constitutional law ii freedom of expression lecture reviewer for ay 2011-2012 miranda c2015 1

FREEDOM OF EXPRESSION LECTURE REVIEWER

Disclaimer: This is not a word-for-word transcript of sirs lecture; while I tried to keep the magic words intact, sometimes I elaborate on what he had said to help clarify the context of said magic words. I also sometimes quote the US jurisprudence Sir used as bases for parts of his lecture; these are not syllabus cases. Read this alongside the original reviewer; the doctrines there are more thorough. TYFYT. ed.

Relevant provisions
READ THEM! or at least, skim and remember what they are about.

Freedom of Speech, Expression, Assembly

Art. III 4 No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

Art. XIV 6 The national language of the Philippines is Filipino. As it evolves, it shall be further developed and enriched on the basis of existing Philippine and other languages. Subject to provisions of law and as the Congress may deem appropriate, the Government shall take steps to initiate and sustain the use of Filipino as a medium of official communication and as language of instruction in the educational system. 7 For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English. The regional languages are the auxiliary official languages in the regions and shall serve as auxiliary media of instruction therein. Spanish and Arabic shall be promoted on a voluntary and optional basis. 9 The Congress shall establish a national language commission composed of representatives of various regions and disciplines which shall undertake, coordinate, and promote researches for the development, propagation, and preservation of Filipino and other languages.

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Freedom of Religion
Art. III 5 No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

Culture
Art. XIV 14 The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression. 15 Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as well as artistic creations. 16 All the country's artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition. 17 The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies. 18 1. The State shall ensure equal access to cultural opportunities through the educational system, public or private cultural entities, scholarships, grants and other incentives, and community cultural centers, and other public venues. 2. State shall encourage and support researches and studies on the arts and culture. Art. XVI 12 The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities.

Art. II 17 The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

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Right to Information
Art. II 28 Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

Art. III 7 The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Art. XVI 10 The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. 11 1. The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. 2. 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. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines.

Participation
Art. II 1 The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

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Art. V 1 Suffrage may be exercised by all citizens of the Philippines, not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

Art. VI 1 The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

Art. XIII 15 The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means. People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure. 16 The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.

Art. XVII 1 Any amendment to, or revision of, this Constitution may be proposed by: 1. The Congress, upon a vote of three-fourths of all its Members; or 2. A constitutional convention. 2 Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right.

Art. II 22 The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

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Right to Education
Art. XIV 1 The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all. 5 (3) Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements.

Right to Privacy
Art. II 2 The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 3 1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. 2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Due Process and Equality

Art. III 1 No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

Art. XIII 1 The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

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Art. II 9 The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. 10 The State shall promote social justice in all phases of national development. 14 The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

Theories for freedom of expression clause

determining the theory or rationale used determines the approach towards the expression, the state interest involved etc. some theories apply only to some aspects or dimensions of freedom of expression

1. Marketplace of ideas theory

the truth can be arrived at in the marketplace of ideas, where all opinions and expressions are permitted so that people themselves can determine through debate and discussion; the challenge for ideas is to survive amidst the scrutiny and competition in the marketplace best articulated by J. Holmes, dissenting in Abrams v. United States:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideasthat the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

again, Holmes, dissenting in US v. Schwimmer:

Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thoughtnot free thought for those who agree with us but freedom for the thought that we hate.

weaknesses: o truth is not necessarily arrived through debate; the marketplace may not be the best test of truth o highly politicized; not all voices can be heard since some belong to the dominant majority who will have the strongest voice (winning through force and numbers and not through free debate) while there may be identities/groups/classes which are marginalized the challenge for government is to equalize space in favor of those who are not being heard o too idealistic!

