Freedom of Speech and Expression Part III: Special Topics in Free Expression Cases

Most of these were not included in the previous bar syllabus. What does that mean? I don’t know. But, we can only speculate that one of these will come out in the bar. I’m betting on the “sedition and speech in relation to rebellion” and “national emergencies.”

Anyway, let’s get to it.

a. Hate Speech

This one is tough as we have no specific law on hate speech and the cases about hate speech are scarce. I think there’s one that’s particularly famous, MVRS v. Islamic Da’Wah Council of the Philippines (2003).

This case is often cited up until now. In this case, hate speech is defined (although indirectly) as one which “denigrates a group of persons defined by their religion, race or ethnic origin.” It’s an unfortunate case which basically alludes that hate speech cannot be actionable:

[…a class suit in behalf of the Muslim members nationwide against MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., arising from an article published in the 1 August 1992 issue of Bulgar, a daily tabloid. The article reads:

“ALAM BA NINYO?

Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?

Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang ‘Ramadan’.”

x x x x

Declarations made about a large class of people cannot be interpreted to advert to an identified or identifiable individual. Absent circumstances specifically pointing or alluding to a particular member of a class, no member of such class has a right of action without at all impairing the equally demanding right of free speech and expression, as well as of the press, under the Bill of Rights. x x x

x x x x

In the present case, there was no fairly identifiable person who was allegedly injured by the Bulgar article. Since the persons allegedly defamed could not be identifiable, private respondents have no individual causes of action; hence, they cannot sue for a class allegedly disparaged. Private respondents must have a cause of action in common with the class to which they belong to in order for the case to prosper.

An individual Muslim has a reputation that is personal, separate and distinct in the community. Each Muslim, as part of the larger Muslim community in the Philippines of over five (5) million people, belongs to a different trade and profession; each has a varying interest and a divergent political and religious view – some may be conservative, others liberal. A Muslim may find the article dishonorable, even blasphemous; others may find it as an opportunity to strengthen their faith and educate the non­ believers and the “infidels.” There is no injury to the reputation of the individual Muslims who constitute this community that can give rise to an action for group libel. Each reputation is personal in character to every person. Together, the Muslims do not have a single common reputation that will give them a common or general interest in the subject matter of the controversy.]
– MVRS v. Islamic Da’Wah Council of the Philippines, 2003

See how impossible it is to punish such speech? But since this case is only about religion, the rule may only apply to speech against religion and if the target is not a specific person or small group of persons within a certain class. By the way, the reason that the case did not prosper is because it would be almost impossible to represent the whole class of Muslims, and if they win here, it may encourage the frequency of similar suits:

[The rules require that courts must make sure that the persons intervening should be sufficiently numerous to fully protect the interests of all concerned. In the present controversy, Islamic Da’wah Council of the Philippines, Inc., seeks in effect to assert the interests not only of the Muslims in the Philippines but of the whole Muslim world as well. Private respondents obviously lack the sufficiency of numbers to represent such a global group; neither have they been able to demonstrate the identity of their interests with those they seek to represent. Unless it can be shown that there can be a safe guaranty that those absent will be adequately represented by those present, a class suit, given its magnitude in this instance, would be unavailing.“

x x x x

In a pluralistic society like the Philippines where misinformation about another individual’s religion is as commonplace as self-appointed critics of government, it would be more appropriate to respect the fair criticism of religious principles, including those which may be outrageously appalling, immensely erroneous, or those couched as fairly informative comments. The greater danger in our society is the possibility that it may encourage the frequency of suits among religious fundamentalists, whether Christian, Muslim, Hindu, Buddhist, Jewish, or others. This would unnecessarily make the civil courts a battleground to assert their spiritual ideas, and advance their respective religious agenda.]
–MVRS v. Islamic Da’Wah Council of the Philippines, 2003

Anyway, despite this case, the applicable provision against hate speech is Article 26 (4) of the Civil Code. And of course, Articles 19, 20, and 21 can be inserted in there for good measure:

Article 26:
‘Every person shall respect the dignity, personality, privacy and peace of mind of his neighbor and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another’s residence;
(2) Meddling with or disturbing the private life or family relation of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious belief, lowly station in life, place of birth, physical defect, or other personal condition.’

