expression
needs on occasion to be adjusted to and accommodated with requirements of
equally important public interests. One of these fundamental public interests is the
maintenance of the integrity and orderly functioning of the administration of justice.
There is no antinomy between free expression and the integrity of the system of
administering justice. For the protection and maintenance of freedom of expression
itself can be secured only within the context of a functioning and orderly system of
dispensing justice, within the context, in other words, of viable independent
institutions for delivery of justice which are accepted by the general community."
As Mr. Justice Felix Frankfurter put it:
x x x A free press is not to be preferred to an independent judiciary, nor an
independent judiciary to a free press. Neither has primacy over the other; both are
indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary through
which that freedom may, if necessary, be vindicated. And one of the potent means
for assuring judges their independence is a free press.50
Even the major international and regional human rights instruments of civil and
political rights the International Covenant on Civil and Political Rights (ICCPR),51
the European Convention on Human Rights (ECHR),52 the American Convention on
Human Rights (ACHR),53 and the African Charter on Human and Peoples Rights
(ACHPR)54 protect both freedom of expression and the administration of justice.
Freedom of expression is protected under Article 19 of the ICCPR
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
However, Article 19 of the ICCPR is made subject to Article 14(1), which guarantees
the right of individuals to "be equal before the courts and tribunals" and "be entitled
to a fair x x x hearing by a competent, independent and impartial tribunal," where
"[t]he press and the public may be excluded from all or part of a trial for reasons of
morals, public order (order public) or national security in a democratic society, or
when the interest of the private lives of the Parties so requires, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice x x x."
Article 10(2) of the ECHR goes further by explicitly mentioning the maintenance of
the authority and impartiality of the judiciary
The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of disorder or crime,
for the protection of health morals, for the protection of the reputation or rights of
others, for preventing disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary. (Emphasis supplied)
Judges have an affirmative duty to defend and uphold the integrity and
independence of the judiciary. The courts need to be able to sanction those who
obstruct their processes. The judiciary itself must continue to be a voice that
explains and preserves its own independence. The respect accorded to judges is an
adjunct of the social-contract necessity for impartial judges in the creation of a civil
society. In the words of the great political philosopher John Locke
The great and chief end, therefore, for mens uniting into commonwealths, and
putting themselves under government, is the preservation of their property, to which
in the state of nature there are many things wanting x x x there wants an
established, settled, known law x x x there wants a known and indifferent judge,
with authority to determine all differences according to the established law x x x
there often wants power to back and support the sentence when right, and to give it
due execution.55 (Emphasis supplied)
A Survey of Philippine Jurisprudence
The very first case decided by the Supreme Court, In the matter of the proceedings
against Marcelino Aguas for contempt of the Court of First Instance of Pampanga,56
was a contempt proceeding. Before, as it is now, this Court had to use this power to
impress upon contemnors the legal theory and constitutional premises of judicial
legitimacy complementing popular sovereignty and public interest. Writing for the
Court, Mr. Justice James Smith stated that contempt proceedings against a
contemnor were against someone who had done an act or was about to do such act
which "was disrespectful to the court or offensive to its dignity."57
Through the years, the Court has punished contemnors for a variety of offenses that
have attempted to degrade its dignity and impeded the administration of justice.
In 1916, Amzi B. Kelly was fined P1,000 and sentenced to six months in prison for
contempt of court after he published a letter to the editor of The Independent
criticizing the Court for its decision to hold him in contempt for having published a
book stating that various government officials, including the members of the
Supreme Court, were guilty of politically assassinating General Mariano Noriel, who
was executed for the killing of a political rival in 1915.58
In 1949, Atty. Vicente Sotto was fined P1,000.00 for publishing a statement in the
Manila Times objecting to one of the High Courts decisions, citing that such decision
by the majority was but another evidence of "the incompetency or narrow-
mindedness of the majority of its members" and called for the resignation of the
Courts entire membership "in the wake of so many mindedness of the majority
deliberately committed during these last years."59
In 1987, Eva Maravilla-Ilustre,60 in almost identical letters dated October 20, 1986
sent to four (4) Justices of the Supreme Court (all members of the First Division),
stated among others
It is important to call your attention to the dismissal of (case cited) by an untenable
minute-resolution x x x which we consider as an unjust resolution deliberately and
knowingly promulgated by the First Division of the Supreme Court of which you are a
member.
We consider the three minute-resolutions x x x railroaded with such
hurry/promptitude unequalled in the entire history of the SC under circumstances
that have gone beyond the limits of legal and judicial ethics.
There is nothing final in this world. We assure you that this case is far from finished
by a long shot. For at the proper time, we shall so act and bring this case before
another forum where the members of the Court can no longer deny action with
minute resolutions that are not only unjust but are knowingly and deliberately
promulgated x x x.
Please understand that we are pursuing further remedies in our quest for justice
under the law. We intend to hold responsible members of the First Division who
participated in the promulgation of these three minute-resolutions in question x x x.
In our quest for justice, we wish to avoid having injustice to anyone, particularly the
members of the First Division, providing that they had no hand in the promulgation
of the resolution in question. x x x If, however, we do not hear from you after a
week, then we will consider your silence that you supported the dismissal of our
petition. We will then be guided accordingly.61
The letter to one of the Justices further stated
We leave the next move to you by informing us your participation x x x. Please do
not take this matter lightly. x x x The moment we take action in the plans we are
completing, we will then call a press conference with TV and radio coverage.
Arrangements in this regard are being done. The people should or ought to know
why we were thwarted in our quest for plain justice.62
These letters were referred by the First Division en consulta to the Court en banc.
True to her threats, after having lost her case before the Supreme Court, Ilustre filed
on December 16, 1986 an affidavit-complaint before the Tanodbayan, charging,
among others, some Justices of both the Supreme Court and the CA with knowingly
and deliberately rendering "unjust resolutions."
On January 29, 1987, the Supreme Court en banc required Ilustre to show cause why
she should not be held in contempt for her foregoing statements, conduct, acts, and
charges against the Supreme Court and/or official actions of the justices concerned
which, unless satisfactorily explained, transcended the permissible bounds of
propriety and undermined and degraded the administration of justice.
In her answer, Ilustre contended, inter alia, that she had no intention to affront the
honor and dignity of the Court; that the letters to the individual justices were private
in character; that the Court was estopped, having failed to immediately take
disciplinary proceedings against her; and that the citation for contempt was a
vindictive reprisal against her.
The Supreme Court found her explanation unsatisfactory. The claim of lack of evil
intention was disbelieved in the face of attendant circumstances. Reliance on the
privacy of communication was likewise held as misplaced. "Letters addressed to
individual Justices in connection with the performance of their judicial functions
become part of the judicial records and are a matter of public concern for the entire
Court." (Underscoring supplied)
The Court likewise stated that it was only in the exercise of forbearance that it
refrained from immediately issuing a show-cause order, expecting that she and her
lawyer would realize the unjustness and unfairness of their accusations. Neither was
there any vindictive reprisal involved. "The Courts authority and duty under the
premises is unmistakable. It must act to preserve its honor and dignity from the
scurrilous attacks of an irate lawyer, mouthed by his client, and to safeguard the
morals and ethics of the legal profession."
In resum, the Court found that Ilustre had transcended the permissible bounds of
fair comment and criticism to the detriment of the orderly administration of justice:
(a) in her letters addressed to the individual Justices, quoted in the show-cause
Resolution, particularly the underlined portions thereof; (b) in the language of the
charges she filed before the Tanodbayan quoted in the same Resolution; (c) in her
statement, conduct, acts, and charges against the Supreme Court and/or official
actions of the Justices concerned and her description of improper motives; and (d) in
her unjustified outburst that she could no longer expect justice from the Court.
The fact that said letter was not technically considered pleadings nor the fact that
they were submitted after the main petition had been finally resolved does not
detract from the gravity of the contempt committed. The constitutional right of
freedom of speech or right to privacy cannot be used as a shield for contemptuous
acts against the Court.63
Ilustre was fined P1,000.00 "for contempt," evidently considered as indirect, taking
into account the penalty imposed and the fact that the proceedings taken were not
summary in nature.
In Perkins v. Director of Prisons,64 the Court had an occasion to examine the
fundamental foundations of the power to punish for contempt: "The power to punish
for contempt is inherent in all courts; its existence is essential to the preservation of
order in judicial proceedings and to the enforcement of judgments, orders, and
mandates of the courts, and, consequently, to the due administration of justice."65
The Court there held that "the exercise of this power is as old as the English history
itself, and has always been regarded as a necessary incident and attribute of courts.
Being a common-law power, inherent in all courts, the moment the courts of the
United States were called into existence they became vested with it. It is a power
coming to us from the common law, and, so far as we know, has been universally
admitted and recognized."66
After World War II, this Court reiterated it had an inherent power to punish for
contempt, to control in the furtherance of justice the conduct of ministerial officers
of the Court including lawyers and all other persons connected in any manner with a
case before the Court.67 This power to punish for contempt is "necessary for its own
protection against improper interference with the due administration of justice x x x.
It is not dependent upon the complaint of any of the parties-litigant."68 These twin
principles were to be succinctly cited in the later case of Zaldivar v. Gonzales.69
Of course, the power to punish for contempt is exercised on the preservative
principle. There must be caution and hesitancy on the part of the judge whenever
the possible exercise of his awesome prerogative presents itself. "The power to
punish for contempt," as was pointed out by Mr. Justice Malcolm in Villavicencio v.
Lukban,70 "should be exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its inherent power to retain that
respect without which the administration of justice must falter or fail." But when
called for, most especially when needed to preserve the very existence and integrity
of no less than the Highest Court, this principle bears importance.
In the 1995 case People v. Godoy,71 the Court, citing In Re: Vicente Sotto,72 had the
opportunity to define the relations of the courts and of the press. Quoting the
statements made by Judge Holmes in U.S. v. Sullen,73 the Court said:
The administration of justice and the freedom of the press, though separate and
distinct, are equally sacred, and neither should be violated by the other. The press
and the courts have correlative rights and duties and should cooperate to uphold the
principles of the Constitution and laws, from which the former receives its
prerogative and the latter its jurisdiction. x x x In a clear case where it is necessary
in order to dispose of judicial business unhampered by publications which
reasonably tend to impair the impartiality of verdicts, or otherwise obstruct the
administration of justice, the Court will not hesitate to exercise undoubted power to
punish for contempt. This Court must be permitted to proceed with the disposition of
its business in an orderly manner free from outside interference obstructive of its
constitutional functions. This right will be insisted upon as vital to an impartial court,
and, as a last resort, as an individual exercises the right of self-defense, it will act to
preserve its existence as an unprejudiced tribunal.74 (Emphasis supplied)
Thus, while the Court in Godoy agreed that our Constitution and our laws recognize
the First Amendment rights of freedom of speech and of the press, these two
constitutional guaranties "must not be confused with an abuse of such liberties."
Quoting Godoy further
Obstructing, by means of the spoken or written word, the administration of justice
by the courts has been described as an abuse of the liberty of the speech or the
press such as will subject the abuser to punishment for contempt of court.75
Finally, in the more recent 2007 case Roxas v. Zuzuarregui,76 the Court en banc in a
unanimous per curiam resolution imposed a P30,000 fine on Atty. Romeo Roxas for
making "unfair and unfounded accusations against a member of this Court, and
mocking the Court for allegedly being part of the wrongdoing and being a dispenser
of injustice." We found the letter of Atty. Roxas full of "contemptuous remarks that
tended to degrade the dignity of the Court and erode public confidence that should
be accorded to it." We also said that his invocation of free speech and privacy of
communication "will not, however, free him from liability. As already stated, his
letter contained defamatory statements that impaired public confidence in the
integrity of the judiciary. The making of contemptuous statements directed against
the Court is not an exercise of free speech; rather, it is an abuse of such right.
Unwarranted attacks on the dignity of the courts cannot be disguised as free
speech, for the exercise of said right cannot be used to impair the independence and
efficiency of courts or public respect therefore and confidence therein. Free
expression must not be used as a vehicle to satisfy ones irrational obsession to
demean, ridicule, degrade and even destroy this Court and its magistrates."
Accordingly, Atty. Roxas was found guilty of indirect contempt of court and fined
P30,000.00, with a warning that a repetition of a similar act would warrant a more
severe penalty.
Application of Existing Jurisprudence to the Case at Bar
In determining the liability of the respondent in this contempt proceeding, we weigh
the conflicting constitutional considerations respondents claim of his right to press
freedom, on one hand; and, on the other hand, ensuring judicial independence by
upholding public interest in maintaining the dignity of the judiciary and the orderly
administration of justice both indispensable to the preservation of democracy and
the maintenance of a just society.
The apparently conflicting constitutional considerations summed up by a
distinguished former Judge of the Supreme Court of India, Justice H.R. Khanna, bears
a hand in resolving the issue
There are one or two matters to which I would like to make pointed reference in the
context of the freedom of the press. One of them relates to the danger of trial by the
press. Certain aspects of a case are so much highlighted by the press that the
publicity gives rise to strong public emotions. The inevitable effect of that is to
prejudice the case of one party or the other for a fair trial. We must consider the
question as to what extent are restraints necessary and have to be exercised by the
press with a view to preserving the purity of judicial process. At the same time, we
have to guard against another danger. A person cannot x x x by starting some kind
of judicial proceedings in respect of matter of vital public importance stifle all public
discussions of that matter on pain of contempt of court. A line to balance the whole
thing has to be drawn at some point. It also seems necessary in exercising the
power of contempt of court x x x vis--vis the press that no hyper-sensitivity is
shown and due account is taken of the proper functioning of a free press in a
democratic society. This is vital for ensuring the health of democracy. At the same
time, the press must also keep in view its responsibility and see that nothing is done
as may bring the courts x x x into disrepute and make people lose faith in these
institution(s). One other matter which must not be lost sight of is that while
comment is free, facts are sacred.77
We have no problems with legitimate criticisms pointing out flaws in our decisions,
judicial reasoning, or even how we run our public offices or public affairs. They
should even be constructive and should pave the way for a more responsive,
effective and efficient judiciary.
Unfortunately, the published articles of respondent Macasaet are not of this genre.
On the contrary, he has crossed the line, as his are baseless scurrilous attacks which
demonstrate nothing but an abuse of press freedom. They leave no redeeming value
in furtherance of freedom of the press. They do nothing but damage the integrity of
the High Court, undermine the faith and confidence of the people in the judiciary,
and threaten the doctrine of judicial independence.
