Freedom of Speech and Expression Part II: Types of Regulation & Judicial Analysis

TYPES OF REGULATION
a. Prior restraint and subsequent punishment
b. Content based and content neutral
c. Incitement and advocacy
d. Specificity of regulation and overbreadth doctrine
e. Speech regulation in relation to election
f. Speech regulation in relation to media

Our Supreme Court has seen so many eras and has had so many intellectual Justices that we have A LOT of different types of regulations affecting free speech. We have no choice but to discuss them one by one. Besides, prior knowledge of these types of regulations would be useful for judicial analysis.

A. Prior Restraint and Subsequent Punishment

Luckily, Justice Leonen has a discussion about prior restraint and subsequent punishment in his Concurring Opinion in Nicolas-Lewis v. COMELEC (2019):

[To be a true channel of democracy, free speech must be exercised without prior restraint or censorship and subsequent punishment. In Associate Justice Santiago Kapunan’s separate opinion in Iglesia ni Cristo v. Court of Appeals:
The rights of free expression and free exercise of religion occupy a unique and special place in our constellation of civil rights. The primacy our society accords these freedoms determines the mode it chooses to regulate their expression. But the idea that an ordinary statute or decree could, by its effects, nullify both the freedom of religion and the freedom of expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a form of prior restraint is anathema to a society which places high significance to these values.

Prior restraint is an official governmental restriction on any form of expression in advance of its actual utterance, dissemination, or publication. Thus, freedom from prior restraint is freedom from censorship, regardless of its form and the branch of that wielded it. When a governmental act is in prior restraint of expression, it bears a heavy presumption against its validity. In Chavez:
Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from 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.]

As can be seen from the above passages, prior restraint is just censorship by the government in advance of actual utterance, publication, or dissemination. And when a governmental act is in prior restraint of expression, it bears a heavy presumption against its validity. In other words, prior restraint is usually disallowed because our Constitution favors freedom of expression.

It is also important to note that prior restraint takes many forms:
“Prior restraint on unprotected expression takes many forms – it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits. The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies.“
-Justice Carpio Concurring Opinion, Chavez v. Gonzales, 2008

Subsequent punishment, on the other hand, is explained by Justice Leonen (in the same Concurring Opinion) as the imposition of liability on the individual exercising his or her freedom:

[On the other hand, subsequent punishment is the imposition of liability on the individual exercising his or her freedom. The penalty may be penal, civil, or administrative.

Prior restraint is deemed a more severe restriction on expression than subsequent punishment because while the latter dissuades expression, ideas are still disseminated to the public. On the other hand, prior restraint prevents even the dissemination of ideas.

Even if there is no prior restraint, the exercise of expression may still be subject to subsequent punishment, either civilly or criminally. If the expression is not subject to the lesser restriction of subsequent punishment, it follows that it cannot also be subject to the greater restriction of prior restraint. On the other hand, if the expression warrants prior restraint, it is unavoidably subject to subsequent punishment.]

In other words, prior restraint is made BEFORE the speech or expression and subsequent punishment is made AFTER. Prior restraint is also a more severe restriction.

B. Content based and content neutral

Prior restraint is divided into two types: content-based regulation and content-neutral regulation.

These restrictions should be self-explanatory, but for the sake of a legalese understanding, here is Justice Leonen’s discussion on the matter:

[When faced with contentions involving prior restraint on free speech, it is important to create a distinction between content-based and content-neutral regulations. Whether a regulation is content-based or content-neutral spells out the difference in the test applied in assaying a governmental regulation.

A regulation is content-neutral if it is “merely concerned with the incidents of the speech, or one that merely controls the time, place, or manner, and under well-defined standards,” regardless of the content of the speech. On the other hand, content-based restraint or censorship is based on the subject matter of the expression.

Thus, the government must show the type of harm sought to be prevented by the content-based regulation. It must be based on a “substantive and imminent evil that has taken the life of a reality already on ground.” There must be an inquiry on whether the words used will “bring about the substantive evils that Congress has a right to prevent.” To justify the regulation, strict scrutiny requires a compelling State interest, and that it is narrowly tailored and the least restrictive means to achieve that interest.]
-Justice Leonen, Concurring Opinion in Nicolas-Lewis v. COMELEC, 2019

Simply put, content-based restraint or censorship is concerned with the subject matter or content of the expression while content-neutral restraint is concerned with everything else, like the time, place, or manner, “under well-defined standards.” For example, content-based restraint is “no movie shall be allowed to say something negative about President Duterte” while a content-neutral restriction is “movies should only be aired during 9-5 pm and runtime should not be more than 3 hours.”

That’s understandable enough. Regarding the strict scrutiny test and all other tests, we’ll be able to see it in action in our judicial analysis discussion.

Fun fact: Regulating the size of the tarpaulin is a content-based regulation according to Justice Leonen, the ponente of The Diocese of Bacolod v. COMELEC (2015) because “size does matter” lol. I don’t agree with it, neither do Justices Bernabe and Carpio, but, oh well, that is the decision.

C. Incitement and advocacy

Just like there is one between liberty and unbridled expression, there is also a fine line between incitement and advocacy.

Let’s think of advocacy as a general idea, “an activity by an individual or group that aims to influence decisions within political, economic, and social institutions.” Incitement, therefore, is within the realm of advocacy, but it specifically aims to produce some form of lawlessness like murder or violence.

Justice Brandeis, as cited by Justice Ynares-Santiago’s Concurring Opinion in Tanada III V. Macapagal-Arroyo (2006), sums up incitement vs. advocacy very well:
[Fear of serious injury cannot alone justify suppression of free speech and assembly. x x x It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. x x x But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.]

