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Freedom of Speech and


Expression:
Basic Principles & Doctrines1
By Atty. Alexis F. Medina2

Sections 4, Article III of the Constitution provides:

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.

Freedom of Expression:
Meaning and Coverage

The constitutional guarantee of freedom of expression means that the


government has no power to restrict expression because of its message, its ideas, its
subject matter, or its content. (Social Weather Station, et al. v. Comelec G.R. No.
147571, May 5, 2001; Police Department of Chicago v. Mosley, 408 US 92, [1972])

The Constitutional guarantee extends to nearly all forms of


communication:

- speech, print and assembly;


- political, economic, scientific, news, or informational expressions or ideas,
whether conventional or not; and
- all forms of media, whether print or broadcast.

(Chavez v. Gonzales, 15 February 2008 G.R. No. 168338)

1 This material is a working draft. Contents may be revised, modified, or updated without prior notice.
2 AB Political Science, University of the Philippines (U.P.), Diliman; Order of the Purple Feather (OPF), U.P.,
College of Law; Valedictorian, San Sebastian College-Recoletos, Manila, College of Law; Philippine
Representative to the World Trade Organization (WTO) Trade Facilitation Preparatory Committee Meeting
for Legal Review (Geneva, Switzerland, 2014); Philippine Representative, Senior Officials Meeting, Asia
Pacific Economic Cooperation (APEC), 2015; former Philippine Youth delegate to Japan and Southeast Asia;
Litigation lawyer; formerly with the Ponce Enrile Reyes & Manlastas Law Offices (Pecabar); Professor of
Constitutional Law, San Sebastian College-Recoletos, Manila, College of Law, and Polytechnic University of
the Philippines, Manila, College of Law; former professor of Constitutional Law, New Ear University, College
of Law, Quezon City; Bar Review Lecturer, Recoletos Review Center, Manila
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The constitutional protection extends to symbolic speech

People often communicate through symbols other than words. Marches,


picketing, armbands, and peace signs are just a few examples of obviously expressive
conduct. Thus, the U.S. Supreme Court has protected conduct that communicates under
the First Amendment. (Chemerinsky, Constitutional Law: Principles and Policies, 4th ed.
2011, Worsters Kluwer, New York, p. 1097)

The free speech guarantee also protects what is called symbolic speech.
Symbolic speech is conduct or activity expressing an idea or emotion without the use of
words or language. (See Encyclopedia of the United States Constitution, David Schultz,
Facts On File, Inc., New York, 2009)

An example of symbolic speech is wearing black armbands as a sign of protest


against the government. The U.S. Supreme Court ruled that the suspension of students
for wearing black armbands with a white a peace sign to protest the Vietnam War was a
violation of the students constitutional right to free speech. The U.S. Supreme Court
explained that the wearing of an armband for the purpose of expressing certain views
is the type of symbolic act that is within the first amendment; it is closely akin to pure
speech. (See Tinker v. Des Moines Independent CommunitySchool District, 393 U.S.
503, 89 S. Ct. 733, 21 L. Ed. 2d 731 [1969])

Four Basic Prohibitions


Under the Free Speech Guarantee

a) Prior Restraint
b) Subsequent Punishment
c) Vague Laws
d) Overbroad Laws

Freedom from Prior Restraint

What is a prior restraint?

Prior restraint refers to official governmental restrictions on the press or other


forms of expression in advance of actual publication or dissemination. Freedom from
prior restraint is largely freedom from government censorship of publications, whatever
the form of censorship, and regardless of whether it is wielded by the executive,
legislative or judicial branch of the government. Any system of prior restraints of
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expression comes to this Court bearing a heavy presumption against its validity. (1-
United Transport Koalisyon [1-Utak] v. Commission on Elections, G.R. No. 206020, April
14, 2015)

Prior restraint basically means government censorship. It refers to official


governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination. (Chavez v. Gonzales, 15 February 2008 G.R. No. 168338)

Prior restraint refers to official governmental restrictions on the press or other


forms of expression in advance of actual publication or dissemination. (Newsounds
Broadcasting v. Meer, G.R. Nos. 170270 & 179411, April 2, 2009)

