FREEDOM OF SPEECH AND EXPRESSION

Article 3, Section 4: 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.

1. CONCEPT

Freedom of expression has gained recognition as a fundamental principle of every democratic

government, and given a preferred right that stands on a higher level than substantive economic freedom
or other liberties. In the Philippines, the primacy and high esteem accorded freedom of expression is a
fundamental postulate of our constitutional system. This right was elevated to constitutional status in the
1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal,
that freedom of speech is an indispensable condition for nearly every other form of freedom. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)

a. Continuum of Thought, Speech, Expression, and Speech Acts

Speech may be said to be inextricably linked to freedom itself as the right to think is the beginning of
freedom, and speech must be protected from the government because speech is the beginning of
thought. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015, citing Bernas from the Records
of the 1987 Constitutional Convention)

Communication is an essential outcome of protected speech. 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. In
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.

Speech is not limited to vocal communication. Conduct is treated as a form of speech sometimes referred
to as ‘symbolic speech,’ 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.

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.

SCOPE

The scope of freedom of extends protection to:

1. Written or spoken words
2. Symbolic speech
3. Motion pictures
(Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015)
Protects Speech, Print and Assembly

 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 (Chavez v. Gonzales).

Includes the Right to be Silent

 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. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan.
21, 2015)

FREEDOM OF EXPRESSION INCLUDES: (SAPPPRRA)

1. Free Speech and free press.
2. Freedom of Assembly.
3. Freedom of Petition.
4. Freedom to Profess and Practice Religion.
5. Right of Association or the right to form associations.

 Speech, expression, and press include every form of expression, whether oral, written, tape, or
disc recorded. It also includes movies as well as symbolic speech such as the wearing of an
armband as a symbol of protest, as well as peaceful picketing (BERNAS).

 The Constitution guarantees the liberty to utter what is in his mind and also guarantees him the
liberty not to utter what is not in his mind (Cruz).

 The freedom also includes the right to an audience in the sense that the state cannot prohibit
people from hearing what a person has to say, whatever may be the quality of his thoughts.
Freedom of speech includes the freedom not to speak and remain silent (Wooley v. Maynard).

DUAL ASPECTS OF FREEDOM OF EXPRESSION

1. FREEDOM FROM CENSORSHIP OR PRIOR RESTRAINT

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

Examples of Prior Restraint:

A. System of licensing administered by an executive officer (Primicias v. Fugoso).

B. Judicial prior restraint – injunction against publication (Near v. Minnesota).
C. Imposition of taxes and or license fees to the sale of bibles intended primarily for the
dissemination of religious information (American Bible Society v. City of Manila).

LIMITATIONS ON THE PROHIBITION OF PRIOR RESTRAINT

  Freedom of expression is not absolute since it is always subject to the police power of the State.
This is premised on the need to protect society from the injurious exercise of said freedom and
the need to promote or protect public welfare, public safety, public morals, and national security
(SUAREZ).

WHERE PRIOR RESTRAINT IS PERMITTED

A. Pornography.
B. False or misleading commercial statement.
C. Advocacy of imminent lawless action.
D. Danger to national security (Chavez v. Gonzales).
E. Press statements made by persons, for and on behalf of the government, uttered while in the
exercise of their official functions.
F. Movies, television, and radio broadcast censorship in view of its access to numerous people,
including the youth who must be insulated from the prejudicial effects of unprotected speech
(Soriano v. Laguardia).
G. The Subj Judice Rule.

PRESUMED INVALID AND UNCONSTITUTIONAL GENERAL RULE

 Any system of prior restraints of expression comes to court bearing a heavy presumption against
its constitutional validity. The Government thus carries a heavy burden of showing justification
for in enforcement of such restraint. There, is thus a reversal of the normal presumption of validity
that inheres in every legislation. (SWS v. COMELEC, G.R. No. 147571, May 5, 2001)

• Exception: The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part
of the Comelec for the purpose of securing equal opportunity among candidates for political office,
although such supervision or regulation may result in some limitation of the rights of free speech and free
press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without
such accompanying limitation. Thus, the applicable rule is the general, time-honored one — that a statute
is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the
burden of clearly and convincingly proving that assertion. (National Press Club v. COMELEC, G.R. No.
102653 March 5, 1992)

