MANILA – A gag order against ABS-CBN will not only violate press freedom, it will also deprive Filipinos of a vital source of information, ABS-CBN Corporation and ABS-CBN Convergence, Inc. argued in their submission to the Supreme Court 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 network said in its "Comment Ad Cautelam" filed through law firm Poblador Bautista & Reyes.

The submission was in response to the Office of the Solicitor General’s (OSG) plea for the high court to issue a gag order against the media network, its subsidiary and “persons acting on their behalf” in connection with the quo warranto petition against them.

On Tuesday last week, Solicitor General Jose Calida invoked 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.

But 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," it said.

OSG’S POSITION

Calida had 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.”

Among these are videos explaining what a quo warranto petition is and the arguments raised by the OSG and ABS-CBN, the possible effect of ABS-CBN’s closure and a discussion on KBO which offers pay-per-view (PPV) service.

The OSG also raised concerns over a series of commentaries on ABS-CBN’s news website about the quo warranto petition and the Philippine depository receipts (PDRs) as well as statements given to the media by ABS-CBN artists and personalities.

KBO’s PPV and PDRs were among the issues raised by the OSG in the quo warranto petition.

The OSG claimed both the public and the SC justices themselves will be affected by these reports.

ABS-CBN: NO CLEAR AND PRESENT DANGER

But ABS-CBN rejected the OSG’s position.

“To presume that the Members of the Honorable Court would be unable to render impartial judgment merely because of public discussion of the issues involved in the Petition is to diminish their intelligence, experience and independent thought,” it said.

The network 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, it said, is only allowed in 4 instances: pornography, false or misleading advertisement, advocacy of imminent lawless action and danger to national security, none of which 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.

• READ: Statement of ABS-CBN on OSG's Quo Warranto petition: We did not violate the law

ABS-CBN: GAG ORDER VAGUE, BANS ALL FORMS OF DISCUSSION

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

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.

It added that 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.

NOT ENGAGED IN PROPAGANDA

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, pointing out that there were other media organizations who also published similar content.

THE PUBLIC’S RIGHT TO KNOW

ABS-CBN 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.