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F. Freedom of speech and expression

1. Concept

Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or otherwise. It is the freedom to express to others what one likes or dislikes, as it is the freedom of others to express to one and all what they favor or disfavor. It is the free expression for the ideas we love, as well as the free expression for the ideas we hate. (Chavez v. Gonzales, En Banc, G.R. No. 168338, 15 February 2008)

What does it embrace? At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. (Gonzales v. COMELEC, En Banc, G.R. No. L-27833, 18 April 1969)

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution’s basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority. (Chavez v. Gonzales, supra.)

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. (Section 4, Article III, 1987 Constitution)

When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified. (Chavez v. Gonzales, supra.)

a. Continuum of thought, speech, expression, and speech acts

1) Freedom of speech applies to entire continuum of speech

Communication is an essential outcome of protected speech. (The Diocese of Bacolod v. COMELEC, En Banc, G.R. No. 205728, 21 January 2015)

Communication exists when:

1) A speaker, seeking to signal others, uses conventional actions because he or she reasonably believes that such actions will be taken by the audience in the manner intended; and,

2) The audience so takes the actions. (Ibid. citing Heidi M. Hurd, Sovereignty in Silence, 99 YALE L. J. 945, 954 [1990])

“[I]n communicative action[,] the hearer may respond to the claims by… either accepting the speech act’s claims or opposing them with criticism or requests for justification.” (Ibid. citing Hugh Baxter, System and Lifeworld in Habermas’s Theory of Law, 23 CARDOZO L. REV. 473, 499 [2002])

Speech is not limited to vocal communication. “[C]onduct is treated as a form of speech sometimes referred to as ‘symbolic speech[,]’”146 such that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,” the ‘communicative element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of expression].’” (Ibid. citing Joshua Waldman, Symbolic Speech and Social Meaning, 97 COLUM. L. REV. 1844, 1847 [1997] citing US v. O’Brien, 391 U.S. 367, 376 [1968])

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct enacted, and even to inaction itself as a symbolic manner of communication. (Ibid.)

b. Purposes of free speech doctrines

Purposes of free speech doctrines:

1) Freedom of expression allows citizens to expose and check abuses of public officials.

2) Freedom of expression allows citizens to make informed choices of candidates for public office.

3) Freedom of expression crystallizes important public policy issues, and allows citizens to participate in the discussion and resolution of such issues.

4) Freedom of expression allows the competition of ideas, the clash of claims and counterclaims, from which the truth will likely emerge.

5) Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence from marginalized groups who otherwise would not be heard by government.

6) Freedom of expression provides a civilized way of engagement among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he might use his fist instead. (Chavez v. Gonzales, supra.)

Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable condition to the exercise of almost all other civil and political rights. No society can remain free, open and democratic without freedom of expression. Freedom of expression guarantees full, spirited, and even contentious discussion of all social, economic and political issues. To survive, a free and democratic society must zealously safeguard freedom of expression. (Ibid.)

c. Balance between unbridled expression and liberty

1) Not an absolute right

The freedom of speech secured by the Constitution “does not confer an absolute right to speak or publish without responsibility whatever one may choose.” It is not “unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.” (Espuelas v. People, En Banc, G.R. No. L-290, 17 December 1951)

Freedom of expression is not an absolute, nor is it an “unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.” (Chavez v. Gonzales, supra.)

Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. In our jurisdiction, slander or libel, lewd and obscene speech, as well as “fighting words” are not entitled to constitutional protection and may be penalized. (Ibid.)

2. Types of regulation

a. Prior restraint and subsequent punishment

1. CONCEPT

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. (Chavez v. Gonzales, supra.)

Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. (Ibid.)

Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. (Ibid.)

Case Law

1) The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations constitutes impermissible pressure amounting to prior restraint on protected expression. Whether the threat is made in an order, regulation, advisory or press release, the chilling effect is the same: the threat freezes radio and television stations into deafening silence. Radio and television stations that have invested substantial sums in capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC threat is thus real and potent. (Ibid.)

