SECTION 4, ARTICLE III 1987
CONSTITUTION
No law shall be passed abridging the freedom
of speech, of expression, or the press, or the
right of the people peaceably to assemble and
petition the government for redress of
grievances..
It refers to more than one right:
 Freedom of speech
 Freedom of expression
 Freedom of the press
 Freedom to peaceably assemble
THEORIES ON FREEDOM OF EXPRESSION
Diocese of Bacolod v. Commission on
Elections
A. Deliberative democracy
B. Marketplace of Ideas
C. Tool for Self-Actualization
D. Tool against Oppression
E. Safety Valve
DELIBERATIVE DEMOCRACY
Criticisms accommodate the formation of
debates, deliberations, and consensus in the
hopes of making sure that our policies are truly
reflective of the people’s will.
Sovereignty resides from the people and all
governmental authority emanates from them.
This means that the people may directly
perform sovereign acts however this is also
proven to be impracticable that’s why what we
do is that we elect certain government officials
who make sovereign decisions and as a
consequence, it is implied that these
government acts are pursuant to the people’s
will because in theory we delegated the power
to them.
But of course in reality, this is not always the
case. In fact, we always have a lot to say about
our governments actions and decisions and I
think rightfully so because after all, we are
affected by these policies. And therefore the
theory of deliberative democracy may evolve to
the right of the people to make the government
accountable and they do that by allowing the
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people to criticize the acts made pursuant to
the governmental functions. Because these
criticisms will accommodate the formation of
debates, deliberations and consensus, in the
hopes of making sure that our policies are truly
reflective of the peoples’ will. This is why the
freedom of expression must be protected at all
times because of this theory.
MARKETPLACE OF IDEAS
The ultimate good desired is better reached by
free trade in ideas.
Treats expression as products and the civilized
society being the form of expression as the
market place. And like the actual market, as
long as the products are legitimate, you have
no ability to ban it, regardless of how bad these
products may seem. Instead, you allow other
products to be introduced and therefore
compete in the market as people search or
cerate for themselves the best one. The more
options are available, the more beneficial for
the consumers. This is like free expression; it is
in this context that the right of freedom of
expression must be protected. Our expression
must be encouraged by the state to be put
open, pit against each other in our communal
quest for the best ideas regardless of however
they may be expressed.
TOOL FOR SELF-ACTUALIZATION
Freedom of Expression is a tool to enhance
human dignity and assure self-fulfillment.
The theory that treats expression as a tool to
enhance human dignity and assure self-
fulfillment. In the Maslow’s hierarchy of needs,
self-actualization is an indicator that one has
reached the apex of existence; therefore that
individual has realized his or her potentials.
Ideally, that everyone ought to reach this
certain level. The ability to express oneself
freely is a vital tool to fully actualize. Freedom
of expression then must at all times be
protected.
TOOL AGAINST OPPRESSION
Freedom of Expression, as we have seen in
how history when people come together, has
successfully overcome and overthrown
oppressors.
It is also said that this right is a tool against
oppression. It is believed that within the
framework of democrat governance,
majoritarian abuses are still perpetrated and
we know that very well, we have a firsthand
experience. Unfortunately the most vulnerable
victims are the marginalized and the minorities.
In a situation where there is nothing left in the
arcinal of the people and pit against oppressive
regimes, at least there’s freedom of
expression. As in history, when people come
together, they have successfully overcome and
overthrown the oppressors. This is why it must
be protected.
SAFETY VALVE
Non-violent manifestations of dissent reduce
the likelihood of violence.
Freedom of expression must be protected
considering that the possibility of regression of
nonviolent dissent may spill over to violent
means if only to prove a point.
SCOPE AND AVAILABILITY OF FREEDOM
OF EXPRESSION
I. Strictly, only against State actors
II. Protects the expression and its form
III. Protects all lawful expressions
PROTECTION AGAINST STATE ACTORS
No law shall be passed abridging the freedom
of speech, of expression, or the press, or the
right of the people peaceably to assemble and
petition the government for redress of
grievances.
Like other constitutional rights, FOE accords
protection against State actors. The bill of
rights is in place in order to balance the state’s
overwhelming powers with that of the people’s
liberties. If your ability to freely express yourself
is restricted by a private actor, there is no
violation on your constitutional right to FOE.
But that is not to say that there is no violation of
the law because it could be a case that is a
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violation of the CC or some other statutes or
private contracts.
Although the text of the constitution as seen in
bold only seemingly prohibits a law that
abridges the freedom of expression,
jurisprudence would tell us that any purported
violation of the right may not exclusively come
from a law but even from other state actors
such as the president, judiciary, administrative
bodies and even down to the LGUs. Bottom-
line, being they are all state actors.
DIOCESE OF BACOLOD V. COMELEC
While it is true that the present petition assails
not a law but an opinion by the COMELEC
Law Department, this court has applied
Article III, Section 4 of the Constitution even
to governmental acts.
