The unconstitutionality of prior restraint

Sulu in the eyes of my good friend Princess Jacel Kiram is a potential eco-tourism destination and fruit basket of the country. Not many Filipinos can boast of exploring its pristine beaches and natural attractions or experiencing the hospitality of the Tausug people. The agricultural products of the island province like mangosteen, marang, and durian are top-notch. Thus, I am one with the princess and our Muslim brothers and sisters in working towards achieving genuine and lasting peace in Sulu.

My ties to the Sultanate and the Kiram family date to more than a decade ago. The Sulu heirs asked for my legal assistance vis-à-vis the Philippine claim to Sabah. I met with the heirs of the Sultanate of Brunei, whose royal forebears ceded then North Borneo to the Sultan of Sulu in the 1700s and requested them to arbitrate our territorial dispute with Malaysia. In 2022, a Parisbased arbitral court ordered the Malaysian government to pay $14.9 billion to the Sulu heirs for breach of an international private lease agreement.

Last year, then-presidential adviser on peace, reconciliation and unity Carlito Galvez Jr. reported that Sulu’s peace and order situation has continuously improved as more rebels have reintegrated into civilian society. In contrast, The STAR ran a story on Wednesday about the 2021 US Department of State Country Reports on Terrorism. It disclosed that the Philippines remains a destination for foreign terrorist fighters like the Islamic State (IS)-East Asia factions, which include elements of the Abu Sayyaf Group in Sulu and Basilan and rogue elements of the Moro Islamic Liberation Front. The report stated IS-East Asia continues to recruit, raise funds and stage attacks on security forces and civilians in some parts of Mindanao.

Free speech vs. censorship

Coincidentally, the latest US terrorism report comes at a time when Senator Robinhood Padilla called on the Movie and Television Review and Classification Board (MTRCB) to ban the Hollywood film “Plane” from local exhibition. The Senate committee chair on public information and mass media said the producers should cut racist scenes that misrepresent and tarnish the image of Jolo and the Philippines.

Reportedly, the action flick tells the story of survivors of a risky plane landing that get hostaged by dangerous rebels on the ‘war-torn island of Jolo.’ The Directors Guild of the Philippines Inc. (DGPI) has opposed the film’s banning or censorship, since it sets a precedent for films to be held hostage by imagined slights to the country. The controversy has prompted the movie distributor to pull it out.

I understand the sentiments of Senator Padilla, a devout Muslim who has championed the rights and welfare of the Islamic communities for decades. However, I agree with the position of DGPI even if I have yet to see the movie. I can only base my opinion on existing laws and jurisprudence on freedom of expression and prior restraint.

As a staunch defender of free speech, I faithfully subscribe to the principles of the late great jurist Oliver Wendell Holmes that “the best test of truth is the power of thought to get itself accepted in the competition of the market.” We should respect the freedom of thought of each person, including those we hate, provided it is within the ambit of the law.

Our Bill of Rights and the US First Amendment carry the constitutional guarantees that “no law shall be passed abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble and petition the Government for a redress of grievance.” It has been established in our jurisprudence that prior restraint comes to court with a heavy presumption of unconstitutionality. In Near vs. Minnesota, the US Supreme Court reversed the state court decision and held that prior restraint on publication violated the First Amendment [Cornell Law School of Legal information].

Movies and freedom of expression

The banning of the “Plane” movie recalls the case of the “The Four Day Revolution” (also known as “A Dangerous Life”) in the late ‘80s. The Australian mini-series is a fictionalized account of the 1986 EDSA People Power Revolution. As a private respondent, the legendary statesman Juan Ponce-Enrile sought a court injunction against the movie production because it unlawfully intruded on his privacy. In Ayer vs. Capulong, the Supreme Court decided in favor of the Australian producers and set aside a preliminary injunction previously issued by a regional trial court.

The High Court ruled that freedom of speech and expression covers the production and exhibition of movies in theaters or on television. These constitutional liberties extend to both local and foreign-owned movie companies. It further stated: “Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for information, education and entertainment.”

In response to Enrile’s contention, the Supreme Court ruled that the right to privacy is not absolute. “A limited intrusion into a person’s privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute a public character.”

In Freedman vs. Maryland, the US High Court unanimously ruled that prior restraint carried under the state’s motion picture censorship statute since 1916 unduly restricted the First Amendment rights of film distributors and exhibitors [Wittern-Keller, Laura. “Freedman vs. Maryland (1961).” The First Amendment Encyclopedia. 2009]. The Philippines adopted the American censorship statutes by creating the MTRCB under Presidential Decree 1986.

To be clear, the final decision on whether a film can be shown rests on the judiciary and not on the MTRCB or the legislature, particularly the Senate. Producers can appeal an X-rating from the MTRCB before a court of law. It is the judiciary’s responsibility to uphold our freedom of speech and expression against any form of suppression. More so when the evil that the State has the right to prevent is non-existent.