2) In Burgos v. Chief of Staff, this Court ruled that the closure of the We Forum newspapers under a general warrant “is in the nature of a previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law.” (Ibid.)

3) In David v. Macapagal-Arroyo, the Court declared unconstitutional government threats to close down mass media establishments that refused to comply with government prescribed “standards” on news reporting following the declaration of a State of National Emergency by President Arroyo on 24 February 2006. (Ibid.)

a. Application

GENERAL RULE: Expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of expression shall not be abridged. (Chavez v. Gonzales, supra.)

EXCEPTIONS:

1) Pornography (Ibid.);

2) False or misleading advertisement (Ibid.);

3) Advocacy of imminent lawless action (Ibid.);

4) Danger to national security (Ibid.);

5) Censorship in movies, television, and radio broadcast (Soriano v. Laguardia, supra.);

6) Sub judice rule (Section 3[d], Rule 71, Rules of Court).

All other expression is not subject to prior restraint. (Chavez v. Gonzales, supra.)

2. PROTECTED EXPRESSION

a. Concept

Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on protected expression is unconstitutional without exception. A protected expression means what it says – it is absolutely protected from censorship. Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution. (Ibid.)

b. May be subject to punishment

While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment, either civilly or criminally. Thus, the publication of election surveys cannot be subject to prior restraint, but an aggrieved person can sue for redress of injury if the survey turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing “shows which offend any race or religion” cannot be used to justify prior restraint on religious expression, this provision can be invoked to justify subsequent punishment of the perpetrator of such offensive shows. (Ibid.)

Case Law

1) Where the National Telecommunications Commissoin (NTC) attempted to stop the airing of the Garci Tapes via press release, it was held that such was unconstitutional. The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing categories of unprotected expression recognized in this jurisdiction. The airing of the Garci Tapes is essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections… Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the sanctity of the ballot is indisputably a protected expression that cannot be subject to prior restraint. Public discussion on the credibility of the electoral process is one of the highest political expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy of protected expressions, political expression would occupy the highest rank, and among different kinds of political expression, the subject of fair and honest elections would be at the top. In any event, public discussion on all political issues should always remain uninhibited, robust and wide open. (Ibid.)

c. Only courts have jurisdiction to impose prior restraint

Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint, government agencies cannot implement outright such prior restraint because such restraint is presumed unconstitutional at inception. (Ibid.)

Case Law

1) The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest NTC with any content-based censorship power over radio and television stations. (Ibid.)

3. UNPROTECTED EXPRESSION

a. Concept

Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on unprotected expression is content-based since the restraint is imposed because of the content itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to prior restraint. The Supreme Court recognized false or misleading advertisement as unprotected expression only in October 2007. (Ibid.)

Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier:

1) First, such prior restraint is presumed unconstitutional.

2) Second, the government bears a heavy burden of proving the constitutionality of the prior restraint. (Ibid.)

Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn – only to the extent necessary to protect or attain the compelling State interest. (Ibid.)

Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public. (Ibid.)

b. May be subject to punishment

If the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or “hate speech” against a religious minority is not subject to subsequent punishment in this jurisdiction, such expression cannot be subject to prior restraint. (Ibid.)

If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent punishment. There must be a law punishing criminally the unprotected expression before prior restraint on such expression can be justified. The legislature must punish the unprotected expression because it creates a substantive evil that the State must prevent. Otherwise, there will be no legal basis for imposing a prior restraint on such expression. (Ibid.)

Prior restraint on unprotected expression takes many forms – it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits. The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies. (Ibid.)

1) Test: clear and present danger

The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories of unprotected expression – pornography, advocacy of imminent lawless action, and danger to national security – is the clear and present danger test. The expression restrained must present a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be grave and imminent. (Ibid.)

b. Content based and content neutral

A distinction has to be made whether the restraint is:

1) A content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; or

2) A content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. (Ibid.)