GOVERNMENT ACTS PRECLUDED

 Freedom from prior restraint precludes governmental acts that:

1. Requires approval of a proposal to publish;

2. Licensing or permits as prerequisites to publication including the payment of license

taxes for the privilege to publish; and

3. Injunctions against publication.

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. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)

WHEN PROHIBITION ON PRIOR RESTRAINT DOES NOT APPLY (WOS)

1. When the nation is at War. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) (e.g., The government
can prevent publication about the number or location of its troops)
2. Obscene publications
3. Security of community life may be protected against incitements to acts of violence or overthrow by
force of orderly government. (Near v. Minnesota, 283 U.S. 697, June 1, 1931)

TEST OF PERMISSIBLE PRIOR RESTRAINT

 Although prior restraints on speech are generally invalid, there are those which may be permitted
under the Constitution if the restraint to be imposed meets the burden of proof necessary to
uphold its validity. This burden of proof depends on whether the restraint is in the form of
content-based regulations or content-neutral regulations (Chavez v. Gonzales).

CONTENT-BASED RESTRAINT OR CENSORSHIP

 Refers to restrictions “based on the subject matter of the utterance or speech.”

 In contrast, content-neutral regulations includes controls merely on the incidents of the speech
such as time, place, or manner of the speech.

 The regulation of the tarpaulin size is a content-based regulation. The tarpaulin content is not
easily divorced from the size of its medium. Limiting the maximum size of the tarpaulin would
render ineffective petitioners’ messages and violate their right to exercise freedom of expression
(Diocese of Bacolod v. COMELEC).

CONTENT-BASED REGULATIONS

OBJECT OF RESTRAINT
 Restraint is aimed at the message or idea of the expression, distort public debate have improper
motivation, and are usually imposed because of fear of how people will react to a particular
speech (Chavez v. Gonzales).

TEST FOR VALIDITY OF CONTENT-BASED REGULATIONS

▪ STRICT SCRUTINY
 Speech content may be regulated only to further a compelling public interest in a way that does
not impair speech more than is absolutely necessary to further that interest (Primicias v. Fugoso).

▪ CLEAR AND PRESENT DANGER TEST

  Congress may prevent speech only when 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 (Roque Jr. v. AFP Chief of Staff).

 "There must be objective and convincing, not subjective or conjectural, proof of the existence of
such clear and present danger."

 "It is essential for the validity of . . . previous restraint or censorship that the . . . authority does
not rely solely on his own appraisal of what the public welfare, peace or safety may require."

 "To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear
and present danger test." (Reyes vs. Bagatsing)

 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. (Chavez
vs. Gonzales as cited in Diocese vs. COMELEC)

 Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’" (Chavez vs. Gonzales as cited in Diocese
vs. COMELEC)

 "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." (Chavez vs. Gonzales as cited in Diocese vs. COMELEC)

REQUISITES OF A VALID CONTENT-BASED REGULATION

 With respect to content-based restrictions, the government must: (HIIR)

1. The government must 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;

2. The regulation which restricts the speech content must serve an important or substantial government
Interest, which is unrelated to the suppression of free expression; and

3. The Incidental Restriction on speech must be no greater than what is essential to the furtherance of
that interest. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

CONTENT-NEUTRAL REGULATION

Concept

 A content-neutral regulation is merely concerned with the incidents of the speech, or one that
merely controls the time, place or manner, and under well-defined standards. (Chavez v.
Gonzales, as cited in Diocese vs. Bacolod)
Subject to Intermediate Approach

 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, G.R. No. 168338, Feb. 15, 2008)

INTERMEDIATE APPROACH: O’BRIEN TEST FOR A VALID CONTENT-NEUTRAL REGULATION

 A governmental regulation is sufficiently justified if: (CISUNOG)

1. It is within the Constitutional power of the Government;

2. It furthers an Important or Substantial governmental interest;

3. The governmental interest is Unrelated to the suppression of free expression; and

4. The incident restriction on alleged freedom of speech & expression is NO Greater than is essential to
the furtherance of that interest. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

INCITEMENT AND ADVOCACY

 General Rule: The constitutional guarantees of free speech and free press do not permit a State
to forbid or proscribe advocacy of the use of force or of a
 law violation.