The clearest definition of prior restraint is an administrative system or a judicial


order that prevents speech from occurring. (Chemerinsky, Constitutional Law: Principles
and Policies, 4th ed. 2011, Worsters Kluwer, New York, p. 978)

Examples of prior restraints:

a) requiring approval of a proposal to publish;


b) licensing or permits as prerequisites to publication, including the payment of
license taxes for the privilege to publish;
c) injunctions against publication;
d) closure of the business and printing offices of certain newspapers, resulting in
the discontinuation of their printing and publication, are deemed as previous restraint or
censorship; or
e) any law or official that requires some form of permission to be had before
publication can be made (Chavez v. Gonzales, 15 February 2008 G.R. No. 168338)

Kinds of prior restraints:


Content-based & Content-neutral

Content-based restraint or censorship refers to restrictions "based on the subject


matter of the utterance or speech." In contrast, content-neutral regulation includes
controls merely on the incidents of the speech such as time, place, or manner of the
speech. (Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21,
2015)

Jurisprudence distinguishes between a content-neutral regulation, i.e.,


merely concerned with the incidents of the speech, or one that merely controls the time,
place or manner, and under well-defined standards; and a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the utterance or
speech. Content-based laws are generally treated as more suspect than content-neutral
laws because of judicial concern with discrimination in the regulation of expression.
Content-neutral regulations of speech or of conduct that may amount to speech, are
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subject to lesser but still heightened scrutiny. (Newsounds Broadcasting v. Meer, G.R.
Nos. 170270 & 179411, April 2, 2009)

Prior restraint on expression is content-based if the restraint is aimed at the


message or idea of the expression. Courts will subject to strict scrutiny content-based
restraint. If the content-based prior restraint is directed at protected expression, courts
will strike down the restraint as unconstitutional because there can be no content-based
prior restraint on protected expression. The analysis thus turns on whether the prior
restraint is content-based, and if so, whether such restraint is directed at protected
expression, that is, those not falling under any of the recognized categories of
unprotected expression.

If the prior restraint is not aimed at the message or idea of the expression, it is
content-neutral even if it burdens expression. A content-neutral restraint is a restraint
which regulates the time, place or manner of the expression in public places without any
restraint on the content of the expression. Courts will subject content-neutral restraints
to intermediate scrutiny. (Carpio, Separate Concurring Opinion, Chavez v. Gonzales, G.R.
No. 168338, February 15, 2008)

Content-based prior restraint

What it restricts: Subject matter of the speech

The restriction is based on the subject matter of the utterance or speech.


(Chavez v. Gonzales, 15 February 2008 G.R. No. 168338)

To allow the government the choice of permissible subjects for public debate
would be to allow the government control over the search for political truth. (See
Consolidated Edison Co. of N.Y. v. Public Service Comm 447 U.S. 530, 538 [1980])

Presumption with respect to content-based prior restraint:


Prior restraints are presumed invalid

Any system of prior restrains of expression comes to this Court bearing a heavy
presumption against its constitutional validity. (New York times v. United States, 403
U.S., 713, 714 [1971])
Any system of prior restraints of expression comes to this Court bearing a heavy
presumption against its validity. (1-United Transport Koalisyon [1-Utak] v. Commission
on Elections, G.R. No. 206020, April 14, 2015)
Any system of prior restraints of expression bears a heavy presumption against
its constitutional validity. The Government thus carries a heavy burden of showing
justification for the enforcement of such restraint. There is thus a reversal of the normal
presumption of validity that inheres in every legislation. (Social Weather Station, et al. v.
Comelec G.R. No. 147571, May 5, 2001)
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Deeply ensconced in our fundamental law is the hostility against all prior
restraints on speech, and any act that restrains speech is presumed invalid, and any act
that restrains speech is hobbled by the presumption of invalidity and should be greeted
with furrowed brows. (Chavez v. Gonzales, 15 February 2008 G.R. No. 168338)

When content-based prior restraints are valid:

1) Anti-government speech:

Content-based prior restraint is valid if it passes the clear and


present danger test

A governmental action that restricts freedom of speech or of the


press based on content is given the strictest scrutiny in light of its
inherent and invasive impact. Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional
muster, with the government having the burden of overcoming the
presumed unconstitutionality. (Emphasis supplied) (Chavez v. Gonzales,
15 February 2008 G.R. No. 168338)

