[OPINION] Bar Bulletin No. 26: Has the Supreme Court unintentionally restrained free speech?

With the Bar Notice, we are now poised to ponder on several questions: Is our police force incapable of containing any disruptive behavior in official gatherings? Are our criminal statutes inept in deterring disruptors of public functions? If so, does the court need to step in, warn everyone of its contempt power, and exercise that power when something untoward arises at the ceremonies? If so, is the court forewarning its critics with regard to any form of disrespect directed against it? This, in light of the apparent public disapproval on its recent decisions

The warning in the Bar Notice thus brings to mind the seminal case of Chavez v Gonzalez, in which then Chief Justice Reynato Puno, writing for the majority, considered the “mere press statements” of then Secretary of Justice Raul Gonzalez and of the National Telecommunications Commission (NTC)  on the wiretap conversation (allegedly between then-president Gloria Macapagal Arroyo and a high-ranking official of the Commission on Elections) as constituting “impermissible forms of prior restraints on the right to free speech and press.”

It may be recalled that the then-secretary Gonzales and the NTC issued press statements and warnings to the effect that prosecution was forthcoming for those who released the wiretap. The said warnings, per the court, had a chilling effect on speech. 

Prior restraint, it should be noted, is any government act that restricts speech, or prohibits the expression of ideas or messages. Does the Bar Notice now have the unintended consequence of having a chilling effect on free expression by deterring the participants in and the spectators of the oath-taking ceremonies from engaging in protected speech? Does it, intentionally or unintentionally, limit public criticism of the court?

Contempt law nevertheless is a dangerous sword to wield. While it has as its thrust the protection of the administration of justice (as postured in an important judgment in the 18th century, it is essential to keep a “blaze of glory” around the courts), contempt law has the effect of limiting the freedom to comment on, if not criticize, the court. Direct contempt, further, as emphasized in the Bar Notice, is summarily punished – without need of a full trial. Viewed from the lens of free speech, the court becomes the censor in itself.

In contempt proceedings then, courts should be wary of its effect on free speech, and properly balance the competing interest between such freedom and the need to preserve public confidence in our court system. The US standard on “clear and present danger” to the administration of justice would be useful in such a balancing act.

It is interesting to note at this point that, despite the public criticism of the court since the Martial Law era, the Philippine public has continued to adhere to the decisions of the court, whether or not these decisions are palatable to the majority of the citizenry. We have not heard of any uprising against the Philippine court system. Does this mean that criticisms, be they negative, directed to the court has not in fact diminished, or even threatened, public confidence in the administration of justice? And does this eventually mean that contempt as a tool to shield judges and the court from criticism is now practically obsolete? 

Indeed, as Justice Douglas in the US case of Craig v Harney has conveyed, “the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” The court is thus expected to be less sensitive to public comment.

Aptly, in the Gallagher v Durrack, the High Court of Australia considered of “cardinal importance” free speech. Per the court, everyone must be able “to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken, or wrong-headed.” True, silencing critics would rather foster suspicion and skepticism in the court rather than respect. – Rappler.com   

Pelagio Palma Jr is a lawyer in the Philippines and in Australia. He clerked for two justices of the Supreme Court prior to studying at the University of New South Wales for his master of laws in media and technology.