Article 19:
‘Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.’

Article 20:
‘Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.’

Article 21:
‘Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.’

And for a more persuasive argument, we should say that
1. Article 26 (4) should be applied in accordance with the Philippines’ treaty obligations as a signatory to the International Covenant on Civil and Political Rights. Article 20 (2) of the ICCPR states “any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

2. Article 26 (4) should be applied in accordance with the constitutional policy set forth by Article II Sec. 11 which provides “The State values the dignity of every human person and guarantees full respect for human rights.“

Justice Carpio’s dissenting opinion in the case has a compelling argument for the application of Art. 26 (4):

“Now is the time to apply this provision of law since the instant case falls clearly within paragraph 4 of Article 26. Applying Article 26 will not undermine freedom of speech since the profane publication in question belongs to the class of speech that clearly does not enjoy constitutional protection. Applying Article 26 demonstrates good faith compliance with our treaty obligations under the International Covenant on Civil and Political Rights. Applying Article 26 implements the constitutional policy that the “State values the dignity of every human person and guarantees full respect for human rights.” Applying Article 26 constitutes compliance by the Court of its constitutional duty to protect and enforce constitutional rights. Applying Article 26 will help bind the wounds that mindless profanities inflict on religious minorities in violation of their human rights.“
-Justice Carpio Dissenting Opinion, MVRS v. Islamic Da’Wah Council of the Philippines, 2003

Anyway, I guess, for now, Article 26(4) in relation to hate speech can only be applied if the target is an individual or a small group of individuals whose numbers can be sufficiently represented by those party to the class suit. We’ll see. As of now, no case about Article 26(4) has reached the Supreme Court.

This is all I know for now on hate speech. Moving on..

b. Defamation and Libel

From how I understand it, defamation is the general term for destroying someone’s character or reputation, and libel falls under defamation along with slander. Libel is written defamation while slander is oral defamation. Why isn’t slander included in the syllabus? The obvious guess would be that there are not enough cases for that and that slander usually reaches a far lesser audience compared to libel for it to be a big deal.

“Defamation, which includes libel and slander, means the offense of injuring a person’s character, fame or reputation through false and malicious statements. It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff. It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute. Defamation is an invasion of a relational interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff.“
–MVRS v. Islamic Da’Wah Council, 2003

Libel is wordily defined under Article 353 of the RPC:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

We can dissect Art. 353:

The elements of libel are then found in numerous jurisprudence:
For an imputation to be libelous under Art. 353 of the Revised Penal Code (RPC), the following requisites must be present:
(a) it must be defamatory
(b) it must be malicious
(c) it must be given publicity
(d) the victim must be identifiable

How would we know if the imputation or allegation is defamatory in accordance with the first element? It can be found in the definition of libel itself in Art. 353. Jurisprudence also adds that statements should be construed in their entirety and that a charge is sufficient if the words are carefully calculated to induce hearers to interpret it as a libelous remark:
“An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead. In determining whether a statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain, natural, and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense. Moreover, a charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person or persons against whom they were uttered were guilty of certain offenses or are sufficient to impeach the honesty, virtue or reputation or to hold the person or persons up to public ridicule.“
–Manilla Bulletin v. Domingo, 2017