In our jurisprudence, the Brandenburg Test or Brandenburg Standard is the prevailing standard (as confirmed by Justice Leonen in 2019) which holds that advocacy of illegal action can only be punishable if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action:

[In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted under the Ohio Criminal Syndicalism Statute for advocating the necessity, duty and propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reforms; and for voluntarily assembling with a group formed to teach or advocate the doctrines of criminal syndicalism. Appellant challenged the statute and was sustained by the U.S. Supreme Court, holding that the advocacy of illegal action becomes punishable only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Except in unusual instances, Brandenburg protects the advocacy of lawlessness as long as such speech is not translated into action.]
–MVRS Publications v. Islamic Da’wah Council of the Philippines, 2003

We’ll talk about this test in relation to the clear and present danger test later on in judicial analysis.

D. Specificity of regulation and overbreadth doctrine

I’m assuming that specificity of regulation refers to the void for vagueness doctrine so that this specific topic (as a whole) talks about a facial challenge or facial review.

Here is a picture of a rather simplistic birds-eye-view of facial challenges. Just zoom in to read properly.

[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.]
–Falcis v. Civil Registrar, 2019

There will be times when a government regulation or a law is not so specific that it becomes “overbroad” and infringes upon our right to freedom of speech/expression. If so, the overbreadth doctrine can be used to nullify said law or regulation. Then there will also be times when the law is not so specific that it becomes vague to the detriment of our right to freedom of speech/expression. If so, the void-for-vagueness doctrine may be used against it:

[Over the years, guided by notable historical circumstances in our nation and related American constitutional law doctrines on the First Amendment, certain tests of judicial scrutiny were developed to determine the validity or invalidity of free speech restrictions in our jurisdiction.

Foremost, a facial review of a law or statute encroaching upon the freedom of speech on the ground of overbreadth or vagueness is acceptable in our jurisdiction. 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. Put differently, an overbroad law or statute needlessly restricts even constitutionally-protected rights. On the other hand, a law or statute suffers from vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application.]
–Nicolas-Lewis v. COMELEC, 2019

The key phrase for using the overbreadth doctrine against law or statutes is “chilling effect.” In application, it would look like this:
A facial invalidation of the questioned statute is warranted to counter the “chilling effect” on protected speech that comes from its overbreadth as (insert here the reason why the law or statute encroaches upon freedom of expression).

For the void-for-vagueness doctrine, the key phrase is “men of common intelligence must necessarily guess at its meaning and differ as to its application.”

However, it is very difficult for a facial challenge to be successful:

[It is noteworthy, however, that facial invalidation of laws is generally disfavored as it results to entirely striking down the challenged law or statute on the ground that they may be applied to parties not before the Court whose activities are constitutionally protected. It disregards the case and controversy requirement of the Constitution in judicial review, and permits decisions to be made without concrete factual settings and in sterile abstract contexts, deviating, thus, from the traditional rules governing constitutional adjudication. Hence, an on-its-face invalidation of the law has consistently been considered as a “manifestly strong medicine” to be used “sparingly and only as a last resort.”

The allowance of a review of a law or statute on its face in free speech cases is justified, however, by the aim to avert the “chilling effect” on protected speech, the exercise of which should not at all times be abridged. The Court elucidated:
The theory is that “[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.” (Emphasis supplied, citation omitted)]
–Nicolas-Lewis v. COMELEC, 2019

Further, the standard necessary to successfully mount a facial challenge is that no set of circumstances exists under which the Act would be valid:
“A facial challenge to a legislative act is, of course, 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”
–Estrada v. Sandiganbayan, 2002

The latest (I think) successful facial challenge based on free speech is the case of Nicolas-Lewis v. COMELEC (2019). That’s why we keep on citing it here. It declared Section 36.8 of Republic Act No. 9189, as amended by Republic Act No. 10590 as UNCONSTITUTIONAL. How did the court end up with that conclusion? We’ll see later in our discussion on judicial analysis/scrutiny.

Note: the overbreadth doctrine, the void-for-vagueness doctrine, strict scrutiny (tests on content-based regulations), and intermediate scrutiny are forms of facial challenges that will invalidate a law on its face. These tests are not mutually exclusive except for strict scrutiny vis-à-vis intermediate scrutiny. In Nicolas-Lewis v. COMELEC (2019), the overbreadth doctrine and intermediate scrutiny were used at the same time.

E. Speech regulation in relation to election

Freedom of speech and expression is even given more importance during elections:

[This Court has recognized that the right of suffrage necessarily includes the right to express one’s chosen candidate to the public. Especially during the election period, the right to free speech and expression is fundamental and consequential:
“Speech serves one of its greatest public purposes in the context of elections when the free exercise thereof informs the people what the issues are, and who are supporting what issues.” At the heart of democracy is every advocate’s right to make known what the people need to know, while the meaningful exercise of one’s right of suffrage includes the right of every voter to know what they need to know in order to make their choice. (Citations omitted)

During the election period, citizens seek information on candidates and campaigns and, upon reaching a choice, campaign and persuade other people to likewise vote for their candidate. At this time, people are most engaged in political discourse. Expressing a political ideology and campaigning for a candidate cannot be divorced from one’s right of suffrage. Even electoral candidates rely on their supporters to campaign for them. Thus, any speech or act that directly involves the right of suffrage is a political activity by the people themselves.]
-Justice Leonen Concurring Opinion, Nicolas-Lewis v. COMELEC, 2019

Here’s another discussion on the importance of freedom of expression during elections:

[As pointed out by petitioners, “speech serves one of its greatest public purposes in the context of elections when the free exercise thereof informs the people what the issues are, and who are supporting what issues.” At the heart of democracy is every advocate’s right to make known what the people need to know, while the meaningful exercise of one’s right of suffrage includes the right of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC, this court discussed the importance of debate on public issues, and the freedom of expression especially in relation to information that ensures the meaningful exercise of the right of suffrage:

“We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.” (Emphasis supplied, citations omitted)

Speech with political consequences is at the core of the freedom of expression and must be protected by this court.]
–The Diocese of Bacolod v. COMELEC, 2015, penned by Justice Leonen

In other words, freedom of expression is vital during elections. It allows people to have all the information they need in order to make a well-informed decision on who deserves their vote.

