2. Content-based and Content-neutral Regulations

Concept

A content-based restraint or censorship is where the restriction is based on the subject matter of the utterance or speech. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Free Space and Airtime

• SPACE
• 3 National newspapers - National candidates
• 1 National newspapers - Local candidates
• AIRTIME
• 3 National TV and Radio Networks - National candidates
• 1 Major Broadcasting station - Local candidates

There shall be equal allocation for all candidates for 3 calendar days.

COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate. Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest possible range of opinions coming from the electorate including those that can analyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, 2015).

However, regulation or election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time, place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its content. For this purpose, it will not matter whether the speech is made with or on private property. (Diocese of Bacolod v. COMELEC, G.R. 205728, 2015; Note: obiter dictum).

Subject to the Clear and Present Danger Rule

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, G.R. No. 168338, Feb. 15, 2008)

Clear and Present Danger Test

Under the clear-and-present-danger test, the question is whether the words, in their circumstances and by their nature, pose a clear and present danger of bringing about a substantive evil that Congress may prevent. The inquiry concerns the danger’s proximity and degree. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Requirement under the clear-and-present-danger test:

• The government must identify the harm that the speech sought to be restrained would cause, particularly how grave and imminent that harm is. Otherwise, the prior restraint is invalid.

Requirements for a valid content-neutral regulation under the O’Brien test:

• The restriction must advance an important or substantial government interest unrelated to suppressing free expression.
• Any incidental restriction on speech must be no broader than necessary to advance that interest. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Concept

A content-neutral regulation is merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Applies to Content-Based Regulation; Presumed Unconstitutional

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, G.R. No. 168338, Feb. 15, 2008)

Clear and Present Danger Rule: Applicable to Broadcast Media IF Content-Based Regulation

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. (Eastern Broadcasting v. Dans, G.R. No. L-59329 July 19, 1985)

However, the clear and present danger 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. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Content-based and content neutral regulations

Content Neutral Regulations

Regulations on the incidents of speech — time, place, and manner — under well-defined standards [Newsounds Broadcasting Network v. Dy, supra].

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 [Chavez v. Gonzales, supra].

O’Brien Test

A government regulation is sufficiently justified if:

• It is within the constitutional power;
• It furthers an important or substantial government interest;
• The government interest is unrelated to the suppression of free expression;
• The incidental restriction on speech is no greater than essential to the furtherance of that interest [US v. O’Brien, supra]

Television Censorship

P.D. No. 1986 gave 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, or prohibit the exhibition and/or television broadcasts of television programs.” The law also directs the Board to apply contemporary Filipino culture values as the 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 a violence or of a wrong or a crime.

The law gives the Board the power to screen, review and examine all “television programs”, whether religious, public affairs, news documentary, etc. [Iglesia ni Cristo v. CA, supra].

Notwithstanding the fact that freedom of religion has been accorded a preferred status, the television program of Iglesia ni Cristo is still not exempt from the MTRCB’s power to review. If the Court [...] did not exempt religious programs from the jurisdiction and review power of the MTRCB, with more reason, there is no justification to exempt ABS-CBN’s “The Inside Story” which [...] is protected by the constitutional provision on freedom of expression and of the press; the MTRCB’s review authority does not, by itself, exempt the program from constitutional free-expression protections [MTRCB v. ABS-CBN, G.R. No. 155282 (2005)].

Regardless of the regulatory schemes that broadcast media is subjected to, the SC has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media [Chavez v. Gonzales, supra].

Heckler’s Veto

Heckler’s veto is an attempt to limit unpopular speech. This occurs when an acting party’s right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party’s behavior.

Under the free speech clause, the government may not silence speech based on the anticipated reaction of a hostile audience, unless there is a clear and present danger of grave and imminent harm, which is not easy to prove.