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used in cases involving media; where speech is made o the marketplace presumes that spaces for expression are limitless and all voices can be accommodated BUT in reality there are limited spaces available (limited frequencies/channels/etc) so government has to make decisions on who can be heard different POV: public choice theory, which accepts that it is impossible for a majority to find preferences conducive to everybody, due to the nature of the preferences and the flawed concept of a majority; it will always be a compromise o rhetoric is always deployed by judges; ex. the thoughts one hates may be useful for adjusting ones own thoughts in the marketplace, speech/expression is limited when there is no room or time for the requisite debate or challenge to take place o cant shout fire! in a crowded theater as said by J. Holmes, in Schenck v. United States:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] 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.

o o

when there is a grave and substantial evil, of a proximity and immediacy where it is too late for other speech to overturn it or examine it for falsity when it has emotive context that overrides reasoned debate

2. Checking function
freedom of expression checks the excesses of government and public officials o CASES MENTIONED: US v. Bustos, Ayer v. Capulong
The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely 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 the dignity of the individual be exalted. (Bustos)

important to allow criticism to bring public officials into account; part of the power of participation of the people in governance (combo of sovereign will + suffrage) imported from US jurisprudence o HOWEVER, the Philippine Supreme Court has made an exception for the judiciary, where the checking function isnt given as much weight due to a) an independent judiciary and b) the judiciary as the non-political branch of government; SC has different standard for the judiciary, where it seems that the reputation of the justices/judges is more important than criticism of their acts o general rule is that even if the criticism made against a public official is false, its protected as long as theres no showing of a reckless disregard for the truth, but for the judiciary: must be true, otherwise: youre in contempt!

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APPLICABLE CASES: Mercado v. Security Bank, In Re Emil Jurado SC generally uses excessive language when applying this rationale o ex. CASE MENTIONED: Philippine Blooming Mills, where freedom of speech was characterized as a primordial right; but such language must be read with caution and the freedom of speech must still be balanced with other rights and interests

3. Dissent
every society has its subversive ideas and groups society must remain stable or else it will fail; in order to keep society stable, there needs to be a release valve for dissent, so that society will be given a chance to change for the better o as explained by J. Brandeis, concurring in Whitney v. California:
They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law the argument of force in its worst form.

different from the marketplace-of-ideas theory since minority groups should have greater say because they are more likely not to have been heard, more likely to be discontent with the situation, more likely to be the dissenters

4. Speech and expression in human identity

speech and expression are allowed because they contribute to human identity, regardless of their form or content; people generally want to express themselves and make themselves known to others there are no limits; instead theres a recognition that it is part of being human to make mistakes, so people are allowed to be wrong at times

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What kind of speech is covered?

there is a range: "Speech-acts"

(ABSOLUTELY PROTECTED: can't be regulated; allowing thoughts to foster freely is what the idea of freedom of speech is all about)

Opinion kept to oneself

(LOW REGULATION; economically unlimited; if just spoken out loud then uses little space)

Opinion expressed in speech

standing in attention at flag ceremony] actions)

(acts that contain communication; from simple [like clothing] to complex [flag burning,

general rule: sometimes acts are more problematic than speech; since speech-acts affect more people (in terms both of direct effect and probability of being imitated) there is more reason to regulate them more

Kind of regulation imposed

QUESTION: is the regulation directed at the expression or at something else entirely? determines if content-based or content-neutral regulation if its based on the message: CONTENT-BASED; depends on when the regulation was made: 1. subsequent punishment contempt imprisonment libel prior restraint cant apply tests if the speech was already restrained before it was made since no determination of effect can be made carries a heavy burden of unconstitutionality because the default mode is to allow speech or expression to be made Supreme Court only restricts speech under very extreme circumstances: pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security (Soriano)

2.

if its CONTENT-NEUTRAL, apply the test of a justified government regulation as stated in US v. OBrien: 1. 2. 3. 4. if [the regulation] is within the constitutional power of the Government if it furthers an important or substantial governmental interest if the governmental interest is unrelated to the suppression of free expression if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

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there has been a shift from the dangerous tendency test to the clear and present danger test in Philippine jurisprudence 1. DANGEROUS TENDENCY as mentioned in Espuelas v. People
As heretofore stated publication suggest or incites rebellious conspiracies or riots and tends to stir up people against the constituted authorities, or to provoke violence from opposition who may seek to silence the writer. Which is the sum and substance of the offense under consideration. The essence of seditious libel may be said to its immediate tendency to stir up general discontent to the pitch of illegal courses; that is to say to induce people to resort to illegal methods other than those provided by the Constitution, in order to repress the evils which press upon their minds.

the curtailment of freedom of expression to protect the very existence of the state (namely, the duly-constituted government) APPLICABLE CASES: Espuelas v. People, Cabansag v. Fernandez 2. CLEAR AND PRESENT DANGER applies to content-based, not content-neutral regulation a substantive or grave evil like rebellion judgment on the part of the court is still necessary; the test is still very subjective and depends on evidences presented application may depend on the circumstances - ex. advocacy versus incitement --> looks at the probability of effect that evil will happen as a result APPLICABLE CASES: (please see p. 26 of the reviewer) BALANCING OF INTERESTS often applies when theres conflict between two constitutionally protected rights, or when an individuals rights are being restricted or limited by a generally-applicable law or regulation

3.

