Freedom of Speech and Expression | THE BILL OF RIGHTS

Freedom of Speech and Expression in the Philippines

The right to freedom of speech and expression is enshrined in Section 4, Article III of the 1987 Philippine Constitution, which states:

"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."

This provision underscores the significance of freedom of speech and expression as a fundamental right in the Philippines, essential to democratic governance and the functioning of a free society.

1. Scope of the Freedom of Speech and Expression

Freedom of speech covers a wide array of communicative activities, including:

• Spoken and written words,
• Symbolic acts or expressions (such as wearing arm bands, flags, or clothing as political statements),
• Peaceful protests, pickets, and demonstrations,
• Artistic works, literature, and media expressions.

This right is not confined to verbal or written communication but extends to all forms of expression that communicate ideas or sentiments, subject to limitations imposed by law.

2. Limitations on Freedom of Speech and Expression

The right to freedom of speech and expression is not absolute. The government may impose restrictions under certain circumstances, provided these restrictions adhere to the following requirements:

• Must be within the bounds of law: The limitations must be clearly defined in laws passed by Congress.
• Reasonable and justified: Any restriction must serve a legitimate government interest, such as national security, public safety, public order, or protection of others' rights and reputations.
• Content-neutral vs. content-based regulation:
  • Content-neutral regulations are those that regulate the time, place, and manner of speech without regard to its content (e.g., requiring permits for rallies in public places). These are typically subjected to intermediate scrutiny, meaning that they must be narrowly tailored to serve an important government interest and leave open alternative means of communication.
  • Content-based regulations, on the other hand, regulate speech based on its message or content (e.g., censorship of specific political or religious views). These are subject to strict scrutiny, meaning that the government must show that the regulation is necessary to achieve a compelling state interest and is the least restrictive means to do so.

Common Grounds for Limiting Freedom of Speech:

• Libel and Slander: Defamatory statements that damage a person's reputation may be penalized through libel (for written statements) or slander (for spoken statements). However, truth is generally a defense in libel cases, and fair comment on matters of public concern is protected under the principle of qualified privilege.
• Obscenity: Speech that is obscene or immoral may be regulated. Obscenity is judged based on the standards of contemporary Filipino values and whether the material in question appeals to the prurient interest.
• Fighting words and incitement to lawless action: Speech that provokes imminent violence or unlawful conduct can be restricted. In the case of Brandenburg v. Ohio (1969, U.S.), the clear and present danger test was refined to determine whether the speech was directed to incite imminent lawless action and was likely to produce such action. This principle has been adopted in Philippine jurisprudence.
• National security and sedition: The government may limit speech that threatens national security or advocates rebellion, insurrection, or sedition.
• Hate speech: While the Philippine Constitution does not explicitly address "hate speech," expressions that incite violence or discrimination based on race, religion, gender, or other protected characteristics may be subject to regulation.
• Public Morals and Decency: The government can regulate speech that is offensive to public morals, but this is often subject to judicial scrutiny due to the highly subjective nature of "moral standards."

3. Jurisprudential Tests in Free Speech Cases

Over the years, the Philippine courts, particularly the Supreme Court, have employed various tests to determine whether a restriction on free speech is constitutional. Some of the most notable tests are:

• Clear and Present Danger Test: Originating from U.S. jurisprudence, this test determines whether the speech poses a clear and immediate danger of causing a significant evil that the state has a right to prevent. This test was applied in cases like Primicias v. Fugoso (1948), where the court upheld the right of the city mayor to require permits for rallies to ensure public order.

• Balancing of Interests Test: In cases where competing rights or interests are at stake (e.g., the right to freedom of expression versus national security), the courts weigh the interests involved and determine which one prevails. This test was used in Gonzales v. COMELEC (1969), where the Supreme Court upheld the ban on pre-election surveys, balancing freedom of expression against the state’s interest in fair and orderly elections.

• O’Brien Test (Intermediate Scrutiny): This test is used to assess content-neutral regulations. It was first articulated in US v. O’Brien (1968) and has been applied in Philippine jurisprudence. The test has four prongs: the regulation must be within the constitutional power of the government, must further an important government interest, that interest must be unrelated to the suppression of free expression, and the incidental restriction on free speech must be no greater than necessary.

• Overbreadth Doctrine: This doctrine invalidates a law that sweeps too broadly and restricts speech that would otherwise be protected. In Adiong v. COMELEC (1992), the Supreme Court struck down a Comelec regulation prohibiting the display of campaign stickers on private vehicles, ruling it as overbroad and a violation of free expression.

• Void-for-Vagueness Doctrine: A law may be invalidated if it is so vague that individuals of ordinary intelligence cannot understand its meaning or determine what conduct is prohibited. In Estrada v. Sandiganbayan (2001), the Supreme Court noted that laws affecting freedom of expression must be clear to avoid undue restriction on speech.

4. Press Freedom

Freedom of expression extends to the freedom of the press, which serves as a watchdog against government abuses and facilitates the free flow of information necessary for democratic governance. However, the press is subject to the same limitations on speech mentioned above, such as libel, obscenity, and national security concerns.

In ABS-CBN Broadcasting Corp. v. COMELEC (2000), the Supreme Court struck down a regulation prohibiting radio and television stations from selling airtime for political advertisements, ruling that it violated freedom of expression and press freedom.

5. Freedom of Assembly and Petition

Closely related to freedom of speech and expression is the right to peaceful assembly and to petition the government for redress of grievances. This right allows people to publicly express their views through rallies, demonstrations, and protests, provided they remain peaceful and do not incite violence or disorder.

In Bayan v. Ermita (2006), the Supreme Court ruled that the requirement for permits for assemblies was constitutional, provided that such permits were granted on a content-neutral basis and were not used to suppress dissenting opinions.

6. Freedom of Expression in Cyberspace

With the rise of the internet and social media, new issues have emerged regarding freedom of speech in cyberspace. The Cybercrime Prevention Act of 2012 (Republic Act No. 10175) has been the subject of controversy, especially its provisions on online libel. In Disini v. Secretary of Justice (2014), the Supreme Court upheld the constitutionality of online libel but struck down other provisions of the law, including the takedown clause, which allowed the government to restrict access to content without judicial approval.

7. Recent Developments

In recent years, freedom of speech and expression has been a focal point in legal debates concerning anti-terrorism laws and the Anti-Terrorism Act of 2020 (Republic Act No. 11479). Critics argue that certain provisions of the law, such as those related to the vague definition of "terrorism" and "incitement to terrorism," could be used to suppress dissent and stifle free speech. As of 2021, the Supreme Court has upheld most parts of the Anti-Terrorism Act but has modified or invalidated some provisions that were overly broad.

Conclusion

The freedom of speech and expression is a bedrock of democratic society and is fiercely protected under Philippine law. However, it is not absolute, and certain limitations exist to balance the need for public order, morality, and national security. The Philippine courts play a critical role in navigating these limitations, ensuring that government regulations on speech adhere to constitutional standards and respect individual liberties.