How do we know if it is malicious? Well, the bad news is that every defamatory imputation is presumed to be malicious. The good news is that there are exceptions to this presumption called “qualified privileged communication”:
Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Is the list of the above exceptions exclusive? No. There is also another exception to the presumption that every defamatory imputation is malicious, and that is if matters of public interest are involved. In other words, if the defamatory imputation is about public officers, there is no presumption that the statement is malicious:
[Indisputably, petitioner Borjal’s questioned writings are not within the exceptions of Art. 354 of The Revised Penal Code for, as correctly observed by the appellate court, they are neither private communications nor fair and true reports without any comments or remarks. However, this does not necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in United States v. Cañete, this Court ruled that publications that are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels.

x x x x

To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.]
–Borjal v. CA, 1999

The last sentence of the excerpt above is very important. If the opinion is not based on established facts or if there is no effort to ascertain whether the basis of such opinion is true or not, then there is a taint of malice there:
A statement is made with actual malice if it was made “with knowledge that it was false or with reckless disregard of whether it was false or not”
–Borjal v. CA, 1999

It should also be noted that the subject of the defamatory statements need not be public officials only:
“The privilege applies not only to public officials but extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office.”
–JAL v. Simangan, 2008

Thus, there are three exceptions to the presumption of malice:
1. private communications in the performance of any legal, moral, or social duty
2. fair and true report without any comments or remarks
3. fair commentaries on matters of public interest

So does this mean that public persons are helpless against defamatory remarks? Of course not. The privilege disappears when actual malice is proved. They are only exempted from the presumption of malice, but if the public persons can prove that there is indeed malice, then for sure they will be given justice:
“Although a wide latitude is given to critical utterances made against public officials in the performance of their official duties, or against public figures on matters of public interest, such criticism does not automatically fall within the ambit of constitutionally protected speech. If the utterances are false, malicious or unrelated to a public officer’s performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability. While complainants are considered public figures for being personalities in the entertainment business, media people, including gossip and intrigue writers and commentators such as petitioner, do not have the unbridled license to malign their honor and dignity by indiscriminately airing fabricated and malicious comments, whether in broadcast media or in print, about their personal lives.“
–Fermin v. People, 2008

If the three above are exempt only from the presumption of malice, there are types of communication that are ABSOLUTELY PRIVILEGED. One example is allegations and statements made during a judicial or administrative proceeding, so long as they are relevant to the issues:
“A communication is absolutely privileged when it is not actionable, even if the author has acted in bad faith. This class includes allegations or statements made by parties or their counsel in pleadings or motions or during the hearing of judicial and administrative proceedings, as well as answers given by the witness in reply to questions propounded to them in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive to the questions propounded to said witnesses.

x x x x

The absolute privilege remains regardless of the defamatory tenor and the presence of malice, if the same are relevant, pertinent or material to the cause in and or subject of the inquiry. Sarcastic, pungent and harsh allegations in a pleading although tending to detract from the dignity that should characterize proceedings in courts of justice, are absolutely privileged, if relevant to the issues. As to the degree of relevancy or pertinency necessary to make the alleged defamatory matter privileged, the courts are inclined to be liberal. The matter to which the privilege does not extend must be so palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety.”
–Belen v People, 2017

The other elements of publicity and identification should be understandable enough. Let’s move on to the next special topic.

c. Sedition and Speech in Relation to Rebellion

A relevant case where sedition and freedom of speech have clashed is the very old case of Espuelas v. People (1951). This resulted in a conviction, but only because the dangerous tendency rule was used. In today’s era, as early as 2000 (or even earlier) and up to this time, the courts have ruled that the clear and present danger test should be the prevailing standard to settle questions surrounding freedom of expression:

“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

“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

I also love this excerpt in by Justice Gutierrez in a 1985 case which involves subversion. The case was dismissed nearly unanimously:
“The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists”: that “x x x if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate”: that “freedom of expression is a “preferred” right and therefore stands on a higher level than substantive economic or other liberties”: that “this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments”; that there must be tolerance of political hyperbole since “debate on public issues should be uninhibited, robust, and wide open and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”; that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”: that “political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression.“
–Salonga v. Pano, 1985