A veteran journalist of many years and a president of a group of respectable media
practitioners, respondent Macasaet has brilliantly sewn an incredible tale, adorned it
with some facts to make it lifelike, but impregnated it as well with insinuations and
innuendoes, which, when digested entirely by an unsuspecting soul, may make him
throw up with seethe. Thus, he published his highly speculative articles that bribery
occurred in the High Court, based on specious information, without any regard for
the injury such would cause to the reputation of the judiciary and the effective
administration of justice. Nor did he give any thought to the undue, irreparable
damage such false accusations and thinly veiled allusions would have on a member
of the Court.
The Investigating Committee could not have put it any better when it found
respondent feigning his "highest respect for this Court"
Macasaets diatribes against the Court generate public distrust in the administration
of Justice by the Supreme Court, instead of promoting respect for its integrity and
honor. They derogate his avowal of "highest respect for this Court" (10, tsn, Jan. 10,
2008); his declaration that he has "always upheld the majesty of the law as
interpreted by the Court" (96, tsn, Jan. 10, 2008); that his opinion of the Court has
actually been "elevated ten miles up" because of its decisions in the cases involving
Proclamation No. 1017, the CPR, EO 464, and the Peoples Initiative (97, tsn, Jan. 10,
2008); that he has "done everything to preserve the integrity and majesty of the
Court and its jurists" (84-85, tsn, Feb. 1, 2008); that he wants "the integrity of the
Court preserved because this is the last bastion of democracy" (32, tsn, Jan. 10,
2008).
These tongue-in cheek protestations do not repair or erase the damage and injury
that his contemptuous remarks about the Court and the Justices have wrought upon
the institutional integrity, dignity, and honor of the Supreme Court. As a matter of
fact, nowhere in his columns do we find a single word of respect for the Court or the
integrity and honor of the Court. On the contrary, what we find are allegations of
"pernicious rumor that the courts are dirty," suspicions that the jurists are "thieves,"
that the Highest Court has a "soiled reputation," and that the Supreme Court has a
"sagging reputation."
He admitted that the rumor about the courts being "dirty" referred "specifically (to)
the Supreme Court" (100, tsn, Feb. 1, 2008) and was "based on personal conclusion
which (was), in turn, based on confidential information fed to me. It is in that respect
that I thought that I have (a) duty to protect and keep the Honor of this Court" (98,
tsn, Feb. 1, 2008).
He unburdened his heretofore hidden anger, if not disgust, with the Court when he
clarified "that the word dirty x x x is not necessarily related to money" (101, tsn,
Feb. 1, 2008). "It is my belief that lack of familiarity with the law is x x x kind of
dirty" referring to then Associate Justice Artemio Panganibans support for, and Chief
Justice Hilario Davide, Jr.s act of swearing into office then Vice-President Gloria
Macapagal Arroyo as Acting President of the Philippines even while then President
Joseph Estrada was still in Malacaang, which Macasaet believed to be "quite a bit of
dirt" (102-106, tsn, Feb. 1, 2008).78
To reiterate the words of the Committee, this case is "not just another event that
should pass unnoticed for it has implications far beyond the allocated ramparts of
free speech."79 To allow respondent to use press freedom as an excuse to
capriciously disparage the reputation of the Court and that of innocent private
individuals would be to make a mockery of this liberty.
Respondent has absolutely no basis to call the Supreme Court a court of "thieves"
and a "basket of rotten apples." These publications directly undermine the integrity
of the justices and render suspect the Supreme Court as an institution. Without
bases for his publications, purely resorting to speculation and "fishing expeditions"
in the hope of striking or creating a story, with utter disregard for the institutional
integrity of the Supreme Court, he has committed acts that degrade and impede the
orderly administration of justice.
We cannot close our eyes to the comprehensive Report and Recommendation of the
Investigating Committee. It enumerated the inconsistencies and assumptions of
respondent which lacked veracity and showed the reckless disregard of whether the
alleged bribery was false or not.80
Indeed, the confidential information allegedly received by respondent by which he
swears with his "heart and soul"81 was found by the Investigating Committee
unbelievable. It was a story that reeked of urban legend, as it generated more
questions than answers.82
Respondent Macasaets wanton disregard for the truth was exhibited by his
apathetic manner of verifying the veracity of the information he had gathered for his
September 18, 19, 20, and 21, 2007 articles concerning the alleged bribery of a
Lady Justice. His bases for the amount of money, the number of boxes, the date of
delivery of the boxes, among other important details, were, by his own admission
founded on personal assumptions. This nonchalant attitude extended to his very
testimony before the investigating committee
Justice Aquino: You did not endeavor to verify the information given by your source
before publishing the story about the bribery?
Mr. Macasaet: I tried, I could not get confirmation, I thought that eventually my effort
at consistently trying or exposing the alleged bribery one day sooner or later
somebody will come up and admit or deny.
xxxx
Justice Vitug: Do you confirm the fact of authorship of the columns of September 18,
19, 20, and 21, 2007?
Mr. Macasaet: On a stack of Bible, I confirm it.
Justice Vitug: Does that mean that you also confirm the accuracy of those
information that were said?
Mr. Macasaet: I am not confirming the accuracy of the information and I think that is
precisely the reason for this hearing, I must repeat that the purpose is to fish [the
Lady Justice] out so that the rest of the Lady Justices in all the Courts suspicion can
be removed from them. I failed in the sense that one denied, she felt alluded to and
said she is not involved.83
Respondent thus admits to having written his articles as means to "fish out" the
Lady Justice involved in an alleged bribery fed to him by his source, with reckless
disregard of whether or not such bribery indeed took place. It defies reason why any
responsible journalist would go on to publish any material in a newspaper of general
circulation without having ascertained even the five Ws and one H of the story.84
That he could not, through his extensive network of informants, confirm the
approximate date when the alleged bribery took place, the identities of the persons
involved, or any other important detail, before he began his series of articles only
leads to the rational conclusion that he did not care whether or not the story he
published was true. His aim, as he admits, was to go on a fishing expedition to see if
someone would confirm or deny his now clearly baseless accusations. This practice
of "fishing" for information by publishing unverified information in a manner that
leads the reading public to believe such is true cannot be tolerated.
Aggravating respondents affront to the dignity of the Court is his unwillingness to
show any remorse or repentance for his contemptuous acts. In fact, as he made
clear in his testimony before the Investigating Committee when asked what his
thoughts were about his having published the instant articles, he replied that he was
"happy in the sense that [he] did a job in [his] best lights and the effort ended up in
the creation of [the investigating panel]."85
However, such assertions of having acted in the best interest of the Judiciary are
belied by the fact that he could have caused the creation of an investigating panel
to look into such allegations in a more rational and prudent manner. In the words of
the Investigating Committee
If he had no malice toward the Court, if, as he professes, the purpose of his columns
was to save the integrity and honor of the Court, Macasaet should, and could, have
reported the rumored bribery directly to the Chief Justice and asked for its
investigation. He should have refrained from calling the Court names, before giving
it a chance to act on his report and on his suggestion to investigate the matter.
Since he knew the name of the Court employee who allegedly discovered the bribe
money, the Court could have begun its investigation with her to ascertain the
identity of the nameless Lady Justice and the veracity of the rumored bribery. His
disparaging remarks about the Court and jurists in conjunction with his unverified
report on the alleged bribery were totally uncalled for and unjustified.86
It is precisely because of his failure to abide by the tenets of responsible journalism
that we accept the findings of the Investigating Committee in holding respondent
Macasaet guilty of indirect contempt of court. He must be made accountable for his
complete failure to exercise even a single vestige of responsible journalism in
publishing his unfounded and ill-thought diatribes against the Judiciary and the
honorable people who serve it.
Respondent also asserts that the subject matter of his articles is within the exclusive
jurisdiction of Congress. He cites Section 2, Article XI of the 1987 Constitution which
partly states that "x x x members of the Supreme Court x x x may be removed from
office, on impeachment for, and conviction of x x x bribery x x x" and Section 3(1),
Article XI, which provides that "[t]he House of Representatives shall have the
exclusive power to initiate all case of impeachment."
We cannot agree. What Macasaet conveniently forgets is that no impeachment
complaint has been filed against Mme. Justice Ynares-Santiago. Thus, his cited
constitutional provisions do not come into play.
Respondent claims that there is a violation of his right to due process. From the time
his articles were published, no formal charge has been filed against him as required
under Section 3, Rule 71 of the 1997 Rules of Civil Procedure.
Respondent fails to see, however, that under Section 4 of the same Rule,
proceedings for indirect contempt may be initiated motu proprio by the court against
which the contempt was committed, by an order or any other formal charge
requiring respondent to show why he should not be punished for contempt. Our
Resolution dated September 25, 2007 satisfies the Rule. He cannot validly claim that
such resolution is vague. He cannot feign ignorance of the contents of his
September 18, 19, 20, and 21, 2007 articles in the Malaya.
Rule 71 of the 1997 Rules of Civil Procedure pertinently provides:
SEC. 3. Indirect contempt to be punished after charge and hearing. After a charge
in writing has been filed, and an opportunity given to the respondent to comment
thereon within such period as may be fixed by the court and to be heard by himself
or counsel, a person guilty of any of the following acts may be punished for indirect
contempt.x x x x
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice;
xxxx
SEC. 7. Punishment for indirect contempt. If the respondent is adjudged guilty of
indirect contempt committed against a Regional Trial Court or a court of equivalent
or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or
imprisonment not exceeding six (6) months, or both. x x x (Underscoring supplied)
We are not unaware of the vigorous dissent of then Associate Justice, now our Chief
Justice, Reynato S. Puno, in an earlier case,87 in which he so lucidly argued for the
right to journalistic shield, behind which the Dissenting Opinion of an esteemed
colleague, Mr. Justice Carpio, and respondent Macasaet, take full refuge. While we
hold his thesis in high regard, the case at bar does not fall within his erudite defense
of press freedom. The critical issues then were the right of newsmen to refuse
subpoenas, summons, or "invitations" to appear in administrative investigations,
and not to reveal their confidential sources of information under R.A. No. 53, as
amended. None of these are the issues at hand. Be that as it may, elementary
decision-making teaches that we cite the majority opinion as precedent, not lonely
dissenting opinions.88
In his Dissenting Opinion, Mr. Justice Carpio assails the Committee proceedings as
"fatally defective for patent denial of due process"89 because "when the witnesses
the Committee summoned testified, the Committee monopolized the right to
propound questions to the witnesses, denying to Macasaet such right."90 He
continues to say that "[w]ith the procedure the Committee adopted, Macasaet was
reduced to a passive participant, unable to subject the testimonies of adverse
witnesses to rigorous probing under cross-examination. As matters stand, Macasaet
will be subjected to punitive sanctions based on evidence he had no opportunity to
scrutinize."91
We disagree on triple grounds.
First, the proceedings of the Committee are presumed to be regular. Thus, the onus
probandi to prove otherwise rests on Macasaet, not on the Committee. Suffice it to
say that the Dissenting Opinion which cites People v. Godoy as to the "criminal"
character of a contempt proceeding,92 fails to state what Godoy likewise instructs
Strictly speaking however, they are not criminal proceedings or prosecutions, even
though the contemptuous act involved is also a crime. The proceeding has been
characterized as sui generis, partaking of some of the elements of both a civil and
criminal proceeding, but really constituting neither. In general, criminal contempt
proceedings should be conducted in accordance with the principles and rules
applicable to criminal cases, in so far as such procedure is consistent with the
summary nature of contempt proceedings. So it has been held that the strict rules
that govern criminal prosecutions apply to a prosecution for criminal contempt, that
the accused is to be afforded many of the protections provided in regular criminal
cases, and that proceedings under statutes governing them are to be strictly
construed. However, criminal proceedings are not required to take any particular
form so long as the substantial rights of the accused are preserved.93
Second, assuming arguendo that Macasaet was not able to cross-examine his
witnesses, this does not necessarily mean that his right to due process of law was
violated.
The right of an accused to cross-examine the witnesses against him, although an
adjunct of the Constitutional right "to meet the witnesses face to face,"94 can be
waived when not timely asserted. In the case of Macasaet, never did he assert his
right to cross-examine the witnesses against him despite the opportunity to do so.
During the entire course of the proceedings in the Committee, respondent was
vigorously represented by counsel de parte. Respondent or his counsel could have
moved to cross-examine the adverse witnesses. Respondent had every opportunity
to do so. Lamentably, he failed to exercise the said right.
Interestingly, during the last hearing date, counsel for respondent requested that
respondent be allowed to say something, which the Committee granted. Respondent
then proceeded with a lengthy discourse, all of 45 pages, on everything and
anything, except his right to cross-examination.95 Verily, it cannot be validly
claimed now that his right to cross-examine was violated.
Third, the Court is bereft of any power to invoke the right to cross-examine the
witnesses against respondent, for and in his behalf. Otherwise, the Court will be
acting as his counsel, which is absurd.
Just a Word More
A free press is regarded as a key pillar of democracy. Reporters must be free to
report, expose, and hold government officials and agencies including an
independent judiciary accountable. Press attention surrounding the judiciary
ensures public accountability. Such publicity acts as a check on judicial competence
and integrity, exposes inefficiencies and irregularities, keeps vigil over various public
interest cases, and puts pressure on responsible judicial officials. This freedom has
been used and has benefited the cause of justice. The press has become an
important actor a judicial watchdog in the ongoing judicial transformation. When
properly validated, its acts are protected speech from an accepted function.
Freedom, however, has not guaranteed quality journalism. The press has been
vulnerable to a host of legitimate criticisms such as incompetence, commercialism,
and even corruption. By disproportionately informing the public about specific court
processes, or by spreading unsubstantiated allegations about corruption and other
forms of judicial misconduct, the press dramatically undermines the publics faith in
the courts and threatens the very foundation of our democratic government.
Oftentimes, journalists writing about the judiciary and court cases lack basic
knowledge of the law and judicial procedures, on the basis of which they draw faulty
conclusions which they pass on to their readers as gospel truths. Trial by publicity
also influences the independence of judges as the public is fed with partial
information and vocal opinions, and judges are pressured to decide in accordance
with the public opinion. Faith in the judiciary is undermined when judges rule against
the expectations of the public which has been brainwashed by dramatic reports and
graphic comments. In some cases, unchecked rumors or allegations of irregularities
are immediately published because journalists lack professional competence to
verify the information, or are simply eager to break the news and attract a wider
readership.
