On sub judice and gag orders

Edsel Tupaz
Gag orders are regarded as prior restraints on the freedom of speech and freedom of the press

EDSEL TUPAZ

On Monday, an ABS-CBN news flash announced the House prosecutors’ plan to launch a social media campaign “to inform the public on latest developments in the impeachment trial of Supreme Court Chief Justice Renato Corona.”

But Rep Romero “Miro” Quimbo, a spokesperson for the prosecution, was quick to admit that the plan was, in part, a reaction to the defense’s own social media. He was fearful that the prosecution, in his own words, is “getting left behind.”

The defense, through their own spokespersons and lawyers Tranquil Salvador III and Karen Jimeno, seems to have joined Quimbo at least in principle, stating that spokespersons of the defense and prosecution alike ought to inform the “ordinary people” about the “procedures” of the impeachment trial and “enhance public participation.” 

Regardless of one’s angle or position, any social media campaign will implicate a parallel debate on who really is covered by the “gag order” issued by the Senate sitting as an impeachment court.

No less than Senate President Juan Ponce-Enrile, the presiding official, has warned the chamber (and, arguably, the public at large) that those who violate the impeachment court’s orders or rules may be cited for contempt. 

A number of positions have been expressed by at least four camps – the prosecution, the defense, the Senate itself, and Malacañang spokesmen. Even between and among the senators there seems to be a weak consensus as to who is covered. Neither is there agreement on the very nature and substance of the speech that is prohibited or allowed. 

Gag order

It seems safe to say that the Senate’s gag order would certainly apply to the very actors of the impeachment court, who include the members of the House prosecution panel, counsel for the defense, and the “parties” and their witnesses. It seems less certain, however, whether the Senate’s gag order covers public statements by the senator-jurors themselves, should they speak their own thoughts (usually via SMS which is then reported by the media). 

But since the order is presumably one issued by the Senate acting collegially, then it could well be supposed that the same norms otherwise applying to the parties and their counsel would govern the conduct and speech of the individual jurors.

Being a form of speech, any ongoing social media campaign can, therefore, be subject to scrutiny by the Senate. What is the reason for the issuance of the gag order, and who are covered by this apparent restriction on free speech and debate?

A good place to start would be the rules on sub judice as understood by Philippine courts and jurists. In Romero, et al. v. Estrada, et al., G.R. No. 174105, 2 April 2009, the Supreme Court held that the sub judice rule restricts comments and disclosures pertaining to judicial proceedings to avoid prejudging the issue, influencing the court, or obstructing the administration of justice.

Sub judice

A violation of the sub judice rule may render one liable for indirect contempt under the Rules of Court. The rationale for the rule, to the Court, had been stated thus: “[I]t is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.” 

The first thing one ought to flag down is that the sub judice rule, being of common law origin, applies almost exclusively, or at least most of the time, to criminal proceedings whose ultimate fact finders and decision makers rest with a jury composed of laymen. 

Let’s take a look at three landmark cases rendered by the US Supreme. In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Court framed the question as one pointing to whether the defendant had been denied a fair trial for the second-degree murder of his wife. His conviction in the case was allegedly shaped in no small part by what struck the petitioner (the convicted felon) as a failure of the trial judge to protect Sheppard from a massive, pervasive, and prejudicial publicity campaign seeking his conviction.

In a nutshell, the Court found that Sheppard did not receive a fair trial; that although the freedom of expression should be given great latitude, it must not be so broad as to divert the trial away from its primary purpose: that is, adjudicating both criminal and civil matters in an objective, calm, and solemn courtroom setting. In addition, the blatant and hostile trial coverage by Cleveland’s radio and print media and the physical arrangement of the courtroom itself—which facilitated collaboration between the prosecution and present media—all combined to so inflame the jury’s minds against Sheppard as to deny him a fair trial.

The Court concluded that trial courts should take “strong measures” to protect fair trial rights, and that the trial court judge should have either postponed the proceedings or transferred them to a different venue.

But to what extent or how “strong” should these “strong measures” be? And how should the trial court judge conduct the proceedings, mindful all the while of the balancing act between the right to free speech and freedom of the press on one hand, and the right of the accused to a fair trial, on the other? 

Prior restraint unconstitutional

To cut to the chase, the second point I make is that gag orders are usually classified as a form of prior restraint, hence they are presumptively unconstitutional

In Nebraska Press Association v. Stuart, 427 U.S. 539 (1976),  another leading US Supreme Court case, a “gag order” preventing the press from publishing information concerning the defendant’s confession or other facts “strongly implicative” of the accused, was regarded as an unconstitutional prior restraint on media coverage during criminal trials.  

