5. Tests to Determine Validity of Governmental Regulation

TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests. As articulated in our jurisprudence, the Court has applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, the Court has concluded that it has generally adhered to the clear and present danger test. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Concept

The clear-and-present-danger test asks whether expression poses a clear and imminent danger of a substantive evil that the State has a right to prevent. 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.

“Clear” connotes a causal connection with the danger of the substantive evil arising from the utterance questioned. “Present” refers to the time element that is identified with imminent and immediate danger. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969)

This is used for statements against the Supreme Court and permits the application of restrictions when:

The dangerous-tendency doctrine asks whether speech has a rational connection to the apprehended harm and a tendency to produce it; it does not depend on which court is criticized. Clear and present danger is generally the applicable free-speech standard:

• The danger must be serious and imminent; and
• The danger must involve a substantive evil the State may prevent. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969)

Central Hudson Test for a Valid Commercial Speech Regulation

First ask whether the commercial speech concerns lawful activity and is not false or misleading. If it qualifies for First Amendment protection, a regulation of it is valid when:

• The governmental interest served by the regulation is substantial;
• The regulation directly advances that interest; and
• The regulation is not more extensive than necessary to serve that interest. (Central Hudson Gas v. Public Service Commission, 447 U.S. 557, June 20, 1980)

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 incident restriction is no greater than essential to the furtherance of that interest [US v. O’Brien, 391 U.S. 367 (1968)].

Tests to Determine the Validity of Governmental Regulation

Clear and Present Danger Test

The question in every case is whether the words used are used in such circumstances and are of such 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 [Schenck v. US, supra].

Burden of proof: With the government.

This rule also requires that “the danger created must not only be clear and present but also traceable to the ideas expressed”

Balancing of Interests Test

When a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional and partial abridgement of speech, the duty of the courts is to determine which of the two conflicting interests demands greater protection [American Communications v. Douds, 339 U.S. 282 (1950)].

The test is applied when two legitimate values not involving national security crimes compete [Gonzales v. COMELEC, supra].

Factors to consider: [Soriano v. Laguardia, supra]

• Social value of the freedom restricted
• Specific thrust of the restriction, i.e. direct or indirect, affects many or few
• Value of the public interest sought to be secured by the regulation
• Whether the restriction is reasonably appropriate and necessary for the protection of the public interest
• Whether the necessary safeguarding of the public interest may be achieved by a measure less restrictive of expression

Commercial Speech

Central Hudson Gas & Elec. v. Public Svc. Comm’n [447 U.S. 557 (1980)] established the test to be applied to regulations on commercial speech:

• Speech must not be false, misleading or proposing an illegal activity;
• Government interest sought to be served by regulation must be substantial;
• The regulation must directly advance the asserted substantial governmental interest; and
• The regulation must not be more extensive than necessary to serve that governmental interest.