This is why political speech, in contrast to all other types of speeches like commercial speech, is conferred with a greater degree of protection:
[Speech with political consequences occupies a higher position in the hierarchy of protected speeches and is conferred with a greater degree of protection. The difference in the treatment lies in the varying interests in each type of speech. Nevertheless, the exercise of freedom of speech may be regulated by the State pursuant to its sovereign police power. In prescribing regulations, distinctions are made depending on the nature of the speech involved.

In Chavez:
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. (Citations omitted)

This Court recognized in The Diocese of Bacolod that political speech occupies a preferred rank within our constitutional order, it being a direct exercise of the sovereignty of the people. In a separate opinion in Chavez, Associate Justice Antonio Carpio underscored that “if ever there is a hierarchy of protected expressions, political expression would occupy the highest rank[.]”

In contrast, other types of speeches, such as commercial speech, are treated in this jurisdiction as “low value speeches.”

In Disini, Jr., v. Secretary of Justice, this Court has recognized that “[c]ommercial speech . . . is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression[.]” This is because, as I opined in that case, the protection accorded to commercial speech is anchored on its informative character and it merely caters to the market.]
-Justice Leonen Concurring Opinion, Nicolas-Lewis v. COMELEC, 2019

Thus, most free speech/expression cases during the election period are usually ruled in favor of free speech/expression. But then again, it does not mean that all kinds of expression are allowed:
[Justice Brion pointed out that freedom of expression “is not the god of rights to which all other rights and even government protection of state interest must bow.”

The right to freedom of expression is indeed not absolute. Even some forms of protected speech are still subject to some restrictions. The degree of restriction may depend on whether the regulation is content-based or content-neutral. Content-based regulations can either be based on the viewpoint of the speaker or the subject of the expression.]
–The Diocese of Bacolod v. COMELEC, 2015, penned by Justice Leonen

That is why limiting partisan activities to a specified campaign period is allowed even if it basically restricts freedom of expression.

We will learn how to determine if an act warrants the protection of freedom of speech/expression later on in our discussion on judicial scrutiny.

For now, here are some election cases wherein freedom of speech/expression was ruled upon:

1. Chavez v. Gonzales (2008)- The NTC warning to media not to broadcast the alleged wiretapped conversation known as the “Hello Garci” tapes is a classic form of prior restraint which is absolutely prohibited content-based regulation on protected expression.

2. The Diocese of Bacolod v. COMELEC (2015)- Tarpaulins expressing personal opinions are allowed. They are considered political speech which is at the top of the hierarchy of protected speeches. They are not considered election propaganda (although the tarpaulin may influence the success or failure of the named candidates and political parties) if there is no proof that they were paid for or posted “in return for consideration” by any candidate, political party, or party-list group. Even if the restriction is only on the size of the tarpaulins, this is still a content-based restriction because size matters. According to the ponente Justice Leonen: “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.”

3. Nicolas-Lewis v. COMELEC (2019) – A part of a law that imposes a 30-day ban on partisan political activity abroad was declared unconstitutional:
RA 10590 “The Overseas Voting Act of 2013”
SEC. 36. Prohibited Acts. – In addition to the prohibited acts provided by law, it shall be unlawful:
x x x x36.8. For any person to engage in partisan political activity abroad during the thirty (30)-day overseas voting period

This is a content-neutral regulation. Being a content-neutral regulation, it should pass intermediate scrutiny (as opposed to strict scrutiny for content-based regulations) for it to be valid. But in this case, it did not pass. “By banning partisan political activities or campaigning even during the campaign period within embassies, consulates, and other foreign service establishments, regardless of whether it applies only to candidates or whether the prohibition extends to private persons, it goes beyond the objective of maintaining order during the voting period and ensuring a credible election.”

4. In Re: Gonzales v. COMELEC (1969)- Sec. 50-B of Republic Act No. 4880 among others 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.

Sec. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. – It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office.

It was not mentioned in the case whether the regulation was content-based or content-neutral. I think it should be content-neutral because what is regulated is the time when the speech may be expressed. But it doesn’t really matter because content-neutral and content-based was not really a concept explored during this time. The SC also applied the clear and present danger test which I don’t agree with as it should be intermediate scrutiny. Either way, it doesn’t matter.

Proceeding to apply the clear and present danger test, the majority reasoned that the limits on freedom of speech are justified by the serious substantive evil that affects the electoral process. It held that the evils that the law sought to prevent are “not merely in danger of happening, but actually in existence, and likely to continue unless curbed or remedied.”

Difference between In Re: Gonzales v. COMELEC and Nicolas-Lewis v. COMELEC:
“Respondent overlooked that the prohibition on partisan political activities in In Re: Gonzales specifically pertains to elections conducted in the Philippines. Likewise, this Court’s justification in In Re: Gonzales operates within the premise and context of an election period within the Philippines. Respondent cannot simply rely on that justification in arguing for the validity of the assailed provisions in this case. The application of the prohibition is different for overseas elections.

Respondent cannot use the perceived electoral violence in the Philippines as a justification for a prohibition applied abroad. Thus, I cannot agree with respondent’s insistence that “the prohibition on partisan political activities during the 30-day overseas voting period . . . is no different from the election-day prohibition on partisan political activities”^[117] within the Philippines.”

5. Social Weather Stations v. COMELEC (2001)- Sec. 5.4 of RA 9006 (Fair Election Act) provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

The COMELEC deemed it necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election.

