Bill of Rights - Freedom of Speech and Expression Flashcards
Article III Section 4
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peacably to assemble and peititon the government for redress of grievances.
What is protected under the freedom of expression?
All manner of expressive conduct – symbolic speech, the right to be silent, etc. (framers of the CONST, as discussed by GDV)
Important concepts in freedom of speech and expression
Important concepts:
1. Prior restraint and subsequent punishment
2. Content based and content neutral
3. Facial challenges and overbreadth doctrine
4. Tests to determine the validity of governmental regulation
5. State regulation of different types of mass media
6. Commercial Speech
Is CONST. Art. III Sec. 4 limited to statutes?
No, the SC has applied Art. III Sec. 4 of the Constitution to governmental acts (not limited to statutes although the law expressly states “no law shall be passed”).
- In Primicias v. Fugoso , respondent Mayor applied by analogy Section 1119 of the Revised Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner Primicias. Section 1119 requires a Mayor’s permit for the use of streets and public places for purposes such as athletic games, sports, or celebration of national holidays. What was questions was not a law but the Mayor’s refuals to issue a permit for the holding of petitioner’s public meeting. Nevertheless, this court recognized the constitutional right to freedom of speech, to peaceful assembly and to petition for redress of grievances, albeit not absolute, and the petition for mandamus to compel respondent Mayor to issue the permit was granted.
- In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop ABS-CBN from conducting exit surveys. The right to freedom of expression was similarly upheld in this case and, consequently,the assailed resolution was nullified and set aside.
- Chavez v. Gonzales – what was involved where two governmental acts: pronouncements of Secretary of Justice Gonzales and the memorandum of the NTC of warning those with license to operate from playing the Garci tapes. SC ruled that pronouncement of SOJ were made in official capacity and would therefore be considered a govenrmental act, subject to the application of the test to ensure that it did not infringe upon the rights protected in Sec. 4 Art. III.
What is the scope of the protection?
Diocese of Bacolod case, SC ruled that it extends to nearly all forms of communication. The protection under CONST. Art. III Sec. 4 assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news or informational ends, including entertaining, instructive or informative speech or publications.
- Speech is 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 smae course of conduct, the communicative element of the conduct may be sufficient to bring into play the right to freedom of expression;
- The right to freedom of expression applies to the entire continuum of speech from (a) utterancesmade to (b) conduct enacted, and even to (c) inaction itself as a symbolic manner of communication;
- Protects speech, print and assembly regarding secular as well as political causes and is not confined to any particular filed of human interest; the Constitution’s basic guarantee of freedom to advocate ideas is not confined to the expressoin of ideas that are conventional or shared by the majority.
- Freedom of speech includes the right to be silent. e.g. the salute is a symbolic manner of communication–as a valid form of expression, it cannot be complled any more than it can be prohibited in the face of valid reliigious objections.
What are the two general forms of restraint upon Section 4 freedoms?
- Prior restraint
- Subsequent punishment
What is prior restraint on Art. III Sec. 4 freedoms?
Prior restraint refers to official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.
E.g. Censorship; licensing or permits (for publication); business closure
NOTE: any act done, such as speech uttered, for and on behalf of government in any official capacity is covered by prior restraint.
What is subsequent punishment?
Subsequent punishment - where punishment is imposed following the exercise of expression, speech, or the conduct that is protected in Art. III Sec. 4.
E.g.: libel suit, prosecution for sedition, contempt proceedings
Rule on validity of prior restratints and presumption of invalidity
Prior restraint
1. Not all prior restraint is invalid
2. But all prior restratints are presumed invalid (“any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows”) –> in other words, in litigation involving section 4 rights, the burden falls on government to justify the governmental restraint or restriction
Compare the nature of content-neutral regulation vs. content-based regulation
- Content-neutral regulation - merely concerned with the incidents of speech, ore one that merely controls the time, place or manner, and under well-defined standards
- Content-based regulation - restriction based on the subject matter of the utterance or speech.
Compare the tests for validity of content-neutral and content-based regulations
- Content-neutral is subject to the intermediate approach because it is not designed to suppress any particular message. Hence, a government regulation is sufficiently justified if (1) it is within the constitutional power of Government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the supression of free expression and (4) if the incident restriction on the alleged freedom is no greater than is essential to the furtherance of that interest.
The restriction should be narrowly-tailored to promote an important or significant government interest.
- Content-based regulation is given the strictest scrutiny in light of its inherent and invasive impact. It must overcome the clear and present danger rule and government has the burden of overcoming the presumption of unconstitutionality.