The role of the press in relation to the judiciary needs to be regulated. This can be
done through voluntary codes of conduct on the part of the press and through
judicial policies, such as the rule on sub judice and contempt of court rulings. The
absence of clear voluntary codes developed by the press, as its self-regulator,
strengthens the need for the Court to use its power in the meantime to cite critics
for contempt. This is necessary in cases where such criticism is obviously malicious
or in violation of the sub judice rule, or where there is an evident attempt to
influence the outcome of a case. Judges have the duty to defend and uphold the
integrity and independence of the judiciary. They should sanction those who obstruct
or impede the judicial processes. The effective administration of justice may only be
realized with the strong faith and confidence of the public in the competence and
integrity of the judiciary, free from political and popular pressure.
Criticism at every level of government is certainly welcome. After all, it is an
essential part of the checks and balances in our republican system of government.
However, criticisms should not impede or obstruct an integral component of our
republican institutions from discharging its constitutionally-mandated duties.
As the Court said in In Re: Almacen:96
Courts and judges are not sacrosanct. They should and expect critical evaluation of
their performance. For like the executive and the legislative branches, the judiciary
is rooted in the soil of democratic society, nourished by the periodic appraisal of the
citizen whom it is expected to serve.
xxxx
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall
not spill over the walls of decency and propriety. A wide chasm exists between fair
criticism, on the one hand, and abuse and slander of courts and the judges thereof,
on the other. x x x97
All told, illegitimate and uninformed criticisms against the courts and judges, those
which cross the line and attempt to subvert the judicial process, must be avoided.
They do a great disservice to the Constitution. They seriously mislead the public as
to the proper functioning of the judiciary. While all citizens have a right to scrutinize
and criticize the judiciary, they have an ethical and societal obligation not to cross
that too important line.
Senator Ernesto Maceda, the seasoned politician who has graced both the executive
and the legislative departments in various capacities, in a Privilege Speech, once
appealed for voluntary self-restraint with respect to this Court
There are proper procedures for dealing with instances of official misdemeanor
without setting an entire institution on fire. Arson is not the best means for pest-
control.
In case of possibility of corruption in the Supreme Court, one possible means is the
initiation of impeachment proceedings against specifically identified justices. A
move for impeachment, of course, requires much sobriety and solid evidence.
Whatever charges are brought forward must be substantiated. Those who dare
prosecute must come into the open and append their names to the accusations they
make, with courage and conviction. This is the manner civil society conserves its
civility x x x.
The ends of justice are not served by heckling nor by crude insinuation or by
irresponsible reporting. The house of democracy is never strengthened by those who
choose to throw rocks under the cover of darkness and anonymity. The institutions
of our liberty are never enriched by the irresponsible accusations of the uninformed.
The bedrocks of our Republic are not reinforced by those who evade responsibility
under the veil of freedom.98
During interpellation, he went on to say
x x x And in the context of what I have just said, I think that all newspapers, all
media are welcome to do their worse, criticize the members of the Executive
Department, Members of the Senate, and any other agency of the Government. But I
am just suggesting that when it comes to the judiciary, and specifically to the
Supreme Court, that a different policy, one of more caution, should be adopted
precisely because x x x people may lose faith in the Executive or the President; they
may lose faith in Congress, the Congressmen and the Senators, but as long as they
have their faith unshaken and complete in the last bulwark of democracy x x x which
is the Supreme Court, then our democracy will survive.99
Each of us has important responsibilities in a constitutional democracy. We, judges,
will continue to discharge our judicial functions with fairness. We urge all and sundry
to abide by theirs. We need to respect each other. As the golden rule goes let us
not do to others what we do not want others to do to us. Igalang natin ang isat-isa.
Huwag nating gawin sa iba ang ayaw nating gawin nila sa atin.
Given the gravity of respondent Macasaets improper conduct, coupled with the
recalcitrant manner in which he responded when confronted with the reality of his
wrongdoing, a penalty of fine in the amount of P20,000.00 would be right and
reasonable.
Disposition
WHEREFORE, the Court declares respondent Amado P. Macasaet GUILTY of indirect
contempt of court and sentences him to pay a fine of P20,000.00, in accordance
with Sections 3(d) and 7, Rule 71 of the 1997 Rules of Civil Procedure. SO ORDERED.
____
A.M. No. 01-4-03-S.C. June 29, 2001
RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE SANDIGANBAYAN OF
THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA.
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG
PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY. RICARDO ROMULO,
petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.
VITUG, J.:
The travails of a deposed President continue. The Sandiganbayan reels to start
hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the
event via live television and live radio broadcast and endeavors this Court to allow it
that kind of access to the proceedings.
On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an
association representing duly franchised and authorized television and radio
networks throughout the country, sent a letter requesting this Court to allow live
media coverage of the anticipated trial of the plunder and other criminal cases filed
against former President Joseph E. Estrada before the Sandiganbayan in order "to
assure the public of full transparency in the proceedings of an unprecedented case
in our history."2 The request was seconded by Mr. Cesar N. Sarino in his letter of 05
April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and
Attorney Ricardo Romulo.
On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed
the instant petition,3 submitting the following exegesis:
"3. The foregoing criminal cases involve the previous acts of the former highest
official of the land, members of his family, his cohorts and, therefore, it cannot be
over emphasized that the prosecution thereof, definitely involves a matter of public
concern and interest, or a matter over which the entire citizenry has the right to
know, be informed and made aware of.
"4. There is no gainsaying that the constitutional right of the people to be informed
on matters of public concern, as in the instant cases, can best be recognized, served
and satisfied by allowing the live radio and television coverage of the concomitant
court proceedings.
"5. Moreover, the live radio and television coverage of the proceedings will also
serve the dual purpose of ensuring the desired transparency in the administration of
justice in order to disabuse the minds of the supporters of the past regime of any
and all unfounded notions, or ill-perceived attempts on the part of the present
dispensation, to railroad the instant criminal cases against the Former President
Joseph Ejercito Estrada."4
Public interest, the petition further averred, should be evident bearing in mind the
right of the public to vital information affecting the nation.
In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of
this Court in a case for libel filed by then President Corazon C. Aquino. The resolution
read:
"The records of the Constitutional Commission are bereft of discussion regarding the
subject of cameras in the courtroom. Similarly, Philippine courts have not had the
opportunity to rule on the question squarely.
"While we take notice of the September 1990 report of the United States Judicial
Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule
obtaining in the Federal Courts of the United States prohibits the presence of
television cameras in criminal trials. Rule 53 of the Federal Rules of Criminal
Procedure forbids the taking of photographs during the progress of judicial
proceedings or radio broadcasting of such proceedings from the courtroom. A trial of
any kind or in any court is a matter of serious importance to all concerned and
should not be treated as a means of entertainment. To so treat it deprives the court
of the dignity which pertains to it and departs from the orderly and serious quest for
truth for which our judicial proceedings are formulated.
"Courts do not discriminate against radio and television media by forbidding the
broadcasting or televising of a trial while permitting the newspaper reporter access
to the courtroom, since a television or news reporter has the same privilege, as the
news reporter is not permitted to bring his typewriter or printing press into the
courtroom.
"In Estes vs. Texas. the United States Supreme Court held that television coverage of
judicial proceedings involves an inherent denial of the due process rights of a
criminal defendant. Voting 5-4, the Court through Mr. Justice Clark identified four (4)
areas of potential prejudice which might arise from the impact of the cameras on the
jury, witnesses, the trial judge and the defendant. The decision in part pertinently
stated:
"Experience likewise has established the prejudicial effect of telecasting on
witnesses. Witnesses might be frightened, play to the camera, or become nervous.
They are subject to extraordinary out-of court influences which might affect their
testimony. Also, telecasting not only increases the trial judge's responsibility to avoid
actual prejudice to the defendant, it may as well affect his own performance. Judges
are human beings also and are subject to the same psychological reactions as
laymen. For the defendant, telecasting is a form of mental harassment and subjects
him to excessive public exposure and distracts him from the effective presentation
of his defense. 1wphi1.nt
'The television camera is a powerful weapon which intentionally or inadvertently can
destroy an accused and his case in the eyes of the public.'
"Representatives of the press have no special standing to apply for a writ of
mandate to compel a court to permit them to attend a trial, since within the
courtroom, a reporter's constitutional rights are no greater than those of any other
member of the public. Massive intrusion of representatives of the news media into
the trial itself can so alter or destroy the constitutionally necessary judicial
atmosphere and decorum that the requirements of impartiality imposed by due
process of law are denied the defendant and a defendant in a criminal proceeding
should not be forced to run a gauntlet of reporters and photographers each time he
enters or leaves the courtroom.
"Considering the prejudice it poses to the defendant's right to due process as well as
to the fair and orderly administration of justice, and considering further that the
freedom of the press and the right of the people to information may be served and
satisfied by less distracting, degrading and prejudicial means, live radio and
television coverage of court proceedings shall not be allowed. Video footages of
court hearings for news purposes shall be restricted and limited to shots of the
courtroom, the judicial officers, the parties and their counsel taken prior to the
commencement of official proceedings. No video shots or photographs shall be
permitted during the trial proper.
" Accordingly, in order to protect the parties' right to due process, to prevent the
distraction of the participants in the proceedings and in the last analysis, to avoid
miscarriage of justice, the Court resolved to PROHlBIT live radio and television
coverage of court proceedings. Video footage of court hearings for news purposes
shall be limited and restricted as above indicated."
Admittedly, the press is a mighty catalyst in awakening public consciousness, and it
has become an important instrument in the quest for truth. 5 Recent history
exemplifies media's invigorating presence, and its contribution to society is quite
impressive. The Court, just recently, has taken judicial notice of the enormous effect
of media in stirring public sentience during the impeachment trial, a partly judicial
and partly political exercise, indeed the most-watched program in the boob-tubes
during those times, that would soon culminate in EDSA II.
The propriety of granting or denying the instant petition involve the weighing out of
the constitutional guarantees of freedom of the press and the right to public
information, on the one hand, and the fundamental rights of the accused, on the
other hand, along with the constitutional power of a court to control its proceedings
in ensuring a fair and impartial trial.6
When these rights race against one another, jurisprudence7 tells us that the right of
the accused must be preferred to win.
With the possibility of losing not only the precious liberty but also the very life of an
accused, it behooves all to make absolutely certain that an accused receives a
verdict solely on the basis of a just and dispassionate judgment, a verdict that would
come only after the presentation of credible evidence testified to by unbiased
witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings
that are devoid of histrionics that might detract from its basic aim to ferret veritable
facts free from improper influence,8 and decreed by a judge with an unprejudiced
mind, unbridled by running emotions or passions.
Due process guarantees the accused a presumption of innocence until the contrary
is proved in a trial that is not lifted above its individual settings nor made an object
of public's attention9 and where the conclusions reached are induced not by any
outside force or influence10 but only by evidence and argument given in open court,
where fitting dignity and calm ambiance is demanded.
Witnesses and judges may very well be men and women of fortitude, able to thrive
in hardy climate, with every reason to presume firmness of mind and resolute
endurance, but it must also be conceded that "television can work profound changes
in the behavior of the people it focuses on."11
Even while it may be difficult to quantify the influence, or pressure that media can
bring to bear on them directly and through the shaping of public opinion, it is a fact,
nonetheless, that, indeed, it does so in so many ways and in varying degrees. The
conscious or unconscious effect that such a coverage may have on the testimony of
witnesses and the decision of judges cannot be evaluated but, it can likewise be
said, it is not at all unlikely for a vote of guilt or innocence to yield to it. 12 It might be
farcical to build around them an impregnable armor against the influence of the
most powerful media of public opinion.13
To say that actual prejudice should first be present would leave to near nirvana the
subtle threats to justice that a disturbance of the mind so indispensable to the calm
and deliberate dispensation of justice can create. 14 The effect of television may
escape the ordinary means of proof, but it is not far-fetched for it to gradually erode
our basal conception of a trial such as we know it now. 15
An accused has a right to a public trial but it is a right that belongs to him, more
than anyone else, where his life or liberty can be held critically in balance. A public
trial aims to ensure that he is fairly dealt with and would not be unjustly condemned
and that his rights are not compromised in secrete conclaves of long ago. A public
trial is not synonymous with publicized trial; it only implies that the court doors must
be open to those who wish to come, sit in the available seats, conduct themselves
with decorum and observe the trial process. In the constitutional sense, a courtroom
should have enough facilities for a reasonable number of the public to observe the
proceedings, not too small as to render the openness negligible and not too large as
to distract the trial participants from their proper functions, who shall then be totally
free to report what they have observed during the proceedings.16
The courts recognize the constitutionally embodied freedom of the press and the
right to public information. It also approves of media's exalted power to provide the
most accurate and comprehensive means of conveying the proceedings to the
public and in acquainting the public with the judicial process in action; nevertheless,
within the courthouse, the overriding consideration is still the paramount right of the
accused to due process17 which must never be allowed to suffer diminution in its
constitutional proportions. Justice Clark thusly pronounced, "while a maximum
freedom must be allowed the press in carrying out the important function of
informing the public in a democratic society, its exercise must necessarily be subject
to the maintenance of absolute fairness in the judicial process."18
This Court, in the instance19 already mentioned, citing Estes vs. Texas,20 the United
States Supreme Court holding the television coverage of judicial proceedings as an
inherent denial of due process rights of an accused, also identified the following as
being likely prejudices:
"1. The potential impact of television x x x is perhaps of the greatest significance. x
x x. From the moment the trial judge announces that a case will be televised it
becomes a cause celebre. The whole community, x x x becomes interested in all the
morbid details surrounding it. The approaching trial immediately assumes an
important status in the public press and the accused is highly publicized along with
the offense with which he is charged. Every juror carries with him into the jury box
these solemn facts and thus increases the chance of prejudice that is present in
every criminal case. x x x.
"2. The quality of the testimony in criminal trials will often be impaired. The impact
upon a witness of the knowledge that he is being viewed by a vast audience is
Simply incalculable. Some may be demoralized and frightened, some cocky and
given to overstatement; memories may falter, as with anyone speaking publicly, and
accuracy of statement may be severely undermined. x x x. Indeed, the mere fact
that the trial is to be televised might render witnesses reluctant to appear and
thereby impede the trial as well as the discovery of the truth.
"3. A major aspect of the problem is the additional responsibilities the presence of
television places on the trial judge. His job is to make certain that the accused
receives a fair trial. This most difficult task requires his undivided attention. x x x
"4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its
presence is a form of mental if not physical-harassment, resembling a police line-up
or the third degree. The inevitable close-up of his gestures and expressions during
the ordeal of his trial might well transgress his personal sensibilities, his dignity, and
his ability to concentrate on the proceedings before him -sometimes the difference
between life and death -dispassionately, freely and without the distraction of wide
public surveillance. A defendant on trial for a specific crime is entitled to his day in
court, not in a stadium, or a city or nationwide arena. The heightened public clamor
resulting from radio and television coverage will inevitably result in prejudice."
