E. Freedom of Speech and Expression

Essence of Censorship

The Session Law of Minnesota mandated the abatement, as public nuisances, of malicious, scandalous, and defamatory publications. After publishing articles that criticized certain local public officials and personalities, The Saturday Press, owned by the petitioner Near, was enjoined from further publication. The court held that the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter...and unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship. (Near v. Minnesota, 283 U.S. 697, June 1, 1931; Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

Television Censorship

PD No. 1986 gives the MTRCB the power to screen, review and examine all "television programs." By the clear terms of the law, the Board has the power to approve, delete and/or prohibit the exhibition and/or television broadcast of television programs. The law also directs the MTRCB to apply contemporary Filipino cultural values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime.

It is significant to note that in Iglesia ni Cristo v. CA, the Court declared that freedom of religion has been accorded a preferred status by the framers of our fundamental laws. Yet despite the fact that freedom of religion has been accorded a preferred status, still the Court, did not exempt the Iglesia ni Cristo’s religious program from petitioner’s review power.

If the Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom "The Inside Story" which, is protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status.

Thus, MTRCB has power to review both religious shows like the INC program, as well as public affairs and documentary programs like The Inside Story. (MTRCB v. ABS-CBN, G.R. No. 155282, Jan. 17, 2005)

Live TV coverage of a criminal case may be allowed...“mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial.” (In Re: Petition For Radio And TV Coverage Of The Multiple Murder Case Against Zaldy Ampatuan et al., A.M. No. 10-11- 5-SC, June 14, 2011)

Exceptions:

• A litigant may challenge a statute as applied to the litigant; or
• A facial challenge may be entertained when the statute involves free speech.

Rationale: Statute may be facially challenged in order to counter the “chilling effect” of the same [Disini v. Sec. of Justice, G.R. No. 203335 (2014), on the constitutionality of the Cybercrime Law].

Exceptions:

• A private communication made by any person to another in the performance of any legal, moral or social duty; and
• 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. (REVISED PENAL CODE, art. 354)

Cyberlibel – Only the Original Author is Liable

Only the original author of the statement should be prosecuted for libel. Because of the unique culture of cyberspace, the inclusion of those who just shared the statement in the case would have a chilling effect upon them. This makes the law overbroad and therefore in violation of freedom of expression. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)

Contempt is Akin to a Case of Libel

Contempt is akin to a case of libel for both constitute limitations upon freedom of the press or freedom of expression guaranteed by our Constitution. What is considered a privilege in one may likewise be considered in the other. The principle of privileged communications can also be invoked in contempt charges.

When a lawyer has become a public figure for being involved in a public issue, the controversy involving such individual becomes a matter of public interest. Therefore, the media has the right to report the disciplinary case as legitimate news. Such will not be considered as a violation of the confidentiality rule in disciplinary proceedings against lawyers. (Atty. Raymund P. Palad v. Lolit Solis, et al., G.R. No. 206691, Oct. 3, 2016)

Fair Commentaries

These are privileged and constitute a valid defense in an action for libel or slander. When the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order for it to 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. The insertion of an old picketing footage in a news report was not libelous because it did not convey anything derogatory in nature, and it was actually simultaneously voiced over by the narration of the news report. The report was also merely quoted from the contents and allegations in the petition and is merely a summary of the petition. (GMA Network v. Bustos, G.R. No. 146848, Oct. 17, 2006)

Relative Obscenity

The Court noted that there was “no perfect definition of obscenity” and that ultimately therefore “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.” (Soriano v. Laguardia, G.R. No. 164785, April 29, 2009)

Freedom of Expression and the Right to Privacy

Freedom of speech and expression includes freedom to film and produce motion pictures and to exhibit them. The fact that such film production is a commercial activity is not a disqualification for availing of freedom of speech and expression.

The right to privacy cannot be invoked to resist publication and dissemination of matters of public interest. The intrusion is no more than necessary to keep the film a truthful historical account. Enrile is a public figure because of his participation as a principal actor in the culminating events of the EDSA revolution [Ayer Prod. PTY. LTD. v. Judge Capulong, supra].

Concept of “Present”

Involves the time element, identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable [Gonzales v. COMELEC, supra].

The evil consequence of the comment or utterance must be “extremely serious and the degree of imminence extremely high” before the utterance can be punished. The danger to be guarded against is the “substantive evil” sought to be prevented. And this evil is “disorderly and unfair administration of justice.” [...] Under this rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such advocacy will harm the administration of justice [Cabansag v. Fernandez, supra].

Note: This test has been adopted by SC and is the test most applied to cases re: freedom of expression.

Movie Censorship

Censorship is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety, morals, health, or any other legitimate public interest:

• There should be no doubt that what is feared may be traced to the expression complained of;
• Also, there must be reasonable apprehension about its imminence. It does not suffice that the danger is only probable [Gonzales v. Katigbak, supra].