The cast of the restriction determines the test by which the challenged act is assayed with. (Ibid.)

1) Content based prior restraint

Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression. Courts will subject to strict scrutiny content-based restraint. If the content-based prior restraint is directed at protected expression, courts will strike down the restraint as unconstitutional because there can be no content-based prior restraint on protected expression. The analysis thus turns on whether the prior restraint is content-based, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the recognized categories of unprotected expression. (Ibid.)

2) Content neutral-prior restraint

If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in public places without any restraint on the content of the expression. Courts will subject content-neutral restraints to intermediate scrutiny. (Ibid.)

An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts. Courts will uphold time, place or manner restraints if they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression. (Ibid.)

In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the expression itself. Thus, submission of movies or pre-taped television programs to a government review board is constitutional only if the review is for classification and not for censoring any part of the content of the submitted materials. However, failure to submit such materials to the review board may be penalized without regard to the content of the materials. The review board has no power to reject the airing of the submitted materials. The review board’s power is only to classify the materials, whether for general patronage, for adults only, or for some other classification. The power to classify expressions applies only to movies and pre-taped television programs but not to live television programs. Any classification of live television programs necessarily entails prior restraint on expression. (Ibid.)

c. Incitement and advocacy

1) Inciting to sedition under the RPC

A penalty shall be imposed upon any person who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices. (Article 142, Revised Penal Code)

Article 142 of the Revised Penal Code punishes those who shall write, publish or circulate scurrilous libels against the Government of the Philippines or any of the duly constituted authorities thereof or which suggest or incite rebellious conspiracies or riots or which tend to stir up the people againts the lawful authorities or to disturb the peace of the community. (Espuelas v. People, supra.)

The essence of seditious libel may be said to its immediate tendency to stir up general discontent to the pitch of illegal courses; that is to say to induce people to resort to illegal methods other than those provided by the Constitution, in order to repress the evils which press upon their minds. (Ibid.)

Unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or “fighting words”, i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security. (Soriano v. Laguardia, En Banc, G.R. No. 164785, 29 April 2009)

d. Specificity of regulation and overbreadth doctrine

1) Overbreadth and vagueness doctrine limited to free speech

The overbreadth and the vagueness doctrines have special application only to free-speech cases. (Estrada v. Sandiganbayan, En Banc, G.R. No. 148560, 19 November 2001 citing J. Mendoza’s Separate Opinion)

a) Facial challenge

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech. The theory is that “[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.” (Ibid.0

The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. (Ibid.)

In Broadrick v. Oklahoma, the Court ruled that “claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words” and, again, that “overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” For this reason, it has been held that “a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. “A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” (Ibid.)

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing “on their faces” statutes in free speech cases. They cannot be made to do service when what is involved is a criminal statute. (Ibid.)

e. Speech regulation in relation to election

1) COMELEC’s authority to regulate during elections

COMELEC may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (Section 4, Article IX-C, 1987 Constitution)

Case Law

1) In Sanidad v. COMELEC, it involved the rules promulgated by COMELEC during the plebiscite for the creation of the Cordillera Autonomous Region. Columnist Pablito V. Sanidad questioned the provision prohibiting journalists from covering plebiscite issues on the day before and on plebiscite day. Sanidad argued that the prohibition was a violation of the “constitutional guarantees of the freedom of expression and of the press…” The Court ruled that the “evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time.” The Court found that “[m]edia practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates[,]” thus, their right to expression during this period may not be regulated by COMELEC. (The Diocese of Bacolod v. COMELEC, supra.)

