·
DEFINITION:
“at once the instrument and the guaranty and the bright consummate flower of
all liberty” (Wendell Philips)
-
Covers freedom of expression in general, which
embraces a number of cognate rights all aimed at insuring the free and
effective communication of ideas from mind to mind
·
Other
rights in addition to freedom of speech:
o
Freedom of the press
o
Freedom of assembly
o
Freedom of petition
o
Freedom religion
o
Right of association
o
Right to access to information on matter of
public concern
o
Right not to be detained solely by reason of
one’s political beliefs and aspirations
·
Freedom of expression is available only insofar
as it is exercised for the discussion of matters affecting the public interest
IMPORTANCE
·
The first right that is always curtailed when a
free society falls under a repressive regime
·
As an individual “particle of sovereignty”,
every citizen has a right to offer his views and suggestions in the discussion
of the common problems of the community or nation.
·
Theories
and schools of thought that strengthen the need to protect the basic right to
freedom of expression:
1.
Deliberative
democracy - Includes the right of the people to participate in public
affairs, including the right to criticize government actions
2.
Considers free speech as being under the concept of a market place of
ideas and should therefore be encouraged
3.
Free speech likewise involves self-expression that enhances human dignity. This right is
a means of assuring individual self-fulfillment among others
4.
Considers free expression as a marker for group identity
5.
The bill of rights, free speech included, is
supposed to protect individuals and
minorities against majoritarian abuses perpetrated through the framework of
democratic governance
·
Free speech must, thus, be protected as a
peaceful means of achieving one’s goal, considering the possibility that
repression of nonviolent dissent may spill over to violent means just to drive
a point.
·
Two
paradigms of free speech that separate at the point of giving priority to
equality vis-Ã -vis liberty:
1.
Equality-based
approach – politically disadvantaged speech prevails over regulation, but
regulation promoting political equality prevails over speech
2. Considerations of equality of opportunity
or equality in the ability of citizens as speakers should not have a bearing in
free speech doctrine
SCOPE
·
The ideas that may be expressed under this
freedom are not confined only to those that are sympathetic or acceptable to
majority. To be really meaningfully, it should permit the articulation of
even the unorthodox view, though it be hostile to or derided by others, or
induces a condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger.
·
The freedom to speak includes the right to be
silent.
·
Also includes the right to an audience
·
The right to listen also includes the right not
to listen. This freedom was meant not only to protect the minority who want to
talk but also to benefit the majority who refuse to listen.
MODES OF EXPRESSION
·
Freedom of expression is usually exercised
through language, oral and written.
·
Symbolisms may also be used
·
Not limited to vocal communication. Conduct is
treated as a form of speech sometimes referred to as symbolic speech such that
when speech and nonspeech elements are combined in the same course of conduct,
the communicative element of the conduct may be sufficient to bring into play
the right to freedom of expression. (Diocese
of Bacolod v. COMELEC)
·
Form of expression is just as important as the
information conveyed that it forms part of the expression
·
Free expression can also come in the forms of
commercial speech, which does no more than propose a commercial transaction and
also political speech presented as satire. (Disini
v. Executive Secretary)
·
Placards, graffiti, slogans and battle-cries,
poems and song lyrics, speeches and orations, movies, stage plays, and
television and radio presentations—all these and more can be effective media
for the discussion of public issues
ELEMENTS
|
ART. III, SEC. 4, 1987 CONSTITUTION No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people to peaceably to
assemble and petition the Government for redress of grievances. |
|
ART. III, SEC. 18(1), 1987 CONSTITUTION No person shall be detained solely by reason of his
political belief and aspirations. |
Elements of freedom
of expression:
1.
Freedom from previous restraint or censorship
2.
Freedom from subsequent punishment
Restraints:
1. Content-based regulation/censorship
-
If the restriction is based on the subject
matter of the utterance or speech
-
Aimed at the contents or idea of the expression
-
Can either be based on the viewpoint of the
speaker or the subject of the expression
-
Bears a heavy presumption of invalidity and is
measured against 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.
1. Content neutral restraint
-
If it is merely concerned with the incidents of
the speech, or one that merely controls the time, place or manner, and under
well defined standards
-
Intends to regulate the time place, and manner
of the expression under well-defined standards tailored to serve a compelling
state interest, without restraint on the message of the expression
-
Only a substantial governmental interest
is required for its validity
-
Subject only to intermediate approach – somewhere between the mere
rationality that is required of any other law and the compelling interest
standard applied to content-based restrictions. The test is called intermediate
because the Court will not merely rubberstamp the validity of a law but also
requires that the restrictions be narrowly-tailored to promote an important or
significant governmental interest that is unrelated to the suppression of
expression.
