FACIAL CHALLENGE v.

AS-APPLIED CHALLENGE
“Freedom of Expression/ Speech”

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.

- '[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. [ in other words, a case or even a test case
need not have been filed or exists]

- 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.

This rationale does not apply to penal statutes.

Madrilejos v. Gatdula, G.R. No. 184389 , [September 24, 2019]

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of criminal law, the law cannot
take chances as in the area of free speech.|||

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Note:
- EX POST FACTO LAW, law that retroactively makes criminal conduct that
was not criminal when performed, increases the punishment for crimes
already committed, or changes the rules of procedure in force at the time
an alleged crime was committed in a way substantially disadvantageous to
the accused.

- BILL OF ATTAINDER (also known as an act of attainder or writ of attainder

or bill of penalties) is an act of a legislature declaring a person, or a group of
persons, guilty of some crime, and punishing them, often without a trial.

A facial challenge contends that a government law, rule, regulation, or

policy is unconstitutional as written — that is, on its face. This challenge
differs from an as-applied challenge in that it invalidates a law for
everyone — not just as that law is applied to the particular litigant
challenging it.

In U.S. constitutional law, a facial challenge is a challenge where the

plaintiff alleges that the legislation is always unconstitutional, and
therefore void. It is contrasted with an:

 AS-APPLIED CHALLENGE, which alleges that a particular

application of a statute is unconstitutional.

 If a facial challenge is successful, a court will declare the statute in

question facially invalid, which has the effect of striking it down
entirely. This contrasts with a successful as-applied challenge,
which will result in a court narrowing the circumstances in which
the statute may constitutionally be applied without striking it
down. In some cases—e.g., Gonzales v. Carhart or Crawford v.
Marion County Election Board, a facial challenge has been
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 rejected with either the court or concurring Justices intimating
that the upheld statute might be vulnerable to an as-applied
challenge.

An as-applied challenge alleges that a statute or regulation is unconstitutional in a specific context. A

plaintiff in an as-applied challenge is not arguing that the entire statute is unconstitutional, but instead
that it is being applied in an unconstitutional manner.

Facial challenge is a challenge to a statute in which the plaintiff alleges that the
legislation is always unconstitutional, and therefore void. It is contrasted with
an as-applied challenge, which alleges that a particular application of a statute is
unconstitutional.
facial challenge may be brought soon after a statute's passage in a legislature;
however, an as-applied challenge, as the name suggests, can only be brought
once it has been enforced.
If a facial challenge is successful, a court will declare the statute in
question facially invalid, which has the effect of striking it down entirely. This
contrasts with a successful as-applied challenge, which will result in a court
narrowing the circumstances in which the statute may constitutionally be applied
without striking it down.
Facial challenges have the potential to invalidate a statute in its entirety, they are
said to be disfavored.[
facial challenge is prospective, or forward looking, because it seeks to prevent a
law from being enforced and thus violating someone's constitutional rights, and
an as-applied challenge is retrospective, or backward looking, because it seeks to
redress a constitutional violation that has already occurred.
Due to the speculative, possibly premature, and anti-democratic nature of judicial
review of a facial challenge, the Supreme Court has placed a higher burden on
those wishing to establish a facial challenge. In U.S. v. Stevens, it stated, "To
succeed in a typical facial attack, [the respondent] would have to establish “that
no set of circumstances exists under which [the statute] would be valid”, 

facial challenges are not framed by only a few aberrant constitutional tests. As
claimed by the article, facial challenges are constituted by important
constitutional tests such as the "rational basis test", which may sometimes

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indicate that a statute is invalid on its face because it does not posit any rational
relation to a legitimate state interest.[2]

OVERBREATH [OVERLY BROAD] Doctrine: States have some latitude to regulate

unprotected speech. A statute doing so is overly broad (hence, overbreadth) if, in
proscribing unprotected speech, it also proscribes protected speech. Because an
overly broad law may deter constitutionally protected speech, the overbreadth
doctrine allows a party to whom the law may constitutionally be applied to
challenge the statute on the ground that it violates the First Amendment rights of
others. See, e.g., Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483
(1989), and R. A. V. v. City of St. Paul, 505 U.S. 377 (1992).

