Commercial Speech | Freedom of Speech and Expression | THE BILL OF RIGHTS

POLITICAL LAW AND PUBLIC INTERNATIONAL LAW > XII. THE BILL OF RIGHTS > F. Freedom of Speech and Expression > 6. Commercial Speech

Commercial Speech refers to expression related solely to the economic interests of the speaker and its audience. It typically includes advertising, marketing, and any form of communication promoting a commercial transaction or economic activity. While commercial speech is protected under the Philippine Constitution, it is subject to a different standard of scrutiny compared to political or personal speech.

Constitutional Framework in the Philippines

The 1987 Philippine Constitution guarantees freedom of speech and expression under Article III, Section 4, 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."

While this provision applies broadly, it also includes commercial speech under its protection. However, the protection afforded to commercial speech is not as extensive as that given to other forms of expression, such as political speech, which is considered central to democratic participation.

Legal Principles and Jurisprudence on Commercial Speech

1. Distinction Between Commercial Speech and Other Forms of Speech Commercial speech is generally defined as speech that does "no more than propose a commercial transaction" (see Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), a landmark U.S. case that influences Philippine jurisprudence). In contrast to political speech, which enjoys the highest level of protection, commercial speech is subject to greater regulation.

2. Intermediate Scrutiny for Commercial Speech The Philippine Supreme Court, while recognizing that commercial speech enjoys protection, subjects it to intermediate scrutiny. This means that restrictions on commercial speech must satisfy the following test:

   • The regulation must serve a substantial government interest.
   • The regulation must directly advance the governmental interest.
   • The regulation must be narrowly tailored, meaning it should not be more extensive than necessary to serve the interest.

   This standard derives from the Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (447 U.S. 557, 1980), a U.S. case which has also influenced local jurisprudence.

3. Central Hudson Test (adopted in Philippine Jurisprudence) The Central Hudson Test, often cited in cases involving commercial speech, provides a four-part analysis to determine whether governmental regulation of commercial speech is constitutional:

   • Is the speech protected by the First Amendment? (In the Philippine context, does it fall under Article III, Section 4 of the Constitution?)
   • Does the government have a substantial interest to justify the regulation?
   • Does the regulation directly advance the governmental interest?
   • Is the regulation narrowly drawn?

   In cases like Adiong v. COMELEC (G.R. No. 103956, March 31, 1992) and Soriano v. Laguardia (G.R. No. 164785, March 15, 2010), the Supreme Court has implicitly followed similar analytical frameworks when dealing with commercial speech and regulatory restrictions.

4. Cases Addressing Commercial Speech in the Philippines

   • Adiong v. COMELEC (G.R. No. 103956, March 31, 1992): This case involved the regulation of election propaganda. The Supreme Court ruled that a COMELEC resolution prohibiting the posting of election propaganda on private vehicles was unconstitutional. The Court held that the prohibition restricted the right to free speech, which includes commercial speech, and that the government had failed to demonstrate a substantial interest justifying such regulation.

   • Chavez v. Gonzales (G.R. No. 168338, February 15, 2008): Though not a pure commercial speech case, this ruling established that commercial speech does receive constitutional protection but can be regulated more freely than other forms of speech, especially when public interest, consumer protection, or public safety is at stake.

5. Consumer Protection and Deceptive Advertising The government has a compelling interest in regulating commercial speech to protect consumers from misleading or deceptive advertisements. For instance, the Consumer Act of the Philippines (Republic Act No. 7394) empowers the government to regulate false, deceptive, or unfair advertising. In such cases, the restriction of commercial speech is justified to safeguard public welfare, and the courts have upheld these regulations when they are necessary and narrowly tailored.

6. Regulation of Tobacco and Alcohol Advertising A prime example of legitimate regulation of commercial speech in the interest of public health is the restriction of tobacco and alcohol advertisements. These restrictions are primarily aimed at reducing public exposure to products that pose significant health risks.

   For example, Republic Act No. 9211, also known as the Tobacco Regulation Act of 2003, restricts tobacco advertisements in mass media. The law limits where and how tobacco products can be marketed, particularly to protect minors from exposure to these harmful products. These restrictions have been upheld by the courts, as they serve the government's interest in promoting public health and reducing smoking rates.

7. Online and Digital Advertising In the modern context, regulation of commercial speech has extended to online and digital advertising. The Philippine Supreme Court has yet to comprehensively rule on the regulation of online commercial speech, but principles from traditional advertising regulation would likely apply. The government may regulate misleading advertisements, fraud, or the promotion of illegal goods or services on digital platforms, provided that these regulations meet the intermediate scrutiny standard discussed above.

Permissible Restrictions on Commercial Speech

1. False or Misleading Commercial Speech False or deceptive commercial speech is not protected under the Constitution. The Consumer Act of the Philippines explicitly prohibits such practices, and the Supreme Court has consistently upheld regulations aimed at curbing false advertising. This includes prohibitions against claims that mislead or deceive consumers about the nature, characteristics, or benefits of a product.

2. Regulations on Time, Place, and Manner Commercial speech can also be subject to time, place, and manner restrictions, provided these regulations are content-neutral, narrowly tailored, and leave open ample alternative channels for communication. For example, advertisements may be restricted from being displayed near schools, or the broadcast of certain advertisements may be limited to late-night television to reduce exposure to vulnerable audiences like children.

3. Commercial Speech in the Context of Public Morals The government may regulate commercial speech that violates public morals, decency, or cultural values. For instance, advertisements that promote illegal products or services, or content deemed offensive to public decency, can be restricted without violating the constitutional guarantee of free speech.

4. National Security and Public Safety Commercial speech may also be curtailed in cases where it poses a direct threat to national security or public safety. The regulation must be carefully drawn to directly address the threat and must be proportional to the risk.

Conclusion

Commercial speech is protected under the Philippine Constitution's guarantee of freedom of speech and expression, but it does not enjoy the same level of protection as political or personal speech. The government has a legitimate interest in regulating commercial speech to protect consumers from deception, promote public health and welfare, and uphold public morals and safety. However, any regulation must satisfy the requirements of intermediate scrutiny, meaning it must serve a substantial governmental interest, directly advance that interest, and be narrowly tailored to avoid unnecessarily burdening free speech.

In practice, the Philippine Supreme Court has upheld regulations on commercial speech, particularly in areas like consumer protection, tobacco, and alcohol advertising, where public interest is clearly at stake. Nonetheless, it has also struck down restrictions that are overly broad or unjustified. Therefore, a careful balance between free expression and legitimate government regulation is maintained in the Philippine legal framework on commercial speech.