PRIMICIAS V. FUGOSO
What was questioned was not a law but the
Mayor’s refusal to issue a permit for the holding
of petitioner’s public meeting by applying
Section 1119 of the Revised Ordinances of
1927 of Manila.
PROTECTION FOR THE EXPRESSION AND
ITS FORM
The form of expression is just as important as
the information conveyed that it forms part of
the expression.
The scope of protection accorded by the right
to FOE, protects not only the idea expressed
but also even the form through which the idea
is conveyed. This is crucial because
oftentimes, when you are prosecuted or
persecuted for your action or inaction, the first
thing that you will be asked to properly defend
yourself is what rights can I invoke? When you
are able to identify these rights, everything is
placed into context.
In the Charlie Hebdo incident in France way
back 2014 or 2015, arguably the ideas
propagating therein resembles a mockery of
Islamic fundamentalism and Islamophobia. The
form by which these ideas were expressed was
through satirical cartoon or caricatures. While
the debate centered on WON the idea
expressed through caricatures were in the
province of lawful speech, what was not
contentious in this incident and that is the fact
that the form of expression is inextricably linked
to the idea itself. So much so that the form is
embraced by the protection accorded by the
right to FOE.
So when you make a caricature, which
expresses your opinion, and your opinion is
borderline incitement to violence, subsequently
you were prosecuted for the crime of
incitement. And so you say, “well I can’t be
prosecuted for exercising free speech”, then
the prosecution says in response “what are you
talking about? This is not free speech. There is
no utterance, this is a cartoon, not protected by
free speech.” And so in that moment, the first
burden that is placed on you even before
submitting evidence to contest your guilt for
incitement, is to prove that a caricature, your
preferred form of expression is embraced by
the protection accorded by the right to FOE.
And this right does not only protect the idea
itself but even the form through which your idea
is expressed.
CASE OF MS. BAMBI BELTRAN
“9,000+ new cases (All from Zapatera) of
Covid-19 in Cebu City in one day. We are the
epicenter in the whole Solar System.”
In my head, the idea expressed is frustration
and probably disappointment against the LGUs
handling of the pandemic and the form by
which it was expressed is through satire. Satire
is a protected form of expression. It is satire
because there was exaggeration by alluding to
the whole solar system, which obviously is not
true. Therefore, Ms. Bambi’s idea and the form
through which it is expressed come under the
protection of FOE. Under International Human
Rights Law and even under our Domestic
jurisdiction, expression of falsity in itself ought
to be protected by FOE.
EBRALINAG V. DIVISION
SUPERINTENDENT OF SCHOOLS OF CEBU
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Freedom of speech includes the right to be
silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the
liberty to utter what is in his mind also
guarantees to him the liberty not to utter what
is not in his mind. The salute is a symbolic
manner of communication that conveys its
message as clearly as the written or spoken
word. As a valid form of expression, it cannot
be compelled any more than it can be
prohibited int heface of valid religious
objections like those raised in this petition. To
impose it on the petitioners is to deny them
the right not to speak when their religion
bids them to be silent. This coercion of
conscience has no place in the free society.
Students who were members of the sect
Jehovah’s witnesses were threatened to be
expelled from school for refusing to salute the
flag, sing the national anthem and recite the
patriotic pledge. The SC said that expelling
them on that score is unconstitutional for being
violative of FOE and through the discussion,
SC emphasized that the conduct is a form of
expression which conveys messages as clearly
as written and spoken word and so that must
be protected.
PROTECTION FOR ALL ALWFUL
EXPRESSIONS
The right only protects only lawful expressions
which begs the question when is an expression
lawful?
If you read the cases, this has been repeated
that political expressions are given the highest
protection.
ASPECTS/ELEMENTS OF FREEDOM OF
EXPRESSION
1. Freedom from Prior Restraint of
Censorship
2. Freedom from subsequent punishment
GR: We can only speak out and express
ourselves without the State stopping us nor
punishing us for our expressions.
FREEDOM FROM PRIOR
RESTRAINT/CENSORSHIP
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.
Freedom from censorship from any of the three
branches of the government. Censorship- any
act by the government that prohibits one from
expressing oneself or restraint imposed by the
government in advance of the expression.
CHAVEZ V. GONZALES
It is not decisive that the press statements
made by respondents were not reduced in
or followed up with formal orders or
circulars. It is sufficient that the press
statements were made by respondents while in
the exercise of their official functions.
Undoubtedly, respondent Gonzales made his
statements as Secretary of Justice, while the
NTC issued its statement as the regulatory
body of media. Any act done, such as a speech
uttered, for and on behalf of the government in
an official capacity is covered by the rule on
prior restraint. The concept of an “act” does not
limit itself to acts already converted to a formal
order or official circular. Otherwise, the non-
formalization of an act into an official order or
circular will result in the easy circumvention
of the prohibition on prior restraint. The
press statements at bar are acts that should be
struck down as they constitute impermissible
forms of prior restraints on the right to free
speech and press.