• Exception: Except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action. (Brandenburg v. Ohio, 395 U.S. 444, June 9,
1969)

Further, it is incumbent on the court to make clear in some fashion that the advocacy must be of action
and not merely abstract doctrine. (Yates v. United States, 354 U.S. 298, June 17, 1957)

SPECIFICITY OF REGULATION AND OVERBREADTH DOCTRINE

Doctrine

 The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment cases. A facial challenge is
allowed to be made to a vague statute and also to one which is overbroad because of possible
"'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. (Lagman v. Medialdea, G.R. No. 231658)
 It is best to stress that the vagueness doctrine has a special application only to free-speech cases.
They are not appropriate for testing the validity of penal statutes. (Lagman v. Medialdea, G.R. No.
231658)

 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 when 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. This rationale does not
apply to penal statutes.

 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.

 "On its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally
protected. It constitutes a departure from the ‘case and controversy’ requirement of the
Constitution and permits decisions to be made without concrete factual settings and in sterile
abstract contexts. (Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, 2001)

OVERBREADTH DOCTRINE

 Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.

 Prohibiting placing of campaign decals on private cars is overbroad, and thus invalid prohibition.
(Adiong v. COMELEC, G.R. No. 103956 March 31, 1992)

 Banning the publishing of survey results is also overbroad because it does not meet the O’Brien
test, since it suppresses one type of expression while allowing others like editorials. (SWS v.
COMELEC, G.R. No. 147571, May 5, 2001)

SUMMARY OF RULES
  General Rule: The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapplicable for testing the validity of penal statutes.

 Rationale: All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in
terrorem effect, or the fear of possible prosecution. But to prevent the State from legislating
criminal laws because they instill such kind of fear is to render the state powerless in addressing
and penalizing socially harmful conduct.
 Exceptions:

1. When a penal statute is challenged as applied

2. When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
overbreadth and vagueness doctrine is acceptable. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18,
2014)

The facial challenge has expanded its scope to cover statutes not only regulating free speech, but also
those involving religious freedom, and other fundamental rights because of the expanded scope of judicial
power. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

AS APPLIED V. FACIAL CHALLENGE

 Distinguished from an as-applied challenge which considers only extant facts affecting real
litigants, a facial invalidation 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.

 General Rule: In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground – the 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.

 Exception: 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.

 Rationale: To counter the "chilling effect" on protected speech that comes from statutes violating
free speech. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)

SPEECH REGULATION IN RELATION TO ELECTION R.A. NO. 9006: FAIR ELECTION ACT PURPOSE
 Republic Act No. 9006 was adopted with the end in mind of guaranteeing or ensuring equal
opportunity for public service and to this end, stipulates mechanisms for the supervision or
regulation of the enjoyment or utilization of all franchises or permits for the operation of media
of communication or information. The Fair Election Act provides means to realize the policy
 articulated in Article II, Section 26 of the 1987 Constitution to guarantee equal access to
opportunities for public service. (SWS v. COMELEC, G.R. No. 208062, April 07, 2015)

SEC. 5.4 OF R.A. 9006 – UNCONSTITUTIONAL

 §5.4 lays a prior restraint on freedom of speech, expression, and the press prohibiting the
publication of election survey results affecting candidates within the prescribed periods of fifteen
(15) days immediately preceding a national election seven (7) days before a local election.

 Sec. 5.4 fails to meet criterion [3] of the O’Brien test because the causal connection of expression
to the asserted governmental interest makes such interest not unrelated to the suppression of
free expression. By prohibiting the publication of election survey results because of the possibility
that such publication might undermine the integrity of the election, §5.4 actually 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, §5.4 shows a bias for a particular subject matter, if not viewpoint, by
preferring personal opinion to statistical results.

 Even if the governmental interest sought to be promoted is unrelated to the suppression of

speech and the resulting restriction of free expression is only incidental, §5.4 nonetheless fails to
meet criterion [4] of the O’Brien test, namely, that the restriction be not greater than is necessary
to further the governmental interest. As already stated, §5.4 aims the prevention of last-minute
pressure on voters, the creation of bandwagon effect, “junking” of weak or “losing” candidates,
and resort to the form of election cheating called “dagdag-bawas.” Praiseworthy as these aims of
the regulation might be, they cannot be attained at the sacrifice of the fundamental right of
expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than
speech because of apprehension that such speech creates the danger of such evils.

