NEW YORK TIMES CO. V.

US (1971) Facts: In what became known as the "Pentagon Papers Case," The New York Times and the Washington Post obtained copies of a top secret 7,000 page study of U.S. military intervention in Vietnam produced by the Department of Defense entitled History of U.S. Decision Making Process on Viet Nam Policy. After several months of analysis, each publication began to print a series of articles about the document. President Richard Nixon, claiming that the articles could harm national security and the ongoing war in Vietnam, obtained injunctions against each publication, seeking to prevent each from publishing any further information about the document in question. Hence, prior restraint was necessary to protect national security. The District Court in the New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the Government had not met the requisite burden justifying such a prior restraint. Issue: WON the United States met the heavy burden of showing justification for the enforcement of such a restraint on the New York Times and Washington Post to enjoin them from publishing contents of a classified study. Held: No Ratio: The court held six to three in favor of the plaintiffs, vacating the stays and permitting publication to proceed. The majoritys per curiam opinion, as laconic as the collection of concurring opinions, holds that, quite simply, the government has failed to meet the burden required for the court to impose prior restraint on the plaintiffs expression. The First Amendment of the Constitution leaves no room for governmental restraint on the press. There is, moreover, no statute barring the publication by the press of the material that the Times and Post seek to publish. The First Amendment of the Constitution tolerates no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result. Thus, only governmental allegation and proof that publication must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support the issuance of an interim restraining order. Unless and until the Government has clearly made its case, the First Amendment of the Constitution commands that no injunction be issued.The responsibility must be where the power is. The Executive must have the large duty to determine and preserve the degree of internal security necessary to exercise its power effectively. Any system of prior restraints on expression comes to the Supreme Court bearing a heavy presumption against its invalidity. The Government thus creates a heavy burden of showing justification for the enforcement of such a restraint. The Executive is correct with respect to some of the documents here, but disclosure of any of them will not result in irreparable danger to the public.The United States has not met the very heavy burden, which it must meet to warrant an injunction against publication in these cases.

Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Additonal Notes: Dissenting Opinion: The scope of the judicial function in passing upon activities of the Executive Branch in the field of foreign affairs is very narrowly restricted. This view is dictated by the doctrine of Separation of Powers. The doctrine prohibiting prior restraints does not prevent the courts from maintaining status quo long enough to act responsibly.The First Amendment is only part of the Constitution. The cases should be remanded to be developed expeditiously. TOLENTINO V. SECRETARY OF FINANCE (1994) Facts: The valued-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or exchange of services. It is equivalent to 10% of the gross selling price or gross value in money of goods or properties sold, bartered or exchanged or of the gross receipts from the sale or exchange of services. Republic Act No. 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National Internal Revenue Code. The Philippine Press Institute, Inc. (PPI), EGP Publishing Co, Inc. Kamahalan Publishing Corporation, Philippine Journalists, Inc. say that the discriminatory treatment of the press is highlighted by the fact that transactions, which are profit-oriented, continue to enjoy exemption under R.A. No. 7716. PPI contends that by removing the exemption of the press from the VAT while maintaining those granted to others, the law discriminates against the press. At any rate, it is averred, "even nondiscriminatory taxation of constitutionally guaranteed freedom is unconstitutional." PPI cites in support of this assertion the following statement in Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943): The fact that the ordinance is "nondiscriminatory" is immaterial. The protection afforded by the First Amendment is not so restricted. A license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them all alike. Such equality in treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion are in preferred position. Issue: WON the imposition of VAT on the press is considered a prior restraint on press freedom. Held: No Ratio: VAT is not a license tax, which is used mainly for regulation. The Court was speaking about a license tax in the case of Murdock v. Pennsylvania. The Court held in that case that the imposition on the press of a license tax is unconstitutional because it lays prior restraint on the exercise of its right. Hence, although its application to others, such those selling goods,

is valid, its application to the press or to religious groups, such as the Jehovah's Witnesses, in connection with the latter's sale of religious books and pamphlets, is unconstitutional. As the U.S. Supreme Court put it, "it is one thing to impose a tax on income or property of a preacher. It is quite another thing to exact a tax on him for delivering a sermon." A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil. 386 (1957) which invalidated a city ordinance requiring a business license fee on those engaged in the sale of general merchandise. It was held that the tax could not be imposed on the sale of bibles by the American Bible Society without restraining the free exercise of its right to propagate. The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege, much less a constitutional right. It is imposed on the sale, barter, lease or exchange of goods or properties or the sale or exchange of services and the lease of properties purely for revenue purposes. To subject the press to its payment is not to burden the exercise of its right any more than to make the press pay income tax or subject it to general regulation is not to violate its freedom under the Constitution.

CHAVEZ V. GONZALES (2008) Facts: As a consequence of the public release of copies of the Hello Garci compact disc audiotapes involving a wiretapped mobile phone conversation between then-President Gloria Arroyo and Comelec Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales warned reporters that those who had copies of the CD and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody. Finally, he stated that he had ordered the NBI to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape. Meanwhile, respondent NTC warned TV and radio stations that their broadcast/airing of such false information and/or willful misrepresentation shall be a just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said media establishments. Petitioner Chavez filed a petition under Rule 65 against respondents Secretary Gonzales and the NTC directly with the Supreme Court. Issue: WON the mere press statements of respondents DOJ Secretary and the NTC constitute a form of content-based prior restraint that has transgressed the Constitution? Held: Yes Ratio: The mere press statements of respondents DOJ Secretary and the NTC constituted a form of content-based prior restraint that has transgressed the Constitution. The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the message of the Garci Tapes. The NTCs claim that the Garci Tapes might contain false information and/or willful misrepresentation, and thus should not be publicly aired, is an admission that the restraint is content-based.

The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing categories of unprotected expression recognized in this jurisdiction. The airing of the Garci Tapes is essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections. The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected expression. On this ground alone, the NTC press release is unconstitutional. Of course, if the court determines that the subject matter of the wiretapping, illegal or not, endangers the security of the State, the public airing of the tape becomes unprotected expression that may be subject to prior restraint. However, there is no claim here by the respondents that the subject matter of the Garci Tapes involves national security and publicly airing the tapes would endanger the security of the State. The airing of the Garci Tapes does not violate the right to privacy because the content is a matter of important public concern. The Constitution guarantees the peoples right to information on matters of public concern. The remedy of a person aggrieved by the public airing of the Garci Tapes is to file a complaint of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wire Tapping Law. While there can be no prior restraint on protected expression, there can be subsequent punishment for protected expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the Anti-Wire Tapping Law. It is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non-formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press.