-
A governmental regulation is sufficiently
justified if it is within the constitutional power of the Government, if it
furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the
incident restriction on alleged freedom of speech & expression is no
greater than is essential to the furtherance of that interest.
(Chavez v. Gonzales)
·
A facial
challenge may be raised against any restraint upon freedom of expression.
Such restraint may be suppressed if found to be overbroad or vague.
o
Overbreadth
doctrine – a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject
broadly, thereby invading the area of protected freedoms
o
Void-for-vagueness
doctrine – a statute can be impermissibly vague for either 2 independent
reasons:
(1) If
it fails to provide people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits
(2) If
it authorizes or even encourages arbitrary and discriminatory enforcement
FREEDOM FROM
CENSORSHIP
·
Censorship conditions the exercise of freedom
of expression upon prior approval of the government. Only those ideas
acceptable to it are allowed to be disseminated; all others are restricted or
suppressed.
·
As a matter of constitutional tradition, in the
absence of evidence to the contrary, we presume that governmental regulation of
the content of speech is more likely to interfere with the free exchange of
ideas than to encourage it. (Reno v.
American Civil Liberties Union)
·
Censorship need not partake of total
suppression; even restriction of circulation is unconstitutional.
FREEDOM FROM PUNISHMENT
·
Freedom of speech includes freedom after speech.
Without this assurance, the citizen would hesitate to speak for fear he might
be provoking the vengeance of the officials he has criticized.
·
In a free society, the individual is not
supposed to speak in timorous whispers or with bated breath but with the clear
voice of the unafraid.
·
Freedom of expression is not absolute. Like all
rights, it is subject to the police power and may be regulated in the interest
of the public.
·
3 major
ideas to determine the liability of the individual for ideas expressed by him:
1.
The clear and present danger rule
2.
The dangerous tendency doctrine
3.
The balancing test
·
Libelous statements which, when found to be false, malicious or unrelated to a public
officer’s performance of his duties or irrelevant to matters of public interest
involving public figures, may give rise to criminal and civil liability.
·
Plain and
simple baseless accusations contained in news reports cannot be considered
as qualified privileged communication under the second paragraph of Art. 354 of
the RPC which exempts from the presumption of malice 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 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 CLEAR AND PRESENT
DANGER RULE
·
Most libertarian of these test
·
Formulated by Justice Holmes in Schenck v.
United States
·
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 substantive evils that the
State has a right to prevent. If they do, the speaker shall be punished;
otherwise, not. It is a question of proximity and degree. The character of
every act depends upon the circumstances in which it is done. (Schenk v. US)
·
The rule is that the danger created must not
only be clear and present but also traceable to the ideas expressed.
·
The term clear
seems to point to causal connection with the danger of the substantive evil
arising from the utterance questioned. Present
refers to the time element. It used to identified with imminent and
immediate danger. The danger must not only be probable but very likely
inevitable. (Gonzales v. COMELEC)
·
Heckler’s
veto – generally refers to a restriction imposed by the government upon a
person’s exercise of his freedom of speech for purposes of maintaining the
peace or preventing unlawful or violent reactions to the same
·
While normally not subject to injunction or
punishment, since it is an accepted medium of expression, picketing may be validly prohibited and penalized when “set in a background of violence”.
·
Fear of serious injury cannot alone justify
suppression of free speech and assembly. Men feared witches and burned women.
It is the function of speech to free men from the bondage of irrational fears.
To justify suppression of free speech, there must be reasonable ground to fear
that serious evil will result if free speech is practiced. There must be
reasonable ground to believe that the danger apprehended is imminent. There
must be reasonable ground to believe that the evil to be prevented is a serious
one. (Whitney v. California)
·
The function of freedom of expression was to
insure “a true ferment of ideas” and
that the right is entitled to the utmost deference and respect, subject only to well-defined limits.
THE DANGEROUS
TENDENCY DOCTRINE
·
Applied by the SC prior to the adoption of the
clear and present danger rule
·
If the words uttered create a dangerous tendency
which the State has a right to prevent, then such words are punishable. It is
not necessary that some definite or immediate acts of force, violence, or
unlawfulness be advocated. It is sufficient that such acts be advocated in
general terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence or unlawfulness. It is
sufficient if the natural tendency and probable effect of the utterance be to
bring about the substantive evil which the legislative body seeks to prevent. (Cabansag v. Fernandez)
·
A person could be punished for his ideas even if
they only tended to create the evil sought to be prevented. It was not
necessary to actually create the evil; a mere tendency toward the evil was
enough.