The above sentence in bold points to the clear and present danger test which 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

But then again, in 2019, cases were filed against people who the DOJ thinks are the masterminds behind the “Bikoy” videos. They relied on the old 1951 case, as I would if I filed the case, to bolster their claim:
“Under the dangerous tendency rule, there is inciting to sedition when the words uttered or published could easily produce disaffection among the people and a state of feeling in them incompatible with a disposition to remain loyal to the government and obedient to the laws.”
–Senior Deputy City Prosecutor Dolores Rillera, 2019

Personally, in freedom of expression cases, especially if “proximity” and “degree” are elements, no matter the charge (rebellion, sedition, etc.), I’ll still choose the clear and present danger test. Relying on an outdated case when the Supreme Court has long abandoned the dangerous tendency rule does not feel right.

I will just paste here our previous discussion on the clear and present danger test:

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

(Discussion on sedition in relation to the right of assembly and petition on page 311 of Bernas). May add it later here.

d. Obscenity/Pornography

The leading case for this I think would be the recent case of Madrilejos v. Gatdula (2019). It’s a fairly divided case with Ordinance 7780 (Anti-Obscenity Ordinance) of the City of Manila being declared constitutional. Among the dissenters are of course the SC’s bastions of free speech, Justices Leonen, Carpio, and Perlas-Bernabe.

The relevant ruling of the main decision was that the Anti-Obscenity Ordinance cannot undergo a facial challenge because obscenity is unprotected speech. And if the Philippines were to adopt a certain standard from the US, we should apply it first in an as-applied challenge instead of a facial challenge. It makes sense if we look at it like that (I guess?).

But then again, in Justice Perlas-Bernabe’s dissenting opinion:
“The ponencia’s stance seems to gloss over the fact that what is being assailed is the ordinance’s very characterization of obscenity. The Court is asked not to examine a material which is already determined to be obscene, but rather, to evaluate whether or not the very parameters used by the ordinance to determine obscenity itself is constitutionally valid. There is a whale of a difference between the parameters of obscenity from the obscene material itself.”
-Justice Perlas Bernabe Dissenting Opinion, Madrilejos v. Gatdula, 2019

The questioned parameters used by the ordinance is as follows:

[Section 2. Definition of Terms. – As used in this ordinance, the terms:

A.
Obscene shall refer to any material or act that is indecent, erotic, lewd, or offensive, or contrary to morals, good customs, or religious beliefs, principles or doctrines, or to any material or act that tends to corrupt or deprive the human mind, or is calculated to excite impure imagination or arouse prurient interest, or is unfit to be seen or heard, or which violates the proprieties of language or behavior, regardless of the motive of the printer, publisher, seller, distributor, performer, or author of such act or material, such as but not limited to:

1. Printing, showing, depicting or describing sexual acts;
2. Printing, showing, depicting or describing children in sexual acts;
3. Printing, showing, depicting or describing completely nude human bodies; and
4. Printing, showing, depicting or describing the human sexual organs or the female breasts.]

Regardless of whether the main decision or the dissenter is correct, what is agreed upon is the definition of obscenity and the standard set forth in the case of Miller v. California:

[There is no perfect definition of “obscenity” but the latest word is that of Miller v. California which established basic guidelines, to wit:
(a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient (having or encouraging an excessive interest in sexual matters) interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

x x x x

What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judge’s sound discretion.]
–Fernando v. CA, 2006

Keywords:
1. appeals to the prurient interest
2. describes sexual conduct in a patently offensive way
3. lacks serious literary, artistic, political, or scientific value

This was not disputed by the main decision. However, it was just not used because the ponente deems that the petitioner should have filed an as-applied challenge.

Anyway, although this test was not applied in our jurisdiction, it was introduced in 3 cases: Pita v. Ca, Fernando v. CA, and Soriano v. Laguardia.