The Diocese of Bacolod v. COMELEC (2015)

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6′) by ten feet (10′) in size. They were posted on the front walls of the cathedral within public view. The first tarpaulin contains the message “IBASURA RH Law” referring to the Reproductive Health Law of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the present case This tarpaulin contains the heading “Conscience Vote” and lists candidates as either “(Anti-RH) Team Buhay” with a check mark, or “(Pro-RH) Team Patay” with an “X” mark. The electoral candidates were classified according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH Law. Those who voted for the passing of the law were classified by petitioners as comprising “Team Patay,” while those who voted against it form “Team Buhay”…

On February 27, 2013, COMELEC Law Department issued a letter ordering the immediate removal of the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners.

[RESOLUTION]

COMELEC had no legal basis to regulate expressions made by private citizens

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The order was made simply because petitioners failed to comply with the maximum size limitation for lawful election propaganda.

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke their right to freedom of expression.

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the expression. The present case is in point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier for passengers inside moving vehicles to read its content. Compared with the pedestrians, the passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the fonts and images, the greater the probability that it will catch their attention and, thus, the greater the possibility that they will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader. From an ordinary person’s perspective, those who post their messages in larger fonts care more about their message than those who carry their messages in smaller media. The perceived importance given by the speakers, in this case petitioners, to their cause is also part of the message. The effectivity of communication sometimes relies on the emphasis put by the speakers and onthe credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more convinced of the point made by authoritative figures when they make the effort to emphasize their messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more opportunities to amplify, explain, and argue points which the speakers might want to communicate. Rather than simply placing the names and images of political candidates and an expression of support, larger spaces can allow for brief but memorable presentations of the candidates’ platforms for governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to advocacies, and contribute more to a more educated and reasoned electorate. A more educated electorate will increase the possibilities of both good governance and accountability in our government.

These points become more salient when it is the electorate, not the candidates or the political parties, that speaks. Too often, the terms of public discussion during elections are framed and kept hostage by brief and catchy but meaningless sound bites extolling the character of the candidate. Worse, elections sideline political arguments and privilege the endorsement by celebrities. Rather than provide obstacles to their speech, government should in fact encourage it. Between the candidates and the electorate, the latter have the better incentive to demand discussion of the more important issues. Between the candidates and the electorate, the former have better incentives to avoid difficult political standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place. They are fundamentally part of expression protected under Article III, Section 4 of the Constitution.

f. Speech regulation in relation to media

1) Concept

No law shall be passed abridging the freedom of the press. (Section 4, Article III, 1987 Constitution)

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it. (Chavez v. Gonzales, supra.)

Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. (Ibid.)

2) Print v. Broadcast Media

Philippine jurisprudence show two distinct features of this dichotomy. (Ibid.)

First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process. (Ibid.)

Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. (Ibid.)

a) Clear and present danger rule

The test for limitations on freedom of expression continues to be the clear and present danger rule, for all forms of media, whether print or broadcast. (Ibid.)

This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. (Ibid.)

Indeed, in Osmeña v. COMELEC, which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral. (Ibid.)

3. Judicial analysis, presumptions and levels and types of scrutiny

a. IN GENERAL

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests:

1) The dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated;

2) The balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; and;

3) The clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.” (Ibid.)

The Court has applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, the Court has concluded that we have generally adhered to the clear and present danger test. (Ibid.)

1) Dangerous tendency doctrine

The “dangerous tendency” rule has been adopted in cases where extreme difficulty is confronted 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 cited in Cabansag v. Fernandez, En Banc, G.R. No. L-8974, 18 October 1957)

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 the utterance be to bring about the substantive evil which the legislative body seeks to prevent. (Gitlow vs. New York, 268 U.S. 652 cited in Cabansag v. Fernandez, supra.)

2) Balancing of interests tests

3) Clear and present danger rule

The clear and present danger rule 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 maybe 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. (Cabansag v. Fernandez, supra.)

b. CONTENT-NEUTRAL REGULATION

1) Test: Intermediate

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach – somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. (Chavez v. Gonzales, supra.)