To summarize then, §5.4 is invalid because:

(1) it imposes a prior restraint on the freedom of expression,
(2) it is a direct and total suppression of a category of expression even though such suppression is only for
a limited period, and
(3) the governmental interest sought to be promoted can be achieved by means other than the
suppression of freedom of expression. (SWS v. COMELEC, G.R. No. 147571, May 5, 2001)

REGULATION OF SPEECH IN THE CONTEXT OF ELECTORAL CAMPAIGNS

Regulation of Speech Made by Candidates or the Members of Their Political Parties – Valid if Content-
Neutral

 Regulation of speech in the context of electoral campaigns made by candidates or the members
of their political parties or their political parties may be regulated as to time, place, and manner
(content-neutral regulation). (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015)

Regulation of Speech of Persons Who Are Not Candidates or Who Do Not Speak as Members of a
Political Party – Unconstitutional

 Regulation of speech in the context of electoral campaigns made by persons who are not
candidates or who do not speak as members of a political party which is, taken as a whole,
 principally advocacies of a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.

 COMELEC does not have the authority to regulate the enjoyment of the right to freedom of
expression exercised by citizens who are neither electoral candidates nor sponsored by any
electoral candidate. A tarpaulin that expresses a political opinion constitutes political speech.
Speech that promotes dialogue on public affairs, or airs out grievances and political discontent,
should be protected and encouraged.

 However, this does not mean that there cannot be a specie of speech by a private citizen which
will not amount to an election paraphernalia to be validly regulated by law. (Diocese of Bacolod
v. COMELEC, G.R. No. 205728, Jan. 21, 2015)

Test for a Valid Regulation of Election Paraphernalia Directed to Private Persons

 Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are
not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its
principal object the endorsement of a candidate only. The regulation should be: (LR-NT-LR)

1. Provided by Law;
2. Reasonable;
3. Narrowly Tailored to meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression; and
4. Demonstrably the Least Restrictive means to achieve that object.

 The regulation must only be content-neutral, i.e. with respect to the time, place, and manner of
the rendition of the message. In no situation may the speech be prohibited or censored on the
basis of its content. For this purpose, it will not matter whether the speech is made with or on
private property. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015)

Regulation on Size Limitations of Tarpaulins – A Content-Based Regulation

 Size limitations during elections hit at a core part of expression. The content of the tarpaulin is
not easily divorced from the size of its medium. 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.

 With the clear and present danger test, respondent COMELEC failed to justify the regulation.
There is no compelling and substantial state interest endangered by the posting of the tarpaulin
as to justify curtailment of the right of freedom of expression. There is no reason for the state to
minimize the right of noncandidate petitioners to post the tarpaulin in their private property. The
size of the tarpaulin does not affect anyone else’s constitutional rights. (Diocese of Bacolod v.
COMELEC, G.R. No. 205728, Jan. 21, 2015)
JUDICIAL ANALYSIS, PRESUMPTIONS AND LEVELS AND TYPES OF SCRUTINY

 Generally, restraints on freedom of speech and expression are evaluated by either or a

combination of three tests. As articulated in our jurisprudence, 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 it has generally adhered to the clear and present
danger test. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

A. Clear and Present Danger Test

Concept

This test is used for statements against lower courts. 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.

“Clear” connotes a causal connection with the danger of the substantive evil arising from the utterance
questioned. “Present” refers to the time element that is identified with imminent and immediate danger.
(Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969)

Applies to Content-Based Regulation; Presumed Unconstitutional

 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. Unless the
government can overthrow this presumption, the content-based restraint will be struck down.
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

As Applied to Broadcast Media

 Radio station DYRE was summarily closed for national security reasons because it allegedly aired
subversive programs. The Court ruled that all forms of media are entitled to the protection of the
freedom of speech and expression clause. The clear and present danger test may be applied to
test the limits of free speech. That the words are used in such circumstances and are of such
nature as to create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. The SC recognized that the government also has a right to be
protected against broadcasts that incite the listeners to violently overthrow it.

