X. Freedom of speech, expression, Article III, Section 4

A. Concept, purpose and scope, Schools of Thought

1. Prior restraint (censorship) – Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.56 Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. 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.
2. Fear of subsequent punishment

– Babst v NIB, GR L-62992, 28 Sep 1984 – Be that as it may, it is not Idle to note that ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted and the designated interrogation site is a military camp, the same can easily be taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril, especially where, as in the instant case, the invitation carries the ominous seaming that “failure to appear . . . shall be considered as a waiver . . . and this Committee will be constrained to proceed in accordance with law.” Fortunately, the NIB director general and chairman saw the wisdom of terminating the proceedings and the unwelcome interrogation.

B. Tests for valid restraint

1. Dangerous Tendency Test
2. Clear and Present Danger Test
3. Balancing of Interest Test

Case: Disini v Secretary of Justice, GR 203335, 11 Feb 2014, supra.

C. Regulations: Content-based vs content-neutral

Content-Neutral Restrictions – 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. The intermediate approach has been formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest.

Content Based Restrictions – 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.

With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about— especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, “but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.” As formulated, “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

1. Tests:
– O’Brien Test: US v O’Brien, 391 US 367 (1968)
– Intermediate Scrutiny Test
– Strict Scrutiny

2. Applications

– Osmena v Comelec, GR 132231, 31 Mar 1998

D. Facial challenges: Void-for-vagueness and Overbreadth doctrines

– Southern Hemisphere Engagement Network, Inc. v Anti-Terrorism Council, GR 178552 5 Oct 2010
– Estrada v Sandigabnayan, GR 148560, 19 Nov 2001
– Disini v Secretary of Justice, GR 203335, 11 Feb 2014, supra.

E. State regulations of different types of media

1. Print media

– NewYork Times v Sullivan, 376 US 254 (1964)

2. Photos, pictures, paintings, sculptures

– People v Go Pin, GR L-7491, 8 Aug 1955
– People v Kottinger, GR L-20569, 29Oct 1923

3. Movies and television

– PD 1986 – MTRCB

-MTRCB v ABS-CBN and Loren Legadra, GR 155282, 17 Jan 2005 (Newsreel)
– Gonzalez v Kalaw Katigbak, GR 69500, 22 Jul 1985

4. Radio

– Bartnicki v Vopper, 532 US 514 (2001)
– Eastern Broadcsting Corp. (DYRE) v Dans, GR L-59329, 19 Jul 1985

5. Live shows, theatrical performances

Case: People v Padan y Alova, GR L-7295, 28 Jun 1957

6. Optical media, video, internet

– RA 9239 – Optical Media Act of 2003 (Video Regulatory Board)
– RA 10175, Cybercrime Law

Case: Disini v Secretary of Justice, GR 203335, 11 Feb 2014, supra.

The Fifth Estate

F. Kinds of speeches

1. Core speeches (political, social religious) vs Commercial speeches (Advertiesment of goods and services)

– Diocese of Bacolod v Comelec, GR 205728, 21 Jan 2015
– Pharmaceutical and Health Care Association of the Philippines vs. Secretary of Health Duque, GR 173034, 9 Oct 2007
– Disini v Secretary of Justice, GR 203335, 11 Feb 2014, supra.

2. Freedom of the press: 4 Aspects

a. Freedom from prior restraint
b. Freedom from subsequent punishment
c. freedom of access to information
d. Freedom of circulation

– Disini v Secretary of Justice, GR 203335, 11 Feb 2014, supra.

3. Peaceful Assembly and Petition of Redress of Grievances

– BP 880 – Public Assembly Act
– Heckler’s Veto (Terminiello v Chicago (1949)

– Primicias vs. Mayor Fugoso, GR L-1800, 27 Jan 1948
– Navarro vs. Mayor Villegas, GR 31687, 26 Feb 1970
– Ignacio vs. Mayor Ela, GR L-6858, 31 May 1956
– J.B.L Reyes v Bagatsing, GR L-65366, 9 Nov 1983
– David v Macapagal-Arroyo, GR 171396, 3 May 2006
– Bayan v Ermita, GR 169838, 25 Apr 2006

4. Unprotected speeches

a. alarming and scandalous
b. inciting to sedition, rebellion

– Espuelas vs. People, GR. L-2990, 17 Dec 1957
– Corro vs. Lising GR 69899, 15 Jul 1985

c. libel, slander and other forms of defamation, blackmail

– Lopez vs. CA, GR L-2654, 31 Jul 1970
– Borjal vs. CA, GR 126466, 14 Jan 1999
– Disini v Secretary of Justice, GR 203335, 11 Feb 2014, supra.

d. fighting words, hate words

e. obscenity

– Standards / Tests:

– (Regina vs) Hicklin test / Isolated Passage test; English case)
– Roth Test / Dominant Theme Test / Average Person Test / Contemporary Community Standard Test / Social Redeeming Value Test (Roth vs. US, 354 US 476, 1957).
– Relative Obscenity Test / Average Person “Child” Test

– Soriano v Laguardia, GR 164785, 29 Apr 2009; GR 165636, 15 Mar 2010
– Federal Communications Commission (FCC) vs. Pacifica Foundation, (438 US 726, 1978).
– Pita v CA, GR 80806, 5 Oct 1989

5. Limitations on free speech

a. Intellectual property right

– RA 8293 – Intellectual Property Code (1997)
– Textbook Printing Law and International Treaties on Copyright
– copyright, fair use and decompilation
– infringement, plagiarism

b. Fair administration of justice

– contempt / subjudice

– Roque v Chief of Staff, GR 214986, 15 Feb 2017

c. Fair conduct of elections

– RA 9006 – Fair Election Act (2001)
– Conducting surveys and exit polls

– SWS v Comelec, GR 147571, 5 May 2001
-GMA Network v Comelec, GR 205257, 2 Sep 2014
– I-UTAK v Comelec, GR 206020, 14 Apr 2015

d. National security (see also Inciting to Rebellion and Sedition, supra.)
– RA 53, as amended by RA 1477 – Shield Law

Case: In re: Parazo, GR 082027, 3 Dec 1948

e. Academic Freedom (Student Rights vs. School Rules and Regulations)

– CoTeSCUP v Secretary of Education, GR 216930, 9 Oct 2018 (K-12)
– Pimentel v Legal Education Board, GR 230642 / GR 242954, 10 Sep 2019 (Philsat)

f. offending the religious feelings

Case: Celdran v People, GR 220127, 21 Mar 2018

g. Freedom of Speech and Expression vs Right to Privacy

– Lagunzad v Sotto, GR L-32066, 6 Aug 1979
– Ayer v Judge Capulong, GR 82380, 29 Apr 1988 (public figure)


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