INTERMEDIATE TEST: A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. (Ibid. citing Osmeña v. COMELEC, En Banc, G.R. No. 132231, 31 March 1998)

b. CONTENT-BASED REGULATION

1) Test: Strict scrutiny

A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality. (Ibid.)

Unless the government can overthrow this presumption, the content-based restraint will be struck down. (Ibid.)

2) Clear and present danger

With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about – especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, “but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.” As formulated, “the question in every case 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.” (Ibid.)

b) Substantial government interest

The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. (Ibid.)

c) Regulation must be reasonably and narrowly drawn

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken.

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. (Ibid.)

4. Special topics in free expression cases

a. Hate speech

If the expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or “hate speech” against a religious minority is not subject to subsequent punishment in this jurisdiction, such expression cannot be subject to prior restraint. (Ibid.)

Blatant profanity is not the speech that is protected by the constitutional guarantee of freedom of expression. Words that heap extreme profanity, intended merely to incite hostility, hatred or violence, have no social value and do not enjoy constitutional protection. (MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc., En Banc, G.R. No. 135306, 28 January 2003)

While democratic societies maintain a deep commitment to the principle that debate on public issues should be uninhibited, robust and wide open, this free debate has never been meant to include libelous, obscene or profane utterances against private individuals. (Ibid.)

b. Defamation and libel

If the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. (Chavez v. Gonzales, supra.)

Defamation, which includes libel and slander, means the offense of injuring a person’s character, fame or reputation through false and malicious statements. It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff. It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute. Defamation is an invasion of a relational interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff. (MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc., supra.)

c. Sedition and speech in relation to rebellion

The essence of seditious libel may be said to its immediate tendency to stir up general discontent to the pitch of illegal courses; that is to say to induce people to resort to illegal methods other than those provided by the Constitution, in order to repress the evils which press upon their minds. (Espuelas v. People, supra.)

The constitutional guaranty of the freedom of speech and of the press does not give a person an unqualified right to speak or publish, without responsibility, whatever he may choose. That a state in the exercise of its police power may punish those who abuse the freedom conferred by the constitutional provision, and whose language tends to disturb the public peace, is not open to question. (Ibid. citing Gitlow vs. New York, 268 U. S., 666)

Slander or libel, lewd and obscene speech, as well as “fighting words” are not entitled to constitutional protection and may be penalized. (Chavez v. Gonzales, supra.)

d. Obscenity/pornography

1) Concept

The word “obscene” and the term “obscenity” may be defined as meaning something offensive to chastify, decency, or delicacy. “Indeceny” is an act against behavior and a just delicacy. (People v. Kottinger, En Banc, G.R. No. L-20569, 29 October 1923)

2) Test

TEST 1: Whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall. (Pita v. CA, En Banc, G.R. No. 80806, 05 October 1989 citing People v. Kottinger, supra.)

TEST 2: That which shocks the ordinary and common sense of men as an indecency. (Ibid.)

e. Commercial speech

1) Political speech v. Commercial speech

Political speech – refers to speech “both intended and received as a contribution to public deliberation about some issue,” “foster[ing] informed and civic minded deliberation.” (The Diocese of Bacolod v. COMELEC, supra.)

Commercial speech – refers to speech that does “no more than propose a commercial transaction.” (Ibid.)

a) Ads as commercial speech; entitled to protection

Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection. (Disini, Jr. v. Secretary of Justice, En Banc, G.R. Nos. 203335, 203299, 203306 etc., 11 February 2014)

Unsolicited advertisements are legitimate forms of expression. (Ibid.)

f. National emergencies

Under our democratic system of government no such unlimited power may be validly granted to any officer of the government, except perhaps in cases of national emergency. (Primicias v. Fugoso, En Banc, G.R. No. L-1800, 27 January 1948)

In times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President is answerable only to his conscience, the People, and God. (David v. Arroyo, G.R. Nos. 171396, 171490, 171485, etc., 03 May 2006)

g. Speech of public officers

Freedom of expression is guaranteed in its fullest outside government but, perhaps, more regulated when one assumes the role of a public officer. The right to speech is inherent. However, the act of joining a government office should be construed as an understanding that the individual’s exercise of this basic right is subsumed by the necessity of providing public services to the greater majority. (J. Leonen, Concurring Opinion in Davao City Water District v. Aranjuez, G.R. No. 194192, 16 June 2015)

The limits are inherent in the nature of governance. The Constitution states that “[p]ublic officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.” (Ibid.)