This is about the Hello Garci tape following the
May 2004 elections. This was very
controversial because the tape alleged to be
wiretapped contained a telephone conversation
between GMA and a high ranking COMELEC
official, Garci. Gloria instructed Garci to
manipulate the election results in her favor.
This concerns prior restraint because
according to SC, this was the first time, when it
was presented with the question WON a mere
press statement, not official yet through an
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issuance, constitutes prior restraint to the right
of FOE.
Here, the NTC, through a press statement
threatened media outlets that if they would air
the tape, their licenses will either be suspended
or revoked.
SC struck down the press statement for being
an impermissible form of prior restraint. It is
sufficient that statements were made by
respondents while in the exercise of their
official functions. It is a prior restraint
notwithstanding the fact that there was no
official issuance yet.
THREAT OF RESTRAINT VIS-À-VIS
CHILLING EFFECT
A government act that has a chilling effect on
the exercise of free expression is an
infringement within the constitutional purview.
As the liberal lion Justice William Brennan
announced, in NAACP v. Button, “the threat of
restraint, as opposed to actual restraint
itself, may deter the exercise of the right to
free expression almost as potently as actual
application of sanctions.” Such threat of
restraint is perhaps a more insidious, if not
sophisticated, means for the State to trample
on free speech. Protected expression is chilled
simply by speaking softly while carrying a big
stick.
This is when the people would rather stay
talent or temper their expressions for fear of
repercussions from the government. Therefore
effectively prohibiting the free exercise of the
right to FOE. It is in that sense chilling the
expressions of people on the ground. He said,
that the threat of restraint as opposed to actual
restraint itself may deter the exercise of FOE
almost as potently as the actual application of
sanctions because even the threat is an
infringement of the constitutional right to FOE.
In a hypothetical world, where you have a
president who has consistently made remarks
about shutting down a TV network, does that
violate FOE? Glaring, especially as the threat
has maneuvered to the area of actual restraint.
IGLESIA NI CRISTO V. COURT OF
APPEALS
While the thesis has a lot to comment itself, we
are not ready to hold that is unconstitutional for
Congress to grant an administrative body
quasi-judicial power to preview and classify
TV programs and enforce its decision
subject to review by our courts.
Here, MTRCB considered some footages of
INC’s TV program were not yet aired, were
considered as X-rated on the ground that they
offend or constitute an attack against other
religions which is prohibited by law. While SC
ruled that the x-rating was unconstitutional for
failure to show a clear and present danger, it
nonetheless upheld that the MTRCB has the
power to x-rate a program by virtue of a valid
legislative delegation. The takeaway here is
that MTRCB’s ratings are prior restraints within
the purview of FOE.
In the cases assigned, identify for yourself
the other modes of prior restraint.
FREEDOM FROM SUBSEQUENT
PUNISHMENT
Freedom from Subsequent Punishment is
simply the freedom from being meted with
penalty for the lawful exercise of the right to
freedom of expression.
Unlike prior restraint, here we are looking at a
situation in which one was not previously
censored to speak or expressed his thoughts
but after expressing such, he is meted with
penalty by reason thereof. The idea is for as
long as the speech is within the confines of
lawful expression, one must be free form any
subsequent punishment by reason of the
expression. I am emphasizing the concept of
lawful expression because there are instances
where you are freely able to express your
thoughts without being censored but later on
punished therefore. For instance when you
utter defamatory remarks or libelous remarks
you can post whatever you wanna say, you are
not censored. But if your post puts a person in
bad light and therefore libelous, best prepare
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for a prosecution and that could be an intrusion
on your right to FOE.
TYPES OF FOE REGULATIONS
1. Content-Based Regulation
2. Content-Neutral Regulation
What’s the relevance? The general rule is
everyone can freely express themselves and
the way that the exercise of the right to FOE is
fully operationalized is when one can freely
speak or express without prior restraint and
without fear of subsequent punishment by
reason of the expression.
However, FOE is not absolute. That is to say
that while as GR we may speak or express
without prior restraint or without fear, the
exception, the exercise of restraint may be
validly regulated or even interfered with
through the imposition of prior restraint meting
out of subsequent punishment without
necessarily violating FOE.
These regulations are categorized into content-
based regulation and content-neutral
regulation.
Depending on the type of regulation employed
by the state, there are different standards or
tests that the state must overcome in order to
say that the regulation is consistent with the
protection to FOE.
CONTENT-BASED REGULATION
A restriction, which is based on the subject
matter of the utterance or speech (Chavez v.