In determining whether the law is valid or not, intermediate scrutiny or the O’Brien Test is used because this is a content-neutral regulation. Anyway, the law was invalidated because the regulation is NOT ESSENTIAL to the government interest of preventing manipulation and corruption of the electoral process. The Supreme Court said that what the COMELEC should do, instead of regulating when survey results may be made public, is to confiscate bogus survey results intended to mislead voters.

6. Adiong v. COMELEC (1992)- The SC struck down the COMELEC’s resolution limiting the posting of candidates’ decals and stickers only in designated areas and not allowing them in private or public vehicles.

The prohibited acts were found to present no substantial danger to government interest.
The prohibition, therefore, did not satisfy the requirements of the clear and present danger rule. Moreover, the prohibition was found to suffer from over “breadth.” It encompassed the use of privately owned property such as a vehicle. It, therefore, was an unreasonable restriction on the use of property. Finally, the constitutional objective to give rich and poor candidates equal opportunity was not seen as served by the prohibition of decals.

The concept of content-based and content-neutral regulation was not discussed in this case because it’s an old one. But, I think this is content-neutral and should have been analyzed with intermediate scrutiny instead of the clear and present danger test.

7.National Pres Club v. COMELEC (1992)- The SC ruled that while the questioned provision therein ­ preventing the sale or donation of print space or airtime for political advertisement during the campaign period – of course, limits the right of speech and access to mass media, it does not authorize intervention with the content of the political advertisements, which every candidate is free to present within their respective COMELEC time and space.

The law has since been repealed. But the reasoning behind the decision which upheld it remains valid. In upholding the reasonableness of the provisions, the SC said that the objective of the prohibition was the equalizing, as far as practicable, of the situation of rich and poor candidates by preventing the former from enjoying undue advantage offered by huge campaign “war chests.” The Court said that the provision on freedom of expression must be read in conjunction with the power given to the Commission on Elections to supervise and regulate media during elections as well as with the various provisions in the Constitution which place a high premium on equalization of opportunities.

Safe to say that this is a content-neutral regulation.

Important: The power of the Comelec over media franchises is limited to ensuring “equal opportunity, time, space and the right to reply” as well as to reasonable rates of charges for the use of media facilities for “public information and forums among candidates.”

8. 1-United Transport Koalisyon (1-UTAK) v. COMELEC (2015)– This is a case very similar to Adiong v. COMELEC. But the year is 2015 and the Court is more streamlined in dealing with free speech cases.

COMELEC Resolution 9615 prohibits owners of PUVs and transport terminals from posting election campaign materials on their respective properties. The Court rightfully classifies this as content-neutral regulation and used intermediate scrutiny (O’Brien test/standard) to determine whether the restriction was valid. It was not.

This is the O’Brien test:
a content-neutral regulation is valid if it meets these parameters:
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;
4. the incidental restriction on freedoms of speech, expression, and press is no greater than what is essential to the furtherance of that interest

“It is conceded that Resolution No. 9615, including the herein assailed provisions, furthers an important and substantial governmental interest, i.e., ensuring equal opportunity, time and space among candidates aimed at the holding of free, orderly, honest, peaceful, and credible elections. It is further conceded that the governmental interest in imposing the said prohibition is unrelated to the suppression of free expression. However, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615, are not within the constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the Constitution. Also, there is absolutely no necessity to restrict the right to free speech of the owners of PUVs and transport terminals.”

F. Speech regulation in relation to media

There have been different types or degrees of regulation to media depending on whether it may be print, broadcast, or even movies. Nevertheless, all forms of media are entitled to the broad protection of freedom of expression.

All forms of media are entitled to the broad protection of freedom of expression. The case of Eastern Broadcasting v. Dans (1985) interestingly and conveniently gives clear guidelines:

[(1) The cardinal primary requirements in administrative proceedings laid down by this Court in Ang Tibay v. Court of Industrial Relations should be followed before a broadcast station may be closed or its operations curtailed.

(2) It is necessary to reiterate that while there is no controlling and precise definition of due process, it furnishes an unavoidable standard to which government action must conform in order that any deprivation of life, liberty, or property, in each appropriate case, may be valid (Ermita-Malate Hotel and Motel Operators Association v. City Mayor, 20 SCRA 849).

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule — that words 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 the lawmaker has a right to prevent. In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test — (Primicias v. Fugoso [80 Phil. 71 ] American Bible Society v. City of Manila [101 Phil. 386], Cabansag v. Fernandez [102 Phil.’ 152], Vera v. Area [28 SCRA 351], Navarro v. Villegas [31 SCRA 931], Imbong v. Ferrer [35 SCRA 28], Badoy v. Commission on Elections [35 SCRA 285], People v. Ferrer [48 SCRA 382]. and the Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc. [51 SCRA 189]. More recently, the clear and present danger test was applied in J.B.L Reyes in behalf of the Anti-Bases Coalition v. Bagatsing [125 SCRA 553].

(4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.

Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others.

All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of . communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens. Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out.

Similar considerations apply in the area of national security.

The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different l.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate, analyze, and reject the utterance.

(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations — whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling.

The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection.

(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 73 1) this Court was already stressing that:
“The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.”

(7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution.]

The important relevant points:
1. Broadcast media has lesser freedom of expression in terms of scope than print media.
2. This does not mean that the test required to analyze the regulation against them differ. The test for limitations on freedom of expression continues to be the clear and present danger test (will be discussed in judicial analysis)

BUT, Chavez v. Gonzales (2008) tells us that the clear and present danger test has NOT been used in ALL CASES involving broadcast media. It should only be used when the regulation is content-based. If it is content-neutral, we use intermediate scrutiny (O’Brien Test):

[This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC, which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral. And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the media’s franchise, without going into which test would apply.]

What about movies?