“The Miller test provides the current guidelines to distinguish between protected speech and obscenity. Any legislation, whether local or national, that goes beyond these guidelines run the risk of violating constitutionally-protected freedoms. Thus, they must be struck down as unconstitutional.”
-Justice Leonen Dissenting Opinion, Madrilejos v. Gatdula, 2019

I think we can also conclude that pornography is subject to prior restraint and subsequent punishment by virtue of Article 201 of the Revised Penal Code:
[Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:

(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
(2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;

(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.]

There is subsequent punishment because the perpetrators will face a fine and imprisonment, and prior restraint because the pornographic materials will be confiscated and destroyed.

HOWEVER, ONLY THE JUDGE CAN DETERMINE if an item is pornographic. That’s why in Pita v. CA (1989), the authorities must first apply for a search warrant if they think an obscenity rap is in order. The judge will then determine if the items are pornographic/obscene and “pose a clear and present danger of an evil substantive enough to warrant State interference and action.”:

[1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are “obscene”, and pose a clear and present danger of an evil substantive enough to warrant State interference and action;

3. The judge must determine whether or not the same are indeed “obscene:” the question is to be resolved on a case-to-case basis and on His Honor’s sound discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code.]
–Pita v. CA (1989)

I think that’s understandable enough. Let’s move on.

e. Commercial Speech

Commercial speech has already been beaten and battered in our last post. The bottom-line is that commercial speech, although still deserves protection, it is not that special:

“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.

Since the value of protection accorded to commercial speech is only to the extent of its channel to inform, advertising is not on par with other forms of expression.”
-Justice Leonen Concurring Opinion, Nicolas-Lewis v. COMELEC, 2019

[…commercial speech has been defined as speech that does “no more than propose a commercial transaction.”]
–The Diocese of Bacolod v. COMELEC, 2015

Nevertheless, it is still entitled to constitutional protection:
“Indeed, commercial media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exercise of constitutionally protected freedom of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country.”
–Ayer Productions v. Capulong, 1988

In determining whether regulation of commercial speech is valid, the standard from the US case Central Hudson v. Public Service Commission as introduced by Justice Puno in his Concurring Opinion in Pharmaceutical And Health Care Association Of The Philippines Vs. Duque (2007) MAY be used:
[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 activity and not be misleading” if it is to be protected under the First 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.]

If we compare it with the levels of scrutiny, it’s basically just intermediate scrutiny with an added qualifier that the speech must concern lawful activity and not be misleading. Thus, we have this guideline:

1. The commercial speech must concern lawful activity and not be misleading. (If it is not, then the next three steps will be immaterial because false and misleading advertisement is unprotected speech.)
2. There is substantial government interest
3. The state regulation directly advances the governmental interest asserted
4. The state regulation is not more extensive than is necessary to serve that interest

Note, however, that this is not applied in a main decision, but it may be useful one day.

f. National Emergencies

I think this was included here because of COVID-19 and the Bayanihan to Heal as One Act (RA 11469) and its “fake news” provision:
“Section 6 (f): Individuals or groups creating, perpetrating, or spreading false information regarding the COVID-19 crisis on social media and other platforms, such information having no valid or beneficial effect on the population, and are clearly geared to promote chaos, panic, anarchy, fear, or confusion…”

It could also mean the various arrests for Facebook posts during the pandemic.

So the question is, was this provision valid? We don’t really know because nobody questioned it in the SC. Is spreading false information protected speech? I don’t think so, but I also can’t pinpoint specific jurisprudence or provisions saying that it is protected. This is basically a novel circumstance wherein we can argue either way. In arguing whether or not it violates our right to freedom of expression, we should use the tests, mainly, the clear and present danger test.