5. Cognate rights

a. Freedom of assembly

Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as in the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. (Reyes v. Bagatsing, En Banc, G.R. No. L-65366, 09 November 1983)

It was not by accident or coincidence that the right to freedom of speech and of the press were coupled in a single guarantee with the rights of the people to peaceably to assemble and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case, therefore there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. (Ibid.)

What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. (Ibid.)

b. Freedom of association

The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. (Section 8, Article III, 1987 Constitution)

Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form associations or societies when their purposes are “contrary to law.” How should the limitation “for purposes not contrary to law” be interpreted? It is submitted that it is another way of expressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association societies. (Gonzales v. COMELEC, En Banc, G.R. No. L-27833, 18 April 1969)

Case Law

1) To compel a lawyer to be a member of an integrated Bar is not violative of his constitutional freedom to associate (or the corollary right not to associate)… Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar examinations. All that integration actually does is to provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is already a member. (In Re Integration of the Bar of the Philippines, En Banc, 09 January 1973)

2) No unconstitutional infringement exists insofar as the formation of organization, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party is restricted and that the prohibition against giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from constitutional infirmity. (Gonzales v. COMELEC, supra.)

c. Freedom of information

1) Concept

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (Section 7, Article III, 1987 Constitution)

The constitutional guarantee of the right to information on matters of public concern enunciated in Section 7 of Article III of the 1987 Constitution complements the State’s policy of full public disclosure in all transactions involving public interest expressed in Section 28 of Article II of the 1987 Constitution. These provisions are aimed at ensuring transparency in policy-making as well as in the operations of the Government, and at safeguarding the exercise by the people of the freedom of expression. In a democratic society like ours, the free exchange of information is necessary, and can be possible only if the people are provided the proper information on matters that affect them. (Ibid._

2) Limitation

But the people’s right to information is not absolute. (Ibid.)

The constitutional guarantee to information does not open every door to any and all information, but is rather confined to matters of public concern. It is subject to such limitations as may be provided by law. The State’s policy of full public disclosure is restricted to transactions involving public interest, and is tempered by reasonable conditions prescribed by law. (Sereno v. CTRM, G.R. No. 175210, 01 February 2016)

a) Requisites

Two requisites must concur before the right to information may be compelled by writ of mandamus:

1) The information sought must be in relation to matters of public concern or public interest; and,

2) It must not be exempt by law from the operation of the constitutional guarantee. (Ibid.)

As to the first requisite, there is no rigid test in determining whether or not a particular information is of public concern or public interest. Both terms cover a wide-range of issues that the public may want to be familiar with either because the issues have a direct effect on them or because the issues “naturally arouse the interest of an ordinary citizen.” As such, whether or not the information sought is of public interest or public concern is left to the proper determination of the courts on a case to case basis. (Ibid.)

The second requisite is that the information requested must not be excluded by law from the constitutional guarantee. In that regard, the Court has already declared that the constitutional guarantee of the people’s right to information does not cover national security matters and intelligence information, trade secrets and banking transactions and criminal matters. Equally excluded from coverage of the constitutional guarantee are diplomatic correspondence, closed-door Cabinet meeting and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. (Ibid.)

The right to information does not extend to matters acknowledged as “privileged information under the separation of powers,” which include “Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings.” Likewise exempted from the right to information are “information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused. (Ibid.)

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