Gonzales)
E:, Hello Garci, it is content based because the
restriction is based on the subject matter in the
said case NTC prohibited all TV and radio
networks from airing hello garci.
CONTENT-NEUTRAL REGULATION
A restriction that is merely concerned with the
incidents of speech, or one that merely
controls the time, place, or manner, and
under well-defined standards.
The restriction is based on the manner or form
by which you express the subject matter. In the
case of Chavez, how do we transform the
restriction from content-based to content
neutral? It is content based bc NTC said that
you cannot play the hello garci, It could be
content-neutral if NTC instead said that “you
can play it but you can also do so if you play
the entire conversation and not just an excerpt
thereof or NTC could say that you could play
but only 5 times a day. Or play the Hello garci
tape duinrg non primetime hours.” There are
many ways of regulating the tape but the point
is that the NTC did not restrict the expression
of the subject matter but only the way by which
it could be played or aired. That is how content-
neutral regulation works.
NEWSOUNDS BROADCASTING V. DY (read
in full text)
All those circumstances lead us to believe
that the steps employed by respondents to
ultimately shut down petitioner’s radio
station were ultimately content-based. The
US SC generally treats restriction of the
expression of a particular point of view as the
paradigm violation of the First Amendment.
The facts confronting us now could have easily
been drawn up by a constitutional law
professor eager to provide a plain example on
how free speech may be violated.
Concerns bombo radio, which was not able to
secure a mayor’s permit for the operation
because they were not able to secure a zoning
clearance. The matter of issuing a permit is an
exercise of police power however according to
SC, there is more to the case than meets the
eye. Here, bombo radio had been aggressive
in exposing in election irregularities that
favored respondent Mayor Dy and another
member of the Dy political dynasty. It was only
after the elections that the mayor started
questioning the station’s application for renewal
of their permits.
Mayor Dy said that he will disenfranchise the
station. According to SC, the complication with
the zoning clearance was a pretext into an
intrusion into free speech. SC said what is
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involved here is content based regulation
because BR press freedom was restricted
because of the subject matter of its reporting
for exposing Mayor Dy and the people in the
PD.
A lot of circumstances were considered here
even outside the discussion on the legality of
the non-issuance of the mayor’s permit. This
should be the same lens that we should use in
analyzing ABS-CBN’s situation. The
discussions should go beyond congress’ power
to issue a franchise because it is a dead-end
discussion. There is always a free speech
discussion, every time you shutdown a media
outlet.
SWS v. COMELEC (content-based regulation)
By prohibiting the publication of election survey
results because of the possibility that such
publication might undermine the integrity of the
election, S4 suppresses a whole class of
expression, while allowing the expression of
opinion concerning the same subject matter by
newspaper columnists, radio and TV
commentators, armchair theorists and other
opinion makers. In effect, S5.4 shows a bias
for a particular subject matter, if not
viewpoint, by preferring personal opinion to
statistical results. The constitutional
guarantee of freedom of expression means,
“the government has no power to restrict
expression because of its message, its ideas,
its subject matter or its content.”
It conducts surveys of all sorts including pre-
election surveys. Restriction to right to FOE
comes in the form of COMELEC issuance,
which prohibited the release of pre-election
surveys close to the elections. The objective of
such issuance was an effort so that people will
not be conditioned to vote a certain way but it
was struck down by the SC as violative of FOE
for failure to overcome the appropriate
standard or test. But what you need to get from
this case is that the regulation employed here
is content based because it is narrowly
targeted to the subject matter of the expression
in the form of the pre election surveys.
NICOLAS-LEWIS v. COMELEC Why do we classify regulations into content-
The restraint, partakes of a content-neutral based and content neutral?
regulation as it merely involves a regulation
of the incidents of the expression, Content-Based Content-Neutral
specifically the time and place to exercise the Regulation Regulation
same. It does not, in any manner, affect or Strict Scrutiny Test Intermediate Test
target the actual content of the message. A governmental action When the speech
that restricts freedom restraints take the
Here COMELEC prohibited the engagement of of speech or of the form of a content-
any person or OFE in partisan political press based on neutral regulation,
activities abroad during the 30-day overseas content is given the only a substantial
voting period. While it is content neutral, the strictest scrutiny in governmental interest
SC struck down the regulation as light of its inherent is required for its
unconstitutional as it is overly broad in its and invasive impact validity. Because
restriction. The regulation here only concerns regulations of this type
with the manner of expression and that is to are not designed to
say it only prohibited expressions based on the suppress any
standard of time, which is during the 30 ay particular message,
voting period. Not concerned with the words they are not subject to
being used or the perspective being expressed the strictest form of
or message relayed that’s why it’s not content judicial scrutiny but an
based regulation restriction. The prohibition intermediate
does not seek to regulate the exercise of the approach.