- Overbreadth is closely related to vagueness; if a prohibition is expressed in

a way that is too unclear for a person to reasonably know whether or not
their conduct falls within the law, then to avoid the risk of legal
consequences they often stay far away from anything that could possibly fit
the uncertain wording of the law.
o The law's effects are thereby far broader than intended or than
the U.S. Constitution permits, and hence the law is overbroad.

The overbreadth doctrine is to "strike a balance between competing social

costs". U.S. v. Williams, 553 U.S. 285, 292.

- The doctrine seeks to balance the "harmful effects" of "invalidating a law

that in some of its applications is perfectly constitutional" as a possibility
that "the threat of enforcement of an overbroad law deters people from
engaging in constitutionally protected speech".

- In determining whether a statute's overbreadth is substantial, the courts

consider a statute's application to real-world conduct, not fanciful
hypotheticals.

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Philippine Jurisprudence:

Madrilejos v. Gatdula, G.R. No. 184389 , [September 24, 2019]

[FHM Publications]
...overbreadth doctrine finds special and limited application only to free speech
cases. The present petition does not involve a free speech case; it stemmed,
rather, from an obscenity prosecution. As both this Court and the US Supreme
Court have consistently held, obscenity is not protected speech. No court has
recognized a fundamental right to create, sell, or distribute obscene material.
Thus, a facial overbreadth challenge is improper as against an anti-obscenity
statute.

Falcis III v. Civil Registrar General, G.R. No. 217910, [September 3,

2019] [LGBTIA Right to Marriage]

A FACIAL CHALLENGE is "an examination of the entire law,

pinpointing its flaws and defects, not only on the basis of its actual operation
to the parties, but also on the assumption or prediction that its very existence
may cause others not before the court to refrain from constitutionally
protected speech or activities." It is distinguished from "AS-APPLIED"
CHALLENGES, which consider actual facts affecting real litigants.

Facial challenges are only allowed as a narrow exception to the

requirement that litigants must only present their own cases, their extant
factual circumstances, to the courts. In David v. Arroyo:
[F]acial invalidation of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;" The reason for this is obvious. Embedded
in the traditional rules governing constitutional adjudication is the
principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be
applied unconstitutionally to others, i.e., in other situations not
before the Court. A writer and scholar in Constitutional Law
explains further:

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 The most distinctive feature of the
overbreadth technique is that it marks an exception
to some of the usual rules of constitutional litigation.
Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the
litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to
raise the rights of third parties and can only assert
their own interests.
In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute
"on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a
properly authorized court construes it more
narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern
with the "chilling;" deterrent effect of the overbroad
statute on third parties not courageous enough to
bring suit. The Court assumes that an overbroad law's
"very existence may cause others not before the
court to refrain from constitutionally protected
speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the
speech of those third parties.

However, in Disini, Jr. v. Secretary of Justice, 156 this Court distinguished

those facial challenges that could be properly considered as presenting an
actual case or controversy:
When a penal statute encroaches upon the
freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As
Justice Antonio T. Carpio explained in his dissent in Romualdez v.
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Commission on Elections, "we must view these statements
of the Court on the inapplicability of the overbreadth
and vagueness doctrines to penal statutes as
appropriate only insofar as these doctrines are used to
mount 'facial' challenges to penal statutes not involving
free speech."
In an "as APPLIED" CHALLENGE, the petitioner who
claims a violation of his constitutional right can raise any
constitutional ground — absence of due process, lack of fair
notice, lack of ascertainable standards, overbreadth, or
vagueness.
 Here, one can challenge the constitutionality of a
statute only if he asserts a violation of his own
rights.
 It prohibits one from assailing the constitutionality of
the statute based solely on the violation of the rights
of third persons not before the court.
 This rule is also known as the prohibition against third-
party standing.
o EXCEPTIONS: But this rule admits of exceptions:
 A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he
claims no violation of his own rights under the assailed
statute where it involves free speech on grounds of
overbreadth or vagueness of the statute. The rationale
for this exception is to counter the "chilling effect" on
protected speech that comes from statutes violating
free speech.
 A person who does not know whether his speech
constitutes a crime under an overbroad or vague law
may simply restrain himself from speaking in order to
avoid being charged of a crime. The overbroad or

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 vague law thus chills him into silence. (Citations
omitted)

To be entertained by this Court, a facial challenge requires a showing

of curtailment of the right to freedom of expression, because its basis is that
an overly broad statute may chill otherwise constitutional speech.