In comparing movies to other forms of media, the case of Chavez v. Gonzales (2008) once again elucidates the matter:

[In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak, that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media. Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies, the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures:
“All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown…..It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.”

In this case, the classification of a movie as “For Adults Only” was challenged, with the issue focused on obscenity as basis for the alleged invasion of the right to freedom on artistic and literary expression embraced in the free speech guarantees of the Constitution. The Court held that the test to determine free expression was the clear and present danger rule. The Court found there was an abuse of discretion, but did not get enough votes to rule it was grave. The decision specifically stated that the ruling in the case was limited to concept of obscenity applicable to motion pictures.]

But then again, this ruling is strictly on obscenity. It simply states that regulation of TV obscenity should be more strict compared to movie obscenity.

The rule is still that movies cannot be subject to censorship:

[Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are emasculated. It is, however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that equally basic is the other important aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis should rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our juris­diction. As early as 1909, in the case of United States v. Sedano, a prosecution for libel, the Supreme Court of the Philippines already made clear that freedom of the press consists in the right to print what one chooses without any previous license. There is re­affirmation of such a view in Mutuc v. Commission on Elections, where an order of respondent Commission on Elections giving due course to the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound systems and loud speakers was considered an abridgment of the right of the freedom of expression amounting as it does to censorship. It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classification of films. It can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity.]
–Gonzales v. Katigbak, 1985

I don’t think this will be a topic in the bar, so I won’t dwell that much on the cases. The principles here are enough. Let’s move on to judicial analysis.

JUDICIAL ANALYSIS, presumptions, and levels and types of scrutiny

Okay. We’re finally in the juicy part of the syllabus. We’ll learn how to analyze whether a government restriction on freedom of expression is valid or not. Note that this first analysis only applies to prior restraint. To know whether a subsequent punishment is valid would need a separate analysis depending on the provision that such punishment is based on (for example: libel, obscenity, criticism of official conduct, etc.). We’ll explore this separate analysis later on, but it won’t be as deep.

First off, if we still remember in our discussion on due process, all laws or governmental actions are presumed to be valid:
“The presumption is all in favor of validity. . . . . . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation.”
–Justice Malcolm in U.S. v. Salaveria

Then again, the ONLY TIME this presumption is reversed is when the law or any governmental action is a form of prior restraint:
“Because our Constitution favors freedom of expression, any form of prior restraint is an exemption and bears a heavy presumption of invalidity.”
-Justice Leonen Concurring Opinion, Nicolas-Lewis v. COMELEC, 2019

“This is the only situation where we veer away from our presumption of constitutionality.”
-Justice Leonen Concurring Opinion, GMA Network v. COMELEC, 2014

We know what prior restraint is from the discussions above, as well as its two types: content-based regulation, and content-neutral regulation. We’ll need prior knowledge of these concepts before we can understand the judicial analysis of free speech/expression cases.

I love Justice Carpio’s clear explanation of analyzing free speech cases as shown in his Concurring Opinion in Chavez v. Gonzales. It may not be exactly the same with other Justices’ methods, but it’s logic is sound and I’ll go with it. Anyway, each of them have their own methods and they are not really contradictory to each other. Thus, the bar exams likely won’t dwell to specifically in the methods as long as our answer is logical.

Step 1: Determine if the expression is protected or not
We have to determine if an expression is protected or not because these two types of expression are treated differently.

There are four types of expression that are called “unprotected expression” and they may be subject to prior restraint.

[Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of expression shall not be abridged. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of necessity.

The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security. All other expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal Communication Commission, “The First Amendment (Free Speech Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals.”]
-Justice Carpio Concurring Opinion, Chavez v. Gonzales, 2008

Thus, these are the ONLY types of expression that may be subject to prior restraint or censorship:
1. pornography
2. false or misleading advertisement
3. advocacy of imminent lawless action
4. danger to national security

All other types are protected expressions.

And even if this list of 4 may not be Canon (meaning: a view repeatedly relied on by the Court), I’ll put it here for the sake of information. What is Canon though is that there are indeed protected speech and unprotected speech. Not all types of speech are treated the same:
[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

NOTE: speech that are obscene, libel, slander, and the likes, though unprotected, are usually not subject to prior restraint BUT ONLY to subsequent punishment. That’s why they are not listed on Justice Carpio’s 4 types of unprotected speech.

Step 2: Determine if content-based or content-neutral

What Justice Carpio means is that these only unprotected speech (which may or may not be limited to the 4 special expressions) are the only types of expression that can be subject to content-based prior restraint.

All other types are called protected expression or high-value expression are not and can never be subject to content-based prior restraint:

[Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on protected expression is unconstitutional without exception. A protected expression means what it says – it is absolutely protected from censorship. Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution.

Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression. Courts will subject to strict scrutiny content-based restraint. If the content-based prior restraint is directed at protected expression, courts will strike down the restraint as unconstitutional because there can be no content-based prior restraint on protected expression. The analysis thus turns on whether the prior restraint is content-based, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the recognized categories of unprotected expression.]
-Justice Carpio Concurring Opinion, Chavez v. Gonzales, 2008

Thus, it is automatic that protected expression cannot be subject to content-based prior restraint.

Examples of protected expression as stated by Justice Carpio:
“…public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution.”

I’d also like to add political speech as part of protected expression based on recent free speech cases related to elections.

HOWEVER, protected expression may still be subject to content-neutral prior restraint:

[If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in public places without any restraint on the content of the expression. Courts will subject content-neutral restraints to intermediate scrutiny.

An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts. Courts will uphold time, place or manner restraints if they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression.