The clear and present danger test, is as follows:

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. (Emphasis supplied) (Chavez v. Gonzales, 15 February 2008
G.R. No. 168338)

Prior restraint on speech based on its content cannot be justified


by hypothetical fears, but only by showing a substantive and imminent
evil that has taken the life of a reality already on ground. (Emphasis
supplied) (Chavez v. Gonzales, 15 February 2008 G.R. No. 168338)

Under the doctrine, freedom of speech and of press is susceptible


of restriction when and only when necessary to prevent grave and
immediate danger to interests which the government may lawfully protect.
As it were, said doctrine evolved in the context of prosecutions for
rebellion and other crimes involving the overthrow of government. It was
originally designed to determine the latitude which should be given to
speech that espouses anti-government action, or to have serious and
substantial deleterious consequences on the security and public order of
the community. (La Guardia v. Soriano (G.R. No. 164785, April 29, 2009)

The government has a right to be protected against broadcasts which


incite the listeners to violently overthrow it. Radio and television may not
be used to organize a rebellion or to signal the start of widespread
uprising. (Eastern Broadcasting v. Dans, G.R. No. L-59329 July 19, 1985)
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2) Offensive & indecent language, or other forms of speech not involving anti-
government speech, or without security or public order consequences:

Content-based prior restraint is valid if it passes the balancing of


interest test

To be sure, the clear and present danger doctrine is not the only test
which has been applied by the courts. Generally, said doctrine is applied to cases
involving the overthrow of the government and even other evils which do not
clearly undermine national security. Since not all evils can be measured in terms
of "proximity and degree" the Court, however, in several casesAyer
Productions v. Capulong and Gonzales v. COMELEC, applied the balancing of
interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC,
elucidated in his Separate Opinion that "where the legislation under constitutional
attack interferes with the freedom of speech and assembly in a more generalized
way and where the effect of the speech and assembly in terms of the probability
of realization of a specific danger is not susceptible even of impressionistic
calculation," then the "balancing of interests" test can be applied. (La Guardia v.
Soriano, G.R. No. 164785, April 29, 2009)

The Court explained also in Gonzales v. COMELEC the "balancing of


interests" test:

In enunciating standard premised on a judicial balancing of the


conflicting social values and individual interests competing for ascendancy in
legislation which restricts expression, the court in Douds laid the basis for what
has been called the "balancing-of-interests" test which has found application in
more recent decisions of the U.S. Supreme Court. 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.

xxxx

Although the urgency of the public interest sought to be secured by


Congressional power restricting the individuals freedom, and the social
importance and value of the freedom so restricted, "are to be judged in the
concrete, not on the basis of abstractions," a wide range of factors are
necessarily relevant in ascertaining the point or line of equilibrium. xxx

This balancing of interest test, to borrow from Professor Kauper, rests


on the theory that it is the courts function in a case before it when it finds public
interests served by legislation, on the one hand, and the free expression clause
affected by it, on the other, to balance one against the other and arrive at a
judgment where the greater weight shall be placed. If, on balance, it appears
that the public interest served by restrictive legislation is of such nature that it
outweighs the abridgment of freedom, then the court will find the legislation
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valid. In short, the balance-of-interests theory rests on the basis that


constitutional freedoms are not absolute, not even those stated in the free
speech and expression clause, and that they may be abridged to some extent to
serve appropriate and important interests. To the mind of the Court, the
balancing of interest doctrine is the more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a
three (3)-month suspension was slapped on him for breach of MTRCB rules. In
this setting, the assertion by petitioner of his enjoyment of his freedom of speech
is ranged against the duty of the government to protect and promote the
development and welfare of the youth.

After a careful examination of the factual milieu and the arguments


raised by petitioner in support of his claim to free speech, the Court rules that
the governments interest to protect and promote the interests and welfare of
the children adequately buttresses the reasonable curtailment and valid restraint
on petitioners prayer to continue as program host of Ang Dating Daan during the
suspension period.