Celdran y Pamintuan v. People, G.R. No. 220127 (Notice), [November

21, 2018]

In his Concurring Opinion in Estrada, Justice Mendoza succinctly

discussed the nature of a facial and as applied challenges and its applicability
to penal statutes:
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing
the validity of penal statutes. As the U.S. Supreme Court put it, in
an opinion by Chief Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment." 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." EcTCAD

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 In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to
do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom
application of a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its
application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation,
while statutes found vague as a matter of due process typically
are invalidated [only] 'as applied' to a particular defendant."
Consequently, there is no basis for petitioner's claim that this
Court review the Anti-Plunder Law on its face and in its entirety.
12 (Citations omitted and emphasis ours)
As an exception, a facial challenge grounded on the void-for-vagueness
doctrine may be allowed when the subject penal statute encroaches upon the
freedom of speech. Thus, in Disini, Jr., et al. v. The Secretary of Justice, et al.,
13 this Court allowed facial invalidation of the criminalization of aiding and
abetting cyberlibel because of its chilling effect on the constitutionally-
protected freedom of expression of the great masses that use the cyberspace,
and boost a social media post by liking, commenting or sharing the same.
Evidently, such is not the case here. Article 133 of the RPC does not
encroach on the freedom of expression as it does not regulate free speech.
The gravamen of the penal statute is the disruption of a religious ceremony
and/or worship by committing acts that are notoriously offensive to the
feelings of the faithful inside a place devoted to religious worship or during the
celebration of a religious ceremony. There is nothing in the provision that
imposes criminal liability on anyone who wishes to express dissent on another
religious group. It does not seek to prevent or restrict any person from
expressing his political opinions or criticisms against the Catholic church, or
any religion.
A facial challenge on the ground of the overbreadth doctrine is also
impermissible in this case. In Prof. David v. Pres. Macapagal-Arroyo, 14 this

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 Court refused to facially invalidate Presidential Proclamation No. 1017 on such
ground that it does not regulate free speech but covers a spectrum of conduct
which is manifestly within the State's authority to regulate. The Court held that
"claims of facial overbreadth are entertained in cases involving statutes which,
by their terms, seek to regulate only spoken words." 15 Again, Article 133 of
the RPC does not regulate only spoken words. It encompasses all acts that are
notoriously offensive to the religious feelings. Such acts are within the State's
authority to regulate.

Zabal v. Duterte, G.R. No. 238467, [February 12, 2019]

Leonen, dissenting:
In Southern Hemisphere Engagement Network, Inc. v. Anti-
Terrorism Council, the Court clarified that the void for vagueness
doctrine may only be invoked in as-applied cases. The Court
explained:
While Estrada did not apply the overbreadth
doctrine, it did not preclude the operation of the
vagueness test on the Anti-Plunder Law as applied to
the therein petitioner, finding, however, that there
was no basis to review the law "on its face and in its
entirety." It stressed that "statutes found vague as a
matter of due process typically are invalidated only
'as applied' to a particular defendant."
However, in Disini v. Secretary of Justice, the Court
extended the application of the doctrine even to facial challenges,
ruling that "when a penal statute encroaches upon the freedom
of speech, a facial challenge grounded on the void-for-vagueness
doctrine is acceptable." Thus, by this pronouncement the void for
vagueness doctrine may also now be invoked in facial challenges
as long as what it involved is freedom of speech.
On the other hand, the void for overbreadth doctrine
applies when the statute or the act "offends the constitutional
principle that a governmental purpose to control or prevent

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activities constitutionally subject to state regulations may not be
achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms."
In Southern Hemisphere Engagement Network, Inc. v. Anti-
Terrorism Council, the Court held that the application of the
overbreadth doctrine is limited only to free speech cases due to
the rationale of a facial challenge. The Court explained:
By its nature, the overbreadth doctrine has to
necessarily apply a facial type of invalidation in order
to plot areas of protected speech, inevitably almost
always under situations not before the court, that are
impermissibly swept by the substantially overbroad
regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if
the court confines itself only to facts as applied to the
litigants.
The Court ruled that as regards the application of the
overbreadth doctrine, it is limited only to "a facial kind of
challenge and, owing to the given rationale of a facial challenge,
applicable only to free speech cases."

