Seares: ABS-CBN issue is not totally about free speech. Gag order makes it one.

SINCE the issue on the franchise of ABS-CBN began to smolder early this year, supporters of the bills extending its 25-year grant had barely touched the matter of free speech and free press.

Then the Department of Justice, through Secretary Jose Calida, filed a petition of “quo warranto” against the network as the March deadline neared. Suddenly, all sorts of arguments, including press freedom, flew thick and fast. And this week Calida's motion for a gag order promptly made the ABS-CBN case a full-blown press freedom issue.

Earlier, those who spoke out dwelt on giving the network “its day in Congress and in court” and the thousands of employees who’d be laid off, and the loss of business without fair hearing.

The early noise against ABS-CBN condemned alleged violations of the network that should strip it of its franchise and recalled alleged incidents of abuses by the network on journalists, actors, and other talents.

Nothing much was said then on pros and cons affecting press freedom.

Roque’s view

To Harry Roque--former congressman and lawyer for journalists, and ex-presidential spokesman-–the issue necessarily but only partly involves press freedom. ABS-CBN, he said, enjoys some advantage because of the “presumption of unconstitutionality” against the Calida petition. But it is a disputable presumption which DOJ may overcome by “proving a greater interest than freedom of the press.”

At the same time, Roque minimizes the threat to press freedom, saying termination of franchise does not stop ABS-CBN from engaging in the news business. It can use media platforms that don’t require a franchise from Congress, such as employing digital media or serving as content provider.

Not total suppression

The logic runs thus: No violation of press freedom if the suppression is not total: the cut does not kill, it just inflicts cuts and wounds since ABS-CBN could still operate as news collector and provider. Enfeebled but not dead.

The same argument is being used to foil the press freedom defense used by Rappler and its supporters. Malacañang says the ban on Rappler reporters from covering the President does not impair press freedom since they can still gather and produce news by tapping other sources.

That ‘chilling effect’

The argument for press freedom rests on the assumption that media has basis to fear and complain at any stage, even if it is just planned or just the first steps are taken, such as the current moves against ABS-CBN. The over-used phrase, a cliché in the making, is “chilling effect.” Intentions are in the realm of the mind, not actionable. Yet the prospect is enough to strike fear.

Still, when must media cry out and sound the alarm?

Propaganda war

Whatever the arguments, a court-ordered gag aims to suppress the debate on what Roque calls a “transcendental” issue. It is also “presumptively unconstitutional,” especially so if the gag is not limited to the parties in the case.

Our courts have been liberal in enforcing the “sub-judice rule,” on which a gag order rests, especially in non-criminal proceedings. Maybe because judges, not a jury, will hear the case. Judges by training and experience can insulate themselves from propaganda, which is what the government must fear ABS-CBN is already waging and likely to step up in the field of public opinion.

Unenforceable order

Any gag order must consider that public debate on big national issues has drastically changed in method and intensity: Voices in the internet--real, fictitious or manipulated—can be uncontrollable, beyond the court’s sanction.

Any gag order not limited to the parties and their spokesperson may not only be futile. It may also reinforce the argument that the government is squelching contrary views in the discussion.

What the gag order most likely will be:

[] It is expected to be directed only against ABS-CBN and the solicitor general and their representatives. But the Supreme Court may surprise us.

[] A blanket ban on public discussion of the issue is undemocratic. It will reinforce suspicion that the gag is aimed to stop public debate, which is a basic facet of a functioning republic. A total ban is also impossible to enforce, given the various media platforms and the technology powering them.

[] Propaganda obviously will be used by both sides. The public, with the help of news media that consumers trust, must exert more effort to distinguish facts from falsehood.—PAS


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