In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and
radio coverage could have mischievous potentialities for intruding upon the
detached atmosphere that should always surround the judicial process. 21
The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed
its own concern on the live television and radio coverage of the criminal trials of Mr.
Estrada; to paraphrase: Live television and radio coverage can negate the rule on
exclusion of witnesses during the hearings intended to assure a fair trial; at stake in
the criminal trial is not only the life and liberty of the accused but the very credibility
of the Philippine criminal justice system, and live television and radio coverage of
the trial could allow the "hooting throng" to arrogate unto themselves the task of
judging the guilt of the accused, such that the verdict of the court will be acceptable
only if popular; and live television and radio coverage of the trial will not subserve
the ends of justice but will only pander to the desire for publicity of a few
grandstanding lawyers.
It may not be unlikely, if the minority position were to be adopted, to see protracted
delays in the prosecution of cases before trial courts brought about by petitions
seeking a declaration of mistrial on account of undue publicity and assailing a court
a quo's action either allowing or disallowing live media coverage of the court
proceedings because of supposed abuse of discretion on the part of the judge.
En passant, the minority would view the ponencia as having modified the case law
on the matter. Just to the contrary, the Court effectively reiterated its standing
resolution of 23 October 1991. Until 1991, the Court had yet to establish the case
law on the matter, and when it did in its 23rd October resolution, it confirmed, in
disallowing live television and radio coverage of court proceedings, that "the records
of the Constitutional Commission (were) bereft of discussion regarding the subject of
cameras in the courtroom" and that "Philippine courts (had) not (therefore) had the
opportunity to rule on the question squarely."
But were the cases decided by the U.S. courts and cited in the minority opinion
really in point?
In Nebraska Press Association vs, Stewart,22 the Nebraska State trial judge issued an
order restraining news media from publishing accounts of confession or admissions
made by the accused or facts strongly implicating him. The order was struck down.
In Richmond Newspaper; Inc., vs, Virginia,23 the trial judge closed the courtroom to
the public and all participants except witnesses when they testify. The judge was
reversed by the U.S. Supreme Court which ruled that criminal trials were historically
open. In Globe Newspaper vs. Superior Court,24 the US Supreme Court voided a
Massachusetts law that required trial judges to exclude the press and the public
from the courtroom during the testimony of a minor victim of certain sexual
offenses.
Justice Steward, in Chandler vs. Florida,25 where two police officers charged with
burglary sought to overturn their conviction before the US Supreme Court upon the
ground that the television coverage had infringed their right to fair trial, explained
that "the constitutional violation perceived by the Estes Court did not stem from the
physical disruption that might one day disappear with technological advances in the
television equipment but inhered, rather, in the hypothesis that the mere presence
of cameras and recording devices might have an effect on the trial participants
prejudicial to the accused."26
Parenthetically, the United States Supreme Court and other federal courts do not
allow live television and radio coverage of their proceedings.
The sad reality is that the criminal cases presently involved are of great dimensions
so involving as they do a former President of the Republic. It is undeniable that these
cases have twice become the nation's focal points in the two conflicting phenomena
of EDSA II and EDSA III where the magnitude of the events has left a still divided
nation. Must these events be invited anew and risk the relative stability that has
thus far been achieved? The transcendental events in our midst do not allow us to
turn a blind eye to yet another possible extraordinary case of mass action being
allowed to now creep into even the business of the courts in the dispensation of
justice under a rule of law. At the very least, a change in the standing rule of the
court contained in its resolution of 23 October 1991 may not appear to be propitious.
Unlike other government offices, courts do not express the popular will of the people
in any sense which, instead, are tasked to only adjudicate justiciable controversies
on the basis of what alone is submitted before them. 27 A trial is not a free trade of
ideas, Nor is a competing market of thoughts the known test of truth in a
courtroom.28
The Court is not all that umnindful of recent technological and scientific advances
but to chance forthwith the life or liberty of any person in a hasty bid to use and
apply them, even before ample safety nets are provided and the concerns
heretofore expressed are aptly addressed, is a price too high to pay.
WHEREFORE, the petition is DENIED.
___________________________________________
RICHMOND NEWSPAPERS, INC. v. VIRGINIA, (1980)
No. 79-243
Argued: February 19, 1980 Decided: July 2, 1980
At the commencement of a fourth trial on a murder charge (the defendant's
conviction after the first trial having been reversed on appeal, and two subsequent
retrials having ended in mistrials), the Virginia trial court granted defense counsel's
motion that the trial be closed to the public without any objections having been
made by the prosecutor or by appellants, a newspaper and two of its reporters who
were present in the courtroom, defense counsel having stated that he did not "want
any information being shuffled back and forth when we have a recess as to . . . who
testified to what." Later that same day, however, the trial judge granted appellants'
request for a hearing on a motion to vacate the closure order, and appellants'
counsel contended that constitutional considerations mandated that before ordering
closure the court should first decide that the defendant's rights could be protected in
no other way. But the trial judge denied the motion, saying that if he felt that the
defendant's rights were infringed in any way and others' rights were not overridden
he was inclined to order closure, and ordered the trial to continue "with the press
and public excluded." The next day, the court granted defendant's motion to strike
the prosecution's evidence, excused the jury, and found the defendant not guilty.
Thereafter, the court granted appellants' motion to intervene nunc pro tunc in the
case, and the Virginia Supreme Court dismissed their mandamus and prohibition
petitions and, finding no reversible error, denied their petition for appeal from the
closure order.
Held:
The judgment is reversed. Pp. 563-581; 584-598; 598-601; 601-604.
Reversed.
MR. CHIEF JUSTICE BURGER, joined by MR. JUSTICE WHITE and MR. JUSTICE
STEVENS, concluded that the right of the public and press to attend criminal trials is
guaranteed under the First and Fourteenth Amendments. Absent an overriding
interest articulated in findings, the trial of a criminal case must be open to the
public. Gannett Co. v. DePasquale, 443 U.S. 368 , distinguished. Pp. 563-581. [448
U.S. 555, 556]
(a) The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that at the time this Nation's organic laws were
adopted, criminal trials both here and in England had long been presumptively open,
thus giving assurance that the proceedings were conducted fairly to all concerned
and discouraging perjury, the misconduct of participants, or decisions based on
secret bias or partiality. In addition, the significant community therapeutic value of
public trials was recognized: when a shocking crime occurs, a community reaction of
outrage and public protest often follows, and thereafter the open processes of
justice serve an important prophylactic purpose, providing an outlet for community
concern, hostility, and emotion. To work effectively, it is important that society's
criminal process "satisfy the appearance of justice," Offutt v. United States, 348 U.S.
11, 14 , which can best be provided by allowing people to observe such process.
From this unbroken, uncontradicted history, supported by reasons as valid today as
in centuries past, it must be concluded that a presumption of openness inheres in
the very nature of a criminal trial under this Nation's system of justice. Cf., e. g.,
Levine v. United States, 362 U.S. 610 . Pp. 563-575.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedoms
such as those of speech and press, the First Amendment can be read as protecting
the right of everyone to attend trials so as to give meaning to those explicit
guarantees; the First Amendment right to receive information and ideas means, in
the context of trials, that the guarantees of speech and press, standing alone,
prohibit government from summarily closing courtroom doors which had long been
open to the public at the time the First Amendment was adopted. Moreover, the
right of assembly is also relevant, having been regarded not only as an independent
right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which it was deliberately linked by the draftsmen. A trial
courtroom is a public place where the people generally - and representatives of the
media - have a right to be present, and where their presence historically has been
thought to enhance the integrity and quality of what takes place. Pp. 575-578.
(c) Even though the Constitution contains no provision which by its terms
guarantees to the public the right to attend criminal trials, various fundamental
rights, not expressly guaranteed, have been recognized as indispensable to the
enjoyment of enumerated rights. The right to attend criminal trials is implicit in the
guarantees of the First Amendment: [448 U.S. 555, 557] without the freedom to
attend such trials, which people have exercised for centuries, important aspects of
freedom of speech and of the press could be eviscerated. Pp. 579-580.
(d) With respect to the closure order in this case, despite the fact that this was the
accused's fourth trial, the trial judge made no findings to support closure: no inquiry
was made as to whether alternative solutions would have met the need to ensure
fairness: there was no recognition of any right under the Constitution for the public
or press to attend the trial: and there was no suggestion that any problems with
witnesses could not have been dealt with by exclusion from the courtroom or
sequestration during the trial, or that sequestration of the jurors would not have
guarded against their being subjected to any improper information. Pp. 580-581.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, concluded that the First
Amendment - of itself and as applied to the States through the Fourteenth
Amendment - secures the public a right of access to trial proceedings, and that,
without more, agreement of the trial judge and the parties cannot constitutionally
close a trial to the public. Historically and functionally, open trials have been closely
associated with the development of the fundamental procedure of trial by jury, and
trial access assumes structural importance in this Nation's government of laws by
assuring the public that procedural rights are respected and that justice is afforded
equally, by serving as an effective restraint on possible abuse of judicial power, and
by aiding the accuracy of the trial factfinding process. It was further concluded that
it was not necessary to consider in this case what countervailing interests might be
sufficiently compelling to reverse the presumption of openness of trials, since the
Virginia statute involved - authorizing trial closures at the unfettered discretion of
the judge and parties - violated the First and Fourteenth Amendments. Pp. 584-598.
MR. JUSTICE STEWART concluded that the First and Fourteenth Amendments clearly
give the press and the public a right of access to trials, civil as well as criminal; that
such right is not absolute, since various considerations may sometimes justify
limitations upon the unrestricted presence of spectators in the courtroom; but that in
the present case the trial judge apparently gave no recognition to the right of
representatives of the press and members of the public to be present at the trial. Pp.
598-601.
MR. JUSTICE BLACKMUN, while being of the view that Gannett Co. v. DePasquale,
supra, was in error, both in its interpretation of the Sixth Amendment generally, and
in its application to the suppression hearing [448 U.S. 555, 558] involved there, and
that the right to a public trial is to be found in the Sixth Amendment, concluded, as a
secondary position, that the First Amendment must provide some measure of
protection for public access to the trial, and that here, by closing the trial, the trial
judge abridged these First Amendment interests of the public. Pp. 601-604.
BURGER, C. J., announced the Court's judgment and delivered an opinion, in which
WHITE and STEVENS, JJ., joined. WHITE, J., post, p. 581, and STEVENS, J., post, p.
582, filed concurring opinions. BRENNAN, J., filed an opinion concurring in the
judgment, in which MARSHALL, J., joined, post, p. 584. STEWART, J., post, p. 598, and
BLACKMUN, J., post, p. 601, filed opinions concurring in the judgment. REHNQUIST,
J., filed a dissenting opinion, post, p. 604. POWELL, J., took no part in the
consideration or decision of the case.
Laurence H. Tribe argued the cause for appellants. With him on the briefs were
Andrew J. Brent, Alexander Wellford, Leslie W. Mullins, and David Rosenberg.
Marshall Coleman, Attorney General of Virginia, argued the cause for appellees. With
him on the brief were James E. Moore, Leonard L. Hopkins, Jr., Martin A. Donlan, Jr.,
and Jerry P. Slonaker, Assistant Attorneys General. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed by John J. Degnan,
Attorney General, and John De Cicco, Anthony J. Parrillo, and Debra L. Stone, Deputy
Attorneys General, for the State of New Jersey; by Stephen Bricker and Bruce J. Ennis
for the American Civil Liberties Union et al.; by Arthur B. Hanson, Frank M. Northam,
Mitchell W. Dale, and Richard M. Schmidt, Jr., for the American Newspaper Publishers
Association et al.; by E. Barrett Prettyman, Jr., Erwin G. Krasnow, Arthur B. Sackler,
and J. Laurent Scharff for The Reporters Committee for Freedom of the Press et al.;
and by Edward Bennett Williams, John B. Kuhns, and Kevin T. Baine for The
Washington Post et al.
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and delivered an
opinion, in which MR. JUSTICE WHITE and MR. JUSTICE STEVENS joined.
The narrow question presented in this case is whether the right of the public and
press to attend criminal trials is guaranteed under the United States Constitution.
[448 U.S. 555, 559]
I
In March 1976, one Stevenson was indicted for the murder of a hotel manager who
had been found stabbed to death on December 2, 1975. Tried promptly in July 1976,
Stevenson was convicted of second-degree murder in the Circuit Court of Hanover
County, Va. The Virginia Supreme Court reversed the conviction in October 1977,
holding that a bloodstained shirt purportedly belonging to Stevenson had been
improperly admitted into evidence. Stevenson v. Commonwealth, 218 Va. 462, 237
S. E. 2d 779.
Stevenson was retried in the same court. This second trial ended in a mistrial on
May 30, 1978, when a juror asked to be excused after trial had begun and no
alternate was available. 1
A third trial, which began in the same court on June 6, 1978, also ended in a mistrial.
It appears that the mistrial may have been declared because a prospective juror had
read about Stevenson's previous trials in a newspaper and had told other
prospective jurors about the case before the retrial began. See App. 35a-36a.
Stevenson was tried in the same court for a fourth time beginning on September 11,
1978. Present in the courtroom when the case was called were appellants Wheeler
and McCarthy, reporters for appellant Richmond Newspapers, Inc. Before the trial
began, counsel for the defendant moved that it be closed to the public:
"[T]here was this woman that was with the family of the deceased when we were
here before. She had sat in the Courtroom. I would like to ask that everybody be
excluded from the Courtroom because I don't want any information being shuffled
back and forth when we have [448 U.S. 555, 560] a recess as to what - who
testified to what." Tr. of Sep 11, 1978 Hearing on Defendant's Motion to Close Trial to
the Public 2-3.
The trial judge, who had presided over two of the three previous trials, asked if the
prosecution had any objection to clearing the courtroom. The prosecutor stated he
had no objection and would leave it to the discretion of the court. Id., at 4.
Presumably referring to Va. Code 19.2-266 (Supp. 1980), the trial judge then
announced: "[T]he statute gives me that power specifically and the defendant has
made the motion." He then ordered "that the Courtroom be kept clear of all parties
except the witnesses when they testify." Tr., supra, at 4-5. 2 The record does not
show that any objections to the closure order were made by anyone present at the
time, including appellants Wheeler and McCarthy.
Later that same day, however, appellants sought a hearing on a motion to vacate
the closure order. The trial judge granted the request and scheduled a hearing to
follow the close of the day's proceedings. When the hearing began, the court ruled
that the hearing was to be treated as part of the trial; accordingly, he again ordered
the reporters to leave the courtroom, and they complied.