In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the expression itself. Thus, submission of movies or pre-taped television programs to a government review board is constitutional only if the review is for classification and not for censoring any part of the content of the submitted materials. However, failure to submit such materials to the review board may be penalized without regard to the content of the materials. The review board has no power to reject the airing of the submitted materials. The review board’s power is only to classify the materials, whether for general patronage, for adults only, or for some other classification. The power to classify expressions applies only to movies and pre-taped television programs but not to live television programs. Any classification of live television programs necessarily entails prior restraint on expression.]
-Justice Carpio Concurring Opinion, Chavez v. Gonzales, 2008

On the other hand, unprotected expression may be subject to content-based restriction. Will it be subject to content-neutral expression? The answer is no, because it is impossible as prior restraint on unprotected expression is necessarily content-based:

[Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on unprotected expression is content-based since the restraint is imposed because of the content itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to prior restraint. This Court recognized false or misleading advertisement as unprotected expression only in October 2007.

Only unprotected expression may be subject to [content-based] prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving the constitutionality of the prior restraint.

Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn – only to the extent necessary to protect or attain the compelling State interest.

…

Prior restraint on unprotected expression takes many forms – it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits. The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies.]
-Justice Carpio Concurring Opinion, Chavez v. Gonzales, 2008

Thus, we can safely set out these rules:
1. If protected expression- can never be subject to content-based prior restraint, but can be subject to content-neutral prior restraint.
2. If unprotected expression- can be subject to content-based prior restraint, but it is impossible to be the subject of content-neutral prior restraint.

Step 3: Determine the type of scrutiny or test to be used to evaluate the validity of the regulation

The levels of scrutiny are also different for content-based and content-neutral regulations. The ponente for Chavez v. Gonzales (2008), former Chief Justice Puno, explains this:

[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:

. . .

On the other hand, 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, 2008

Thus, we can set out these additional rules:
1. Content-based regulation: strict scrutiny
2. Content-neutral regulation: intermediate scrutiny

These are two types of scrutiny that we already covered when we discussed DUE PROCESS. We used the due process scrutiny because the law or governmental action here interferes with the rights of a person to life, liberty, or property, namely the right to freedom of speech/expression.

Remember our definition of substantive due process?
Substantive due process refers to the validity of a law or government action that interferes with the rights of a person to life, liberty, or property. It serves as a restriction on the government’s law- and rule-making powers.

But, in freedom of speech/expression cases, intermediate scrutiny and strict scrutiny is not as simple as a two-step process.

For intermediate scrutiny of free speech/expression cases, it is not as simple as determining an IMPORTANT GOVERNMENT INTEREST and that there is a SUBSTANTIAL CONNECTION between the interest and the means employed to achieve it. It requires 4 parameters:
[Following the intermediate scrutiny approach, a content-neutral regulation is valid if it meets these parameters:
(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 incidental restriction on freedoms of speech, expression, and press is no greater than what is essential to the furtherance of that interest.

In relation to the fourth element, a restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. In other words, the regulation must be “narrowly tailored” to fit the regulation’s purpose.]
-Justice Leonen Concurring Opinion, Nicolas-Lewis v. COMELEC, 2019, citing Chavez v. Gonzales, 2008

For strict scrutiny of free speech/expression cases, it is not as simple as determining a COMPELLING STATE INTEREST and that the LEAST RESTRICTIVE MEANS are used to achieve that interest. Our Supreme Court recognizes three tests in dealing with free speech challenges: (1) the balancing of interests test, (2) the dangerous tendency test and the (3) clear and present danger test. However, recently, there seems to be total phase out of the balancing of interests test and dangerous tendency test and the increased preference towards the clear and present danger test:

[As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test.]
–Chavez v. Gonzales, 2008

[Doctrinally, this Court has settled the applicable tests in determining the validity of free speech regulations. To justify an intrusion on expression, we employ two (2) tests, namely: (1) the clear and present danger test; and (2) the dangerous tendency test.]
-Justice Leonen Concurring Opinion, Nicolas-Lewis v. COMELEC, 2019

[The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories of unprotected expression – pornography, advocacy of imminent lawless action, and danger to national security – is the clear and present danger test. The expression restrained must present a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be grave and imminent.]
-Justice Carpio Concurring Opinion, Chavez v. Gonzales, 2008

See what I mean when these Justices have differing, but not necessarily conflicting, opinions on the matter? Anyway, I will go with Justice Carpio’s application which harmonizes CJ Puno’s and Justice Leonen’s thoughts:

Application of Free Speech Tests
Clear and Present Danger Test:
1. pornography
2. advocacy of imminent lawless action
3. danger to national security

What about the 4th type of unprotected speech, false or misleading advertisement? It appears there is no test needed:
[A fundamental ground for regulating false or misleading advertisement is Section 11(2), Article XVI of the Constitution which states: “The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.”]
-footnote 12, Justice Carpio Concurring Opinion, Chavez v. Gonzales, 2008

But I think I’m mistaken. There is a test, but this is not found in a main decision of a case and it is for ALL types of commercial speech not just false or misleading advertisement. So this is just more or less for information’s sake:

[Central Hudson Gas & Electric v. Public Service Commission is the watershed case that established the primary test for evaluating the constitutionality of commercial speech regulations. In this landmark decision, the U.S. Supreme Court held that the regulation issued by the Public Service Commission of the State of New York, which reaches all promotional advertising regardless of the impact of the touted service on overall energy use, is more extensive than necessary to further the state’s interest in energy conservation. In addition, it ruled that there must be a showing that a more limited restriction on the content of promotional advertising would not adequately serve the interest of the State. In applying the First Amendment, the U.S. Court rejected the highly paternalistic view that the government has complete power to suppress or regulate commercial speech.

Central Hudson provides a four-part analysis for evaluating the validity of regulations of commercial speech. To begin with, the commercial speech must “concern lawful acitivity and not be misleading” if it is to be protected under the Firt Amendment. Next, the asserted governmental interest must be substantial. If both of these requirements are met, it must next be determined whether the state regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.]
-Justice Puno Concurring Opinion, Pharmaceutical And Health Care Association Of The Philippines Vs. Duque, 2007

We’ll discuss this further in our next post which specifically has commercial speech as a topic.