However, the clear and present danger test is not an all-embracing interpretation that is applicable to all
utterances in all forums. Freedom of television and radio broadcasting is lesser in scope than the freedom
accorded to newspaper and print media. Radio broadcasting receives the most limited protection from
the free expression clause. Broadcast media have a uniquely pervasive presence in the lives of all citizens
– it reaches even the privacy of the home. Broadcast media is uniquely accessible to all, even children –
selectivity is more difficult in radio and TV. In other words, the audiences of radio and TV have lesser
opportunity to cogitate, analyze, and reject the utterances. (Eastern Broadcasting v. Dans Jr., G.R. No. L-
59329, July 19, 1985)

Applied to Cases involving the Court’s Power of Contempt

 The power of contempt should be balanced with the right to freedom of expression, especially
when it may have the effect of stifling comment on public matters. The power to punish for
contempt is not exercised without careful consideration of the circumstances of the allegedly
contumacious act, and the purpose of punishing the act. Especially where freedom of speech and
press is involved, this Court has given a restrictive interpretation as to what constitutes contempt.
An article which does not impede, obstruct, or degrade the administration of justice is not
contumacious. 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. (Roque v. Chief of Staff, G.R. No. 214986, February 15, 2017)

b. Dangerous Tendency Rule

Concept

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.
(Cabansag v. Fernandez, G.R. No. L-8974, Oct. 18, 1957)

This is used for statements against the Supreme Court and permits the application of restrictions when:

a. There is a rational connection between the speech restrained and the danger apprehended; and

b. The tendency of one to create the other is shown. (Gonzales v. COMELEC, G.R. No. L- 27833, April 18,
1969)

Applied to the Cases Involving Independence of the Court

 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.
(Cabansag v. Fernandez, G.R. No. L-8974, Oct. 18, 1957)

Applied to Seditious Speech

  Citizen Perez made this remark at a political discussion at a town municipio: “and the Filipinos,
like myself, must use bolos for cutting off Wood’s head for having recommended a bad thing for
the Philippines.” The court held that criticism, no matter how severe, on the Executive, the
Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and
effect be seditious. In this case, the Court found a seditious tendency that could easily produce
disaffection among the people and a state of feeling incompatible with a disposition to remain
loyal to the Government and obedient to the laws. (People v. Perez, G.R. No. L-21049, Dec. 22,
1923; Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

c. Balancing of Interests Test

Concept

The balancing of interests test is 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. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Republic Act 4880 among other things prohibits the too early nomination of political candidates and limits
the period for partisan political activity. Its purpose is to prevent the debasement of the political process.
In determining the validity of the law, free speech as a social value must be weighed against the political
process as a social value. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969)

The dangerous tendency rule and the clear and present danger rule were evolved in the context of
prosecution for seditious speech. They are thus couched in terms of degree of evil and proximity of the
evil. But not all evils easily lend themselves, like sedition to measurement of proximity and degree. For
legislation therefore whose object is not the prevention of evil measurable in terms of proximity and
degree, another test had to be evolved. The balancing of interests serves this purpose. It is used, for
instance, for commercial speech. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)

Factors to Consider

Although the urgency of the public interest sought to be secured by Congressional power restricting the
individual's freedom, and the social importance and value of the freedom so restricted, are to be judged
in the concrete, not on the basis of abstractions, a wide range of factors are necessarily relevant in
ascertaining the point or line of equilibrium. Among these are:

a. The social values and importance of the specific aspect of the particular freedom restricted by the
legislation;

b. The specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not
the persons affected are few;

c. The value and importance of the public interest sought to be secured by the legislation — the reference
here is to the nature and gravity of the evil which Congress seeks to prevent;
d. Whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the
protection of such public interest; and

e. Whether the necessary safeguarding of the public interest involved may be achieved by some other
measure less restrictive of the protected freedom. (J. Castro, Separate Opinion in Gonzales v. COMELEC,
G.R. No. L- 27833, April 18, 1969)

TEST CRITERION
CLEAR AND PRESENT DANGER TEST 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.

DANGEROUS TENDENCY TEST If the words uttered create a dangerous tendency

which the state has a right to prevent, then such
words are punishable.
There should be a rational connection between
the speech restrained and the danger
apprehended and the tendency of one to create
the other is shown.