At the closed hearing, counsel for appellants observed that no evidentiary findings
had been made by the court prior to the entry of its closure order and pointed out
that the court had failed to consider any other, less drastic measures within its
power to ensure a fair trial. Tr. of Sept. 11, 1978 Hearing on Motion to Vacate 11-12.
Counsel for appellants argued that constitutional considerations mandated that
before ordering closure, the court should first decide that the rights of the defendant
could be protected in no other way. [448 U.S. 555, 561]
Counsel for defendant Stevenson pointed out that this was the fourth time he was
standing trial. He also referred to "difficulty with information between the jurors,"
and stated that he "didn't want information to leak out," be published by the media,
perhaps inaccurately, and then be seen by the jurors. Defense counsel argued that
these things, plus the fact that "this is a small community," made this a proper case
for closure. Id., at 16-18.
The trial judge noted that counsel for the defendant had made similar statements at
the morning hearing. The court also stated:
"[O]ne of the other points that we take into consideration in this particular
Courtroom is layout of the Courtroom. I think that having people in the Courtroom is
distracting to the jury. Now, we have to have certain people in here and maybe
that's not a very good reason. When we get into our new Court Building, people can
sit in the audience so the jury can't see them. The rule of the Court may be different
under those circumstances. . . ." Id., at 19.
The prosecutor again declined comment, and the court summed up by saying:
"I'm inclined to agree with [defense counsel] that, if I feel that the rights of the
defendant are infringed in any way, [when] he makes the motion to do something
and it doesn't completely override all rights of everyone else, then I'm inclined to go
along with the defendant's motion." Id., at 20.
The court denied the motion to vacate and ordered the trial to continue the following
morning "with the press and public excluded." Id., at 27; App. 21a.
What transpired when the closed trial resumed the next day was disclosed in the
following manner by an order of the court entered September 12, 1978:
"[I]n the absence of the jury, the defendant by counsel [448 U.S. 555, 562] made a
Motion that a mis-trial be declared, which motion was taken under advisement.
"At the conclusion of the Commonwealth's evidence, the attorney for the defendant
moved the Court to strike the Commonwealth's evidence on grounds stated to the
record, which Motion was sustained by the Court.
"And the jury having been excused, the Court doth find the accused NOT GUILTY of
Murder, as charged in the Indictment, and he was allowed to depart." Id., at 22a. 3
On September 27, 1978, the trial court granted appellants' motion to intervene nunc
pro tunc in the Stevenson case. Appellants then petitioned the Virginia Supreme
Court for writs of mandamus and prohibition and filed an appeal from the trial
court's closure order. On July 9, 1979, the Virginia Supreme Court dismissed the
mandamus and prohibition petitions and, finding no reversible error, denied the
petition for appeal. Id., at 23a-28a.
Appellants then sought review in this Court, invoking both our appellate, 28 U.S.C.
1257 (2), and certiorari jurisdiction. 1257 (3). We postponed further consideration of
the question of our jurisdiction to the hearing of the case on the merits. 444 U.S. 896
(1979). We conclude that jurisdiction by appeal does not lie; 4 however, treating the
filed [448 U.S. 555, 563] papers as a petition for a writ of certiorari pursuant to 28
U.S.C. 2103, we grant the petition.
The criminal trial which appellants sought to attend has long since ended, and there
is thus some suggestion that the case is moot. This Court has frequently recognized,
however, that its jurisdiction is not necessarily defeated by the practical termination
of a contest which is short-lived by nature. See, e. g., Gannett Co. v. DePasquale,
443 U.S. 368, 377 -378 (1979); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546
-547 (1976). If the underlying dispute is "capable of repetition, yet evading review,"
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), it is not moot.
Since the Virginia Supreme Court declined plenary review, it is reasonably
foreseeable that other trials may be closed by other judges without any more
showing of need than is presented on this record. More often than not, criminal trials
will be of sufficiently short duration that a closure order "will evade review, or at
least considered plenary review in this Court." Nebraska Press, supra, at 547.
Accordingly, we turn to the merits.
II
We begin consideration of this case by noting that the precise issue presented here
has not previously been before this [448 U.S. 555, 564] Court for decision. In
Gannett Co. v. DePasquale, supra, the Court was not required to decide whether a
right of access to trials, as distinguished from hearings on pretrial motions, was
constitutionally guaranteed. The Court held that the Sixth Amendment's guarantee
to the accused of a public trial gave neither the public nor the press an enforceable
right of access to a pretrial suppression hearing. One concurring opinion specifically
emphasized that "a hearing on a motion before trial to suppress evidence is not a
trial. . . ." 443 U.S., at 394 (BURGER, C. J., concurring). Moreover, the Court did not
decide whether the First and Fourteenth Amendments guarantee a right of the
public to attend trials, id., at 392, and n. 24; nor did the dissenting opinion reach this
issue. Id., at 447 (opinion of BLACKMUN, J.).
In prior cases the Court has treated questions involving conflicts between publicity
and a defendant's right to a fair trial; as we observed in Nebraska Press Assn. v.
Stuart, supra, at 547, "[t]he problems presented by this [conflict] are almost as old
as the Republic." See also, e. g., Gannett, supra; Murphy v. Florida, 421 U.S. 794
(1975); Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532
(1965). But here for the first time the Court is asked to decide whether a criminal
trial itself may be closed to the public upon the unopposed request of a defendant,
without any demonstration that closure is required to protect the defendant's
superior right to a fair trial, or that some other overriding consideration requires
closure.
A
The origins of the proceeding which has become the modern criminal trial in Anglo-
American justice can be traced back beyond reliable historical records. We need not
here review all details of its development, but a summary of that history is
instructive. What is significant for present purposes is that throughout its evolution,
the trial has been open to all who cared to observe. [448 U.S. 555, 565]
In the days before the Norman Conquest, cases in England were generally brought
before moots, such as the local court of the hundred or the county court, which were
attended by the freemen of the community. Pollock, English Law Before the Norman
Conquest, in 1 Select Essays in Anglo-American Legal History 88, 89 (1907).
Somewhat like modern jury duty, attendance at these early meetings was
compulsory on the part of the freemen, who were called upon to render judgment.
Id., at 89-90; see also 1 W. Holdsworth, A History of English Law 10, 12 (1927). 5
With the gradual evolution of the jury system in the years after the Norman
Conquest, see, e. g., id., at 316, the duty of all freemen to attend trials to render
judgment was relaxed, but there is no indication that criminal trials did not remain
public. When certain groups were excused from compelled attendance, see the
Statute of Marlborough, 52 Hen. 3, ch. 10 (1267); 1 Holdsworth, supra, at 79, and n.
4, the statutory exemption did not prevent them from attending; Lord Coke observed
that those excused "are not compellable to come, but left to their own liberty." 2 E.
Coke, Institutes of the Laws of England 121 (6th ed. 1681). 6
Although there appear to be few contemporary statements [448 U.S. 555, 566] on
the subject, reports of the Eyre of Kent, a general court held in 1313-1314, evince a
recognition of the importance of public attendance apart from the "jury duty"
aspect. It was explained that
"the King's will was that all evil doers should be punished after their deserts, and
that justice should be ministered indifferently to rich as to poor; and for the better
accomplishing of this, he prayed the community of the county by their attendance
there to lend him their aid in the establishing of a happy and certain peace that
should be both for the honour of the realm and for their own welfare." 1 Holdsworth,
supra, at 268, quoting from the S. S. edition of the Eyre of Kent, vol. i., p. 2
(emphasis added).
From these early times, although great changes in courts and procedure took place,
one thing remained constant: the public character of the trial at which guilt or
innocence was decided. Sir Thomas Smith, writing in 1565 about "the definitive
proceedings in causes criminall," explained that, while the indictment was put in
writing as in civil law countries:
"All the rest is done openlie in the presence of the Judges, the Justices, the enquest,
the prisoner, and so manie as will or can come so neare as to heare it, and all
depositions and witnesses given aloude, that all men may heare from the mouth of
the depositors and witnesses what is saide." T. Smith, De Republica Anglorum 101
(Alston ed. 1972) (emphasis added).
Three centuries later, Sir Frederick Pollock was able to state of the "rule of publicity"
that, "[h]ere we have one tradition, at any rate, which has persisted through all
changes." F. Pollock, The Expansion of the Common Law 31-32 (1904). See also E.
Jenks, The Book of English Law 73-74 (6th ed. 1967): "[O]ne of the most conspicuous
features of English justice, that all judicial trials are held in open court, to which the
[448 U.S. 555, 567] public have free access, . . . appears to have been the rule in
England from time immemorial."
We have found nothing to suggest that the presumptive openness of the trial, which
English courts were later to call "one of the essential qualities of a court of justice,"
Daubney v. Cooper, 10 B. & C. 237, 240, 109 Eng. Rep. 438, 440 (K. B. 1829), was
not also an attribute of the judicial systems of colonial America. In Virginia, for
example, such records as there are of early criminal trials indicate that they were
open, and nothing to the contrary has been cited. See A. Scott, Criminal Law in
Colonial Virginia 128-129 (1930); Reinsch, The English Common Law in the Early
American Colonies, in 1 Select Essays in Anglo-American Legal History 367, 405
(1907). Indeed, when in the mid-1600's the Virginia Assembly felt that the respect
due the courts was "by the clamorous unmannerlynes of the people lost, and order,
gravity and decorum which should manifest the authority of a court in the court it
selfe neglected," the response was not to restrict the openness of the trials to the
public, but instead to prescribe rules for the conduct of those attending them. See
Scott, supra, at 132.
In some instances, the openness of trials was explicitly recognized as part of the
fundamental law of the Colony. The 1677 Concessions and Agreements of West New
Jersey, for example, provided:
"That in all publick courts of justice for tryals of causes, civil or criminal, any person
or persons, inhabitants of the said Province may freely come into, and attend the
said courts, and hear and be present, at all or any such tryals as shall be there had
or passed, that justice may not be done in a corner nor in any covert manner."
Reprinted in Sources of Our Liberties 188 (R. Perry ed. 1959).
See also 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971). [448
U.S. 555, 568]
The Pennsylvania Frame of Government of 1682 also provided "[t]hat all courts shall
be open . . .," Sources of Our Liberties, supra, at 217; 1 Schwartz, supra, at 140, and
this declaration was reaffirmed in 26 of the Constitution adopted by Pennsylvania in
1776. See 1 Schwartz, supra, at 271. See also 12 and 76 of the Massachusetts Body
of Liberties, 1641, reprinted in 1 Schwartz, supra, at 73, 80.
Other contemporary writings confirm the recognition that part of the very nature of
a criminal trial was its openness to those who wished to attend. Perhaps the best
indication of this is found in an address to the inhabitants of Quebec which was
drafted by a committee consisting of Thomas Cushing, Richard Henry Lee, and John
Dickinson and approved by the First Continental Congress on October 26, 1774. 1
Journals of the Continental Congress, 1774-1789, pp. 101, 105 (1904) (Journals). This
address, written to explain the position of the Colonies and to gain the support of
the people of Quebec, is an "exposition of the fundamental rights of the colonists, as
they were understood by a representative assembly chosen from all the colonies." 1
Schwartz, supra, at 221. Because it was intended for the inhabitants of Quebec, who
had been "educated under another form of government" and had only recently
become English subjects, it was thought desirable for the Continental Congress to
explain "the inestimable advantages of a free English constitution of government,
which it is the privilege of all English subjects to enjoy." 1 Journals 106.
"[One] great right is that of trial by jury. This provides, that neither life, liberty nor
property, can be taken from the possessor, until twelve of his unexceptionable
countrymen and peers of his vicinage, who from that neighborhood may reasonably
be supposed to be acquainted quainted with his character, and the characters of the
witnesses, upon a fair trial, and full enquiry, face to face, in open Court, before as
many of the people as chuse to [448 U.S. 555, 569] attend, shall pass their
sentence upon oath against him. . . ." Id., at 107 (emphasis added).
B
As we have shown, and as was shown in both the Court's opinion and the dissent in
Gannett, 443 U.S., at 384 , 386, n. 15, 418-425, the historical evidence
demonstrates conclusively that at the time when our organic laws were adopted,
criminal trials both here and in England had long been presumptively open. This is
no quirk of history; rather, it has long been recognized as an indispensable attribute
of an Anglo-American trial. Both Hale in the 17th century and Blackstone in the 18th
saw the importance of openness to the proper functioning of a trial; it gave
assurance that the proceedings were conducted fairly to all concerned, and it
discouraged perjury, the misconduct of participants, and decisions based on secret
bias or partiality. See, e. g., M. Hale, The History of the Common Law of England
343-345 (6th ed. 1820); 3 W. Blackstone, Commentaries *372-*373. Jeremy Bentham
not only recognized the therapeutic value of open justice but regarded it as the
keystone:
"Without publicity, all other checks are insufficient: in comparison of publicity, all
other checks are of small account. Recordation, appeal, whatever other institutions
might present themselves in the character of checks, would be found to operate
rather as cloaks than checks; as cloaks in reality, as checks only in appearance." 1 J.
Bentham, Rationale of Judicial Evidence 524 (1827). 7
Panegyrics on the values of openness were by no means confined to self-praise by
the English. Foreign observers of English criminal procedure in the 18th and early
19th centuries [448 U.S. 555, 570] came away impressed by the very fact that they
had been freely admitted to the courts, as many were not in their own homelands.
See L. Radzinowicz, A History of English Criminal Law 715, and n. 96 (1948). They
marveled that "the whole juridical procedure passes in public," 2 P. Grosley, A Tour to
London; or New Observations on England 142 (Nugent trans. 1772), quoted in
Radzinowicz, supra, at 717, and one commentator declared:
"The main excellence of the English judicature consists in publicity, in the free trial
by jury, and in the extraordinary despatch with which business is transacted. The
publicity of their proceedings is indeed astonishing. Free access to the courts is
universally granted." C. Goede, A Foreigner's Opinion of England 214 (Horne trans.
1822). (Emphasis added.)
The nexus between openness, fairness, and the perception of fairness was not lost
on them:
"[T]he judge, the counsel, and the jury, are constantly exposed to public
animadversion; and this greatly tends to augment the extraordinary confidence,
which the English repose in the administration of justice." Id., at 215.
This observation raises the important point that "[t]he publicity of a judicial
proceeding is a requirement of much broader bearing than its mere effect upon the
quality of testimony." 6 J. Wigmore, Evidence 1834, p. 435 (J. Chadbourn rev. 1976).
8 The early history of open trials in part reflects the widespread acknowledgment,
long before there were behavioral scientists, that public trials had significant
community therapeutic value. Even without such experts to frame [448 U.S. 555,
571] the concept in words, people sensed from experience and observation that,
especially in the administration of criminal justice, the means used to achieve justice
must have the support derived from public acceptance of both the process and its
results.
