Blog Lecture No. 58: Freedom of Expression

In an unprecendented move, Punzi’s Corner Blog shall be blog-lecturing not once, but twice in one day… but I will rely on our teacher, Fr. Joaquin Bernas, S.J. on this one…

What is the constitutional provision on freedom of speech, expression and of the press?

Article III, Section 4 of the 1987 Constitution 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.

What does “speech,” “expression” and “press” include?

They include all forms of expression, whether oral, written, taped or disc recorded. It also includes movies and symbolic speech such as wearing of armbands as a symbol of protest.

What are the prohibitions regarding the freedom of speech clause of the constitution?

This constitutional provision prohibits:

1. Prior Restraint
2. Subsequent Punishment

What is Prior Restraint?

It means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. This may come in the form of warnings of closure or unjustifiable licensing systems, etc.

As a matter of fact, I believe any form of regulation or move by the state that would have a “chilling effect” on the freedom of speech is covered by the rule against prior restraint.

How about raiding and closing a newspaper for fear it may publish reports “damaging” to the present adminsitration?

It may be covered by this prohibition.

“Such closure is in the nature of privious restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law and constitutes virtual denial of the freedom to express themselves in dissent.” (Burgos Sr., vs. Chief of Staff, AFP, 133 SCRA 800 [1985])

Is the prohibition against prior restraint absolute?

Of course not. But any such system of prior restraint comes to court bearing a heavy presumption against constitutionality.

What are the exemptions?

According to Near vs. Minnesota, 283 US 697 (1931), it is as follows:

When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’ No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

Hence, in simple terms:

1. When a nation is at war, any utternance that cannot be endured so long as men fight.
2. Actual troop movement and other tactical/security matters again at time of war (or arguable rebellion and/or insurrection).
3. Obcenity, at any time
4. Incitements to acts of violence or the overthrow by force of an orderly government.
5. Of course libel is likewise unprotected speech, at any time

What is subsequent punishment?

Simply put, this punishes speech or expression after the fact.

What are the standards of allowable subsequent punishment of expression?

There are three standards:

1. The Clear and Present Danger Test
2. The Dangerous Tendency Test; and
3. The Balancing of Interest Test.

What is the “Clear and Present Danger Rule”?

According to Schenck vs. United States (249 US 47):

“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 the substantive evils that Congress has a right to prevent.”

Hence:

1. There must be a danger
2. It must be clear and present; and
3. Such danger is of such substantive evil that the State/Congress has a right to prevent

Give examples of this danger.

For example, lawless violence, disorder, chaos, rebellion, etc.

What is the “Dangerous Tendency Test”?

Speech may be curtailed or punished when it creates a dangerous tendency which the State has the right to prevent. All it requires is a rational connection between the speech and the evil sought to be prevented.

What is the “Balancing of Interest Test”?

It rests on the theory that it is the Court’s function in the case before it when it finds public interests served by legislation (or executive action) on the one hand and freedom of expression on the other, to balance the one against the other and to arrive at a judgment where the greater weight must be placed.

In short, it rests on the basis that constitutional freedoms are not absolute and that it may be abridged to some extent to seve appropriate and important interests. (paraphrased from Gonzales vs. Comelec, 27 SCRA 899 [1969])

What do we follow here?

It is the Balancing of Interest Rule.

1 Comment

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One response to “Blog Lecture No. 58: Freedom of Expression

  1. hi i found this blog quite useful in studying media law. Thanks this is heaven sent.

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