Misplaced outrage

I am elated that columnist Oscar Franklin Tan reads my writings on the Constitution and the law. When he reacted that my write-up on the privacy of communications (Opinion, 9/16/17) ran counter to jurisprudence, I reread the piece. I realized that my categorization of the senator’s use of the intercepted text messages as “unconstitutional” was inappropriate pursuant to the ruling in People v. Marti (1991) wherein the Supreme Court held that searches and seizures by a private individual are not covered by the constitutional proscription. The right word should have been “inadmissible” in light of the anti-wiretapping law.

But what “outraged” Tan (Opinion, 9/18/17) was not the opinion that the senator’s use of the intercepted justice secretary’s text messages was unconstitutional. In Tan’s view, the invocation of the right to privacy vis-à-vis the justice secretary’s text messages was inappropriate, and the assailed article purportedly parlayed the idea  for the senator’s criminal prosecution. Tan said the senator’s use of wiretapped communication justifies the means of obtention because the content was a matter of public concern.

Tan opined that the justice secretary’s communication is not covered by the right to privacy because it is a matter of public concern which overrides the constitutional proscription on an unauthorized intrusion into the privacy of communication. He

cited the cases of Fortun v. Quinsayas (2013) and Bartnicki v. Vopper (2001). The latter was cited in a dissenting and concurring opinion in Chavez v. Gonzales (2008), the “Hello Garci tapes case,” but not in the majority opinion.

I did not say in the assailed article that the senator violated the anti-wiretapping law, and should be prosecuted for it. I said that had the use been in any proceeding, it would be “unconstitutional,” or more appropriately “inadmissible.”  To violate that law, as in the case of the anti-money laundering law, the possessor of the wiretapped communication, or laundered money, must knowingly possess it. I never ascribed to the senator that she knowingly possessed the camera-captured text messages as wiretapped.

In Fortun, the issue was the unauthorized disclosure of disbarment proceedings which, by Supreme Court edict, are confidential in nature. The court ruled that the respondent media entities did not violate the confidentiality rule because the reportage was a valid exercise of free speech. But the lawyer who divulged the privileged content to the media was disciplined for contempt of court.

In Bartnicki, respondent Vopper was a radio commentator. He reported on the intercepted and recorded cell phone conversation between a labor union’s chief negotiator and Bartnicki, the union president. Vopper did not commit the illegal interception of communications. The US court ruled that a stranger’s illegal conduct (wiretapping) does not suffice to remove the constitutional guarantee of Vopper’s free speech about a matter of public concern.

In Chavez, the case was about the acts or issuances of another justice secretary, and the NTC press release, warning radio and TV stations against airing the taped conversations in the infamous “Garci tapes.” The court ruled that the challenged acts and press release constituted prior restraint on the freedom of speech, and were therefore void. It was also stated that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. But no Supreme Court ruling has so far declared Republic Act No. 4200 unconstitutional.

A reckless and wholesale shuttering of one’s right to privacy in favor of the freedom of speech will create a dangerous slippery slope. What then will prevent the administration from eavesdropping on the conversations of opposition public figures, and leaking these to the media for broadcast, all in the name of freedom of speech? The conundrum requires a balancing of interests.

FRANK E. LOBRIGO