BALANCING OF INTEREST TEST 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.
CASES

DIOCESE OF BACOLOD VS. COMELEC

TOPIC: Right to expression, right to political speech, right to property

Facts: 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 (6x10 ft). 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 from "Team Buhay":

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by any
candidate. Petitioners also conceded that the tarpaulin contains names of candidates for the 2013 elections, but not
of politicians who helped in the passage of the RH Law but were not candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City, issued
a Notice to Remove Campaign Materials addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The election
officer ordered the tarpaulin’s removal within three (3) days from receipt for being oversized. COMELEC Resolution
No. 9615 provides for the size requirement of two feet (2’) by three feet (3’) (2x3 ft).

On February 25, 2013, petitioners replied requesting, among others, that (1) petitioner Bishop be given a definite
ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this opinion and the availment of legal
remedies, the tarpaulin be allowed to remain.

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. The letter of COMELEC Law
Department was silent on the remedies available to petitioners.

Concerned about the imminent threat of prosecution for their exercise of free speech, petitioners initiated this case
through this petition for certiorari and prohibition with application for preliminary injunction and temporary
restraining order. They question respondents’ notice dated February 22, 2013 and letter issued on February 27,
2013. They pray that:
(1) the petition be given due course;

(2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining respondents
from further proceeding in enforcing their orders for the removal of the Team Patay tarpaulin; and

(3) after notice and hearing, a decision be rendered declaring the questioned orders of respondents as
unconstitutional and void, and permanently restraining respondents from enforcing them or any other similar order.

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining respondents
from enforcing the assailed notice and letter, and set oral arguments on March 19, 2013.

On March 13, 2013, respondents filed their comment arguing that

(1) a petition for certiorari and prohibition under Rule 65 of the Rules of Court filed before this court is not the proper
remedy to question the notice and letter of respondents; and

(2) the tarpaulin is an election propaganda subject to regulation by COMELEC pursuant to its mandate under Article
IX-C, Section 4 of the Constitution. Hence, respondents claim that the issuances ordering its removal for being
oversized are valid and constitutional.

ISSUES:

1. Whether or not the size limitation and its reasonableness of the tarpaulin is a political question, hence not
within the ambit of the Supreme Court’s power of review.

2. Whether or not the petitioners violated the principle of exhaustion of administrative remedies as the case
was not brought first before the COMELEC En Banc or any if its divisions.

3. Whether or not COMELEC may regulate expressions made by private citizens.

4. Whether or not the assailed notice and letter for the removal of the tarpaulin violated petitioners’
fundamental right to freedom of expression.

5. Whether the order for removal of the tarpaulin is a content-based or content-neutral regulation.

6. Whether or not there was a violation of petitioners’ right to property.

7. Whether or not the tarpaulin and its message are considered religious speech.

HELD:

THIRD ISSUE (Whether or not COMELEC may regulate expressions made by private citizens): NO.

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the power to
regulate the tarpaulin. However, the Court held that all of these provisions pertain to candidates and political parties.
Petitioners are not candidates. Neither do they belong to any political party. COMELEC does not have the authority
to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case.

FOURTH ISSUE (Whether or not the assailed notice and letter for the removal of the tarpaulin violated
petitioners’ fundamental right to freedom of expression): YES.
The Court held that every citizen’s expression with political consequences enjoys a high degree of protection.
Moreover, the respondent’s argument that the tarpaulin is election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it, holds no water.

The Court held that while the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or posted “in return
for consideration” by any candidate, political party, or party-list group. By interpreting the law, it is clear that
personal opinions are not included, while sponsored messages are covered.

The content of the tarpaulin is a political speech.

Political speech refers to speech “both intended and received as a contribution to public deliberation about some
issue,” “fostering informed and civic-minded deliberation.”

On the other hand, commercial speech has been defined as speech that does “no more than propose a commercial
transaction.” The expression resulting from the content of the tarpaulin is, however, definitely political speech.

FIFTH ISSUE (Whether the order for removal of the tarpaulin is a content-based or content-neutral regulation):
Content-based regulation.

Content-based restraint or censorship refers to restrictions “based on the subject matter of the utterance or
speech.”

Content-neutral regulation includes controls merely on the incidents of the speech such as time, place, or manner
of the speech.

