4. Protected and Unprotected Speech

Applied to the Cases Involving Independence of the Court

In cases involving speech about pending judicial proceedings, Cabansag applied the clear-and-present-danger test to balance free expression against interference with the administration of justice; borderline cases favor free speech. The freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against contempt. (Cabansag v. Fernandez, G.R. No. L-8974, Oct. 18, 1957)

Applied to Seditious Speech

Citizen Perez made this remark at a political discussion at a town municipio: “and the Filipinos, like myself, must use bolos for cutting off Wood’s head for having recommended a bad thing for the Philippines.” The court held that criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. In this case, the Court found a seditious tendency which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

Summary

Commercial Speech

Commercial speech is speech that does no more than propose a commercial transaction. (Central Hudson Gas v. Public Service Commission, 447 U.S. 557, June 20, 1980)

Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. And if it is indispensable to the proper allocation of resources in a free enterprise system, it is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered. (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, May 24, 1976)

Accorded Lesser Protection

Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. (Central Hudson Gas v. Public Service Commission, 447 U.S. 557, June 20, 1980)

HATE SPEECH

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful. (Matal v. Tam, 582 U.S., June 19, 2017)

Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, esp. in circumstances in which the communication is likely to provoke violence. (Black’s Law Dictionary, 10th ed.)

No Hate Speech Exception to Free Speech

The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” (Matal v. Tam, 582 U.S., June 19, 2017)

Summary

Libel Not a Constitutionally Protected Speech

Libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)

The elements of libel are:

• The Allegation of a discreditable act or condition concerning another;
• Publication of the charge;
• Identity of the person defamed; and
• Existence of Malice. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)

Group/Class Libel

Where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. (Newsweek v. IAC, G.R. No. L-63559, May 30, 1986)

If the group is a very large one, then the alleged libelous statement is considered to have no application to anyone in particular, since one might as well defame all mankind. Not only does the group as such have no action; the plaintiff does not establish any personal reference to himself. As the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two (2) important public policies:

• First, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and
• Second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases. (MVRS Publication v. Islamic Da’wah Council of the Philippines, G.R. No. 135306. Jan. 28, 2003)

Sedition and Speech in Relation to Rebellion

Seditious Speech is an Unprotected Speech

Criticism is permitted to penetrate even to the foundations of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. But when the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the constitution and the laws, and the existence of the State. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923)

The freedom of speech secured by the Constitution does not confer an absolute right to speak or publish without responsibility whatever one may choose. It is not unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Statutes against sedition may be enforced, but should not be construed to punish mere lawful advocacy of institutional change. Thus, another limit of free speech and writing is seditious speech which is prohibited under Art. 142 of the Revised Penal Code. (Mendoza v. People, G.R. No. L-2990, Dec. 17, 1951)

When a fictitious suicide photo and letter were published in newspapers of general circulation expressing disappointment in the Roxas administration and instructing a fictitious wife to teach their children to burn photos of the President, the Court held that such act constitutes inciting to sedition. It suggests or incites rebellious conspiracies or riots and tends to turn the people against the constituted authorities, or to provoke violence from opposition groups who may seek to silence the writer, which is the sum and substance of the offense under consideration. (Mendoza v. People, G.R. No. L-2990, Dec. 17, 1951)

Reason Why Seditious Utterances are Prohibited

Historically, Gitlow vs. New York, 268 U.S. 652, June 7, 1925, reasoned that the legislature could forbid advocacy of a doctrine designed and intended to overthrow the Government without waiting for a present and immediate danger. That rationale is not the governing Philippine free-speech test. Abstract advocacy must be distinguished from punishable incitement; a Philippine restriction must be assessed under the statute invoked and the free-speech protection of Article III, Section 4 of the 1987 Constitution. (Cabansag v. Fernandez, G.R. No. L-8974, 1957; Brandenburg v. Ohio, 395 U.S. 444, 1969)

Obscenity is an Unprotected Speech

As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation. One such regulation is Article 201 of the Revised Penal Code. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)

Necessarily, that the confiscated materials are obscene must be proved. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)

UP NOTES

1987 Constitution, SECTION 4, ARTICLE III. 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.

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The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest [Chavez v. Gonzales, G.R. No. 16338 (2008)].

The right is not limited to vocal communication. Conduct is also included.