No doubt, one of the fundamental and most vital rights granted to


citizens of a State is the freedom of speech or expression, for without the
enjoyment of such right, a free, stable, effective, and progressive democratic
state would be difficult to attain. Arrayed against the freedom of speech is the
right of the youth to their moral, spiritual, intellectual, and social being which the
State is constitutionally tasked to promote and protect. Moreover, the State is
also mandated to recognize and support the vital role of the youth in nation
building as laid down in Sec. 13, Art. II of the 1987 Constitution.

Indisputably, the State has a compelling interest in extending social


protection to minors against all forms of neglect, exploitation, and immorality
which may pollute innocent minds. It has a compelling interest in helping parents,
through regulatory mechanisms, protect their childrens minds from exposure to
undesirable materials and corrupting experiences. The Constitution, no less, in
fact enjoins the State, as earlier indicated, to promote and protect the physical,
moral, spiritual, intellectual, and social well-being of the youth to better prepare
them fulfill their role in the field of nation-building. In the same way, the State is
mandated to support parents in the rearing of the youth for civic efficiency and
the development of moral character.

Petitioners offensive and obscene language uttered in a television


broadcast, without doubt, was easily accessible to the children. His statements
could have exposed children to a language that is unacceptable in everyday use.
As such, the welfare of children and the States mandate to protect and care for
them, as parens patriae, constitute a substantial and compelling government
interest in regulating petitioners utterances in TV broadcast as provided in PD
1986. (La Guardia v. Soriano, G.R. No. 164785, April 29, 2009)
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3) Captive Audience Doctrine: When a listener cannot, as a


practical matter, escape from intrusive speech, the speech can be
restricted.

The captive-audience doctrine states that when a listener cannot, as a


practical matter, escape from intrusive speech, the speech can be restricted. The
"captive-audience" doctrine recognizes that a listener has a right not to be
exposed to an unwanted message in circumstances in which the communication
cannot be avoided.

A regulation based on the captive-audience doctrine is in the guise of


censorship, which undertakes selectively to shield the public from some kinds of
speech on the ground that they are more offensive than others. Such selective
restrictions have been upheld only when the speaker intrudes on the privacy of
the home or the degree of captivity makes it either impossible or impractical for
the unwilling viewer or auditor to avoid exposure.

In Consolidated Edison Co. v. Public Service Commission, the Supreme


Court of the United States of America (U.S. Supreme Court) struck down the
order of New York Public Service Commission, which prohibits public utility
companies from including inserts in monthly bills discussing controversial issues
of public policy. The U.S. Supreme Court held that "[t]he prohibition cannot be
justified as being necessary to avoid forcing appellants views on a captive
audience, since customers may escape exposure to objectionable material simply
by throwing the bill insert into a wastebasket."

Similarly, in Erznoznik v. City of Jacksonville, the U.S. Supreme Court


nullified a city ordinance, which made it a public nuisance and a punishable
offense for a drive-in movie theater to exhibit films containing nudity, when the
screen is visible from a public street or place. The U.S. Supreme Court opined
that the degree of captivity is not so great as to make it impracticable for an
unwilling viewer to avoid exposure x x x.

Thus, a government regulation based on the captive-audience doctrine


may not be justified if the supposed "captive audience" may avoid exposure to
the otherwise intrusive speech. The prohibition under Section 7(g) items (5) and
(6) of Resolution No. 9615 is not justified under the captive-audience doctrine;
the commuters are not forced or compelled to read the election campaign
materials posted on PUVs and transport terminals. Nor are they incapable of
declining to receive the messages contained in the posted election campaign
materials since they may simply avert their eyes if they find the same unbearably
intrusive. (1-United Transport Koalisyon v. Commission on Elections, G.R. No.
206020, April 14, 2015)
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Content-neutral prior restraint

What it regulates: Time, place and manner of speech

Merely concerned with the incidents of the speech, or one that merely controls
the time, place or manner, and under well-defined standards. (Chavez v. Gonzales, 15
February 2008 G.R. No. 168338)

A law regulating speech is content-neutral if it applies to all speech regardless of


the message. (Chemerinsky, Constitutional Law: Principles and Policies, 4th ed. 2011,
Worsters Kluwer, New York, p. 964)

When a content-neutral prior restraint is valid:

