CABANSAG v. FERNANDEZ, G.R. No. 8974, October 18, 1957.

FREEDOM OF SPEECH AND LIBEL AND CONTEMPT LAWS

CABANSAG v. FERNANDEZ, G.R. No. 8974, October 18, 1957.

Cabansag filed a suit to eject Fernandez from a certain parcel of land. The trial of the case however, was unduly prolonged, prompting Cabansag to write a letter to the Presidential Complainants and Action Commission (PCAC). For this, he and his lawyers were held in contempt of court.

We are therefore confronted with a clash of two fundamental rights which lie at the bottom of our democratic institutions — the independence of the judiciary and the right to petition the government for redress of grievance. How to balance and reconcile the exercise of these rights is the problem posed in the case before us.

". . . A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society.

The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press." (Justice Frankfurter, concurring in Pennekamp vs. Florida, 328 U.S. 354-356)

Two theoretical formulas had been devised in the determination of conflicting rights of similar import in an attempt to draw the proper constitutional boundary between freedom of expression and independence of the judiciary. These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. And this evil is primarily the "disorderly and unfair administration of justice." This test establishes a definite rule in constitutional law. It provides the criterion as to what words may be published. Under this rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such advocacy will harm the administration of justice.

This rule had its origin in Schenck vs. U. S. (249) U. S. 47), promulgated in 1919, and ever since it has afforded a practical guidance in a great variety of cases in which the scope of the constitutional protection of freedom of expression was put in issue. 1 In one of said cases, the United States Supreme Court has made the significant suggestion that this rule "is an appropriate guide in determining the constitutionality of restriction upon expression where the substantial evil sought to be prevented by the restriction is destruction of life or property or invasion of the right of privacy" Thornhill vs.  Alabama, 310 U.S. 88).

Thus, speaking of the extent and scope of the application of this rule, the Supreme Court of the United States said "Clear and present danger of substantive evils as a result of indiscriminate publications regarding judicial proceedings justifies an impairment of the constitutional right of freedom of speech and press only if the evils are extremely serious and the degree of imminence extremely high. . . . A public utterance or publication is not to be denied the constitutional protection of freedom of speech and press merely because it concerns a judicial proceeding still pending in the courts, upon the theory that in such a case it must necessarily tend to obstruct the orderly and fair administration of justice. . . . The possibility of engendering disrespect for the judiciary as a result of the published criticism of a judge is not such a substantive evil as will justify impairment of the constitutional right of freedom of speech and press." (Bridges vs.  California, 314 U.S. 252, syllabi)

No less important is the ruling on the power of the court to punish for contempt in relation to the freedom of speech and press. We quote; "Freedom of speech and press should not be impaired through the exercise of the power to punish for contempt of court unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice. . . . A judge may not hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him. . . . The vehemence of the language used in newspaper publications concerning a judge's decision is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice." (Craig vs. Harney, 331 U. S. 367, syllabi.)

And in weighing the danger of possible interference with the courts by newspaper criticism against the right of free speech to determine whether such criticism may constitutionally be punished as contempt, it was ruled that "freedom of public comment should in borderline instances weigh heavily against a possible tendency to influence pending cases." (Pennekamp vs. Florida, 328 U. S. 331)

The question in every case, according to Justice Holmes, is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree (Schenck vs. U. S., supra).

The "dangerous tendency" rule, on the other hand, has been adopted in cases where extreme difficulty is confronted in determining where the freedom of expression ends and the right of courts to protect their independence begins. There must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against contempt (Gilbert vs. Minnesota, 254 U. S. 325.)

This rule may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. (Gitlow vs. New York, 268 U.S. 652.)

"It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language, and prevents the punishment of those who abuse this freedom. . . . Reasonably limited, it was said by story in the passage cited this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the Republic.

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"And, for yet more imperative reasons, a state may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional state. . . .

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". . . And the immediate danger is none the less real and substantial because the effect of a given utterance cannot be accurately foreseen. The state cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the state is acting arbitrarily or unreasonably when, in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment suppress the threatened danger in its incipiency. In People vs.  Lloyd, supra p. 35 (136 N. E. 605), it was aptly said: 'Manifestly the legislature has authority to forbid the advocacy of a doctrine until there is a present and imminent danger of the success of the plan advocated. If the state were compelled to wait until the apprehended danger became certain, than its right to protect itself would come into being simultaneously with the overthrow of the government, when there would be neither prosecuting officers nor courts for the enforcement of the law.'" Gitlow vs.  New York, supra.)

The question then to be determined is: Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?

Even if we make a careful analysis of the letter sent by appellant Cabansag to the PCAC which has given rise to the present contempt proceedings, we would at once see that it was far from his mind to put the court in ridicule and much less to belittle or degrade it in the eyes of those to whom the letter was addressed for, undoubtedly, he was compelled to act the way he did simply because he saw no other way of obtaining the early termination of his case. This is clearly inferable from its context wherein, in respectful and courteous language, Cabansag gave vent to his feeling when he said that he "has long since been deprived of his land thru the careful maneuvers of a tactical lawyer"; that the case which had long been pending "could not be decided due to the fact that the transcript of the records has not, as yet, been transcribed by the stenographers who took the stenographic notes"; and that the "new Judges could not proceed to hear the case before the transcription of the said notes." Analyzing said utterances, one would see that if they ever criticize, the criticism refers, not to the court, but to opposing counsel whose "tactical maneuvers" has allegedly caused the undue delay of the case. The grievance or complaint, if any, is addressed to the stenographers for their apparent indifference in transcribing their notes.

The only disturbing effect of the letter which perhaps has been the motivating factor of the lodging of the contempt charge by the trial judge is the fact that the letter was sent to the Office of the President asking for help because of the precarious predicament of Cabansag. While the course of action he had taken may not be a wise one for it would have been proper had he addressed his letter to the Secretary of Justice or to the Supreme Court, such act alone would not be contemptuous. To be so the danger must cause a serious imminent threat to the administration of justice. Nor can we infer that such act has "a dangerous tendency" to belittle the court or undermine the administration of justice for the writer merely exercised his constitutional right to petition the government for redress of a legitimate grievance.