THE
BALANCE-OF-INTEREST TEST
·
When particular conduct is regulated in the
interest of public order and the regulation results in an indirect,
conditional, partial abridgement of speech, the duty of the courts is to determine
which of the two conflicting interests demands the greater protection under the
particular circumstances. (American
Communications Association v. Douds)
·
If in a given situation it should appear that
there is urgent necessity for protecting the national security against
improvident exercise of freedom of expression, the right must yield. But if no
special justification exists for curtailment of the freedom, the interests of
the State not being especially threatened by its exercise, it is the right that
must prevail.
·
The flaw
in this method, according to Justice Black, is that it in effect allows the
courts to decide that this freedom may not be enforced unless they believe it
is reasonable to do so.
CRITICISM OF OFFICIAL
CONDUCT
·
The interest of society and the maintenance of
good government demand a full discussion of public affair. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and unjust accusation; the wound may be
relieved by the balm of a clear conscience. A public official must not be too
thin-skinned with reference to comment upon his official acts. (US v. Bustos)
·
The people have a right to scrutinize and
commend or condemn the conduct of their choses representatives in the
government. And as long as their comments are made in good faith and with
justifiable ends, they are insulated from prosecution or damage suits for
defamation even if such views are found to be inaccurate or erroneous.
·
A private individual may still be the subject of
public comment even if he is not a public official or at least a public figure,
as long he is involved in a public issue.
·
Being a public figure does not automatically
destroy in toto a person’s right to privacy. The right to invade a person’s
privacy to disseminate public information does not extend to a fictional or
novelized representation of a person, no matter how public a figure he or she
may be. (Lagunzad v. Sotto Vda. De
Gonzales)
·
Newspaper publications tending to impede,
obstruct, embarrass or influence the courts in administering justice in a
pending suit or proceeding constitutes criminal contempt which is summarily
punishable by the courts (People v.
Alarcon)
·
2 kinds
of publications relating to court and court proceedings which can warrant the
exercise of the power to punish for contempt:
(1)
That which tends to impede, obstruct, embarrass
or influence the courts in administering justice in a pending suit or
proceeding
(2)
That which tends to degrade the courts and to
destroy public confidence in them or that which tends to bring them in any way
into disrepute
·
Freedom of speech is not absolute, and must
occasionally be balanced with the requirements of equally important public
interests, such as the making of contemptuous statements directed against the
Court is not an exercise of free speech; rather, it is an abuse of such right.
Unwarranted attacks on the dignity of the courts cannot be disguised as free
speech, for the exercise of said right cannot be used to impair the
independence and efficiency of courts or public respect therefor and confidence
therein. (In Re: Published Alleged Threats
against Members of the Court in the Plunder Case Hurled by Atty. Leonard De
Vera)
ART AND OBSCENITY
·
Our jurisprudence on the regulation of public
decency adheres to the traditional rules, without the adventure, good or bad,
of innovation.
·
Movies, compared to other media of expression,
have a greater capacity for evil and are consequently, subject to more
regulation (Burstyn v. Wilson)
·
It is axiomatic that obscenity is not
constitutionally protected because it offends public decency because it offends
public decency and morals.
·
Test of
Obscenity (Miller v. California):
(1)
Whether the average person, applying
contemporary community standards, would find that the work, taken as a whole,
appeals to the prurient interest.
(2)
Whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the applicable
law.
(3)
Whether the work, taken as a whole, lacks
serious literary, artistic, political or scientific value.
·
In determining whether the material goes
substantially beyond customary limits of candor and affronts contemporary
community standards or decency, the courts should not apply a national standard
but the standard of the community in which the material is being tested.
ASSEMBLY AND PETITION
·
The right of assembly is important to freedom of
expression because public issues are better resolved after an exchange of views
among citizens meeting with each other for the purpose.
·
Like other rights embraced in freedom of
expression, the right to assemble is not subject to previous restraint or
censorship. Hence, it may not be conditioned upon the prior issuance of a
permit or authorization from the government authorities. It should be noted,
however, that if the assembly is intended to be held in a public place, a
permit for the use of such place and not for the assembly itself, may be
validly required.
