Oh boy. Freedom of speech and expression is one of the most complicated topics in Consti law. I think the rulings and doctrines are just all over the place, but we’ll see later on. We have no choice but to face this, so let’s get to it.
Continuum of thought, speech, expression, and speech acts
I’m not exactly sure what the SC wants us to know here. My best guess is for us to understand what is covered by freedom of speech and expression.
Justice Leonen, as ponente of Diocese of Bacolod v. COMELEC (2015), has a nice sentiment about how speech is connected to freedom which is connected to thought:
[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.”]
The quote above is made by Justice Kennedy in the case of Ashcroft v. Free Speech Coalition (2002).
He also says that the right to freedom of expression applies to the entire continuum of speech from utterances made, to conduct enacted, and even to inaction:
[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.]
– Diocese of Bacolod v. COMELEC, 2015, penned by Leonen
PURPOSE OF FREE SPEECH DOCTRINES
Perhaps the most important purpose of free speech doctrines is to protect and encourage the unbridled exchange of thoughts and information so that everyone can form enlightened judgments:
“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. Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms. For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.“
–Chavez v. Gonzales, 2008
But then, there are also other purposes, including the assurance of individual self-fulfillment:
“Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change. As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open.”
– Chavez v. Gonzales, 2008, citing Gonzales v. COMELEC, 1969
Balance between unbridled expression and liberty
And of course, just like most freedoms, freedom of speech and expression also has its limitations:
[The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign “police power,” which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people.]
–Primicias v. Fugoso, 1948
In other words, all speech are not treated the same. There are those considered as within the realms of liberty, and there are those unbridled forms of expression that may cause injury to others:
[From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, nor is it an “unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”
Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as “fighting words” are not entitled to constitutional protection and may be penalized.]
–Chavez v. Gonzales, 2008
The question now is, as will most of future bar questions, how do we know if the speech is allowed? Or, in the perspective of Sec. 4, how do we know if a government action violates freedom of speech and expression?
The answer is pretty complicated. There are too many tests to consider. Why? Because all speech are not treated the same. And because not all speech are the same, there will be different tests for different types of speech.
But don’t worry, we’ll learn all about them when we discuss judicial analysis of free speech/expression cases in our next post.
The Bartender 