While the right has a widespread scope, it is not absolute. Examples of unprotected speech are obscenity, child pornography, and libel.

Dangerous Tendency Test

Under this test, the question is whether the words will create a dangerous tendency that the state has a right to prevent. It looks at the probability that a substantive evil will result, and it is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated.

It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent [People v. Perez, supra].

In Cabansag v. Fernandez, supra, the Court instead applied the clear and present danger test when assessing whether speech interfered with judicial proceedings.

Under the clear and present danger test, courts must ask whether the gravity of the “evil”, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger [Dennis v. US, 341 U.S. 494 (1951)].

Hate Speech

Speech designed to promote hatred on the basis of race, religion, ethnicity or national origin [Rosenfield, Hate Speech in Constitutional Jurisprudence].

Speech described as “hate speech” is not categorically excluded from constitutional protection merely by that label; any restriction must have a legal basis and satisfy the applicable constitutional standard. In Diocese of Bacolod v. COMELEC, the Court recognized that [t]he right to freedom of expression is not absolute [and that] some forms of speech are still subject to some restrictions.

Libel

Libel is not constitutionally protected speech. The government has an obligation to protect individuals from defamation [Disini v. Sec. of Justice, G.R. No. 203335 (2014)].

Ordinarily, a defamatory imputation is presumed malicious under Art. 354 of the Revised Penal Code. For a qualifiedly privileged communication, malice is not presumed and must be proved. Where the constitutional rule for statements about public officials or public figures applies, the complainant must prove actual malice: knowledge of falsity or reckless disregard of whether the statement was false.

In US v. Bustos, supra, a criminal action was instituted against defendants for allegedly publishing writings which were libelous against a justice of the peace. The SC held that the said writings constitute qualifiedly privileged matter as public opinion, therefore, they cannot be presumed malicious.

In In Re: Jurado, supra, the SC held that persistent and unmitigated dissemination of patent lies was not shielded from sanction by the right to free speech. For defamatory statements concerning public officials or public figures, falsity alone is insufficient; the complainant must prove actual malice.

Group Libel

Where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or allembracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be [Newsweek Inc. v. IAC, G.R. No. L-63559 (1986)].

As the size of these groups increases, the chances for members of such groups to recover damages for tortious libel become elusive. This principle is said to embrace two important public policies:

• Where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and
• The limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases [MVRS v. Islamic Da’wah Council of the Philippines, G.R. No. 135306 (2003)].

3.

Sedition and Speech in Relation to Rebellion

Incitement and Advocacy

Criticism of the government, no matter how severe, is within the range of liberty of speech, unless the intention and effect is to be seditious [People v. Perez, G.R. No. 21049 (1923)].

Obscenity

The State, as parens patriae, in pursuing its mandate to protect the public from obscene, immoral and indecent materials must justify the regulation or limitation.

In the Philippines, Article 201 of the Revised Penal Code covers the acts it specifies involving obscene publications and indecent exhibitions or shows, subject to constitutional protections for expression. The following are examples under the U.S. obscenity test, not exclusive conditions for prosecution in the Philippines: (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals [Miller v. California, 413 U.S. 15 (1973)].

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.

Political Speech

Considered pure and protected speech. Political speech receives special protection. When punishing an alleged threat, the government must distinguish a “true threat” from mere political hyperbole [Watts v. US, 394 U.S. 705 (1969)].

A tarpaulin that expresses a political opinion constitutes political speech. Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should be protected and encouraged [Diocese of Bacolod v. COMELEC, G.R. No. 205728 (2015)].

Speech of Public Officers

A libelous letter of a congressman, published in a newspaper, does not fall under “speech or debate” protected by the Constitution. Speech or debate covers a member’s speeches, statements, votes, and other acts in the performance of official legislative functions; a newspaper publication outside those functions is not protected merely because its author is a congressman [Jimenez v. Cabangbang, G.R. No. L-15905 (1966)].

In defamation involving a public official or public figure, falsity alone is insufficient: the complainant must prove that the statement was made with knowledge of its falsity or reckless disregard of the truth [Disini v. Secretary of Justice, G.R. No. 203335]. The persistent dissemination of patent lies is not shielded from sanction. The guaranty of free speech cannot be considered as according protection to the disclosure of lies, gossip or rumor [In Re: Jurado, supra].