When a shocking crime occurs, a community reaction of outrage and public protest
often follows. See H. Weihofen, The Urge to Punish 130-131 (1956). Thereafter the
open processes of justice serve an important prophylactic purpose, providing an
outlet for community concern, hostility, and emotion. Without an awareness that
society's responses to criminal conduct are underway, natural human reactions of
outrage and protest are frustrated and may manifest themselves in some form of
vengeful "self-help," as indeed they did regularly in the activities of vigilante
"committees" on our frontiers. "The accusation and conviction or acquittal, as much
perhaps as the execution of punishment, operat[e] to restore the imbalance which
was created by the offense or public charge, to reaffirm the temporarily lost feeling
of security and, perhaps, to satisfy that latent `urge to punish.'" Mueller, Problems
Posed by Publicity to Crime and Criminal Proceedings, 110 U. Pa. L. Rev. 1, 6 (1961).
Civilized societies withdraw both from the victim and the vigilante the enforcement
of criminal laws, but they cannot erase from people's consciousness the
fundamental, natural yearning to see justice done - or even the urge for retribution.
The crucial prophylactic aspects of the administration of justice cannot function in
the dark; no community catharsis can occur if justice is "done in a corner [or] in any
covert manner." Supra, at 567. It is not enough to say that results alone will satiate
the natural community desire for "satisfaction." A result considered untoward may
undermine public confidence, and where the trial has been concealed from public
view an unexpected outcome can cause a reaction that the system at best has failed
and at worst has been corrupted. To work effectively, it is important that society's
criminal [448 U.S. 555, 572] process "satisfy the appearance of justice," Offutt v.
United States, 348 U.S. 11, 14 (1954), and the appearance of justice can best be
provided by allowing people to observe it.
Looking back, we see that when the ancient "town meeting" form of trial became too
cumbersome, 12 members of the community were delegated to act as its
surrogates, but the community did not surrender its right to observe the conduct of
trials. The people retained a "right of visitation" which enabled them to satisfy
themselves that justice was in fact being done.
People in an open society do not demand infallibility from their institutions, but it is
difficult for them to accept what they are prohibited from observing. When a criminal
trial is conducted in the open, there is at least an opportunity both for understanding
the system in general and its workings in a particular case:
"The educative effect of public attendance is a material advantage. Not only is
respect for the law increased and intelligent acquaintance acquired with the
methods of government, but a strong confidence in judicial remedies is secured
which could never be inspired by a system of secrecy." 6 Wigmore, supra, at 438.
See also 1 J. Bentham, Rationale of Judicial Evidence, at 525.In earlier times, both in
England and America, attendance at court was a common mode of "passing the
time." See, e. g., 6 Wigmore, supra, at 436; Mueller, supra, at 6. With the press,
cinema, and electronic media now supplying the representations or reality of the
real life drama once available only in the courtroom, attendance at court is no longer
a widespread pastime. Yet "[i]t is not unrealistic even in this day to believe that
public inclusion affords citizens a form of legal education and hopefully promotes
confidence in the fair administration of justice." State v. Schmit, 273 Minn. 78, 87-
88, 139 N. W. 2d 800, 807 (1966). Instead of acquiring information about trials by
firsthand observation or by word [448 U.S. 555, 573] of mouth from those who
attended, people now acquire it chiefly through the print and electronic media. In a
sense, this validates the media claim of functioning as surrogates for the public.
While media representatives enjoy the same right of access as the public, they often
are provided special seating and priority of entry so that they may report what
people in attendance have seen and heard. This "contribute[s] to public
understanding of the rule of law and to comprehension of the functioning of the
entire criminal justice system. . . ." Nebraska Press Assn. v. Stuart, 427 U.S., at 587
(BRENNAN, J., concurring in judgment).
C
From this unbroken, uncontradicted history, supported by reasons as valid today as
in centuries past, we are bound to conclude that a presumption of openness inheres
in the very nature of a criminal trial under our system of justice. This conclusion is
hardly novel; without a direct holding on the issue, the Court has voiced its
recognition of it in a variety of contexts over the years. 9 Even while holding, in
Levine v. [448 U.S. 555, 574] United States, 362 U.S. 610 (1960), that a criminal
contempt proceeding was not a "criminal prosecution" within the meaning of the
Sixth Amendment, the Court was careful to note that more than the Sixth
Amendment was involved:
"[W]hile the right to a `public trial' is explicitly guaranteed by the Sixth Amendment
only for `criminal prosecutions,' that provision is a reflection of the notion, deeply
rooted in the common law, that `justice must satisfy the appearance of justice.'. . .
[D]ue process demands appropriate regard for the requirements of a public
proceeding in cases of criminal contempt . . . as it does for all adjudications through
the exercise of the judicial power, barring narrowly limited categories of
exceptions. . . ." Id., at 616. 10
And recently in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), both the majority,
id., at 384, 386, n. 15, and dissenting opinion, id., at 423, agreed that open trials
were part of the common-law tradition. [448 U.S. 555, 575]
Despite the history of criminal trials being presumptively open since long before the
Constitution, the State presses its contention that neither the Constitution nor the
Bill of Rights contains any provision which by its terms guarantees to the public the
right to attend criminal trials. Standing alone, this is correct, but there remains the
question whether, absent an explicit provision, the Constitution affords protection
against exclusion of the public from criminal trials.
III
A Amendment rights may be exercised, see Hague v. CIO, supra, at 515 (opinion of
The First Amendment, in conjunction with the Fourteenth, prohibits governments
from "abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances."
These expressly guaranteed freedoms share a common core purpose of assuring
freedom of communication on matters relating to the functioning of government.
Plainly it would be difficult to single out any aspect of government of higher concern
and importance to the people than the manner in which criminal trials are
conducted; as we have shown, recognition of this pervades the centuries-old history
of open trials and the opinions of this Court. Supra, at 564-575, and n. 9.
The Bill of Rights was enacted against the backdrop of the long history of trials being
presumptively open. Public access to trials was then regarded as an important
aspect of the process itself; the conduct of trials "before as many of the people as
chuse to attend" was regarded as one of "the inestimable advantages of a free
English constitution of government." 1 Journals 106, 107. In guaranteeing freedoms
such as those of speech and press, the First Amendment can be read as protecting
the right of everyone to attend trials so as to give meaning to those explicit
guarantees. "[T]he First Amendment goes beyond protection of the press and the
self-expression [448 U.S. 555, 576] of individuals to prohibit government from
limiting the stock of information from which members of the public may draw." First
National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). Free speech carries
with it some freedom to listen. "In a variety of contexts this Court has referred to a
First Amendment right to `receive information and ideas.'" Kleindienst v. Mandel,
408 U.S. 753, 762 (1972). What this means in the context of trials is that the First
Amendment guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time that Amendment was adopted. "For the First Amendment does not speak
equivocally. . . . It must be taken as a command of the broadest scope that explicit
language, read in the context of a liberty-loving society, will allow." Bridges v.
California, 314 U.S. 252, 263 (1941) (footnote omitted).
It is not crucial whether we describe this right to attend criminal trials to hear, see,
and communicate observations concerning them as a "right of access," cf. Gannett,
supra, at 397 (POWELL, J., concurring); Saxbe v. Washington Post Co., 417 U.S. 843
(1974); Pell v. Procunier, 417 U.S. 817 (1974), 11 or a "right to gather information,"
for we have recognized that "without some protection for seeking out the news,
freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681
(1972). The explicit, guaranteed rights to speak and to publish concerning what
takes place at a [448 U.S. 555, 577] trial would lose much meaning if access to
observe the trial could, as it was here, be foreclosed arbitrarily. 12
B closure order challenged by appellants. The Court in Gannett made clear that
The right of access to places traditionally open to the public, as criminal trials have
long been, may be seen as assured by the amalgam of the First Amendment
guarantees of speech and press; and their affinity to the right of assembly is not
without relevance. From the outset, the right of assembly was regarded not only as
an independent right but also as a catalyst to augment the free exercise of the other
First Amendment rights with which it was deliberately linked by the draftsmen. 13
[448 U.S. 555, 578] "The right of peaceable assembly is a right cognate to those of
free speech and free press and is equally fundamental." De Jonge v. Oregon, 299
U.S. 353, 364 (1937). People assemble in public places not only to speak or to take
action, but also to listen, observe, and learn; indeed, they may "assembl[e] for any
lawful purpose," Hague v. CIO, 307 U.S. 496, 519 (1939) (opinion of Stone, J.).
Subject to the traditional time, place, and manner restrictions, see, e. g., Cox v. New
Hampshire, 312 U.S. 569 (1941); see also Cox v. Louisiana, 379 U.S. 559, 560 -564
(1965), streets, sidewalks, and parks are places traditionally open, where First
Roberts, J.); a trial courtroom also is a public place where the people generally - and
representatives of the media - have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of what takes
place. 14 [448 U.S. 555, 579]
C
The State argues that the Constitution nowhere spells out a guarantee for the right
of the public to attend trials, and that accordingly no such right is protected. The
possibility that such a contention could be made did not escape the notice of the
Constitution's draftsmen; they were concerned that some important rights might be
thought disparaged because not specifically guaranteed. It was even argued that
because of this danger no Bill of Rights should be adopted. See, e. g., The Federalist
No. 84 (A. Hamilton). In a letter to Thomas Jefferson in October 1788, James Madison
explained why he, although "in favor of a bill of rights," had "not viewed it in an
important light" up to that time: "I conceive that in a certain degree . . . the rights in
question are reserved by the manner in which the federal powers are granted." He
went on to state that "there is great reason to fear that a positive declaration of
some of the most essential rights could not be obtained in the requisite latitude." 5
Writings of James Madison 271 (G. Hunt ed. 1904). 15
But arguments such as the State makes have not precluded recognition of important
rights not enumerated. Notwithstanding the appropriate caution against reading into
the Constitution rights not explicitly defined, the Court has acknowledged that
certain unarticulated rights are implicit in enumerated guarantees. For example, the
rights of association and of privacy, the right to be presumed innocent, and the right
to be judged by a standard of proof beyond a reasonable [448 U.S. 555, 580] doubt
in a criminal trial, as well as the right to travel, appear nowhere in the Constitution
or Bill of Rights. Yet these important but unarticulated rights have nonetheless been
found to share constitutional protection in common with explicit guarantees. 16 The
concerns expressed by Madison and others have thus been resolved; fundamental
rights, even though not expressly guaranteed, have been recognized by the Court as
indispensable to the enjoyment of rights explicitly defined.
We hold that the right to attend criminal trials 17 is implicit in the guarantees of the
First Amendment; without the freedom to attend such trials, which people have
exercised for centuries, important aspects of freedom of speech and "of the press
could be eviscerated." Branzburg, 408 U.S., at 681 .
D
Having concluded there was a guaranteed right of the public under the First and
Fourteenth Amendments to attend the trial of Stevenson's case, we return to the
although the Sixth Amendment guarantees the accused a right to a public trial, it
does not give a right to a private trial. 443 U.S., at 382 . Despite the fact that this
was the fourth trial of the accused, the trial judge made no findings to support
closure; no inquiry was made as to whether alternative [448 U.S. 555, 581]
solutions would have met the need to ensure fairness; there was no recognition of
any right under the Constitution for the public or press to attend the trial. In contrast
to the pretrial proceeding dealt with in Gannett, there exist in the context of the trial
itself various tested alternatives to satisfy the constitutional demands of fairness.
See, e. g., Nebraska Press Assn. v. Stuart, 427 U.S., at 563 -565; Sheppard v.
Maxwell, 384 U.S., at 357 -362. There was no suggestion that any problems with
witnesses could not have been dealt with by their exclusion from the courtroom or
their sequestration during the trial. See id., at 359. Nor is there anything to indicate
that sequestration of the jurors would not have guarded against their being
subjected to any improper information. All of the alternatives admittedly present
difficulties for trial courts, but none of the factors relied on here was beyond the
realm of the manageable. Absent an overriding interest articulated in findings, the
trial of a criminal case must be open to the public. 18 Accordingly, the judgment
under review is Reversed.
__________________________________________
G.R. No. 126466 January 14, 1999
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.
BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft
hotly contested freedoms of man, the issue of the right of free expression be stirs
and presents itself time and again, in cyclic occurrence, to inveigle, nay, challenge
the courts to re-survey its ever shifting terrain, explore and furrow its heretofore
uncharted moors and valleys and finally redefine the metes and bounds of its
controversial domain. This, prominently, is one such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical
doctrinal metamorphoses than his right to freely and openly express his views.
Blackstone's pontifical comment that "where blasphemous, immoral, treasonable,
schismatical, seditious, or scandalous libels are punished by English law ... the
liberty of the press, properly understood, is by no means infringed or violated,"
found kindred expression in the landmark opinion of England's Star Chamber in the
Libelis Famosis case in 1603. 1 That case established two major propositions in the
prosecution of defamatory remarks: first, that libel against a public person is a
greater offense than one directed against an ordinary man, and second, that it is
immaterial that the libel be true.
Until republicanism caught fire in early America, the view from the top on libel was
no less dismal. Even the venerable Justice Holmes appeared to waffle as he swayed
from the concept of criminal libel liability under the clear and present danger rule, to
the other end of the spectrum in defense of the constitutionally protected status of
unpopular opinion in free society.
Viewed in modern times and the current revolution in information and
communication technology, libel principles formulated at one time or another have
waxed and waned through the years in the constant ebb and flow of judicial review.
At the very least, these principles have lost much of their flavor, drowned and
swamped as they have been by the ceaseless cacophony and din of thought and
discourse emanating from just about every source and direction, aided no less by an
increasingly powerful and irrepressible mass media. Public discourse, laments
Knight, has been devalued by its utter commonality; and we agree, for its logical
effect is to benumb thought and sensibility on what may be considered as criminal
illegitimate encroachments on the right of persons to enjoy a good, honorable and
reputable name. This may explain the imperceptible demise of criminal prosecutions
for libel and the trend to rely instead on indemnity suits to repair any damage on
one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco
Wenceslao v. Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25
March 1996 that petitioners Arturo Borjal and Maximo Soliven are solidarily liable for
damages for writing and publishing certain articles claimed to be derogatory and
offensive to private respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of
Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a
daily newspaper. At the time the complaint was filed, petitioner Borjal was its
President while Soliven was (and still is) Publisher and Chairman of its Editorial
Board. Among the regular writers of The Philippine Star is Borjal who runs the
column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer,
businessman, business consultant and journalist by profession. In 1988 he served as
a technical adviser of Congressman Fabian Sison, then Chairman of the House of
Representatives Sub-Committee on Industrial Policy.