The Court's pronouncements in Disini v. Secretary of Justice

is also premised on the same tenor. Thus, it held:
Also, the charge of invalidity of this section
based on the overbreadth doctrine will not hold
water since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech.
Clearly, what this section regulates are specific
actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no
fundamental right to acquire another's personal data.

xxx xxx xxx

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 But this rule admits of exceptions. A petitioner
may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute
where it involves free speech on grounds of
overbreadth or vagueness of the statute. The
rationale for this exception is to counter the "chilling
effect" on protected speech that comes from statutes
violating free speech. A person who does not know
whether his speech constitutes a crime under an
overbroad or vague law may simply restrain himself
from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him
into silence.
It is true that in his Dissenting Opinion in Estrada v.
Sandiganbayan, Justice V.V. Mendoza expressed the view that
"the overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing
the validity of penal statutes."

However, the Court already clarified in Southern

Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
that the primary criterion in the application of the doctrine is not
whether the case is a freedom of speech case, but rather,
whether the case involves an as-applied or a facial challenge.
The Court clarified:

The confusion apparently stems from the

interlocking relation of the overbreadth and
vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a
claim of violation of due process of law) or a speech
regulation (under a claim of abridgement of the
freedom of speech and cognate rights).

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 To be sure, the doctrine of vagueness and the
doctrine of overbreadth do not operate on the same
plane.

xxx xxx xxx

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 statutes that generally bear an in terrorem
effect in deterring socially harmful conduct. In fact,
the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it
refrains from diminishing or dissuading the exercise
of constitutionally protected rights.

The Court then concluded that due to the rationale of a

facial challenge, the overbreadth doctrine is applicable only to
free speech cases. Thus:

By its nature, the overbreadth doctrine has to

necessarily apply a facial type of invalidation in order
to plot areas of protected speech, inevitably almost
always under situations not before the court, that are
impermissibly swept by the substantially overbroad
regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if
the court confines itself only to facts as applied to the
litigants.

xxx xxx xxx

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 In restricting the overbreadth doctrine to free
speech claims, the Court, in at least two cases,
observed that the US Supreme Court has not
recognized an overbreadth doctrine outside the
limited context of the First Amendment, and that
claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to
regulate only spoken words. In Virginia v. Hicks, it
was held that rarely, if ever, will an overbreadth
challenge succeed against a law or regulation that is
not specifically addressed to speech or speech-
related conduct. Attacks on overly broad statutes are
justified by the "transcendent value to all society of
constitutionally protected expression."

As regards the application of the void for vagueness

doctrine, the Court held that vagueness challenges must be
examined in light of the specific facts of the case and not with
regard to the statute's facial validity. Notably, the case need not
be a freedom of speech case as the Court cited previous cases
where the doctrine was applied:

In this jurisdiction, the void-for-vagueness

doctrine asserted under the due process clause has
been utilized in examining the constitutionality of
criminal statutes. In at least three cases, the Court
brought the doctrine into play in analyzing an
ordinance penalizing the non-payment of municipal
tax on fishponds, the crime of illegal recruitment
punishable under Article 132 (b) of the Labor Code,
and the vagrancy provision under Article 202 (2) of
the Revised Penal Code. Notably, the petitioners in
these three cases, similar to those in the two
Romualdez and Estrada cases, were actually charged
with the therein assailed penal statute, unlike in the
present case.

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 From these pronouncements, it is clear that what is
relevant in the application of the void-for-vagueness doctrine is
not whether it is a freedom of speech case, but rather whether it
violates the Due Process Clause of the Constitution for failure to
accord persons a fair notice of which conduct to avoid; and
whether it leaves law enforcers unbridled discretion in carrying
out their functions. (Emphasis in the original, citations omitted)

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