1. Prior Restraint and Subsequent Punishment

F. Freedom of Speech and Expression

• Prior Restraint and Subsequent Punishment
• Content-Based and Content-Neutral Regulations
• Facial Challenges and Overbreadth Doctrine
• Tests to Determine the Validity of Governmental Regulation
• State Regulation of Different Types of Mass Media
• Commercial Speech
• Unprotected Speech; Libel and Hate Speech
• Obscenity and Pornography
• Privileged Communication

1987 CONST., art. III, secs. 4 and 18(1)

> art. III, secs. 4 and 18(1)) SECTION 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. SECTION 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations.

> Act No. 3815, art. 354

ARTICLE 354. Requirement for Publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

• 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.

The doctrine on freedom of speech was formulated primarily for the protection of “core” speech such as speech which communicates political, social, or religious ideas. Those enjoy the same degree of protection. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011).

Includes every form of expression, whether oral, written, tape, or disc recorded. It also includes movies, symbolic speech (wearing of arm-bands), peaceful picketing, and conduct which amounts to speech. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011).

PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT

Concept

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Presumed Invalid and Unconstitutional

General Rule: Any system of prior restraints of expression comes to court bearing a heavy Presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for enforcement of such restraint. There is thus a reversal of the normal presumption of validity that inheres in every legislation. (SWS v. COMELEC, G.R. No. 147571, May 5, 2001)

Exception: The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the COMELEC for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time-honored one — that a statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion. (National Press Club v. COMELEC, G.R. No. 102653 March 5, 1992)

Any prior restraint upon the freedom of the press bears a heavy presumption against its constitutionality. In other words, the government must clearly make out a case to overcome this presumption, which it failed to do in this case. The word “security” is so broad that it should not be used to abrogate the fundamental law. The publication would not cause an inevitable, immediate, and direct event that would imperil the safety of the American forces, such that there was no grave and irreparable danger. The US Supreme Court also held that the 1st Amendment does not tolerate prior restraints predicated upon beliefs that untoward consequences may result therefrom. The press must be left free to publish news, whatever the source, without censorship or restraint because only a free and unrestrained press can effectively expose government deception to the people. (New York Times v. United States, 403 U.S. 713, June 30, 1971)

Government Acts Precluded

Freedom from prior restraint precludes governmental acts that:

• Requires approval of a proposal to publish;
• Licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and
• Injunctions against publication.

Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship.

A requirement for official approval before publishing protected expression is presumptively unconstitutional prior restraint; broadcast licensing and regulation, however, are not invariably unconstitutional merely because they precede dissemination and remain subject to constitutional limits. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

When Prohibition on Prior Restraint Does Not Apply (WOS)

• During war, a narrowly justified restraint on publication of sensitive military information may be permissible; war alone does not dispense with constitutional scrutiny of prior restraint. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) (e.g., a restraint on publication about the number or location of troops requires a specific, constitutionally sufficient justification)
• Obscene publications
• Security of community life may be protected against incitements to acts of violence or overthrow by force of orderly government. (Near v. Minnesota, 283 U.S. 697, June 1, 1931)

Concept

The aspect of freedom from liability subsequent to publication precludes liability for completed publications of views traditionally held innocent. Otherwise, the prohibition on prior restraint would be meaningless, as the unrestrained threat of subsequent punishment, by itself, would be an effective prior restraint.

Thus, opinions on public issues cannot be punished when published, merely because the opinions are novel or controversial, or because they clash with current doctrines. This fact does not imply that publishers and editors are never liable for what they print. Such freedom gives no immunity from laws punishing scandalous or obscene matter, seditious or disloyal writings, and libelous or insulting words.

As classically expressed, the freedom of the press embraces at the very least the freedom to discuss publicly matters of public concern, without previous restraint or fear of subsequent punishment. Discussion of matters of public concern is not unprotected merely because a factual statement proves false; liability for defamatory statements about public officials or public figures is subject to the applicable actual-malice standard. For discussion to be innocent, it must concern something in which people in general take a healthy interest, and must not endanger some important social end that the government by law protects. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

CONTENT-BASED AND CONTENT NEUTRAL REGULATIONS

Right of Privacy vs. Freedom of Speech and Communication

Applied to Cases involving the Court’s Power of Contempt

The power of contempt should be balanced with the right to freedom of expression, especially when it may have the effect of stifling comment on public matters. The power to punish for contempt is not exercised without careful consideration of the circumstances of the allegedly contumacious act, and the purpose of punishing the act. Especially where freedom of speech and press is involved, this Court has given a restrictive interpretation as to what constitutes contempt. An article which does not impede, obstruct, or degrade the administration of justice is not contumacious. 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. (Roque v. Chief of Staff, G.R. No. 214986, February 15, 2017)

Four Aspects of Freedom of the Press

• Freedom from prior restraint
• Freedom from punishment subsequent to publication
• Freedom of access to information
• Freedom of circulation. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Fighting Words – No Constitutional Protection IF Defamatory or Tortious

"Fighting words" are not entitled to constitutional protection and may be penalized. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

Fighting words are not subject to subsequent punishment unless they are defamatory or tortious. Fighting words refer to profane or vulgar words that are likely to provoke a violent response from an audience. Profane or vulgar words like "Fuck the draft," when not directed at any particular person, ethnic or religious group, are not subject to subsequent punishment. As aptly stated, "one man’s vulgarity may be another man’s lyric." If profane or vulgar language like "Fuck the draft" is not subject to subsequent punishment, then with more reason it cannot be subject to prior restraint. Without a law punishing the actual utterance or publication of an expression, an expression cannot be subject to prior restraint because such expression is not unlawful or illegal. (J. Carpio, Separate Opinion in Soriano v. Laguardia, G.R. No. 164785, April 29, 2009; citing Cohen v. California, 403 U.S. 15, June 7, 1971)

Prior Restraint and Subsequent Punishment

Prior restraint

Refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination [Newsounds Broadcasting Network v. Dy, supra].

