Freedom of the press and secret sources

In making a choice between the preservation of liberties and freedom on one hand, and the attainment of a better — ordered society, on the other, men have not stopped debating. The balance, the point of the weighing scale, has moved hither and thither depending on the needs of the times and on the kind of government involved. But in democratic governments, there must at all times be due regard for the preservation of constitutional rights even to the extent, at times, of seemingly sacrificing, as in the case at hand, accurate and truthful media comment. To be sure, fair, accurate, truthful reporting by the press is the hallmark and badge of a healthy and self-assured society. But such ideal must not be purchased or achieved at the cost of press freedom itself but rather by caring for and nurturing, cultivating, and promoting the growth of said freedom, impressing upon its practitioners due regard for the truth and the entitlement of the public they serve to accurate reporting instead of the publication or airing of private biases and jaundiced views.

It is thus even as I am personally disturbed by fallacious, specious, and at times downright false and deceitful reporting and comments, meant only to promote private and selfish interests, I must extend my concurrence to the well-written opinion of Justice Puno. For, as was said of old, when one rows through a sea of conflict between restraint and freedom, one should hold both oars steadily, but always with the oar of freedom in the stronger hand, lest an errant course be laid. (Justice Melo, dissenting in A.M. No. 93-2-037-SC, April 6, 1995)

JUSTICE PUNO, dissenting: Upon these facts, the majority would hold respondent guilty of contempt of court.

In adjudging respondent in contempt of court, the majority attempted to establish an equilibrium between the importance of a free press and the need to maintain the integrity and orderly functioning of the administration of justice, the civil law duty to "act with justice, give everyone his due, and observe honesty and good faith," and the right to private honor and reputation. The majority tilted the balance against freedom of the press and respondent Jurado after finding that some of his columns were either false or slanted as he made no effort to verify them before their publication.

How to strike a balance that will accommodate equally compelling yet competing State interests has divided men of stratospheric intellect. Until the fast decibel of time, and while man continues to be bereft of infallibility, the best of minds will continue with their search for the elusive variables that will correctly tilt the balance between press freedom and other freedoms. Thus, with high respect to my learned colleagues in the majority, I beg to differ with their conclusion on where to fix the elusive balance in the case at bench.

A brief revisit of the history of the struggle to protect freedom of the press ought to be enlightening. It will remind us that freedom of speech and freedom of the press are preferred right for they are indispensable preconditions for the exercise of other freedoms. Their status as the cornerstone of our liberties followed the shift of sovereignty from monarchs to the masses — the people. For the people to be truly sovereign, they must be capable of rendering enlightened judgments and they cannot acquire this capability unless they have an unclogged access to information, the main pipeline of which is the press. Early enough, Madison had the prescience to warn that "a popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both."

The history of press freedom will also reveal that while its importance has been given lip service, its unabridged exercise was not won without a costly struggle. Ironically, the attempts to restrict the newsmen's pen came from government itself. The attempts were disguised in different insidious
forms. They came as sedition laws which sent newsmen behind bars. They came as tax laws which impoverished newspaper publishers. Through long, difficult years, the press survived these assaults.

Nonetheless, the struggle to preserve press freedom is distinct for it is a story with a first but without a final chapter. In the decade of the 60's and onwards, a new weapon against press freedom was unsheathed by government. It was the sword of subpoena. In Congress as in the courts, it was wielded to pry open newsmen's secret sources of information often derogatory to government. The unbridled use of the subpoena had its silencing effects on the exercise of press freedom. Common law denied newsmen the right to refuse to testify concerning information received in confidence. The press has to go to the legislature for protection. The protection came to be known as shield statutes and their scope varied. In the United States, they were of two (2) tapes: (1) laws that shield the identities of newsmen's informants from disclosure; and (2) laws that shield not only the identities of news sources but also the content of the communication against disclosure. Test cases also filed in courts seeking a ruling that a newsman's right to gather news is constitutionally protected, and hence, cannot be impaired by subpoenas forcing disclosure of the identities of their sources of information. To date, the American case law on the matter has yet to jell.

In the Philippines, the shield law is provided by Republic. Act No. 1477, approved on June 15, 1956 which prohibits revelation of "the source of any news-report or information . . . related in confidence . . . unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State." R.A. No. 1477 amended R.A No. 53 by changing the phrases "interest of the State" to "security of the State" The change limited the right of the state to share with newsmen their confidential sources of information.

Prescinding from these premises, let me now slide to the constitutional balancing made by the majority. I whole heartedly agree that except for a more overriding consideration, the Court should uphold the importance of an orderly administration of justice. It appears that respondent's reliance on his constitutional right to freedom of speech and of the press failed to impress the majority as an overriding consideration. Among the reasons that obviously swayed the majority in submerging the significance of freedom of speech and of the press below that of an orderly administration of justice were: failure of respondent to obey the invitation to appear made by the Ad Hoc Committee, his refusal to reveal the sources of his information, and the falsity and slants of his columns.

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