·
Under the Public Assembly Act, a permit for the
holding of a public assembly shall not be necessary where the meeting is to be
held in a private place, in the campus of a government-owned and operated
educational institution or in a freedom park. The freedom park is to be
established in every municipality and city and shall as far as practicable be
centrally located.
·
Where a permit is required, the written
application therefor shall be filed with the mayor’s office at least 5 days
before the scheduled meeting and shall be acted upon within 2 days. Otherwise,
the permit shall be deemed granted.
·
The law prohibits law-enforcement agencies from
interfering with a lawful assembly, but permits them to detail a contingent
under a responsible commander at least 100 m. away from the assembly in case it
becomes necessary to maintain order.
TEST
·
Ideally, the test of a lawful assembly should be
the purpose for which it is held, regardless of the auspices under which it is
organized.
·
Purpose
Test – even if the organizers of the meeting be unquestionably lawful, the
assembly will still be illegal if its objective is, say, to incite to sedition
or rebellion.
·
Untoward incidents arising during a public
assembly will not make the assembly unlawful for that reason alone.
·
The right to strike, while constitutionally
recognized, is not without legal constrictions. Among them would be the
provisions of Art. 264 of the Labor Code which states that no strike or lockout
shall be declared after assumption of jurisdiction by the President or the
Secretary or after certification or submission of the dispute to compulsory or
voluntary arbitration or during the pendency of cases involving the same
grounds for the strike or lockout. (Solid
Bank Union v. Metropolitan Bank and Trust Company)
·
A strike that is undertaken despite the issuance
by the Secretary of Labor of an assumption ordered and/or certification is a
prohibited activity and thus illegal. (Philcom
Employees Union v. Philippine Global Communications)
RIGHT OF ASSOCIATION
|
ART. III, SEC. 8, 1987 CONSTITUTION The right of the people,
including those employed in the public and private sectors, to form unions,
associations or societies for purposes not contrary to law shall not be
abridged. |
·
Strictly speaking, the right of association is
already comprehended in due process, particularly as it protects the person’s
liberty.
·
Societies may be formed under this provision for
social, scientific, cultural, political, religious or other lawful purposes.
·
The right of association is deemed embraced in
freedom of expression because the organization can be used as a vehicle for the
expression of views that have a bearing on the public welfare.
·
The phrase “for
purposes not contrary to law” is a built-in limitation of the right.
·
Significantly, the new Section 8 now expressly
guarantees to those employed in the public and private sectors the right to
form unions.
|
ART. IX-B, SEC. 2(5), 1987 CONSTITUTION The right to self-organization shall
not be denied to government employees. |
·
A reading of the proceedings of the
Constitutional Commission that drafted the 1987 Constitution would show that in
recognizing the right of government employees to organize, the commissioners
intended to limit the right to the formation of unions or associations only,
without including the right to strike. (SSS
Employees Association v. CA)
·
That the Government has a right to protect
itself against subversion is a proposition too plain to require elaboration.
Self-preservation is the ‘ultimate value’ of society. It surpasses and
transcends every other value for if a society cannot protect its very structure
from armed internal attack… no subordinate value can be protected. (People v. Ferrer)
·
The right to associate included the right not to
associate and that this particular exemption was intended for the benefit of
laborers who were inhibited from joining labor unions because of their
religious belief.
·
The right of association was also held not
violated where political parties were prohibited from participating in the barangay
elections to insure the nonpartisanship of the candidates.
·
Integration does not make a lawyer a member of
any group in which he is not already a member. He became a member of the Bar
when he passed the Bar examinations. All that integration actually does is to
provide an official national organization for the well-defined but unorganized
and incohesive group of which every lawyer is already a member. (In re Edillon)
·
Under our system of laws, every group has the
right to promote its agenda and attempt to persuade society of the validity of
its position through normal democratic means. It is in the public square that
deeply held convictions and differing opinions should be distilled and
deliberated upon. (Ang Ladlad LGBT Party
v. COMELEC)
ACCESS TO INFORMATION
·
The right of access to public documents has been
recognized as a self-executory constitutional right.
|
ART. II, SEC. 28, 1987 CONSTITUTION Subject to reasonable conditions prescribed
by law, the State adopts and implements a policy of full public disclosure
of all its transactions involving public interest. |
·
The right to information guarantees the right of
the people to demand information, while Section 28 recognizes the duty of the
officialdom to give information even if nobody demands.