The Court held that the regulation involved at bar is content-based. The tarpaulin content is not easily divorced from
the size of its medium. Content-based regulation bears a heavy presumption of invalidity, and this court has used
the clear and present danger rule as measure.

Under this rule, “the evil consequences sought to be prevented must be substantive, ‘extremely serious and the
degree of imminence extremely high.’” “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.” Even with the clear and present danger test, respondents failed to justify the regulation. There
is no compelling and substantial state interest endangered by the posting of the tarpaulin as to justify curtailment
of the right of freedom of expression. There is no reason for the state to minimize the right of non- candidate
petitioners to post the tarpaulin in their private property. The size of the tarpaulin does not affect anyone else’s
constitutional rights.

SIXTH ISSUE (Whether or not there was a violation of petitioners’ right to property): YES.

The Court held that even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property
of petitioners. Their right to use their property is likewise protected by the Constitution.

Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary
or unreasonable infringement of property rights is void because it is repugnant to the constitutional guarantees of
due process and equal protection of the laws. The Court in the Adiong case held that a restriction that regulates
where decals and stickers should be posted is “so broad that it encompasses even the citizen’s private property.”
Consequently, it violates Article III, Section 1 of the Constitution which provides that no person shall be deprived of
his property without due process of law.

SEVENTH ISSUE (Whether or not the tarpaulin and its message are considered religious speech): NO.
The Court held that the church doctrines relied upon by petitioners are not binding upon this court. The position of
the Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by one of its
members of a tarpaulin as religious speech solely on such a basis. The enumeration of candidates on the face of the
tarpaulin precludes any doubt as to its nature as speech with political consequences and not religious speech.

BORJAL VS. COURT OF APPEALS

FACTS: Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today,
Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star. Between May and July 1989 a series of
articles written by petitioner Borjal was published on different dates in his column Jaywalker.

The articles dealt with the alleged anomalous activities of an "organizer of a conference " without naming
or identifying private respondent Wenceslao. Neither did it refer to the FNCLT as the conference therein
mentioned.

Thereafter, private respondent filed a complaint with the National Press Club (NPC) against petitioner
Borjal for unethical conduct. He accused petitioner Borjal of using his column as a form of leverage to
obtain contracts for his public relations firm, AA Borjal Associates. In turn, petitioner Borjal published a
rejoinder to the challenge of private respondent not only to protect his name and honor but also to refute
the claim that he was using his column for character assassination. Apparently not satisfied with his
complaint with the NPC, private respondent filed a criminal case for libel against petitioners Borjal and
Soliven, among others.

ISSUE: Whether the disputed articles constitute privileged communications as to exempt the author from
liability.

HELD: YES. In order to maintain a libel suit, it is essential that the victim be identifiable although it is not
necessary that he be named. It is also not sufficient that the offended party recognized himself as the
person attacked or defamed, but it must be shown that at least a third person could identify him as the
object of the libelous publication.

Regrettably, these requisites have not been complied with in the case at bar. The questioned articles
written by Borjal do not identify private respondent Wenceslao as the organizer of the conference. The
first of the Jaywalker articles which appeared in the 31 May 1989 issue of The Philippine Star yielded
nothing to indicate that private respondent was the person referred to therein. Surely, as observed by
petitioners, there were millions of "heroes" of the EDSA Revolution and anyone of them could be "self-
proclaimed" or an "organizer of seminars and conferences." As a matter of fact, in his June 1989 column
petitioner Borjal wrote about the "so-called First National Conference on Land Transportation whose
principal organizers are not specified". Neither did they disclose the identity of the conference organizer
since these contained only an enumeration of names where private respondent Francisco Wenceslao was
described as Executive Director and Spokesman and not as a conference organizer. The printout and
tentative program of the conference were devoid of any indication of Wenceslao as the organizer. The
printout which contained an article entitled "Who Organized the NCLT?" did not even mention the private
respondent's name, while the tentative program only denominated the private respondent as "Vice
Chairman and Executive Director," and not as the organizer.
No less than private respondent himself admitted that the FNCLT had several organizers and that he was
only a part of the organization, thus - Significantly, the private respondent himself entertained a doubt
that he was the person spoken of in Borjal's columns. The former even called up columnist Borjal to inquire
if he (Wenceslao) was the one referred to in the subject articles. His letter to the editor published in the
4 June 1989 issue of The Philippine Star even showed private respondent Wenceslao's uncertainty –

Identification is grossly inadequate when even the alleged offended party is himself unsure that he was
the object of the verbal attack. It is well to note that the revelation of the identity of the person alluded
to came not from petitioner Borjal but from private respondent himself when he supplied the information
through his 4 June 1989 letter to the editor. Had the private respondent not revealed that he was the
"organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in blissful
ignorance of his identity. It is therefore clear that on the element of identifiability alone the case falls.