A content-neutral prior restraint is valid if it passes the intermediate


test or OBrien test

Intermediate test or OBrien test (laid down by the United States Supreme
Court, through Chief Justice Warren, in United States v. OBrien

A governmental regulation is sufficiently justified if it is within the constitutional


power of the Government, if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free expression;
and if the incident restriction on alleged [freedom of speech & expression] is no greater
than is essential to the furtherance of that interest. (Chavez v. Gonzales, 15 February
2008 G.R. No. 168338; Social Weather Station, et al. v. Comelec G.R. No. 147571. May
5, 2001)

A content-neutral regulation, i.e., which is merely concerned with the incidents of


the speech, or one that merely controls the time, place or manner, and under well-
defined standards, is constitutionally permissible, even if it restricts the right to free
speech, provided that the following requisites concur: first, the government regulation is
within the constitutional power of the Government; second, it furthers an important or
substantial governmental interest; third, the governmental interest is unrelated to the
suppression of free expression; and fourth, the incidental restriction on freedom of
expression is no greater than is essential to the furtherance of that interest. (1-United
Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April 14, 2015)

Examples of invalid content-based prior restraints:

Prohibiting non-candidates from posting on their private


property tarpaulins containing opinions that may affect elections is a
content-based regulation that is presumed invalid unless the
prohibition passes the clear and present danger test.
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There is no compelling and substantial state interest endangered by the


posting of the tarpaulin as to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the right of non-
candidate petitioners to post the tarpaulin in their private property.

Content-based restraint or censorship refers to restrictions "based on the


subject matter of the utterance or speech." The regulation is content-based.
Expression by the electorate on contemporary issues is a form of speech
protected as a fundamental and primordial right by our Constitution. (The
Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21,
2015)

Prohibiting owners of Public Utility Vehicles (PUVs) and


transport terminals from posting of an election campaign material
during an election period in their PUVs and transport terminals

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 9615 unduly infringe on the fundamental right of the people to freedom of
speech. Central to the prohibition is the freedom of individuals, i.e., the owners
of PUVs and private transport terminals, to express their preference, through the
posting of election campaign material in their property, and convince others to
agree with them.

Pursuant to the assailed provisions of Resolution No. 9615, posting an


election campaign material during an election period in PUVs and transport
terminals carries with it the penalty of revocation of the public utility franchise
and shall make the owner thereof liable for an election offense.

The prohibition constitutes a clear prior restraint on the right to free


expression of the owners of PUVs and transport terminals. As a result of the
prohibition, owners of PUVs and transport terminals are forcefully and effectively
inhibited from expressing their preferences under the pain of indictment for an
election offense and the revocation of their franchise or permit to operate. (1-
United Transport Koalisyon [1-Utak] v. Commission on Elections, G.R. No.
206020, April 14, 2015)

Closing down a radio station to prevent its operation due to the


political views of its broadcasters is an invalid act of prior restraint on
speech.

The bare acts of closing the radio stations or preventing their operations
as an act of prior restraint against speech, expression or of the press. The
closure of petitioners radio stations is clearly tainted with ill motives. It must be
pointed out that in the 2001 elections, Bombo Radyo was aggressive in exposing
the widespread election irregularities in Isabela that appear to have favored
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respondent Dy and other members of the Dy political dynasty. It is just too


coincidental that it was only after the 2001 elections (i.e., 2002) that the Mayors
Office started questioning petitioners applications for renewal of their mayors
permits. (Newsounds Broadcasting v. Meer, G.R. Nos. 170270 & 179411, April 2,
2009)

Court injunction against publication of certain matters is a form


of prior restraint.

A court order preventing a newspaper from publishing articles that


contain malicious, scandalous and defamatory matter is a form of prior
restraint. (See Near v. Minnesota, 283 U.S. 687 [1931])

Government warnings through press statements to the


broadcast media not to broadcast wiretapped tapes is an invalid prior
restraint.

Any act done, such as a speech uttered, for and on behalf of the
government in an official capacity is covered by the rule on prior restraint. The
concept of an "act" does not limit itself to acts already converted to a formal
order or official circular. Otherwise, the non-formalization of an act into an official
order or circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as
they constitute impermissible forms of prior restraints on the right to free speech
and press.

