High court on libel: Lost in

overbreadth
By: Harry Roque - @inquirerdotnet

Philippine Daily Inquirer / 01:32 AM March 02, 2014

The recent Supreme Court decision upholding the constitutionality of

libel under the Revised Penal Code and under Section 4 C (4) of the
cybercrime prevention law but declaring the crimes of aiding and
abetting cyberlibel unconstitutional are contradictory rulings, which can
only be because of the court’s misappreciation of the doctrine of
“overbreadth.”

There is overbreadth where the language of a statute that proscribes

speech is so broadly tailored that it could encompass even protected
speech.
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Its application has been recognized in Philippine jurisprudence in the

case of Estrada v. Desierto: “When statutes regulate or proscribe speech
and  x x x the transcendent value to all society of constitutionally
protected expression  x x x justify allowing attacks on overly broad
statutes (Broadrick v. Oklahoma).

In this same case, “a court’s first task is to determine whether the

enactment reaches a substantial amount of constitutionally protected
conduct. Those that make unlawful a substantial amount of
constitutionally protected conduct may be held facially invalid.”

Courts in the United States have struck down criminal statutes in at least
half of the states in the union because first, only falsities made knowing
they were false or in utter disregard of its truth should be actionable. This
was the ruling of the court in the seminal case of New York Times v.
Sullivan.

We have incorporated Sullivan in our jurisprudence in Borjal v. CA and

Guingging v. CA. The rationale for this is that “debate on public issues
should be uninhibited, robust and wide-open, and … may well include
vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials.”

In Garrison v. Louisiana, the court ruled that a definition of actual malice

including ill will and hatred would still inhibit public debate on public
issues: “Even where the utterance is false, the  x x Constitution  x x x
preclude attaching adverse consequences to any except the knowing or
reckless falsehood …. even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth.”

Under the foregoing rulings, criminal libel was struck down in the United
States because as worded, it would encompass at least two types of
protected speech:

First, false statements regarding public figures made without knowledge

or recklessness outside of fair and true report of any act performed by
public officials in the exercise of their functions; and second, true
statements regarding public figures not covered by qualified privilege.

In Disini Jr. v. The Secretary of Justice, the Supreme Court upheld

criminal libel on the basis that in its latest pronouncement on libel
involving Cristy Fermin, the court found that “verily, not only was there
malice in law, the article being malicious in itself, but there was also
malice in fact, as there was motive to talk ill against complainants.”

Perhaps, unknown to the court, this was precisely why criminal malice
suffers from overbreadth because it defines malice as including ill will
and not just knowledge of falsity or in utter disregard thereof.
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And yet, despite its ruling that criminal libel is constitutional, it held
aiding and abetting libel as unconstitutional because of overbreadth: The
terms “aiding or abetting” constitute [a] broad sweep that generates [a]
chilling effect on those who express themselves through cyberspace
posts, comments and other messages.

Hence, Section 5 of the cybercrime prevention law that punishes aiding

or abetting libel on the cyberspace is a nullity.

Apparently, the court applied overbreadth where it is uncertain as to who

should be held liable for aiding and abetting criminal libel but not for
those who will actually be accused of libel using the wrong definition of
malice in fact.

There is no basis for this distinction given that facial challenges on

overbreadth are allowed precisely because of our constitutional
commitment to freedom of expression as a means of ascertaining the
truth and the value of a free marketplace of ideas in a democracy.

To say that only an uncertainty of who may be accused of aiding and

abetting cyberlibel will lead to a chilling of rights is absurd. As held in
Garrison: “Debate on public issues will be inhibited if the speaker must
run the risk that it will be proved in court that he spoke out of hatred.”

We have in the Disini case a serious misappreciation of overbreadth,

which will now certainly cause a chilling of the exercise of the right to
free expression.

(Harry Roque is associate professor at the UP College of Law and is

petitioner in Adonis et al., v. The Executive Secretary. He argued the
issues of libel and cybersex in the oral arguments of the Disini Jr. v. The
Secretary of Justice.)
Read more: https://opinion.inquirer.net/72119/high-court-on-libel-lost-
in-overbreadth#ixzz6lNDX1MtI
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Overbreadth

By Richard Parker

Overbreadth is shorthand for the overbreadth doctrine, which provides that a

regulation of speech can sweep too broadly and prohibit protected as well as non-
protected speech. A regulation of speech is unconstitutionally overbroad if it regulates
a substantial amount of constitutionally protected expression. Overbreadth is closely
related to its constitutional cousin, vagueness. A regulation of speech is
unconstitutionally vague if a reasonable person cannot distinguish between
permissible and impermissible speech because of the difficulty encountered in
assigning meaning to language.

Motives driving the government to fashioning overbroad

regulations
At least three motives drive the government’s impulse to fashion overbroad
regulations.
 First, officials may employ overbroad regulations to suppress a broad range of
criticisms directed against those in power.
 Second, officials may selectively enforce broad regulations to protect or
suppress communicative content as they choose.
 Third, governments may adopt broad regulations to avoid judicial
determinations of content or viewpoint discrimination.
Judicial examination of free speech regulations reflects an enduring concern: that free
expression needs “breathing space” to survive (City of Houston v. Hill  [1987]).

https://www.mtsu.edu/first-amendment/article/1005/overbreadth