Not all prior restraint is invalid. But all prior restraints are presumed invalid (“any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows”).

Every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation, and so always that he does not thereby disturb the public peace or attempt to subvert the government [Near v. Minnesota, 283 U.S. 697 (1931)].

Examples:

• Censorship - Censorship conditions the exercise of freedom of expression upon the prior approval of the government. The censor serves therefore as the political, moral, social and artistic arbiter for the people, usually applying only their own subjective standards in determining what is good and what is not.
• Permits
• Business Closures

General Rule

• Any system of prior restraints of expressions comes to the Court bearing a heavy presumption against its constitutionality, giving the government a heavy burden to show justification for the imposition of such restraint [New York Times Co. v. US, 403 U.S. 713 (1971)].
• There need not be total suppression. Even restriction of circulation constitutes censorship [Grosjean v. American Press Co., Inc., 297 US 233 (1936)].

Examples of Unconstitutional Prior Restraint

• COMELEC prohibition against radio commentators and newspaper columnists from commenting on the issues involved in a scheduled plebiscite [Sanidad v. COMELEC, G.R. No. 90878 (1990)]
• Arbitrary closure of a radio station [Eastern Broadcasting Corporation v. Dans, G.R. No. L-59329 (August 16, 1984)]; or arbitrary denial of a mayor’s permit used to prevent a radio station from operating [Newsounds Broadcasting Network v. Dy, supra]
• COMELEC resolution prohibiting the posting of decals and stickers in mobile units such as cars and other vehicles [Adiong v. COMELEC, G.R. No. 103956 (1992)].
• Searching, padlocking, and sealing of the offices of newspaper publishers by military authorities [Burgos v. Chief of Staff, G.R. No. L-64261 (1984)].
• An announcement by a public official prohibiting the media from airing or broadcasting the Garci tapes [Chavez v. Gonzales, supra]

Examples of Constitutional Prior Restraint

• A law which prohibits, except during the prescribed election period, making speeches, announcements, or commentaries for or against the election of any candidate for office [Gonzales v. COMELEC, G.R. No. L-27833 (1969)].
• Prohibiting any person making use of the media from selling or giving print space or air time free of charge for campaign or other political purposes.

Ratio: Police power of the State to regulate media for the purpose of ensuring equal opportunity, time, and space for political campaigns, which COMELEC is authorized to carry out [National Press Club v. COMELEC, G.R. No. 102653 (1992); Osmeña v. COMELEC, G.R. No. 132231 (1998)].

• Film censorship: Film review may impose reasonable classifications and may prohibit exhibition on legally sufficient grounds, such as obscenity; restrictions remain subject to constitutional safeguards [Nachura, citing Gonzales v. Katigbak, G.R. No. L-69500 (1985) and Ayer Prod. PTY. LTD. v. Judge Capulong, G.R. No. 82380 (1988)]

Subsequent Punishment

Freedom of speech includes freedom after speech. Without this assurance, citizens would hesitate to speak for fear that they might be provoking the vengeance of the officials they criticized (chilling effect).

Example of Valid Subsequent Punishment

• Libel: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, subject to the exceptions in Article 354 of the Revised Penal Code [Alonzo v. CA, G.R. No. 110088 (1995)].

Exceptions to the Presumption [Article 354, Revised Penal Code]

• Private communication in the performance of any legal, moral, or social duty
• A fair and true report, made in good faith and without any comments or remarks, of nonconfidential judicial, legislative, or other official proceedings; of any statement, report, or speech delivered in those proceedings; or of any other act performed by public officers in the exercise of their functions
• Obscenity - Determination of what is obscene is a judicial function [Pita v. CA, G.R. No. 80806 (1989)]
• Contempt for criticism or publications tending to impede, obstruct, embarrass, or influence the courts in administering justice in a pending suit or proceeding (subjudice) [People v. Alarcon, G.R. No. 46551 (1939)]
• Right of students to free speech on school premises must not infringe on the school’s right to discipline its students [Miriam College Foundation v. CA, G.R. No. 127930 (2000)].

Content-Based Regulations

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 [Chavez v. Gonzales, supra].

Subject to the clear and present danger test: There is to be then no previous restraint on the communication of views or subsequent [...] unless there be a clear and present danger of a substantive evil that the State has right to prevent [Reyes v. Bagatsing, G.R. No. L-65366 (1983)].

Four Aspects of Freedom of the Press

• Freedom from prior restraint;
• Freedom from punishment subsequent to publication;
• Freedom of access to information; and
• Freedom of circulation [Chavez v. Gonzales, supra]