right to campaign on the basis of any particular
message. We classify regulations into CB and CN
because the tests or standards that we employ
in ascertaining the validity of the regulation of
BAYAN V. ERMITA the restriction depend on the proper
It is very clear, therefore, that BP No. 880 is not characterization of the regulation such that if it
an absolute ban of public assemblies but a is CB, we employ the SS otherwise, if CN, we
restriction that simply regulates the time, employ the IT. This is from Chavez vs.
place and manner of the assemblies. This Gonzales, a landmark case with a pretty clear
was adverted to in Osmeña v. COMELEC, discussion on free speech.
where the Court referred to it as a “content-
neutral” regulation of the time, place and STRICT SCRUNITY TEST
manner of holding public assemblies. On the other hand, a governmental action that
restricts freedom of speech or of the press
Public assembly act or BP 880 was challenged based on content is given the strictest
to be unconstitutional and although it tackles scrutiny in light of its inherent and invasive
freedom of assembly, FOA is also included in impact. Only when the challenged act has
the aggregation of rights embraced in FOE, overcome the clear and present danger rule
here SC said that 880 is a content-neutral will it pass constitutional muster, with the
regulation because it only regulates the government having the burden of overcoming
manner time and place by which public the presumed unconstitutionality.
assemblies are carried out but does not
regulate the subject matter or advocacy of the The right to freedom of expression enjoys a
assembly. preferred status and the greatest protection
compared to the other rights. There are a lot of
SO, WHAT NOW? reasons but the most compelling is to say that
the exercise of those other rights stem from the
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ability of the individuals to freely express
themselves. And when you restrict this right on
the basis of the subject matter or the idea, the
restriction must be dealt with the strictest
scrutiny. The most common tenor in case laws
is when you employ the SST, the regulation
must overcome the clear and present danger
rule but it begs the question what is the clear
and present danger rule? I’ll discuss this later.
CN = SST = CPDR
HEAVY PRESUMPTION OF INVALIDITY
A content-based regulation, however, bears
a heavy presumption of invalidity and is
measured against the clear and present danger
rule.
When the regulation relates to the subject
matter of the expression, jurisprudence
instructs that the regulation is given a heavy
presumption of invalidity. Every government act
enjoys the presumption of validity of
constitutionality but not in the case of a CB
regulation concerning the exercise of the right
to FOE. In that sense, this is a departure or
deviation to our adherence to the presumption
of constitutionality. Why is that the case? Any
law or regulation must not run counter to the
constitution. Our constitution emphatically
mandates that no law shall be passed
abridging free speech and expression. There is
therefore a constitutional bias in favor of free
speech such that any law regulating or
restricting free speech and expression is an
departure from the mandate of the constitution,
therefore warranting the presumption against
its validity.
INTERMEDIATE TEST
A governmental regulation is sufficiently
justified:
1. If it is within the constitutional power of
the government;
2. If it furthers and important or substantial
governmental interest;
3. If the governmental interest is unrelated to
the suppression of free expression; and
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4. If the incident restriction on alleged
[freedom of speech and expression] is no
greater than is essential to the
furtherance of that interest.
1) A good example is if a law is passed in
order to peace and order, that is a
regulation pursuant to the state’s
constitutional duty to secure peace and
order.
2) The state must prove that the regulation
pursues a substantial governmental
interest.
3) If at all, it should be incidental. This is
merely the essence of a CN regulation. For
instance, if you pass a law that regulates
the timeslot when R-rated shows may be
aired, it does not have in its core the intent
of regulating expressions, it’s passed to
protect children who are not in the proper
headspace to process x-rated shows.
However, there is an incidental effect to he
right to FOE. For as long as it is shown that
the regulation is not really to crack down on
speech or expressions but to pursue
another governmental interest, which is
independent of free speech, this requisite is
complied with.
4) With regards to due process, this is
reminiscent on the requirement of least
restrictive means.
ADIONG V. COMELEC
The posting of decals and stickers in mobile
places like cars and other moving vehicles
does not endanger any substantial
government interest. There is no clear public
interest threatened by such activity so as to
justify the curtailment of the cherished citizen’s
right of free speech and expression.
There’s a COMELEC issuance, which prohibits
the posting of decals, and stickers that promote
a certain candidate on mobile places including
public and private vehicles. All paraphernalia
must only be posted on official campaign
areas. There was no express reference to the
term IT, but it made reference to the O’Brien
test which determines the validity of CN
regulations to free speech. The regulation
involved here is content neutral because it
does not restrict any subject matter of political
expression. What it only regulates is the
manner of expressing support for a candidate
such that it regulates the places where one
may show support through campaign materials.
If this is CN, is there a substantial government
interest? No. If individuals post campaign
decals or stickers, will that defeat any
substantial interest pursued by the
government? The SC does not think so. But
ofc, COMELEC reasoned out that there is a
substantial government interest, which is to
level the playing field of candidates regardless
of economic status and to give equal
opportunity to public office. SC said that the
posting of decals and stickers on cars needs
the consent of the owners of these vehicles;
hence the preference of the citizen becomes
crucial in the discussion. Whether the
candidate is rich or poor, it is not as important
as the right of the owner to freely express his
choice and exercise his right to free speech.