There is enough evidence of chilling effect of the complained acts on


record. The warnings given to media came from no less the NTC, a regulatory
agency that can cancel the Certificate of Authority of the radio and broadcast
media. They also came from the Secretary of Justice, the alter ego of the
Executive, who wields the awesome power to prosecute those perceived to be
violating the laws of the land. After the warnings, the KBP inexplicably joined the
NTC in issuing an ambivalent Joint Press Statement. After the warnings,
petitioner Chavez was left alone to fight this battle for freedom of speech and of
the press. This silence on the sidelines on the part of some media practitioners is
too deafening to be the subject of misinterpretation. (Chavez v. Gonzales, 15
February 2008 G.R. No. 168338)

Example of invalid content-neutral prior restraint

Comelec prohibition on the publication and release of surveys of


voting preferences for candidates for a certain period before an
election is invalid.
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The Comelec rule that surveys affecting national candidates shall not be
published fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an election is an invalid
prior restraint by the Supreme Court.

By prohibiting the publication of election survey results because of the


possibility that such publication might undermine the integrity of the election,
Comelec actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other opinion
takers.

Even if the governmental interest sought to be promoted is unrelated to


the suppression of speech and the resulting restriction of free expression is only
incidental, nonetheless fails to meet criterion of the O 'Brien test, namely, that
the restriction be not greater than is necessary to further the governmental
interest. As already stated, aims at the prevention of last-minute pressure on
voters, the creation of bandwagon effect, "junking" of weak or "losing"
candidates, and resort to the form of election cheating called "dagdag-bawas."
Praiseworthy as these aims of the regulation might be, they cannot be attained
at the sacrifice of the fundamental right of expression, when such aim can be
more narrowly pursued by punishing unlawful acts, rather than speech.

The prohibition is invalid because (1) it imposes a prior restraint on the


freedom of expression, (2) it is a direct and total suppression of a category of
expression even though such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by means other
than suppression of freedom of expression. (Social Weather Station v. Comelec,
G.R. No. 147571, May 5, 2001)

Prior restraints on broadcast media:


The freedom of the broadcast media is lesser in scope

Broadcast media, film and video may be subjected to a system of prior


restraints, but any content-based restriction must still pass the clear and present danger
test.

Why prior restraint on broadcast media may allowed

Contrasted with the regime in respect of books, newspapers, magazines and


traditional printed matter, broadcasting, film and video have been subjected to
regulatory schemes. (Emphasis supplied) (Chavez v. Gonzales, 15 February 2008 G.R.
No. 168338)
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As emphasized in Gonzalez v. Kalaw Katigbak, the freedom of broadcast


media is, in terms of degree of protection it deserves, lesser in scope, especially as
regards television, which reaches every home where there is a set, and where children
will likely be among the avid viewers of the programs shown. The same case also laid
the basis for the classification system of the MTRCB when it stated, "It cannot be denied
though that the State as parens patriae is called upon to manifest an attitude of caring
for the welfare of the young. (Emphases supplied) (Soriano v. Laguardia, G.R. No.
164785, April 29, 2009)

Television is a medium that reaches even the eyes and ears of children. (Iglesia
ni Cristo v. Court of Appeals, 26 July 1996)

According to U.S. Courts, the three major reasons why broadcast media stands
apart from print media are: (a) the scarcity of the frequencies by which the medium
operates [i.e., airwaves are physically limited while print medium may be limitless]; (b)
its pervasiveness as a medium; and (c) its unique accessibility to children. (Chavez v.
Gonzales, 15 February 2008 G.R. No. 168338)

Philippine jurisprudence has also echoed a differentiation in treatment between


broadcast and print media. (Chavez v. Gonzales, 15 February 2008 G.R. No. 168338)

That broadcast media is subject to a regulatory regime absent in print media is


observed also in other jurisdictions, where the statutory regimes in place over broadcast
media include elements of licensing, regulation by administrative bodies, and censorship.
As explained by a British author: x x x The stricter system of controls seems to have
been adopted in answer to the view that owing to their particular impact on
audiences, films, videos and broadcasting require a system of prior restraints, whereas
it is now accepted that books and other printed media do not. (Chavez v. Gonzales, 15
February 2008 G.R. No. 168338)

