Another brewing issue that is bound to elicit a debate on press freedom interests is a declaration by the Executive Department, through Presidential Chief of Staff Michael Defensor, who was seen on television declaring the state’s intention to subpoena video tapes of a supposed interview with detained Brig. General Danilo Lim which will show that the general declared his withdrawal of support from the government.
This, Defensor said, will prove the state right, and would justify the proclamation of a state of national emergency.
In addition, Sec. Defensor said besides the video tapes, the state has other evidence that there was indeed a conspiracy to overthrow the government.
The question is: What will ABC 5’s response be? What are its options?
The most logical option of course, is to yield to the state. Give it to them. Why create a fuss? What’s the big deal?
And this option has constitutional and jurisprudential bases.
After all, it has long been a legal tradition that the interests of the state in the successful prosecution of crimes---specially those which threaten the stability or the very existence of the government--- precedes private interests, such as private ownership (of video tapes), or freedom of the press to be left alone against state intrusions.
But the press wants to be left alone, doesn’t it?(Specially these days)
However, the well-established rule is that the press enjoys no testimonial privilege from complying with subpoenas, particularly when such testimony is crucial in the prosecution of crimes (Branzburg v Hayes).
On the other hand, this does not mean that the press cannot ask questions first, before submitting itself to the state’s prosecutorial processes.
As a matter of legal and historical fact, before a newsman is compelled to testify, even in those matters where information was gathered under confidential circumstances, the government has the prior obligation to demonstrate a “compelling need” for the newsman’s testimony.
And part of this “compelling necessity” is for the state first to establish that a there was a crime.
Thus, if in that interview, Brig. Gen. Lim merely declared withdrawal of support, is that a crime?
Wouldn’t it be proper , therefore, for ABC 5, to first ask the state some few questions, before it complies with a subpoena?
The press has rights (to due process), doesn’t it?
Secondly, Sec. Defensor was quoted as saying it has evidence to prove the state’s case, other than the video tapes.
The next question is: with the admitted availability of “other” evidence, is there still a compelling necessity to subpoena the press?
It would be reasonable to assume that ABC 5 will just take the easy route of just complying with the subpoena. In the process it would earn good points from the state. Why rock the boat?
By not submitting to the state, this could potentially have adverse repercussions on business.
But there are greater interests.
There are interests, such as the protection of the freedoms that the press enjoys, like the freedom to promote the maintenance of that free flow of information, unobstructed by state intrusions.
The problem is that if ABC 5 submits the tapes without raising questions or objections, it might probably create a state hobby.
We can expect the state demanding all kinds of information, even those considered sacred by the press, like those sealed by pacts of confidentiality.
As the esteemed Mr. Justice Douglas, in his dissenting opinion in Branzburg versus Hayes said, “The intrusion of government into this domain is symptomatic of the disease of this society. As the years pass the power of government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it.”
“Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And, fear of accountability will cause editors and critics to write with more restrained pens.”
This is the real danger.
Will ABC 5 yield?
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