He can even create his own decals or stickers.
To enjoin it is an encroachment of his liberties.
For failing to show substantial government
interest, the CN regulation fails to be valid.
OSMEÑA V. COMELEC
The main purpose of S11(b) is regulatory. Any
restriction on speech is only incidental, and it is
no more than is necessary to achieve its
purpose of promoting equality of
opportunity in the use of mass media for
political advertising. The restriction speech,
as pointed out in NPC, is limited both as to
time and as to scope.
The regulation came in the form of a provision
in the electoral reform law, which prohibits
mass media from selling or giving, free of
charge airtime for campaign or other political
purposes. Except that the COMELEC has the
mandate to procure and allocate to the
candidates the space and time in the media.
This is CN regulation because there is no
suppression of the idea of subject matter of the
ad but only a regulation of the time and manner
of advertising. The regulation was valid and not
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violative of FOE and ofc using the intermediate
test.
SC said that there is a legitimate governmental
interest given that the print space and airtime
can be used by rich candidates at the
disadvantage of poor candidates. The
regulation was not more than necessary to
achieve its purpose as it is limited as to time
and scope and this is compliant with the first
second and third requisites of the IT.
RULES: VALID RESTRICTION TO FOE
1. Clear and Present Danger Rule
2. Dangerous Tendency Rule
3. Balancing of Interests Rule
The different rules that guide is in validly
restricting FOE. This is in relation to SST and
IT. In order to property the SST, in respect of
CB regulations, the regulations must comply
with the CPDR.
The SST and CPDR always go together. But
how about DTR and BIR? In what instances
can we apply them?
CLEAR AND PRESENT DANGER RULE
The question in every case is whether the
words used are in such circumstances and of
such nature as to create a clear and present
danger that will bring about a substantive evil
that Congress has the right to prevent.
The term clear points to a causal connection
between the questioned expression and the
danger of substantive evil arising therefrom.
And since clear implies a certain level degree
or extent, the substantive evil contemplated
here is that which is “extremely serious.”
Present refers to the time element. Not only is
it incumbent for the state to prove that ones
expression poses to be substantive evil that is
extremely serious but also that the expression
has already resulted to the evil sought to be
avoided or that it poses an imminent and
immediate danger and that the danger must
not be probable but very likely inevitable.
When is an evil considered to be extremely
serious? When is it imminent or immediate?
What are the standards?
There are no standards in case laws. It always
depends upon the circumstances of each case
and that is for good reasons. Otherwise, you
would unnecessarily tie the hands of the courts
or put them in a box so much so that the court
cannot exercise judicial discretion. For
purposes of illustrations, there are case laws:
DANGEROUS TENDENCY RULE
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 which the legislative body seeks to
prevent.
Here, your expression is punishable for as long
as it presents a dangerous tendency to bring a
bout a substantive evil. The dangerous
tendency rule appears to be diametrically
opposed to the CPDR in the sense that while
CPDR only punishes expressions that pose an
imminent and immediate danger of a
substantive evil which is extremely serious, the
DTR on the other hand appears to allow the
punishment of expressions even if there is no
imminence of an evil for as long as a natural
tendency for the evil to arise.
Earlier we said that in respect to CPDR, it is
not enough that the evil is probable. It must be
inevitably possible which completely does not
sit well with the standards of DTR. The
question is what do we follow? We follow the
CPDR but it would be best if you don’t take it
form me but from the SC.
IN RE: GONZALES V. COMELEC
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GR No. L-27833, April 18, 1969
The choice of this Court was manifest and
indisputable. It adopted the CPD test. As a
matter of fact, in an earlier decision, Primcias v.
Fugoso, there was likewise an implicit
acceptance of the CPD doctrine.
CHAVEZ V. GONZALES
GR No. 168338, February 15, 2008
As articulated in our jurisprudence, we have
applied either the dangerous tendency doctrine
or clear and present danger test to resolve free
speech challenges. More recently, we have
concluded that we have generally adhered
to the clear and present danger test.
ABS-CBN V. COMELEC
GR No. 133485, January 28, 2000
Unquestionably, this Court adheres to the
“clear and present danger” test. It implicitly
did in its earlier decisions in Primicias v.
Fugoso and American Bible Society v. City of
Manila; as well as in later ones, Vera v. Arca,
Navarro v. Villegas, Imbong v. Ferrer, Blo
Umpar Adiong v. COMELEC and, more
recently, in INC v. MTRCB.