During the congressional hearings on the transport crisis sometime in September
1988 undertaken by the House Sub-Committee on Industrial Policy, those who
attended agreed to organize the First National Conference on Land Transportation
(FNCLT) to be participated in by the private sector in the transport industry and
government agencies concerned in order to find ways and means to solve the
transportation crisis. More importantly, the objective of the FNCLT was to draft an
omnibus bill that would embody a long-term land transportation policy for
presentation to Congress. The conference which, according to private respondent,
was estimated to cost around P1,815,000.00 would be funded through solicitations
from various sponsors such as government agencies, private organizations,
transport firms, and individual delegates or participants. 2
On 28 February 1989, at the organizational meeting of the FNCLT, private
respondent Francisco Wenceslao was elected Executive Director. As such, he wrote
numerous solicitation letters to the business community for the support of the
conference.
Between May and July 1989 a series of articles written by petitioner Borjal was
published on different dates in his column Jaywalker. The articles dealt with the
alleged anomalous activities of an "organizer of a conference" without naming or
identifying private respondent. Neither did it refer to the FNCLT as the conference
therein mentioned. Quoted hereunder are excerpts from the articles of petitioner
together with the dates they were published. 3
31 May 1989
Another self-proclaimed "hero" of the EDSA Revolution goes around organizing
"seminars and conferences" for a huge fee. This is a simple ploy coated in jazzy
letterheads and slick prose. The "hero" has the gall to solicit fees from anybody with
bucks to spare. Recently, in his usual straightforward style, Transportation Secretary
Rainerio "Ray" Reyes, asked that his name, be stricken off from the letterheads the
"hero" has been using to implement one of his pet "seminars." Reyes said: "I would
like to reiterate my request that you delete my name." Note that Ray Reyes is an
honest man who would confront anybody eyeball to eyeball without blinking.
9 June 1989

Another questionable portion of the so-called conference is its unauthorized use of
the names of President Aquino and Secretary Ray Reyes. The conference program
being circulated claims that President Aquino and Reyes will be main speakers in the
conference. Yet, the word is that Cory and Reyes have not accepted the invitation to
appear in this confab. Ray Reyes even says that the conference should be unmasked
as a moneymaking gimmick.
19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer to every Tom,
Dick and Harry and to almost all government agencies. And the letterheads carried
the names of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico
received one, but he decided to find out front Reyes himself what the project was all
about. Ray Reyes, in effect, advised Juico to put the fund solicitation letter in the
waste basket. Now, if the 3,000 persons and agencies approached by the organizer
shelled out 1,000 each, that's easily P3 million to a project that seems so
unsophisticated. But note that one garment company gave P100,000, after which
the Garments Regulatory Board headed by Trade and Industry Undersecretary Gloria
Macapagal-Arroyo was approached by the organizer to expedite the garment license
application of the P100,000 donor.
21 June 1989
A "conference organizer" associated with shady deals seems to have a lot of trash
tucked inside his closet. The Jaywalker continues to receive information about the
man's dubious deals. His notoriety, in according to reliable sources, has reached the
Premier Guest House where his name is spoken like dung.
xxx xxx xxx
The first information says that the "organizer" tried to mulct half a million pesos
from a garment producer and exporter who was being investigated for violation of
the rules of the Garments, Textile, Embroidery and Apparel Board. The "organizer"
told the garment exporter that the case could be fixed for a sum of P500,000.00.
The organizer got the shock of his life when the exporter told him: "If I have that
amount. I will hire the best lawyers, not you." The organizer left in a huff, his thick
face very pale.
xxx xxx xxx
Friends in government and the private sector have promised the Jaywalker more
"dope" on the "organizer." It seems that he was not only indiscreet; he even failed to
cover his tracks. You will be hearing more of the "organizer's" exploits from this
corner soon.
22 June 1989
The scheming "organizer" we have been writing about seems to have been
spreading his wings too far. A congressional source has informed the Jaywalker that
the schemer once worked for a congressman from the North as some sort of a
consultant on economic affairs. The first thing the "organizer" did was to initiate
hearings and round-the-table discussions with people from the business, export and
his favorite the garments sector. xxx xxx xxx
The "organizer's" principal gamely went along, thinking that his "consultant" had
nothing but the good of these sectors in mind. It was only later that he realized that
the "consultant" was acting with a burst of energy "in aid of extortion." The
"consultant" was fired. xxxxxx xxx
There seems to be no end to what a man could do to pursue his dubious ways. He
has tried to operate under a guise of a well-meaning, reformist. He has intellectual
pretensions and sometimes he succeeds in getting his thoughts in the inside
pages of some newspapers, with the aid of some naive newspaper people. He has
been turning out a lot of funny-looking advice on investments, export growth, and
the like. xxx xxx xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks
and influence-peddlers from entering the premises of his department. But the
Cabinet man might not get his wish. There is one "organizer" who, even if physically
banned, call still concoct ways of doing his thing. Without a tinge of remorse, the
"organizer" could fill up his letterheads with, names of Cabinet members,
congressmen, and reputable people from the private sector to shore up his shady
reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very
poor and the few who participated in, the affair were mostly leaders of jeepney
drivers' groups. None of the government officials involved in regulating public
transportation was there. The big names in the industry also did not participate.
With such a poor attendance, one wonders why the conference organizers went
ahead with the affair and tried so hard to convince 3,000 companies and individuals
to contribute to the affair.
xxx xxx xxx
The conference was doomed from the start. It was bound to fail. The personalities
who count in the field of transpiration refused to attend the affair or withdrew their
support after finding out the background of the organizer of the conference. How
could a conference on transportation succeed without the participation of the big
names in the industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star
insisting that he was the "organizer" alluded to in petitioner Borjal's columns. 4 In a
subsequent letter to The Philippine Star, private respondent refuted the matters
contained in petitioner Borjal's columns and openly challenged him in this manner
To test if Borjal has the guts to back up his holier than thou attitude, I am prepared
to relinquish this position in case it is found that I have misappropriated even one
peso of FNCLT money. On the other hand, if I can prove that Borjal has used his
column as a "hammer" to get clients for his PR Firm, AA Borjal Associates, he should
resign from the STAR and never again write a column. Is it a deal? 5
Thereafter, private respondent filed a complaint with the National Press Club (NPC)
against petitioner Borjal for unethical conduct. He accused petitioner Borjal of using
his column as a form of leverage to obtain contracts for his public relations firm, AA
Borjal Associates. 6 In turn, petitioner Borjal published a rejoinder to the challenge of
private respondent not only to protect his name and honor but also to refute the
claim that he was using his column for character assassination. 7
Apparently not satisfied with his complaint with the NPC, private respondent filed a
criminal case for libel against petitioners Borjal and Soliven, among others.
However, in a Resolution dated 7 August 1990, the Assistant Prosecutor handling the
case dismissed the complaint for insufficiency of evidence. The dismissal was
sustained by the Department of Justice and later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil action
for damages based on libel subject of the instant case. 8 In their answer, petitioners
interposed compulsory counterclaims for actual, moral and exemplary damages,
plus attorney's fees and costs. After due consideration, the trial court decided in
favor of private respondent Wenceslao and ordered petitioners Borjal and Soliven to
indemnify private respondent P1,000,000.00 for actual and compensatory damages,
in addition to P200,000.00 for moral damages, P100,000.00 for exemplary damages,
P200,000.00 for attorney's fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the
amount of the monetary award to P110,000.00 actual damages, P200,000.00 moral
damages and P75,000.00 attorney's fees plus costs. In a 20-page Decision
promulgated 25 March 1996, the appellate court ruled inter alia that private
respondent was sufficiently identifiable, although not named, in the questioned
articles; that private respondent was in fact defamed by petitioner Borjal by
describing him variously as a "self-proclaimed hero," "a conference organizer
associated with shady deals who has a lot of trash tucked inside his closet," "thick
face," and "a person with dubious ways;" that petitioner's claim of privilege
communication was unavailing since the privileged character of the articles was lost
by their publication in a newspaper of general circulation; that petitioner could have
performed his officer as a newspaperman without necessarily transgressing the
rights of Wenceslao by calling the attention of the government offices concerned to
examine the authority by which Wenceslao acted, warning the public against
contributing to a conference that, according to his perception, lacked the univocal
indorsement of the responsible government officials, or simply informing the public
of the letters Wenceslao wrote and the favors he requested or demanded; and, that
when he imputed dishonesty, falsehood and misrepresentation, shamelessness and
intellectual pretentions to Wenceslao, petitioner Borjal crossed the thin but clear line
that separated fair comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate
court's decision which reduced the amount of damages awarded him by filing with
this Court a Petition for Extension of Time to File Petition and a Motion for
Suspension of Time to File Petition. 9 However, in a Resolution dated 27 May 1996,
the Second Division denied both motions: the first, for being premature, and the
second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the
present case to the Second Division, there was no longer any case thereat with
which to consolidate this case since G.R. No. 124396 had already been disposed of
by the Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals
denied the motion in its Resolution of 12 September 1996. Hence the instant petition
for review. The petitioners contend that the Court of Appeals erred: (a) in ruling that
private respondent Wenceslao was sufficiently identified by petitioner Borjal in the
questioned articles; (b) in refusing to accord serious consideration to the findings of
the Department of Justice and the Office of the President that private respondent
Wenceslao was not sufficiently identified in the questioned articles, this
notwithstanding that the degree of proof required in a preliminary investigation is
merely prima facie evidence which is significantly less than the preponderance of
evidence required in civil cases; (c) in ruling that the subject articles do not
constitute qualifiedly privileged communication; (d) in refusing to apply the "public
official doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the
questioned articles lost their privileged character because of their publication in a
newspaper of general circulation; (f) in ruling that private respondent has a valid
cause of action for libel against petitioners although he failed to prove actual malice
on their part, and that the prosecutors of the City of Manila, the Department of
Justice, and eventually, the Office of the President, had already resolved that there
was no sufficient evidence to prove the existence of libel; and, (g) assuming
arguendo that Borjal should be held liable, in adjudging petitioner Soliven solidarily
liable with him. Thus, petitioners pray for the reversal of the appellate court's ruling,
the dismissal of the complaint against them for lack of merit, and the award of
damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential
that the victim be identifiable although it is not necessary that he be named. It is
also not sufficient that the offended party recognized himself as the person attacked
or defamed, but it must be shown that at least a third person could identify him as
the object of the libelous publication. 10 Regrettably, these requisites have not been
complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column
writings sufficiently identified Wenceslao as the "conference organizer." It cited the
First National Conference on Land Transportation, the letterheads used listing
different telephone numbers, the donation of P100,000.00 from Juliano Lim and the
reference to the '"organizer of the conference" the very same appellation
employed in all the column items as having sufficiently established the identity of
private respondent Wenceslao for those who knew about the FNCLT who were
present at its inception, and who had pledged their assistance to it.
We hold otherwise. These conclusions are at variance with the evidence at hand.
The questioned articles written by Borjal do not identify private respondent
Wenceslao as the organizer of the conference. The first of the Jaywalker articles
which appeared in the 31 May 1989 issue of The Philippine Star yielded nothing to
indicate that private respondent was the person referred to therein. Surely, as
observed by petitioners, there were millions of "heroes" of the EDSA Revolution and
anyone of them could be "self-proclaimed" or an "organizer of seminars and
conferences." As a matter of fact, in his 9 June 1989 column petitioner Borjal wrote
about the "so-called First National Conference on Land Transportation whose
principal organizers are not specified" (emphasis supplied). 11 Neither did the FNCLT
letterheads 12 disclose the identity of the conference organizer since these
contained only an enumeration of names where private respondent Francisco
Wenceslao was described as Executive Director and Spokesman and not as a
conference organizer. 13 The printout 14 and tentative program 15 of the
conference were devoid of any indication of Wenceslao as organizer. The printout
which contained an article entitled "Who Organized the NCLT?" did not even mention
private respondent's name, while the tentative program only denominated private
respondent as "Vice Chairman and Executive Director," and not as organizer.
No less than private respondent himself admitted that the FNCLT had several
organizers and that he was only a part of the organization, thus
I would like to clarify for the record that I was only a part of the organization. I was
invited then because I was the head of the technical panel of the House of
Representatives Sub-Committee on Industrial Policy that took care of congressional
hearings. 16
Significantly, private respondent himself entertained doubt that he was the person
spoken of in Borjal's columns. The former even called up columnist Borjal to inquire
if he (Wenceslao) was the one referred to in the subject articles. 17 His letter to the
editor published in the 4 June 1989 issue of The Philippine Star even showed private
respondent Wenceslao's uncertainty
Although he used a subterfuge, I was almost certain that Art Borjal referred to the
First National Conference on Land Transportation (June 29-30) and me in the second
paragraph of his May 31 column . . . 18
Identification is grossly inadequate when even the alleged offended party is himself
unsure that he was the object of the verbal attack. It is well to note that the
revelation of the identity of the person alluded to came not from petitioner Borjal but
from private respondent himself; when he supplied the information through his 4
June 1989 letter to the editor. Had private respondent not revealed that he was the
"organizer" of the FNCLT referred to in the Borjal articles, the public would have
remained in blissful ignorance of his identity. It is therefore clear that on the element
of identifiability alone the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that
private respondent has been sufficiently identified as the subject of Borjal's disputed
comments, we now proceed to resolve the other issues and pass upon the pertinent
findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary
question of whether the disputed articles constitute privileged communications as to
exempt the author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his
articles are privileged in character under the provisions of Art. 354 of The Revised
Penal Code which state
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for making
it is shown, except in the following cases:
1) A private communication made by any person to another in the
performance of any legal, moral or social duty; and,
2) A fair and true report, made in good faith, without any comments or
remarks, of any judicial or other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered in said proceedings, or of
any other act performed by public officers in the exercise of their functions.
Respondent court explained that the writings in question did not fall under any of
the exceptions described in the above-quoted article since these were neither
"private communications" nor "fair and true report . . . without any comments or
remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly
privileged. Absolutely privileged communications are those which are not actionable
even if the author has acted in bad faith. An example is found in Sec. 11, Art.VI, of
the 1987 Constitution which exempts a member of Congress from liability for any
speech or debate in the Congress or in any Committee thereof. Upon the other hand,
qualifiedly privileged communications containing defamatory imputations are not
actionable unless found to have been made without good intention justifiable
motive. To this genre belong "private communications" and "fair and true report
without any comments or remarks."