Explain the clear and present danger test
The clear and present danger test complies with the strict scrutiny rule that is applied to content-based regulations. Under this tests, it asks:
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.
Hence, Government must show the type of harm the speech sought to be restrained would bring about – gravity and imminence (cannot be justified by hypothetical fears. Requires compelling reason and restrictions that are neither overbroad nor vague.
What is the analytical framework that has been developed for article iii sec. 4 cases?
Analytical framework (based on Chavez v. Gonzales – CJ Puno discussed all the concepts of prior restraint, subsequent punishment, content based, content neutral). If you are confronted with a content based restriction, particularly prior restraint.
- The test
- The presumption
- The burden of proof
- The party to discharge the burden
- The quantum of evidence necessary
State the clear and present danger test
The question in the clear and present danger test is whether the words are used in such circumstnaces and are of such a nature as to create a clear and present danger that they will bring about the substantive evils.
NOTE: The clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government hasa right to prevent. This rule requires that the evil conseqeuences sought to be prevented must be substantive, extremely serious and the degree of imminence is extremely high.
State the Dangerous Tendency Test
The dangerous tendency doctrine permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated.
Distinguish clear and present danger test from dangerous tendency
The essential difference between the two doctrines relates to the degree of proximity of the apprehended danger which justified the restriction upon speech.
The dangerous tendency doctrine permitted the application of restrictions once a rational connection between the speech restrained and the danger apprehended– the “tendency” of one to create the other – was shown.
The clear and present danger rule, in contrast, requires the Government to defer application of restrictions until the apprehended danger was much more visible until its realization was imminent and nigh at hand. The latter rule was thus considerably more permissive of speech than the former, in contexts for the testing of which they were originally designed.
State the balancing-of-interests test
The balancing-of-interests test is used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation.
Briefly stated, the “balancing” test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation. In the actual application of the “balancing-of-interests” test, the crucial question is: how much deference should be given the legislative judgment? It does not seem to me enough to say that this Court should not concern itself with the wisdom of a particular legislative measure but with the question of constitutional power.
How do we apply the balancing-of-interests test?
A wide range of factors are necessarily relevant in applying the balancing-of-interests test:
1. The social values and importance of the specific aspect of the particular freedom restricted by the legislation;
2. The specific thrust of the restriction ie. whether the restriction is direct or indirect, wheter or not the persons affected are few;
3. the value and importance of the public interest sought to be secured by the legislation – the reference here is to the nature and gravity of the evil which Congress seeks to prevent;
4. whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and
5. whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom.
Are there forms of speech that are unprotected?
Yes. This does not mean that the Constitution is blind to them. This simply means that these forms of speech are amenable to regulation in a way that is very different from protected speech.
These are those generally understood as those “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” However, these may not be used as vehicles for content descrimination (e.g. libel may be proscribed but there can ben o further content discrimination by proscribing only libel critical of government).
Examples:
1. Obscenity
2. Defamation (see Revised Penal Code provisions of libel and slander)
3. Fighting words
What is obscenity?
There is no perfect definition of obscenity but the latest word is that of Miller v. California which established basic guidelines, to wit:
- whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest;
- wheter the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
- whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
BUT i twould be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determening what is patently offensive. No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive and hard core sexual conduct. Examples included (a) patently offensive representation or drescriptions 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.
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 judges sound discretion.
e.g. Art. 201 RPC; thus search and seizure warrant needed for seizure of allegedly obscene materials because the Court determines whether it is obscene since it is a judicial question
When is speech considered defamatory?
An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.
Elements of defamatory speech
- That the allegation ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.
- Publication - there is publication if the material is communicated to a third person. It is not required that the person defamed has read or heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for a mans reputaiton is the estimate in which others hold him, not the good opinion which he has of himself.
- Identifiability - it must be shown that at least a third person or a stranger was able to identify him as the object of the defamatory statement.
- Malice or ill will - 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 ff. cases (qualified privilege): (a) a private communication made by any person to another in the performance of any legal, moral or security duty; and (b) 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.
Differentiate political and commercial speech
Political speech refers to speech “both intended and received as a contribution to public deliberation about some issue, fostering informed and civic minded deliberation.”
Commercial speech has been defined as speech that does no more than propose a commercial transaction.
Commercial speech is closer to becoming a subject to regulation as opposed to political speech. Hence, not all speech are treated the same. (see unprotected speech also)
Speeches with limited protection
- Unprotected speech - libel, slander, obscenity, etc.
- Commercial speech - as opposed to political speech
- Radio and television speech - e.g. broadcasting needs license
- Motion picture
- Speech and government - i.e. speech by those who are part of the public sector