BALANCING OF INTERESTS RULE
Where the legislation under constitutional
attack interferes with the freedom of speech
and assembly in a more generalized way and
where the effect of the speech and assembly in
terms of the probability of realization of a
specific danger is not susceptible even of
impressionistic calculation.
Used when the interference to the right of FOE
is in a more generalized way so much so that
the probability of the realization of an evil or
danger, which is attributed to an expression, is
virtually impossible to measure.
When to properly apply this rule? As it stands
now we adhere to CPDR as explained earlier.
But in the history of such rule, you would find
yourself an American jurisprudence that is
Scheck (?) vs. US penned by Justice Holmes
(?). Later on, it was applied to cases of a
similar theme – utterances that have the
tendency to disturb public peace and order;
incitement, rebellion or overthrow of
government. In analyzing a case where we
apply CPDR, does the utterance cause
imminent and immediate danger? Or if put in
the proper context, does the utterance cause
an immediate danger to inspire the people to
rebel against the government?
Not all restrictions to free speech are done in
order to maintain public peace and order and
not all expressions that were restricted were
made simply to disturb peace and order.
For example, when the COMELEC issues a
rule prohibiting the publication of election
surveys, the purpose is not to preserve public
peace and order but to protect voters from
being manipulated into voting into a certain
way. Or when the NTC prohibits the airing of a
certain show that is not suited for young
audiences, it is not to preserve public peace
and order. In these cases, it is difficult to talk
about probabilities or to determine whether the
expression presents and imminent danger of
manipulating voters or pulling the minds of
children.
As case law would put it, the probability of
realization of a specific danger is not
susceptible even of impressionistic calculation.
In these cases, it’s more apt for us to look at
the conflicting social values and interests that
are affected by the regulation vis-à-vis the
protection of the right to FOE. We weigh these
interests; conduct a conscious and detailed
consideration of the interplay of interests and
that is the balancing of interests rule.
AYER PRODUCTIONS V. CAPULONG
A limited intrusion into a person’s privacy
has long been regarded as permissible where
that person is a public figure and the
information sought to be elicited from him
or to be published about him constitute
matters of a public character. Succinctly put,
the right of privacy cannot be invoked to resist
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publication and dissemination of matters of
public interest.
A case concerning a foreign motion film
production and Senator JPE. Ayer productions
wanted to produce a mini docu-drama series
entitled the four-day revolution about the
people power revolution starting from Ninoy’s
assassination until the peaceful overthrow of
the Marcos dictatorship. They sought advice of
government agencies and advised to seek the
advice of Ramos and Enrile. Ramos consented
but Enrile did not and in fact said that he and
his family did not want any part in the work and
do not want to be depicted therein in whatever
way or manner or through a fictional character
that references his person. Enrile filed a case
before a court and sought of an injunction
against Ayer production from producing the
work. The injunction was issued by the lower
court and so Ayer went to SC for petition for
certiotrari.
AP invoked the right to FOE while Enrile the
right to privacy. And so the court was tasked to
balance the interests. Ultimately SC said that
Enrile was a public figure who played a major
role during the EDSA revolution which is an
event of public interest. This characterization
was given more weight as against limited right
to privacy of Enrile as a public figure. At the
same time, the SC drew the line of talents and
according to SC, the production may continue
for as long as it must be fairly truthful and
historical in its presentation.
While there was a reference to CPDR, the
analysis employed by SC was balancing of
conflicting interests. Since the purpose of the
expression was not to overthrow the
government and the purpose of the prior
restraint here was not for the maintenance of
public peace and order but the interest here or
the purpose is for the protection of privacy.
In all cases, we just have to be very keen and
circumspect in the behavior of the court in
applying which tests because there appears to
be no hard and fast rule in this area. That is
your own exercise of discretion.
 Facial challenge example: there is a law that
FACIAL CHALLENGE IN FOE CASES punishes the distribution of fake news, you got
1. Overbreadth Doctrine an information from which you know is false but
2. Void-for-Vagueness Doctrine for one reason you posted it on SocMed.
Therefore, supposedly you must be prosecuted
We can say that a statute is being challenged and punishes but you can go to court and
on the ground of overbreadth, that is to say that challenge the constitutionality of the law, which
the statute is overly broad or challenged on penalizes individuals on the basis of falsity
being vague. alone. You can say that expression of falsity is
part of free speech which is correct, and then
What is a facial challenge and how is it done? you give examples like satire is to an extent
It is imperative to study this alongside, as- false because of employing exaggeration but
applied challenge. satire is protected speech or you can say that
when journalists rapidly developing news and
As-Applied Facial Challenge they don’t have time to verify and publish news
Challenge that is not fully accurate, that’s also protected
One which considers An examination of the speech. Or when someone says the earth is
only extant facts entire law, pinpointing flat which is false but said that out of their
affecting real litigants. its flaws and defects, religious convictions, that is borderline an
not only on the basis opinion that is protected speech. The law that
of its actual operation punishes the distribution of fake news is
to the parties, but also unconstitutional because it punishes protected
on the assumption or expressions. But notice that your particular
prediction that its very circumstance which is the one before the court
existence may cause is nothing like the circumstances you used as
others not before the examples because in your case you really new
court to refrain from that it was false but posted it nonetheless.