Indisputably, petitioner Borjal's questioned writings are not within the exceptions of
Art. 354 of The Revised Penal Code for, as correctly observed by the appellate court,
they are neither private communications nor fair and true report without any
comments or remarks. However this does not necessarily mean that they are not
privileged. To be sure, the enumeration under Art. 354 is not an exclusive list of
qualifiedly privileged communications since fair commentaries on matters of public
interest are likewise privileged. The rule on privileged communications had its
genesis not in the nation's penal code but in the Bill of Rights of the Constitution
guaranteeing freedom of speech and of the press. 19 As early as 1918, in United
States v. Caete, 20 this Court ruled that publications which are privileged for
reasons of public policy are protected by the constitutional guaranty of freedom of
speech. This constitutional right cannot be abolished by the mere failure of the
legislature to give it express recognition in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As
held in Elizalde v. Gutierrez 21 and reiterated in Santos v. Court of Appeals 22
To be more specific, no culpability could be imputed to petitioners for the alleged
offending publication without doing violence to the concept of privileged
communications implicit in the freedom of the press. As was so well put by Justice
Malcolm in Bustos: "Public policy, the welfare of society, and the orderly
administration of government have demanded protection of public opinion. The
inevitable and incontestable result has been the development and adoption of the
doctrine of privilege."
The doctrine formulated in these two (2) cases resonates the rule that privileged
communications must, sui generis, be protective of public opinion. This closely
adheres to the democratic theory of free speech as essential to collective self-
determination and eschews the strictly libertarian view that it is protective solely of
self-expression which, in the words of Yale Sterling Professor Owen Fiss, 23 makes its
appeal to the individualistic ethos that so dominates our popular and political
culture. It is therefore clear that the restrictive interpretation vested by the Court of
Appeals on the penal provision exempting from liability only private communications
and fair and true report without comments or remarks defeats, rather than
promotes, the objective of the rule on privileged communications, sadly contriving
as it does, to suppress the healthy effloresence of public debate and opinion as
shining linchpins of truly democratic societies.
To reiterate, fair commentaries on matters of public interest are privileged and
constitute a valid defense in an action for libel or slander. The doctrine of fair
comment means that while in general every discreditable imputation publicly made
is deemed false, because every man is presumed innocent until his guilt is judicially
proved, and every false imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public person in his public capacity, it
is not necessarily actionable. In order that such discreditable imputation to a public
official may be actionable, it must either be a false allegation of fact or a comment
based on a false supposition. If the comment is an expression of opinion, based on
established facts, then it is immaterial that the opinion happens to be mistaken, as
long as it might reasonably be inferred from the facts. 21
There is no denying that the questioned articles dealt with matters of public interest.
In his testimony, private respondent spelled out the objectives of the conference
thus
. . . The principal conference objective is to come up with a draft of an Omnibus Bill
that will embody a long term land transportation policy for presentation to Congress
in its next regular session in July. Since last January, the National Conference on Land
Transportation (NCLT), the conference secretariat, has been enlisting support from all
sectors to ensure the success of the project. 25
Private respondent likewise testified that the FNCLT was raising funds through
solicitation from the public -
Q: Now, in this first letter, you have attached a budget and it says here that in
this seminar of the First National Conference on Land Transportation, you will need
around One million eight hundred fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or
organizations as well as individual transport firms and from individual
delegates/participants. 26
The declared objective of the conference, the composition of its members and
participants, and the manner by which it was intended to be funded no doubt lend to
its activities as being genuinely imbued with public interest. An organization such as
the FNCLT aiming to reinvent and reshape the transportation laws of the country and
seeking to source its funds for the project from the public at large cannot dissociate
itself from the public character of its mission. As such, it cannot but invite close
scrutiny by the media obliged to inform the public of the legitimacy of the purpose
of the activity and of the qualifications and integrity of the personalities behind it.
This in effect is the strong message in New York Times v. Sullivan 27 which the
appellate court failed to consider or, for that matter, to heed. It insisted that private
respondent was not, properly speaking, a "public official" nor a "public figure," which
is why the defamatory imputations against him had nothing to do with his task of
organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at
the height of the bloody rioting in the American South over racial segregation. The
then City Commissioner L. B. Sullivan of Montgomery, Alabama, sued New York
Times for publishing a paid political advertisement espousing racial equality and
describing police atrocities committed against students inside a college campus. As
commissioner having charge over police actions Sullivan felt that he was sufficiently
identified in the ad as the perpetrator of the outrage; consequently, he sued New
York Times on the basis of what he believed were libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled
against Sullivan holding that honest criticisms on the conduct of public officials and
public figures are insulated from libel judgments. The guarantees of freedom of
speech and press prohibit a public official or public figure from recovering damages
for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with actual malice, i.e., with knowledge that it was false or
with reckless disregard of whether it was false or not.
The raison d' tre for the New York Times doctrine was that to require critics of
official conduct to guarantee the truth of all their factual assertions on pain of libel
judgments would lead to self-censorship, since would be critics would be deterred
from, voicing out their criticisms even if such were believed to be true, or were in
fact true, because of doubt whether it could be proved or because of fear of the
expense of having to prove it. 28
In the present case, we deem private respondent a public figure within the purview
of the New York Times ruling. At any rate, we have also defined "public figure" in
Ayers Production Pty., Ltd. v. Capulong 29 as
. . . . a person who, by his accomplishments, fame, mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in his doings, his
affairs and his character, has become a "public personage." He is, in other words, a
celebrity. Obviously to be included in this category are those who have achieved
some degree of reputation by appearing before the public, as in the case of an actor,
a professional baseball player, a pugilist, or any other entertainer. The list is,
however, broader than this. It includes public officers, famous inventors and
explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a
personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone
who has arrived at a position where the public attention is focused upon him as a
person.
The FNCLT was air undertaking infused with public interest. It was promoted as a
joint project of the government and the private sector, and organized by top
government officials and prominent businessmen. For this reason, it attracted media
mileage and drew public attention not only to the conference itself but to the
personalities behind as well. As its Executive Director and spokesman, private
respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position
he occupied in the FNCLT, would not qualify as a public figure, it does not necessarily
follow that he could not validly be the subject of a public comment even if he was
not a public official or at least a public figure, for he could be, as long as he was
involved in a public issue. If a matter is a subject of public or general interest, it
cannot suddenly became less so merely because a private individual is involved or
because in some sense the individual did not voluntarily choose to become involved.
The public's primary interest is in the event; the public focus is on the conduct of the
participant and the content, effect and significance of the conduct, not the
participant's prior anonymity or notoriety. 30
There is no denying that the questioned articles dealt with matters of public interest.
A reading of the imputations of petitioner Borjal against respondent Wenceslao
shows that all these necessarily bore upon the latter's official conduct and his moral
and mental fitness as Executive Director of the FNCLT. The nature and functions of
his position which included solicitation of funds, dissemination of information about
the FNCLT in order to generate interest in the conference, and the management and
coordination of the various activities of the conference demanded from him utmost
honesty, integrity and competence. These are matters about which the public has
the right to be informed, taking into account the very public character of the
conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed
describing the "organizer of the conference." One is tempted to wonder if it was by
some mischievous gambit that he would also dare test the limits of the "wild blue
yonder" of free speech in this jurisdiction. But no matter how intemperate or
deprecatory the utterances appear to be, the privilege is not to be defeated nor
rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York
Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide
open, and that it may well include vehement, caustic and sometimes unpleasantly
sharp attacks on the government and public officials. 31
The Court of Appeals concluded that since malice is always presumed in the
publication of defamatory matters in the absence of proof to the contrary, the
question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory
words, the privileged character of a communication destroys the presumption of
malice. 32 The onus of proving actual malice then lies on plaintiff, private
respondent Wenceslao herein. He must bring home to the defendant, petitioner
Borjal herein, the existence of malice as the true motive of his conduct. 33
Malice connotes ill will or spite and speaks not in response to duty but merely to
injure the reputation of the person defamed, and implies an intention to do ulterior
and unjustifiable harm. 34 Malice is bad faith or bad motive. 35 It is the essence of
the crime of libel. 36
In the milieu obtaining, can it be reasonably inferred that in writing and publishing
the articles in question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that
petitioner was animated by a desire to inflict unjustifiable harm on his reputation, or
that the articles were written and published without good motives or justifiable ends.
On the other hand, we find petitioner Borjal to have acted in good faith. Moved by a
sense of civic duty and prodded by his responsibility as a newspaperman, he
proceeded to expose and denounce what he perceived to be a public deception.
Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good
name and reputation, but we do not consider that petitioner Borjal has violated that
right in this case nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be shown to
have been written or published with the knowledge that they are false or in reckless
disregard of whether they are false or not. 37 "Reckless disregard of what is false or
not" means that the defendant entertains serious doubt as to the truth of the
publication, 38 or that he possesses a high degree of awareness of their probable
falsity. 39
The articles subject of the instant case can hardly be said to have been written with
knowledge that these are false or in reckless disregard of what is false or not. This is
not to say however that the very serious allegations of petitioner Borjal assumed by
private respondent to be directed against him are true. But we nevertheless find
these at least to have been based on reasonable grounds formed after the columnist
conducted several personal interviews and after considering the varied documentary
evidence provided him by his sources. Thus, the following are supported by
documentary evidence: (a) that private respondent requested Gloria Macapagal-
Arroyo, then head of the Garments and Textile Export Board (GTEB), to expedite the
processing and release of the import approval and certificate of availability of a
garment firm in exchange for the monetary contribution of Juliano Lim, which
necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the
procedure of the GTEB in processing applications and clarifying that all applicants
were treated
equally; 40 (b) that Antonio Periquet was designated Chairman of the Executive
Committee of the FNCLT notwithstanding that he had previously declined the offer;
41 and, (c) that despite the fact that then President Aquino and her Secretary of
Transportation Rainerio Reyes declined the invitation to be guest speakers in the
conference, their names were still included in the, printout of the FNCLT. 42 Added to
these are the admissions of private respondent that: (a) he assisted Juliano Lim in
his application for a quota allocation with the GTEB in exchange for monetary
contributions to the FNCLT; 43 (b) he included the name of then Secretary of
Transportation Rainerio Reyes in the promotional materials of the conference
notwithstanding the latter's refusal to lend his name to and participate in the FNCLT;
44 and, (c) he used different letterheads and telephone numbers. 45
Even assuming that the contents of the articles are false, mere error, inaccuracy or
even falsity alone does not prove actual malice. Errors or misstatements are
inevitable in any scheme of truly free expression and debate. Consistent with good
faith and reasonable care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of language. There
must be some room for misstatement of fact as well as for misjudgment. Only by
giving them much leeway and tolerance can they courageously and effectively
function as critical agencies in our democracy. 46 In Bulletin Publishing Corp. v. Noel
47 we held -
A newspaper especially one national in reach and coverage, should be free to report
on events and developments in which the public has a legitimate interest with
minimum fear of being hauled to court by one group or another on criminal or civil
charges for libel, so long as the newspaper respects and keeps within the standards
of morality and civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for
erroneous statements, rules governing liability for injury to reputation are required
to allow an adequate margin of error by protecting some inaccuracies. It is for the
same reason that the New York Times doctrine requires that liability for defamation
of a public official or public figure may not be imposed in the absence of proof of
"actual malice" on the part of the person making the libelous statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of
Mr. Justice Malcolm expressed in U.S. v. Bustos, 48 that "the interest of society and
the maintenance of good government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the abscesses of officialdom.
Men in public life may suffer under a hostile and unjust accusation; the wound may
be assuaged by the balm of a clear conscience. A public official must not be too thin-
skinned with reference to comments upon his official acts."
The foregoing disposition renders the second and seventh assigned errors moot and
academic, hence, we find no necessity to pass upon them.
We must however take this opportunity to likewise remind media practitioners of the
high ethical standards attached to and demanded by their noble profession. The
danger of an unbridled irrational exercise of the right of free speech and press, that
is, in utter contempt of the rights of others and in willful disregard of the cumbrous
responsibilities inherent in it, is the eventual self-destruction of the right and the
regression of human society into a veritable Hobbesian state of nature where life is
short, nasty and brutish. Therefore, to recognize that there can be no absolute
"unrestraint" in speech is to truly comprehend the quintessence of freedom in the
marketplace of social thought and action, genuine freedom being that which is
limned by the freedom of others. If there is freedom of the press, ought there not
also be freedom from the press? It is in this sense that self-regulation as
distinguished from self-censorship becomes the ideal mean for, as Mr. Justice
Frankfurter has warned, "[W]ithout
. . . a lively sense of responsibility, a free press may readily become a powerful
instrument of injustice." 49
Lest we be misconstrued, this is not to diminish nor constrict that space in which
expression freely flourishes and operates. For we have always strongly maintained,
as we do now, that freedom of expression is man's birthright -constitutionally
protected and guaranteed, and that it has become the singular role of the press to
act as its "defensor fidei" in a democratic society such as ours. But it is also worth
keeping in mind that the press is the servant, not the master, of the citizenry, and its
freedom does not carry with it an restricted hunting license to prey on the ordinary
citizen. 50
On petitioners' counterclaim for damages, we find the evidence too meager to
sustain any award. Indeed, private respondent cannot be said to have instituted the
present suit in abuse of the legal processes and with hostility to the press; or that he
acted maliciously, wantonly, oppressively, fraudulently and for the sole purpose of
harassing petitioners, thereby entitling the latter to damages. On the contrary,
private respondent acted within his rights to protect his honor from what he
perceived to be malicious imputations against him. Proof and motive that the
institution of the action was prompted by a sinister design to vex and humiliate a
person must be clearly and preponderantly established to entitle the victim to
damages. The law could not have meant to impose a penalty on the right to litigate,
nor should counsel's fees be awarded every time a party wins a suit. 51
For, concluding with the wisdom in Warren v. Pulitzer Publishing
Co. 52

Every man has a right to discuss matters of public interest. A clergyman with his
flock, an admiral with his fleet, a general with his army, a judge with his jury; we are,
all of us, the subject of public discussion. The view of our court has been thus
stated: "It is only in despotisms that one must speak sub rosa, or in whispers, with
bated breath, around the corner, or in the dark on a subject touching the common
welfare. It is the brightest jewel in the crown of the law to speak and maintain the
golden mean between defamation, on one hand, and a healthy and robust right of
free public discussion, on the other.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25

March 1996 and its Resolution of 12 September 1996 denying reconsideration are,
REVERSED and SET ASIDE, and the complaint for damages against petitioners is
DISMISSED. Petitioners' counterclaim for damages is likewise DISMISSED for lack of
merit. No costs.1wphi1.nt

SO ORDERED.
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