Wrong issues

To preserve our democracy we need freedom of speech and of the press. Hence our Constitution itself provides that “No law shall be passed abridging the freedom of speech, of expression or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances” (Article III Section 4).

Covered by this constitutional precept is every form of expression, whether oral or written particularly in print and electronic media, taped or recorded in a disc, including movies and symbolic speech such as wearing an arm band as a means of protest, peaceful picketing and holding rallies. And with the advent of information technology, blogs in social media are likewise included.

This freedom is observed and protected by prohibiting government restrictions on the press and other forms of expression in advance of actual publication and dissemination although in case of movies, censorship may be allowed with some procedural safeguards. This is the prior restraint rule which is a system of licensing administered by an executive officer. This prohibition however is not absolute especially when a nation is at war. On similar grounds the primary requirements of decency may be protected against obscene publications. Likewise the security of community life may be protected against incitement to acts of violence and the overthrow of the orderly government by force.

In order not to curtail this freedom, subsequent punishment of the expression is likewise prohibited. This prohibition does not apply however when the expression creates a dangerous tendency which the State has the right to prevent or when there is a rational connection between the speech and the evil feared. An example of this is the remark made during the American colonial rule by a Filipino who said: “Filipinos like myself, must use bolos for cutting off Wood’s (the American Governor General at that time) head for having recommended a bad thing for the Philippines.” According to the Supreme Court in the case of People vs. Perez, 45 Phil, 599, this is a seditious speech.

The second test on whether or not the subsequent punishment of free expression will be prohibited is the clear and present danger rule. “The question in every case is whether the words are used under such circumstances and are of such nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent. It is a question of proximity and degree. “In each case, courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger (Dennis vs. United States 341 U.S. 494,509)

The third standard applicable to this rule on subsequent punishment of free expression is the balancing of interest test. If on the balance, it appears that the public interest served by restrictive legislation is of such a character that it outweighs the abridgement of freedom, then the court will find the legislation valid (Gonzales vs. Comelec 27 SCRA 835)

Obviously, this constitutional provision on free speech is now being invoked in the ongoing controversy surrounding the news website Rappler and its chief executive officer, journalist Maria Ressa supposedly because of her blogs in social media which are critical of and derogatory to Duterte. Admittedly, this controversy affirms that social media is now a very effective and powerful instrument in shaping public opinion.

In said case, the Securities and Exchange Commission (SEC) cancelled Rappler’s Certificate of Incorporation for supposedly violating the constitutional provision stating that “the ownership and management of mass media shall be limited to citizens of Philippines, or to corporations, cooperatives or associations wholly owned and managed by such citizens” Section 11(1), Article XVI). The SEC’s basis for said cancellation is a provision in the Philippine Depositary Receipts (PDRs) issued to Omidyar Network owned by eBay founder and entrepreneur, Pierre Omidyar. The provision in the PDR allegedly gives control of the Rappler Holdings Inc to Omidyar Network because the policy decisions of Rappler requires the approval of said network even if it does not own any stock but has only funded Rappler in the amount of $1 million. The SEC ruled that said provision violates the Constitution because the PDR clause actually gives management control of Rappler to Omidyar Network of Pierre Omidyar.

Based on the SEC decision, the issue does not involve freedom of speech and of expression at all. It is only about ownership and management of mass media. And considering the clause in the PDR, it appears that the SEC ruling is constitutional. Even if ownership of Rappler Holdings Inc., is 100 percent Filipino, its management appears to be controlled by a foreign corporation (Omidyar Network).

The SEC decision somehow becomes controversial because it was allegedly issued in violation of due process of law. According to Ressa the SEC decided without giving them the chance to be heard and to comment. She explained that the questioned provision in the PDR issued to Omidyar Network (ON) was simply a clause allowing the PDR holders to leave if they disagree with the corporate decision of the company. According to her, “They can disagree but they cannot change what we plan to do in the company…. we gave them the power to leave if they don’t want what we’re doing.” Ressa also claimed that “ON already waived the clause when it learned that SEC had a problem with it.”

So the real issues in this case have not been properly ventilated in the media and the streets where the emphasis has been on the freedom of speech and of expression. The real issues here can only be decided by our Courts, Rappler must therefore file a motion for reconsideration (MR) with the SEC and prove its contentions instead of going to the streets and rallying based on the wrong issue. If the SEC denies its MR, it can go to the Court of Appeals then to the Supreme Court.

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