constitutionally
protected speech or But is that challenge allowed? Yes that is facial
activities. challenge meaning you challenge the law on its
face and not merely as applied to your
As applied example: you are prosecuted for situation.
violation of a penal law, you can go to court
and say as part of your defense that the law is Therefore the duty of the court is not only to
unconstitutional as applied to you and the ascertain the constitutionality of the court as
circumstances surrounding the act which you applied to you, but also to all imaginable
are prosecuted for. situations even when their cases are not before
the court presently.
There is an actual case and controversy and
that is your case and your act. The duty of the When do you apply such challenges?
court is to examine whether the law used to
prosecute you s unconstitutional as applied to SOUTHERN HEMISPHERE V. ANTI-
you and your circumstances. If it is, the effect is TERRORISM COUNCIL
the law is not rendered unconstitutional but you As-Applied Facial Challenge
may be acquitted on the ground that as applied Challenge
to your situation, there are constitutional Apply in challenging Apply in challenging
violations. Only you can benefit form the penal laws. laws restricting the
challenge but not others. right to FOE, whether
penal or not.

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The issue is whether a penal statute can be
facially challenged. SC said you cannot facially
challenge a penal per se. The rule is that penal
laws may only be subjected to an as-applied
challenge. But if the penal law is one, which
restricts FOE, then you can facially challenge
it.
IN TERROREM EFFECT V. CHILLING
EFFECT
The allowance of a facial challenge in free
speech cases is justified by the aim to avert
the “chilling effect” on protected speech,
the exercise of which should not at all times be
abridged. As reflected earlier, this rationale is
inapplicable to plain penal statues that
generally bear an “in terrorem effect” in
deterring socially harmful conduct.
In our example on facial challenge, a law that
punishes the distribution of fake news may
intrude into an invalid restriction against
protected expressions like satire or even
journalists who are reporting on rapidly
developing news or religious convictions or
opinions. So we allow facial challenges on laws
restricting FOE because these laws could
eerily chill protected expressions. Journalists
would now be afraid of reporting rapidly
developing news because we have a law that
punishes distribution of fake news. Artists
would now stop making satire and will stop
valid forms of expression or exercises of
speech because of a vague and overly broad
law, which I would say is simplistic. That is the
chilling effect that we do not want.
Remember that a penal law is made to deter
socially harmful conducts ad precisely to have
an in terrorem effect. And so the rationale
behind the application of a facial challenge in
free speech cases is one thing in challenging
plain penal statutes.
Now let us examine the 2 grounds that we can
use in launching a facial challenge on laws that
restrict the right to FOE.
VOID-FOR-VAGUENESS DOCTRINE
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A statute or act suffers from the defect of
vagueness when it lacks comprehensible
standards that men of common intelligence
must necessarily guess at its meaning and
differ as to its application.
First ground is vagueness, so you facially
challenge a law and have it declared void on
the ground on vagueness and it is vague if it
lacks comprehensible standards.
Its actually unconstitutional for violating at least
2 rules such as violating due process because
it fails to accord parties fair notice because its
vague and leaves law enforcers unbridled
discretion and becomes an arbitrary flexing of
government muscle because they do not have
proper standards to apply the law.
OVERBREADTH DOCTRINE
The overbreadth doctrine, meanwhile, decrees
that a governmental purpose to control or
prevent activities constitutionally subject to
state regulations may not be achieved by
means, which sweep unnecessarily broadly
and thereby invade the area of protected
freedoms.
DISINI JR V. SECRETARY OF JUSTICE
If such means are adopted, self-inhibition
borne of fear of what sinister predicaments
await internet users will suppress otherwise
robust discussion of public issues. Democracy
will be threatened and with it, all liberties. Penal
laws should provide reasonably clear
guidelines for law enforcement officials and
triers of facts to prevent arbitrary and
discriminatory enforcement. The terms “aiding
or abetting” constitute broad sweep that
generates chilling effect on those who express
themselves through cyberspace posts,
comments and other messages. Hence,
Section 5 of the cybercrime law that punishes
“aiding or abetting” libel on the cyberspace
is a nullity.
This is vague since the law did not provide for
comprehensible standards as to the meaning
of aiding or abetting. It’s overly broad, as it
would appear to cover protected forms of
expression such as commenting or liking
libelous socmed posts.

SPECIFIC FOE DISCUSSIONS

1. Defamation (Written or Oral)
2. Incitement
3. Obscenity

Kamo nalang daw bahala basa sa cases mga

besh.

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