We now proceed to resolve the other issues and pass upon the pertinent findings of the courts a quo on
whether the disputed articles constitute privileged communications as to exempt the author from liability.

Art. 354. Requirement for publicity. – Every defamatory imputation is presumed to be malicious, even if
it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1) A private communication made by any person to another in the performance of any legal, moral or
social duty; and,

2) A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of any other act performed by public officers in the
exercise of their functions.

PRIVILEGED COMMUNICATION
 It may be either absolutely privileged or qualifiedly privileged.

ABSOLUTELY PRIVILEGED COMMUNICATIONS

 are those which are not actionable even if the author has acted in bad faith. An example is found
in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of Congress from liability
for any speech or debate in the Congress or in any Committee thereof, by public officers in the
performance of their duties, and allegations or statements made by the parties or their counsel
in their pleadings or motions or during the hearing of judicial proceedings, as well as the answers
given by witnesses in reply to questions propounded to them, in the course of said proceedings,
provided that said allegations or statements are relevant to the issues, and the answers are
responsive or pertinent to the questions propounded to said witnesses.

QUALIFIEDLY PRIVILEGED COMMUNICATIONS

 Those containing defamatory imputations are not actionable unless found to have been made
without good intention or justifiable motive. To this genre belong "private communications" and
"fair and true report without any comments or remarks."
  While generally every defamatory imputation is presumed malicious, if the communication is
privileged, the presumption does not arise. The plaintiff assumes the burden of proving malice.
(Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

REQUISITES OF A QUALIFIEDLY PRIVILEGED COMMUNICATION UNDER ARTICLE 354, NO. 1 OF THE

REVISED PENAL CODE – “PRIVATE COMMUNICATIONS”

 In order to prove that a statement falls within the purview of a qualified privileged
communication under Article 354, No. 1, the following requisites must concur: (DAG)

1. The person who made the communication had a legal, moral, or social Duty to make the
communication, or at least, had an interest to protect, which interest may either be his own or of the
one to whom it is made;

2. The communication is Addressed to an officer or a board, or superior, having some interest or duty in
the matter, and who has the power to furnish the protection sought; and

3. The statements in the communication are made in Good faith and without malice. (Syhunliong v. Rivera,
G.R. No. 200148, June 4, 2014)

EVERY DEFAMATORY IMPUTATION PRESUMED MALICIOUS

General Rule: Every defamatory imputation is presumed to be malicious, even if it be true, if no good
intention and justifiable motive for making it is shown.

• Exceptions:
1. A private communication made by any person to another in the performance of
any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative
or other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions. (REVISED PENAL CODE, art. 354)

DOCTRINE OF FAIR COMMENTARIES

The enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise privileged.

Indisputably, petitioner Borjal's questioned writings are not within the exceptions of Art. 354 of The
Revised Penal Code for, as correctly observed by the appellate court, they are neither private
communications nor fair and true report without any comments or remarks. However this does not
necessarily mean that they are not privileged.

To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged
communications since FAIR COMMENTARIES ON MATTERS OF PUBLIC INTEREST are likewise privileged.
The rule on privileged communications had its genesis not in the nation's penal code but in the Bill of
Rights of the Constitution guaranteeing freedom of speech and of the press . Art. III, Sec. 4, provides: No
law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people to peaceably assemble and petition the government for redress of grievances. In the case of U.S
vs. Bustos, this Court ruled that publications which are privileged for reasons of public policy are protected
by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the
mere failure of the legislature to give it express recognition in the statute punishing libels.

The concept of privileged communications is implicit in the freedom of the press. To be more specific, no
culpability could be imputed to petitioners for the alleged offending publication without doing violence
to the concept of privileged communications implicit in the freedom