The Movie and Television Review and Classification Board


(MTRCB) has the power to regulate and even restrain prime-time
television broadcast.
The law gives the Board the power to screen, review and examine all
television programs. By the clear terms of the law, the Board has the power
to approve, delete x x x and/or prohibit the x x x exhibition and/or television
broadcast of x x x television programs x x x. The law also directs the Board to
apply contemporary Filipino cultural values as standard to determine those
which are objectionable for being immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission of violence
or of a wrong or crime. (Iglesia ni Cristo v. Court of Appeals, 26 July 1996)(See
PD 1986)
P.D. No. 1986 gives (the Movie and Television Review and Classification
Board (MTRCB) the power to screen, review and examine all television
programs, emphasizing the phrase all television programs, thus:
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The law gives the Board the power to screen, review and
examine all television programs. By the clear terms of the law, the Board
has the power to approve, delete x x x and/or prohibit the x x x exhibition
and/or television broadcast of x x x television programs x x x. The law also
directs the Board to apply contemporary Filipino cultural values as standard to
determine those which are objectionable for being immoral, indecent, contrary
to law and/or good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime. (MTRCB v. ABS-CBN, 17
January 2005)

The MTRCB can validly suspend TV hosts or prevent the showing


of TV shows.

Any simplistic suggestion, however, that the MTRCB would be crossing


the limits of its authority were it to regulate and even restrain the prime-time
television broadcast of indecent or obscene speech in a "G" rated program
is not acceptable. As made clear in Eastern Broadcasting Corporation, "the
freedom of television and radio broadcasting is somewhat lesser in scope than
the freedom accorded to newspaper and print media." The MTRCB, as a
regulatory agency, must have the wherewithal to enforce its mandate, which
would not be effective if its punitive actions would be limited to mere fines.
Television broadcasts should be subject to some form of regulation, considering
the ease with which they can be accessed, and violations of the regulations must
be met with appropriate and proportional disciplinary action. The suspension of a
violating television program would be a sufficient punishment and serve as a
deterrent for those responsible. The prevention of the broadcast of
petitioners television program is justified, and does not constitute
prohibited prior restraint. (Emphases supplied) (Soriano v. Laguardia, G.R.
No. 164785, April 29, 2009)

Content-based prior restraint on broadcast media must still pass


the clear and present danger test.

Regardless of the regulatory schemes that broadcast media is subjected


to, the Court has consistently held that the clear and present danger test applies
to content-based restrictions on media, without making a distinction as to
traditional print or broadcast media. (Chavez v. Gonzales, 15 February 2008 G.R.
No. 168338)

In x-rating the TV program of the petitioner, the MTRCB failed to apply


the clear and present danger rule. In American Bible Society v. City of
Manila, this Court held: The constitutional guaranty of free exercise and
enjoyment of religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right can be justified like
other restraints on freedom of expression on the ground that there is a clear
P a g e | 15

and present danger of any substantive evil which the State has the right to
prevent. In Victoriano vs. Elizalde Rope Workers Union, we further ruled that
x x x it is only where it is unavoidably necessary to prevent an immediate and
grave danger to the security and welfare of the community that infringement of
religious freedom may be justified, and only to the smallest extent
necessary to avoid the danger. (Iglesia ni Cristo v. Court of Appeals, 26
June 1996)

(NOTE: This ruling in Iglesia ni Cristo v. Court of Appeals effectively


modified Section 3 of P.D. No. 1986, which empowers the MTRCB prohibit the
importation, exportation, production, copying, distribution, sale, lease, exhibition
and/or television broadcast of the motion pictures, television programs with a
dangerous tendency to encourage the commission of violence or of a wrong or
crime. The legal ground should now be the clear and present danger test.)

