The  gag order plea made by the Office of the Solicitor General before the Supreme Court  against media giant ABS-CBN will violate press freedom  and deprive Filipinos of a vital source of information.

This, ABS-CBN Corporation and ABS-CBN Convergence, Inc. argued in their comment filed before  the Supreme Court on Monday.  

“The sub judice rule should not be applied to impair, through prior restraint, the fundamental freedoms of speech and of the press that serve as bedrocks of a democratic society,” the ABS-CBN  said in its “Comment Ad Cautelam”.

The comment was filed through its law firm Poblador Bautista & Reyes, in response to the OSG’s  plea before  the High Court asking to issue a gag order against ABS-CBN, its subsidiary and “persons acting on their behalf” in connection with the quo warranto petition against them.  

Earlier, Solicitor General Jose Calida has cited  the sub judice rule prohibiting parties from discussing the merits of the case while a case pending in court in asking for a gag order.  

However, ABS-CBN said the sub judice rule was not intended to prohibit any discussion of any matter covered by a pending judicial proceeding.

“It was created for a limited purpose—to prevent interference with, obstruction or impediment to the administration of justice and the erosion of the public’s trust in the justice system,” ABS-CBN  said.

Calida accused ABS-CBN of engaging in propaganda by publishing videos and reports allegedly tending to “influence public opinion and unfairly encourage pre-judgment of the…case.”  

The ABS-CBN  also argued  that a gag order is a form of prior restraint – an official governmental restriction in advance of actual publication and dissemination – that violates freedom of expression and of the press.  

Prior restraint  is only allowed in four instances—- pornography, false or misleading advertisement, advocacy of imminent lawless action and danger to national security.

None of these were present in ABS-CBN’s reports which consisted only of official statements, news reports about the petition and possible consequences as well as commentaries, opinions or reactions from stakeholders, public personalities and resource persons.

And because what is being regulated is the content of the speech itself, the network said the gag order bears a heavy presumption of invalidity, which could only be countered by showing that there is a clear and present danger of an evil sought to be avoided.  

“The Republic failed to show how the subject publications create a clear and present danger of impairing the proceedings before this Honorable Court…No danger is, however, apparent from a mere perusal of the publications,” it said.  

Clear and present danger means the injury sought to be prevented must be substantive and imminent, not hypothetical.  

It is one of the requirements that need to be met by anyone seeking to impose prior censorship, along with a substantial government interest and an incidental restriction on speech which must be the least restrictive.

ABS-CBN said that the gag order the OSG is asking for is vague and too broad.  

It said it is not clear who will be covered by the gag order because the “Republic,” in whose behalf the OSG brought the petition, includes the Filipino people.

“Will the gag order apply to the entire Filipino people? The government is part of the Republic. Will all government officials and employees be covered by the gag order?,” it asked.  

“’Persons acting on their behalf’ is also vague. Would anyone making public statements in favor or against a party be acting on their behalf?” it added.

ABS-CBN said the gag order bans all forms of discussion on the merits of the case which would create a chilling effect because the ordinary person would not know if the speech is not allowed by gag order.  

ABS-CBN also said  the gag order will be difficult to impose not only in terms of monitoring statements but also because its employees have the right to speak.

“There exists a less restrictive remedy to implement the sub judice rule, i.e. through indirect contempt proceedings. Indeed, in this jurisdiction, the sub judice rule is implemented not by prior restraint on speech but by subsequent punishment of conduct that impedes, obstructs or interferes with the administration of justice,” it said.

ABS-CBN also refuted the OSG’s allegation that it is engaging in propaganda by publishing commentaries in its favor.  

Citing the 2007 Broadcasting Code of the Philippines, the network said analysis and commentaries play a significant role in broadcasting as it simplifies complicated topics.

“Indeed, the constitutional right to information on matters of public concern would be meaningless unless the people are given access to information that is comprehensible. An information is only as useful as it can be understood. This is especially true in cases involving complex legal issues,” it explained.

ABS-CBN likewise denied it published information to cause harm to a person, an institution or a cause but only to provide the information to the public regarding an important issue.

“The Republic recognizes ABS-CBN as one of the biggest broadcasting companies in the Philippines. Thus, a gag order against ABS-CBN would be a huge disservice to the Filipino people as it would deprive them of a vital source of information on a matter of ‘transcendental importance,’” it said.

“The people’s trust in the justice system is enhanced not by stifling public debate on important issues, but by demonstrating the judiciary’s ability to render independent judgment without impairing fundamental rights,” it added./Stacy Ang