·
Seeks to promote transparency in
policy-making and in the operations of the government, as well as provide
the people sufficient information to exercise effectively other constitutional
rights.
·
Essential to hold public officials at
all times accountable to the people, for unless citizens have the proper
information, they cannot hold public officials accountable for anything. Armed
with the right information, citizens can participate in public discussions
leading to the formulation of government policies and their effective
implementation.
·
Pursuant to these constitutional provisions, the
Commission on Elections may be compelled to explain fully its preparations for
an election, and to disclose or publish the name of the nominees of the various
party-list groups named in the petitions, notwithstanding a statutory
prohibition requiring it not to shoe the names of party-lists in its certified
lists.
·
Unlike the disclosure of information which is
mandatory under the Constitution, the other aspect of the people’s right to
know requires a demand or request for one to gain access to documents and
papers of the particular agency. Moreover, the duty to disclose covers only
transactions involving public interest, while the duty to allow access had a
broader scope of information, which embraces not only transactions involving
public interest, but any matter contained in official communications and public
documents of the government agency. (Initiatives
for Dialogue and Empowerment through Alternative Legal Services, Inc. v. Power
Sector Assets and Liabilities Management Corporation)
·
The proper remedy to invoke the right to
information is to file a petition for mandamus, the constitutional duty, not
being discretionary.
|
ART. III, SEC. 7, 1987 CONSTITUTION The right of the people to information on
matters of public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as
may be provided by law. |
|
ART. VI, SEC. 16(4), 1987 CONSTITUTION Each House shall keep a Journal of its
proceedings, and from time to time publish the same, excepting such parts
as may, in its judgment, affect national security; and the yeas and nays on
any question shall, at the request of one-fifth of the Members present, be
entered in the Journal. |
·
Except perhaps when it is clear that the purpose
of the examination is unlawful or sheer, idle curiosity, we do not believe it
is the duty under the law of registration officers to concern themselves with
the motives, reasons, and objects of the persons seeking access to the records.
(Subido v. Ozaeta)
·
The transparency requirement of public bidding
may not give rise to a right to be invoked as a ground to direct the issuance
of the Notice of Award.
·
Restrictions
on the right to information (Chavez
v. PCGG):
o
National security matters and intelligence
information
o
Trade secrets and banking transactions
o
Criminal matters
o
Other confidential information
·
Diplomatic negotiations, therefore, are
recognized as privileged in this jurisdiction, the JPEPA negotiations
constituting no exception. It bears emphasis, however, that such privilege is
only presumptive. For as Senate v. Ermita holds, recognizing a type of
information as privileged does not mean that it will be considered privileged
in all instances. Only after a consideration of the context in which the claim
is made may it be determined if there is a public interest that calls for the
disclosure of the desired information, strong enough to overcome its
traditionally privileged status. (AKBAYAN
v. Aquino)
·
Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to certain
types of information of a sensitive character. The extraordinary character of
the exemption indicates that the presumption inclines heavily against executive
secrecy and in favor of disclosure. (Senate
v. Executive Secretary Ermita)
·
The right of Congress or any of its Committees
to obtain information in aid of legislation cannot be equated with the people’s
right to public information. The former cannot claim that every legislative
inquiry is an exercise of the people’s right to information. (Neri v. Senate Committee on Accountability
of Public Officers)
·
Custodians of public documents must not concern
themselves with the motives, reasons, and objects of the persons seeking access
to the records. The moral of material injury which their misuse might inflict
on others is the requestor’s responsibility and lookout. Any publication is
made subject to the consequences of the law. While public officers in the
custody or control of public records have the discretion to regulate the manner
in which records may be inspected, examined or copied by interested persons,
such discretion does not carry with it the authority to prohibit access,
inspection, examination, or copying of the records. (In re: Request of Philippine Center for Investigative Journalism for
the 2008 SALNs and Personal Data Sheets of Courts of Appeals Justices)
·
Furtive Law is like a scabbarded saber that
cannot feint, parry or cut unless the naked blade is drawn. (Tanada v. Tuvera)
·
In view of the erratic issuances and limited
readership of the Official Gazette, it is now provided that the required publication
may be made alternatively in a newspaper of general circulation in the
Philippines.
·
Pending the enactment of an enabling law, the
release of information through postings in public bulletin boards and
government websites satisfies the constitutional requirement. (Initiatives for Dialogue and Empowerment
through Alternative Legal Services, Inc. v. Power Sector Assets and Liabilities
Management Corporation)
Comments
Post a Comment