What about the dangerous tendency test?

Well, I don’t know, but as early as 2001, Justice Puno said that it pretty much faded into obscurity:
[It is now deeply embedded in our jurisprudence that freedom of speech and of the press enjoys a preferred status in our hierarchy of rights. The rationale is that the preservation of other rights depend on how well we protect our freedom of speech and of the press. In view of the preferred status of freedom of speech and of the press, several tests have been enunciated to protect it. We have the dangerous tendency test which now commands little following…]
-former CJ Puno Concurring Opinion, SWS v. COMELEC, 2001

Anyway, for the sake of academic discussion, let’s take a look at all the three tests. Note that the word “test” can be substituted with “doctrine” and “rule” as can be seen in the past. It seems our Justices love to be liberal with their terminologies.

BALANCING OF INTERESTS TEST:

The balancing of interests test should be used when the evil is not measured in “proximity and degree”:
[To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils which do not clearly undermine national security. Since not all evils can be measured in terms of “proximity and degree” the Court, however, in several cases—Ayer Productions v. Capulong and Gonzales v. COMELEC, applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that “where the legislation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic calculation,” then the “balancing of interests” test can be applied.]
–Soriano v. Laguardia, 2009

Thus, it can be applied in less violent cases like in commercial speech.

It’s formal definition is from an American case:
[When a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. xxx In essence, the problem is one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination xxx We must, therefore, undertake the delicate and difficult task xxx to weigh the circumstances and to appraise the substantiality of the reasons advance in support of the regulation of the free enjoyment of the rights.]
-Justice Kapunan Dissenting Opinion, SWS v. COMELEC, 2001, citing American Communications Association v. Douds, 1950

Three notable things about this test:
1. particular conduct regulated in the interest of PUBLIC ORDER (but may be applied to other public interests such as development and welfare of the youth)
2. regulation is an indirect, conditional, partial abridgment of speech
3. duty of the court to determine which of the to conflicting interests demands greater protection

The last case this was used in, ALTHOUGH IN THE FORM OF SUBSEQUENT PUNISHMENT INSTEAD OF PRIOR RESTRAINT, is in Soriano v. Laguardia (2009) wherein Soriano, the host of Ang Dating Daan, used indecent and obscene language on air, even if having a G Rating and that the show can be easily viewed by children. It’s weird because the interest the case cited is DEVELOPMENT AND WELFARE OF THE YOUTH instead of PUBLIC ORDER:
[In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and important interests. To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to protect and promote the development and welfare of the youth.]

DANGEROUS TENDENCY TEST:

[… has been adopted in cases where extreme difficulty is confronted in 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.

This rule may be epitomized as follows: 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 which the legislative body seeks to prevent.]
–Cabansag v. Fernandez, 1957

Three notable things about this test:
1. The words uttered create a dangerous tendency which the state has a right to prevent
2. It is not necessary that immediate acts of force, violence, or unlawfulness be advocated
3. It is sufficient that such acts be advocated in general terms

As mentioned by CJ Puno earlier, this test now commands little following. So it’s basically useless unless the bar question specifically asks us to explain the dangerous tendency test/rule/doctrine.

Fun fact, Justice Nachura, in his book, alludes to the case of People v. Perez (1923) as one which used the dangerous tendency test although not explicitly (It was more about inciting to sedition). Perez uttered the words (translated in English) “And the Filipinos, like myself, must use bolos for cutting off Wood’s head for having recommended a bad thing for the Philippines.” But then again, this was in the form of subsequent punishment as opposed to prior restraint, so it doesn’t really fit here.

CLEAR AND PRESENT DANGER TEST:

And here we are with the prevailing test in free speech/expression cases.

As early as 2000, the SC acknowledged that it has adhered to the clear and present danger test:
[Unquestionably, this Court adheres to the “clear and present danger” test. It implicitly did in its earlier decisions in Primicias v. Fugoso and American Bible Society v. City of Manila; as well as in later ones, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo Umpar Adiong v. Comelec and, more recently, in Iglesia ni Cristo v. MTRCB.]
–ABS-CBN v. COMELEC, 2000

Since then, almost all free speech/expression cases aside from Soriano v. Laguardia (2009) has used the clear and present danger test.

And thankfully, this test is the easiest to understand:

The term clear seems to point to a causal connection

[This standard was applied in the recent case of Chavez:
The clear and present danger rule . . . rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the [government] has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.”]
-Justice Leonen Concurring Opinion, Nicolas-Lewis v. COMELEC, 2019, citing Chavez v. Gonzales, 2008

[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.”]
–Chavez v. Gonzales, 2008

Two notable things about this test:
1. There is substantial danger that the speech will likely lead to an evil the government has a right to prevent
2. The evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.”

Thus, the difference between the clear and present danger test and the dangerous tendency test is that the latter test does not require the danger to be “present” or the “degree of imminence extremely high.”

To get a little deeper, the clear and present danger test adheres to the Brandenberg standard:
[As the prevailing standard, Brandenburg limits the clear and present danger test’s application “to expression where there is ‘imminent lawless action.'”]
– Justice Leonen Concurring Opinion, Nicolas-Lewis v. COMELEC, 2019

And that’s it for prior restraint.

To summarize the canonical view (a view repeatedly used by the SC in its cases):
Step 1: Know the type of speech.

Protected expression- political speech (no question all Justices agree to this)

Unprotected expression-
1. Pornography
2. Advocacy of imminent lawless action
3. Danger to national security
4. False or misleading advertisement
Justice Carpio believes only these 4 are subject to prior restraint

Step 2: Know the type of prior restraint allowed

If protected expression, can never be subject to content-based prior restraint. But it can be subject to content-neutral prior restraint.