Other considerations
Who is it about?
public figure doctrine o RELATED CASES: Ayer v. Capulong, US v. Bustos, all cases involving govt officials o different standards of proof regarding what has been said (truthful; with good faith and moral/legal duty even if false; false and with reckless disregard for the truth)

Assembly as form of expression

cant ban all public assemblies with expression outright, but neither can allow them forever in JBL Reyes v. Bagatsing it was held that police can regulate the time, place and manner of the assembly, but not to such gravity as to stifle speech

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in the freedom parks cases (like IBP v. Atienza), the permit system was not considered prior restraint; however if the application for the permit was arbitrarily denied, it is considered prior restraint and therefore government has to show that it had compelling reasons to curtail such expression APPLICABLE CASES: Reyes v. Bagatsing, Primicias v. Fugoso, Ruiz v. Gordon

Space limitations
for radio and television: government allowed to allocate frequencies due to limits internet not yet regulated to this extent; besides, the regulating body (ICANN, formerly IANA) is a private company

Audience
certain kinds of media have an indiscriminate audience o TV has a ubiquitous presence and reaches children, so some censorship is allowed in Soriano v. Laguardia:
It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the broad protection of the free speech and expression clause. Each method though, because of its dissimilar presence in the lives of people and accessibility to children, tends to present its own problems in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of protection.

state in loco parentis, in Gonzales v. Katigbak:

...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. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. 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.

so, for example, the MTRCB may conduct a screening or prior viewing of a tv show or movie; however, cant be arbitrary about it in Gonzales:
The power of the MTRCB 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.

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Absolutely not allowed/protected

Hate speech
no value except to express hatred as stated in Chaplinsky v. New Hampshire:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Obscenity/pornography
theoretically it has no value; contrast obscene versus artistic; commercial aspect or profit is not important most recent test is derived from Miller v. California, as stated in Gonzales v. Kalaw-Katigbak: 1. whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest 2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law 3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value expression is not considered obscene if it has some value that is not prurient - however, this is still subjective; in the immortal words of J. Potter Stewart, concurring in Jacobellis v. Ohio: I know it when I see it. APPLICABLE CASES: Kottinger, Padan, Pita v. CA, Gonzales v. Katigbak, Soriano v. Laguardia

Cognate rights
other constitutionally protected rights that are related to freedom of expression

Freedom of Information
not just the right to access information on matters of public concern, but also access to other kinds of information that help foster the participation of people in governance o APPLICABLE CASE: Adiong v. Comelec

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Freedom of Religion
if you have time, read Estrada v. Escritor (2003). it is unnervingly thorough. has two aspects: 1. non-establishment clause government cannot unduly favor or disfavor a religion connected to idea of separation of church and state APPLICABLE CASES: American Bible Society v. City of Manila, Tolentino v. Secretary of Finance 2. freedom of belief, worship and practice / free exercise three subdivisions 1. religious belief: ABSOLUTELY PROTECTED; the state cannot regulate what people can or cannot believe in 2. religious speech: HIGHLY PROTECTED; freedom to believe includes freedom to act for the propagation of that belief; however, still subject to restraints applicable to non-religious speech o APPLICABLE CASE: Iglesia ni Cristo v. CA, German v. Barangan 3. religious practices/conduct: LESS PROTECTION o APPLICABLE CASES: Ebranilag v. Division Supt, Victoriano v. Elizalde Rope Workers Union in Estrada v. Escritor, J. Puno said that in contemporary times, it was no longer an outright separation between church and state, but rather benevolent neutrality that allows places for religion to occur but disallowing excessive entanglements
Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses.

compelling state interest test applying benevolent neutrality: 1. was the individuals right to religious freedom burdened? 2. was the individuals belief sincere? 3. was there a compelling state interest that overrode the individuals religious belief and practice? o were the means adopted least restrictive to the freedom of the individual?