MANILA, Philippines—We have just seen two extreme forms of censorship. The first was extreme in its brutality. Bert Sison, a 60-year-old newsman and broadcaster in Quezon Province, was driving his Toyota Corolla with his two daughters, when two motorcycle riding men cut in front and showered them with bullets. Bert died from nine gunshot wounds, one daughter was hit in the arm, while the other played dead and was left unharmed. The dastardly deed thus consummated, the masterminds must have said, in the words of Stalin: “No man, no problem.”

The second was extreme in its trickery. A Makati regional trial court validated the arrest of the journalists who were reporting on the siege of the Peninsula Manila hotel after it was seized by renegade military officers. The police shackled their wrists with plastic tie wraps, pointed guns and beat them with sticks, and then herded them into waiting buses—all in full view of the TV cameras—and only for them to be released later without charges.

Yet the court concluded: “The right of the plaintiffs as members of the press as guaranteed under the Constitution was not violated and trampled upon by the respective acts of the defendants.” The order to vacate the Peninsula was “lawful and appeared to have been disobeyed by … the plaintiffs, when they intentionally refused to leave the hotel premises for which an appropriate criminal charge under Article 151 of the Revised Penal Code, which is applicable to all, including the media personalities, could have been initiated against them.”

Ah, there’s the rub. “Applicable to all, including the media personalities.” It so happens that the Constitution actually singles out the press for special solicitude, and that is why the Bill of Rights calls it “the freedom of speech, of expression, or of the press.” The court might have thought that its task was confined merely to determining whether all the elements of a crime punishable under the Revised Penal Code were present. But when a constitutional right is at stake, that is not enough. In addition, the court must ascertain as well whether a protected right is implicated, and to ensure, in accordance with the principle of constitutional supremacy, that the Bill of Rights prevails over a statutory code.

There is absolutely nothing new to what I’m saying. Let’s take the long-standing ban on defamation. Libel is a crime under the Revised Penal Code—the self same code invoked by the government against the Peninsula journalists. Defamatory speech is not protected speech. That much is in the books.

Yet, look at how American and Philippine courts have reinterpreted that crime. They have adopted what is now called the New York Times v. Sullivan test. When the complainant is a public officer, he must meet a higher threshold and must prove that the defamer was motivated by actual malice. In other words, did the courts mechanically apply the statutory ban on defamation, as it were, “applicable to all” and regardless of the circumstances? No, instead, the courts reconciled the statutory protection for reputation with the constitutional protection for speech.

In this case, the court should have pierced through the shifting—and shifty—language of the state. This has been a game of subterfuge from the beginning. Were the court to be so literal with the language of the Revised Penal Code, we should ask: How did the journalists “resist or seriously disobey any person in authority”? Metro Manila regional police director Geary Barias himself would sometimes use the words “request” or “repeated appeals … to leave the hotel premises.” Yet, the court found that there was a “police order [issued] in accordance [with] police procedure.”

After fudging “request/appeal/order,” the government itself couldn’t make up its mind on the nature of the journalists’ detention, whether it was an “evacuation/processing/arrest.”

Earlier they would compare it to evacuation orders for, say, barangays at the foot of an exploding volcano. Sure the government can compel the townsmen to leave, but can they also detain the suicidal recalcitrants who evacuated last? If indeed the state was acting for their sake, why punish them for jeopardizing their own lives? (The usual response: Because they might blame the government later. But intrepid journalists have been kidnapped for ransom recently, yet I haven’t seen the TV journalist Ces Drilon or her crew point their fingers at government.) At the Peninsula, it was one thing to flush them out of the hotel, another to bundle them into the police camps when they exited.

And then we heard that the newsmen were merely “processed” to segregate the real from the bogus journalists. But in the eyes of the law, the reporters were either free or unfree. So in hindsight it had to be characterized as an arrest, and for that the government needed a crime.

For sure the armed elements of the state are especially delighted that the court had cut short the proceedings before a trial on the merits. A full presentation of evidence would have showcased precisely the sustained drama that would refresh in people’s mind what happened that fateful evening of Nov. 30, 2007—and possibly convince the Filipino public that the true reason government troops wanted the journalists out was for them to have a free hand to dispose of Sen. Antonio Trillanes IV and Brig. Gen. Danilo Lim. Indeed, “no man, no problem.”

You can kill the truth with guns, or you can kill it quietly with the subtle shading of language and the adroit maneuvering of rules and institutions. Lying, thieving or killing is always cruel, but even crueler when you actually sound like your victims must, in the end, say “thank you.”

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