Before our airwaves and TV lanes are inundated with replays ad nauseam of the ?Hello, Garci?? tapes, let those still unwary beware of the Supreme Court?s decision. Let them pay heed to what it ruled, and to what it did not do.

?Prior restraint? is what happens when an agency or instrumentality of State gags a person even before he can speak, or snatches the writer?s pen before it is put to the page even if -- or precisely because -- the speaker or the writer should be poised to produce libel, obscenity or ?fighting words.? Our culture of rights, borrowed from American constitutional tradition in this respect, believes in leaving persons free to speak and write as they please, and to hold them accountable only after they have spoken should there be legal grounds for accountability.

I am not saying that this is the more reasonable order of things. Justice Secretary Raul Gonzalez scored a good point when he asked rhetorically: ?Is it not better to warn them ahead of time rather than to allow them to breach the law and then prosecute them for it?? Of course, the only problem with this otherwise reasonable approach is that it is not congruent with the tradition by which we choose to abide. Maybe this should urge us to be more resolute about weaning ourselves from a not-too-flattering dependence on American constitutional traditions!

Let us then assume that a conversation between a television corporation and an anti-government business patron is recorded by a rival television station. Prior restraint would have the courts or some other government agency stop the rival television station from airing, transcribing, reproducing copies of the recorded conversation. It is this that the Supreme Court ruled cannot be done. So there will be nothing to stop the rival television station from playing, flashing on screen, etc. the taped conversation. But will criminal prosecution lie? The terms of Republic Act 4200 are clear and yes, prosecution will certainly lie.

In other words, the policy against prior restraint is one that leaves you free to speak and write what you will until it is too late! The doctrine against prior restraint does not negate the laws that punish libel, grave oral defamation or a violation of the anti-wiretapping laws in this jurisdiction. It is simply a policy of leaving people free to speak and write as they please -- leaving them to deal with the consequences when these should run afoul of the law!

And while we are in the neighborhood, I see no rhyme or reason in the clamor to decriminalize libel. I think the Chief Justice was right in suggesting that judges who try libel cases ?may wish to consider? the imposition of fines over meting out prison terms to first-time offenders and others in circumstances that call for leniency. But decriminalizing libel is quite another matter. Fairness never stacks the odds against one side in favor of another, and fairness is at the heart of justice. The advocates of decriminalization want the media?s victims pummeled, beaten to a pulp and stripped of all dignity and respectability, and at the same time deprived of every legal weapon to hit back. A claim for damages is not sufficiently restorative, because moguls wallowing in wealth stand behind the media conglomerates that dominate the Philippine scene. The civil damages assessed against their lackeys will be loose change for these new taipans. The abusive reporter, the libeling columnist, the slanderous commentator should be held criminally liable. There is wisdom in the penal code?s criminalization of libel -- a wisdom that glaringly contrasts with media?s pretensions of being power brokers in this country!

So, shall we be hearing those ?Hello, Garci?? recordings again? Actually, there will be nothing new. Even the ?Hello, Garci?? ring-tones have become passé. The Supreme Court has ruled: No one will stop anyone who wishes to air them. But the law says with equal clarity that whoever so airs them will be punished. That is how things stand.

Fr. Ranhilio Callangan Aquino is dean, Graduate School of Law, San Beda College, Mendiola.