If unprotected expression, can be subject to content-based prior restraint. But, it is impossible to subject it to content-neutral prior restraint because by definition, prior restraint on unprotected expression is content-based since the restraint is imposed because of the content itself.

Step 3: Know the type of scrutiny or test to be used to evaluate the validity of the regulation

If content-neutral regulation, use intermediate scrutiny.

Following the intermediate scrutiny approach, a content-neutral regulation is valid if it meets these parameters:
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;
4. the incidental restriction on freedoms of speech, expression, and press is no greater than what is essential to the furtherance of that interest.

If content-based regulation, use strict scrutiny. In free speech cases, three specific tests can be applied. However, let’s focus on the clear and present danger test as almost all recent cases use it.

BALANCING OF INTERESTS TEST:
Three notable things about this test:
1. particular conduct regulated in the interest of PUBLIC ORDER (but may be applied to other public interests such as development and welfare of the youth)
2. regulation is an indirect, conditional, partial abridgment of speech
3. duty of the court to determine which of the to conflicting interests demands greater protection

DANGEROUS TENDENCY TEST
Three notable things about this test:
1. The words uttered create a dangerous tendency which the state has a right to prevent
2. It is not necessary that immediate acts of force, violence, or unlawfulness be advocated
3. It is sufficient that such acts be advocated in general terms

CLEAR AND PRESENT DANGER TEST
Two notable things about this test:
1. There is substantial danger that the speech will likely lead to an evil the government has a right to prevent
2. The evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.”

SUBSEQUENT PUNISHMENT ANALYSIS

If you’re wondering, WHAT ABOUT the analysis on SUBSEQUENT PUNISHMENT?

Even if protected or unprotected speech, it may still be subject to subsequent punishment. The penalty may be penal, civil, or administrative.

All speech are generally free from both prior restraint and subsequent punishment, save for some special circumstances:
“The aspect of freedom from liability subsequent to publication precludes liability for completed publications of views traditionally held innocent. Otherwise, the prohibition on prior restraint would be meaningless, as the unrestrained threat of subsequent punishment, by itself, would be an effective prior restraint. Thus, opinions on public issues cannot be punished when published, merely because the opinions are novel or controversial, or because they clash with current doctrines. This fact does not imply that publishers and editors are never liable for what they print. Such freedom gives no immunity from laws punishing scandalous or obscene matter, seditious or disloyal writings, and libelous or insulting words. As classically expressed, the freedom of the press embraces at the very least the freedom to discuss truthfully and publicly matters of public concern, without previous restraint or fear of subsequent punishment. For discussion to be innocent, it must be truthful, must concern something in which people in general take a healthy interest, and must not endanger some important social end that the government by law protects.“
–Chavez v. Gonzales, 2008

Justice Nachura lists 4 instances wherein subsequent punishment may be valid:
1. Libel
2. Obscenity
3. Criticism of official conduct
4. Right of students to free speech in school premises not absolute

I’ll continue this next time if I feel like it lol. I don’t think it’ll be that important. Items 1 and 2 will be discussed in the next post.

Just take note of this excerpt from Fr. Bernas for item number 3 above:
From this brief survey of Philippine decision, the following preliminary observations may be drawn:
(1) only publication made during the pendency of a case is punishable as contempt. A case is pending not only prior to the promulgation of the decision but even after promulgation when the possibility of reconsideration by the same court still exists.
(2) The only test conclusively established by Supreme Court decisions is the “dangerous tendency” rule. However, in certain cases involving contempt of inferior courts, the “clear and present danger” rule has been given at least a nodding assent.
(3) The danger guarded against in punishing for contempt is either extraneous influence on the court’s act of decision making or disrespect and disobedience which can breed popular distrust in courts and court decisions.
(4) In every case reaching the Supreme Court where the questioned publication was alleged to be contemptuous of the Supreme Court or its Justices, the publication was declared contemptuous; but in every case where an inferior court or its judge was the target, absolution followed.
(5) In the early cases, where the rule for contempt by publication was forged, reliance was had on American state court cases and on Federal Supreme Court cases decided at a time when the guarantees of the First Amendment had not yet been recognized as extending to state actions via the Fourteenth Amendment.
(6) At least one decision suggests that the freedom of lawyers in relation to courts is less than that of ordinary citizens.
-Fr. Bernas, The 1987 Constitution of the R.P. A Commentary, 2009, pp. 266-267

There are also two types of contempt punishable by courts:
“In his erudite dissenting opinion in People v. Alarcon, which was impliedly adopted in subsequent cases dealing with contempt, Justice Manuel V. Moran noted the two kinds of publication which are punishable with contempt, to wit:

Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A publication which tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding, constitutes criminal contempt which is summarily punishable by courts. This is the rule announced in the cases relied upon by the majority. A publication which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any way into disrepute, constitutes likewise criminal contempt, and is equally punishable by courts. In the language of the majority, what is sought, in the first kind of contempt, to be shielded against the influence of newspaper comments, is the all-important duty of the courts to administer justice in the decision of a pending case. In the second kind of contempt, the punitive hand of justice is extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or to destroy public confidence in them. In the first, there is no contempt where there is no action pending, as there is no decision which might in any way be influenced by the newspaper publication. In the second, the contempt exists, with or without a pending case, as what is sought to be protected is the court itself and its dignity. x x x Courts would lose their utility if public confidence in them is destroyed.

Succinctly, there are two kinds of publications relating to court and to court proceedings which can warrant the exercise of the power to punish for contempt:
(1) that which tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding; and
(2) that which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any way into disrepute.”
–Garcia v. Manrique, 2012

We’ll go through special topics next time.