Here the trial court was faced with a murder trial – again a criminal case. On appeal, the Supreme Court, ruling unanimously, found that the gag order violated the First Amendment.

A reading of the plurality opinion would suggest that restrictive orders can be constitutional when justified by a compelling interest, and when no less speech-restrictive alternatives are available. Two other justices expressed “grave doubts” that a restrictive order per se would ever pass constitutional muster. 

In similar fashion, though deploying a more direct, simplified approach, Philippine courts are apt to treat gag orders – especially those issued by lower courts or administrative bodies – as presumptively unconstitutional. They are also expected to apply (rightly or wrongly) the “clear and present danger test,” determining in the process whether substantial evils that a lawmaker has a right to prevent would result. 

Given that gag orders are regarded as prior restraints on the freedom of speech and freedom of the press, a government official who proposes it would be faced with a heavy burden of making a compelling justification for making that restriction.

Stricter with lawyers than the press

The third point is that a distinction ought to be made by speech uttered by attorneys who are involved in the (criminal) case, and those published by the press. US courts tend to be tighter in regulating utterances made by counsel for either the defense or the prosecution, but liberal with the media. 

In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), the US Supreme Court framed the issue as one whether a criminal defense attorney could be reprimanded by a state bar for talking about the mere facts of a criminal case before trial. Here, Dominic Gentile was retained as counsel to represent a well-known Las Vegas businessman indicted for stealing cocaine and money from a Las Vegas police sting operation. On the day of his client’s indictment, Gentile held a press conference to proclaim his client’s innocence and blamed the police for the theft. The State Bar of Nevada filed a disciplinary action against Gentile for his comments, which resulted in a reprimand.

The case reached the Supreme Court and became a landmark First Amendment case on lawyer speech. The Gentile Court held that while a State Supreme Court’s rule that restricted attorney speech was void for vagueness (for failing to provide adequate notice), the standard employed by the rule did not violate the First Amendment.

Five justices agreed that it is constitutionally permissible to impose restrictions on the speech of attorneys that would not be permissible against the press. Four justices would have insisted that any punishment of an attorney’s speech be justified by a very strong state interest and employ closely tailored means.

The Rehnquist majority concluded that attorney speech is subject to greater regulation because of both an attorney’s relationship to the judicial process and the significant dangers that attorney speech poses to the trial process.

Tweet away

Can and should the Senate, perhaps through Enrile, punish the spokespersons of either the defense or prosecution if any of them utters speech of a nature that would “so inflame the jury’s minds” against Chief Justice Corona as to deny him a fair trial? Is the trial in question a criminal proceeding in the first place? 

And, even if both were true, are the spokespersons speaking in the name of press freedom and right to information, or are they speaking as counsel for the accused or for the prosecution? Is there any real risk that a propaganda campaign in the form of social media will prevent Corona from having a fair trial in the Senate?

Such an assertion may be a hard sell. It can be argued, as a colleague of mine did, that the exposure of a jury of lay persons to propaganda and unfairly prejudicial statements may so affect their minds and deliberations as to render a fair trial unlikely. However, it is the general orthodoxy that learned professional persons, more particularly, lawyers and seasoned lawmakers, are not as easily influenced by extraneous matters and are able to distinguish between what is relevant in their deliberations and what is not.

While this may be somewhat of a fiction, and naïvely discounts the frailties of the human psyche, and the susceptibility of all persons to prejudice of one kind or the next, nonetheless, the circumstances render any argument of prejudice at a trial by the Senate unconvincing. So, any propaganda here may be irrelevant.

My advice to you then, in case of doubt, is to go ahead and click “like” and “share” on Facebook, or Tweet away! Of greater concern, really, would be the infiltration of political concerns into the deliberations of the Senate, given the connection and suspected loyalties of the Chief Justice to one or two political factions. – Rappler.com

 

Special thanks to Jermaine Spence and Joan Martinez for their thoughts and comments. Edsel Tupaz is a professor of international and comparative law, teaching at law schools in the US and the Philippines. He is a public interest lawyer whose fields of interest lie in comparative constitutional law. Mr Tupaz is a graduate of Harvard Law School and Ateneo Law School. He can be followed on Twitter, here: www.twitter.com/edseltupaz