PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT UNDER THE BILL OF RIGHTS: FREEDOM OF SPEECH AND EXPRESSION

Constitutional Basis: Freedom of Speech and Expression

The Constitution of the Philippines guarantees freedom of speech and expression under Article III, Section 4 of the 1987 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 reflects the importance of free speech in a democratic society. It ensures the right of individuals to express their ideas and opinions without fear of government censorship or punishment. However, this right is not absolute and must be balanced against other societal interests, including public order, national security, and the rights of others.

PRIOR RESTRAINT: DEFINITION AND EXCEPTIONS

Prior restraint refers to government actions that prevent speech or expression before it occurs. It is considered the most extreme form of censorship because it stops the expression before it can reach the public. As a general rule, prior restraint is presumed unconstitutional and is viewed with hostility by courts because it directly interferes with the freedom of expression.

The landmark U.S. case of Near v. Minnesota (283 U.S. 697, 1931) greatly influenced the development of this doctrine and has been adopted in Philippine jurisprudence. In this case, the U.S. Supreme Court held that the government cannot restrain the publication of news, except in exceptional circumstances. The Philippine Supreme Court has also echoed this presumption against prior restraint, except in a few narrowly defined instances.

Exceptions to Prior Restraint

The Philippine legal system recognizes certain narrow exceptions where prior restraint may be valid, namely:

National Security – When the expression endangers the existence of the state, such as in times of war or emergency, prior restraint may be imposed. For example, the publication of sensitive military information that could jeopardize operations may be subject to prior restraint. The clear and present danger test is often employed to determine if prior restraint is justified.
Obscenity – Materials considered obscene can be subject to prior restraint. In the Philippines, this is governed by the Obscene Publications Law (Article 201 of the Revised Penal Code). The test for obscenity was laid down in Miller v. California (413 U.S. 15, 1973), adapted in Philippine jurisprudence, where content is deemed obscene if it appeals to prurient interests, depicts sexual conduct in an offensive manner, and lacks serious literary, artistic, political, or scientific value.
Libelous Speech – Defamatory statements may be restrained if they clearly violate the law on libel under Article 353 of the Revised Penal Code. However, such restrictions are still subject to careful judicial scrutiny to avoid suppressing legitimate criticisms of public officials and matters of public interest.
Incitement to Violence or Lawless Action – Speech that directly incites imminent violence, rebellion, sedition, or lawless action may be restrained. The test is whether the speech creates a clear and present danger of producing substantial harm.
Contempt of Court – Certain restrictions may be imposed on the press and public commentary about ongoing judicial proceedings to preserve the impartiality of the court and prevent undue influence on judicial decisions. However, such restraints must be balanced against the public's right to information.

Philippine Cases on Prior Restraint

Gonzales v. Comelec (G.R. No. L-27833, April 18, 1969): This case involved a law prohibiting the publication of election surveys before elections. The Court held that prior restraint could be justified only when there is a clear and present danger of substantive evil.
Chavez v. Gonzales (G.R. No. 168338, February 15, 2008): The Court struck down the government’s attempt to stop media outlets from broadcasting a controversial wiretapped conversation of the President, ruling that it constituted an unjustified prior restraint. The clear and present danger rule was not met, as there was no immediate threat to public order.

SUBSEQUENT PUNISHMENT: DEFINITION AND SCOPE

Subsequent punishment refers to penalties imposed after speech or expression has already been made. Unlike prior restraint, which prevents expression before it occurs, subsequent punishment allows the expression to happen but holds the speaker accountable for any illegal or harmful consequences. Common forms of subsequent punishment include criminal sanctions, civil damages, or administrative penalties.

While subsequent punishment is more tolerable than prior restraint, it is still subject to constitutional limitations to avoid the chilling effect on free speech.

Grounds for Subsequent Punishment

Libel: Libelous statements, particularly those that are false and malicious, can be subject to subsequent punishment under Articles 353 to 362 of the Revised Penal Code. However, Philippine courts have recognized that public officials are held to a higher threshold for libel suits, as they must prove "actual malice" or knowledge of falsity, as outlined in New York Times v. Sullivan (376 U.S. 254, 1964).
Sedition, Rebellion, and Incitement to Lawless Violence: Statements that incite rebellion or lawless violence may be punished after the fact if they threaten the public order. The Court has repeatedly upheld the constitutionality of laws punishing such expressions if they pose a clear and present danger.
Obscenity: Subsequent punishment is allowed for obscene materials, with courts determining obscenity based on community standards and applying the test of whether the material is utterly without redeeming social value.
Violation of Election Laws: The Omnibus Election Code prohibits certain forms of speech during election periods, such as electioneering within polling precincts. Violations of these rules may result in subsequent punishment.
Defamation of Public Officials: While criticisms of public officials are generally protected, defamatory falsehoods with malice can result in civil and criminal penalties. However, the standards are higher for public officials and figures, as their actions are subject to public scrutiny.

Philippine Cases on Subsequent Punishment

Adiong v. Comelec (G.R. No. 103956, March 31, 1992): In this case, the Court invalidated a COMELEC resolution prohibiting the display of election posters in private vehicles, ruling that it constituted an unjustified curtailment of the freedom of expression. The ruling affirmed that restrictions on speech, even after the fact, must be justified by a legitimate state interest.
Borjal v. Court of Appeals (G.R. No. 126466, January 14, 1999): The Supreme Court held that public officials and figures must prove actual malice when suing for defamation. The case highlighted the need for a balance between the right to protect one's reputation and the right to criticize public officials.
MVRS Publications v. Islamic Da'wah Council of the Philippines (G.R. No. 135306, January 28, 2003): This case involved libel against a religious group. The Court held that subsequent punishment for libel must be imposed with caution, as free speech, especially involving matters of public interest, should not be stifled unless there is clear and convincing evidence of actual malice.

STANDARDS USED IN DETERMINING THE VALIDITY OF RESTRICTIONS ON SPEECH

Courts in the Philippines employ various tests to evaluate whether restrictions on speech—whether prior restraint or subsequent punishment—are constitutionally valid:

Clear and Present Danger Test: This test requires that the government show that the restricted speech poses a real, imminent threat to public safety, security, or other legitimate interests. This is commonly applied in cases involving incitement to violence or rebellion.
Dangerous Tendency Test: A more lenient test compared to the clear and present danger test, the dangerous tendency test allows restrictions on speech if the speech has the potential to lead to a substantive evil. This was used in early sedition cases but is now considered outdated, having been replaced by the clear and present danger standard.
Balancing of Interests Test: This test weighs the individual's right to free speech against the government's interest in restricting the speech. Courts balance these competing interests and determine which has more weight in a particular situation.
O’Brien Test (for Symbolic Speech): Adopted from U.S. jurisprudence, this test applies to cases involving non-verbal speech or symbolic expression. The Court asks whether the restriction on expression furthers an important government interest, is unrelated to the suppression of free expression, and whether the incidental restriction on speech is no greater than essential.

CONCLUSION

The freedom of speech and expression in the Philippines is a fundamental right but is not absolute. Prior restraint is almost always unconstitutional except in cases where there is a clear and present danger, such as threats to national security, obscenity, or incitement to violence. Subsequent punishment is permissible but subject to stringent safeguards to prevent the suppression of legitimate speech. Courts have consistently emphasized that any restriction on speech must be carefully justified, ensuring that freedom of expression is maintained as a cornerstone of Philippine democracy.