I guess a clear takeaway that we can all agree on is that “human rights cannot be suspended even during public emergencies. Restrictions to freedoms are also bound by the parameters set by human rights law and should never lead to their abrogation.”
-Atty. Jacqueline Ann de Guia, CHR, 2020

g. Speech of public officers

This may refer to the parliamentary immunity of a member of Congress or otherwise known as the privilege of speech and debate under Article VI, Sec. 11. But then again, that’s better off to be discussed when we come across the topics of legislative privileges under the Legislative Department. Thus, I think this section refers to a different kind.

I think this is what this special topic refers to:
“It is correct to conclude that those who enter government service are subjected to a different degree of limitation on their freedom to speak their mind; however, it is not tantamount to the relinquishment of their constitutional right of expression otherwise enjoyed by citizens just by reason of their employment. Unarguably, a citizen who accepts public employment “must accept certain limitations on his or her freedom.” But there are some rights and freedoms so fundamental to liberty that they cannot be bargained away in a contract for public employment. It is the Court’s responsibility to ensure that citizens are not deprived of these fundamental rights by virtue of working for the government.”
–Davao City Water District v. Aranjuez, 2015

“Government workers, whatever their ranks, have as much right as any person in the land to voice out their protests against what they believe to be a violation of their rights and interests. Civil Service does not deprive them of their freedom of expression. It would be unfair to hold that by joining the government service, the members thereof have renounced or waived this basic liberty. This freedom can be reasonably regulated only but can never be taken away.

In simple paraphrase we say, regulation of the freedom of expression is not removal of the constitutional right.”
–GSIS v. Villaviza, 2010

One of the regulations of the freedom of expression of government workers is Civil Service Commission (CSC) Resolution No. 02-1316 entitled “Omnibus rules on prohibited concerted mass actions in the public sector” :
Section 5. Definition of Prohibited Concerted Mass Action. – As used in this Omnibus Rules, the phrase “prohibited concerted activity or mass action” shall be understood to refer to any collective activity undertaken by government employees, by themselves or through their employees organizations, with the intent of effecting work stoppage or service disruption in order to realize their demands of force concession, economic or otherwise, from their respective agencies or the government. It shall include mass leaves, walkouts, pickets and acts of similar nature.

Thus, an essential element for a violation of prohibited concerted mass action is that it should be coupled with:
1. intent to effect work stoppage or service disruption
2. for the purpose of realizing their demands of force concession

“As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the political rights of those in the government service, the concerted activity or mass action proscribed must be coupled with the “intent of effecting work stoppage or service disruption in order to realize their demands of force concession.” Wearing similarly colored shirts, attending a public hearing at the GSIS-IU office, bringing with them recording gadgets, clenching their fists, and some even badmouthing the guards and PGM Garcia, are acts not constitutive of an (i) intent to effect work stoppage or service disruption and (ii) for the purpose of realizing their demands or force concession.

Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-1316 are there to temper and focus the application of such prohibition. Not all collective activity or mass undertaking of government employees is prohibited. Otherwise, we would be totally depriving our brothers and sisters in the government service of their constitutional right to freedom of expression.”
–GSIS v. Villaviza, 2010

Another limitation is that exercise of free speech must be in accordance with the provision of Republic Act 6713 or the Code of Conduct and Ethical Standards of Public Officials and Employees:

Section 4. Norms of Conduct of Public Officials and Employees.-(A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties:

(a) Commitment to public interest. – Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.

(b) Professionalism. – Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.

(c) Justness and sincerity. – Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs.

(d) Political neutrality. – Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference.

(e) Responsiveness to the public. – Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas.

(f) Nationalism and patriotism. – Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion.

(g) Commitment to democracy. – Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party.

(h) Simple living. – Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form

So I guess if a bar question talks about a public officer that does something unpleasant in relation to freedom of expression, and we tend to lean on saying that he or she should be punished for saying expressing something, we can say that “Unarguably, a citizen who accepts public employment must accept certain limitations on his or her freedom” and then we mention the speech or expression that’s violative of Sec. 4(A)(b) or (c) of RA 6713.

Alright, that’s it for all of Freedom of Expression. Next up, cognate rights.