Freedom from Subsequent Punishment

Freedom of expression is not an absolute, nor is it an unbridled license that


gives immunity for every possible use of language and prevents the punishment of those
who abuse this freedom. (Chavez v. Gonzales, 15 February 2008 G.R. No. 168338)

Unprotected speech in general

There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the libelous,
and the insulting or fighting words, those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace. Such utterances are no essential part
of any exposition of ideas, and are 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. (Social Weather Station, et al. v. Comelec G.R. No. 147571, May 5,
2001)

In net effect, some forms of speech are not protected by the Constitution,
meaning that restrictions on unprotected speech may be decreed without running afoul
of the freedom of speech clause. A speech would fall under the unprotected type if the
utterances involved are "no essential part of any exposition of ideas, and are of such
slight social value as a step of truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality." Being of little or no
value, there is, in dealing with or regulating them, no imperative call for the application
of the clear and present danger rule or the balancing-of-interest test, they being
essentially modes of weighing competing values, or, with like effect, determining which
P a g e | 16

of the clashing interests should be advanced. (Soriano v. Laguardia, G.R. No. 164785,
April 29, 2009)

Examples of unprotected speech

These forms of speech/expressions are subject to subsequent punishment

a) Libel

Libel is defined under Article 353 of the Revised Penal Code as a public
and malicious imputation of a crime, or of a vice or defect, real or imaginary, or
any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit or contempt of a natural or juridical person, or to blacken the
memory of one who is dead. (Brilliante v. Court of Appeals, 19 October 2004)
Cyberlibel is unprotected speech

Libel is not a constitutionally protected speech and the government has an


obligation to protect private individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation to Article 355 of the penal
code, already punishes it. In effect, Section 4(c)(4) above merely affirms that
online defamation constitutes "similar means" for committing libel.

The cybercrime law penalizes the author of the libelous statement or article.
(Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014)

b) Contempt of court

See Rule 71 of the Rules of Court.

Freedom of speech and expression, like other constitutional freedoms, is


not absolute. It is subject to the limitations of equally important public interests
such as the maintenance of the integrity and orderly functioning of the
administration of justice. (Complaint of Mr. Aurelio Arrienda Against Justices
Reynato Puno, et al. [A.M. No. 03-11-30-SC. June 9, 2005])

Proscribed then are, inter alia, the use of foul language which ridicules
the high esteem for the courts, creates or promotes distrust in judicial
administration, or tends to undermine the confidence of the people in the
integrity of the members of this Court and to degrade the administration of
justice by this Court; or offensive, abusive and abrasive language; or
disrespectful, offensive, manifestly baseless and malicious statements in
pleadings or in a letter addressed to the judge; or disparaging, intemperate, and
uncalled for remarks. (Complaint of Mr. Aurelio Arrienda Against Justices
Reynato Puno, et al. [A.M. No. 03-11-30-SC. June 9, 2005])
P a g e | 17

c) Incitements to rebellion or sedition (seditious speech)


See Articles 139 and 142 of the Revised Penal Code
The government has a right to be protected against broadcasts which
incite the listeners to violently overthrow it. Radio and television may not
be used to organize a rebellion or to signal the start of widespread
uprising. (Eastern Broadcasting v. Dans, G.R. No. L-59329 July 19, 1985)

d) Threats

See Articles 282, 283 and 285 of the Revised Penal Code

e) Obscenity

See Articles 200 and 201 of the Revised Penal Code (Offenses against
decency and good customs)

Miller Test:
Basic guidelines in determining whether an expression is obscene:

"(a) whether 'the average person, applying contemporary standards'


would find the work, taken as a whole, appeals to the prurient interest . . .;
(b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value." (People v. Pita, 05 October 1989, citing Miller v.
California 413 US 15)

f) Communications endangering national security

See Article 118 (inciting to war) and 120 (correspondence with hostile
country) of the Revised Penal Code

See also the Espionage Act (CA 616) which punishes, among others,
unlawful disclosure of information affecting national defense, disloyal acts or
words in times of peace and disloyal acts or words in times of war.

Commercial speech is protected speech

Republic Act (R.A.) 10175, the Cybercrime Prevention Act of 2012 penalizes the
transmission of unsolicited commercial communications, also known as "spam."

To prohibit the transmission of unsolicited ads would deny a person the right to
read his emails, even unsolicited commercial ads addressed to him. Commercial speech
P a g e | 18

is a separate category of speech which is not accorded the same level of protection as
that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection. The State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression. (Disini v. Secretary of Justice, G.R. No. 203335,
February 11, 2014)

The Constitution protects commercial speech, usually in the form of advertising,


from unwarranted governmental regulation, but not to the same degree as that which is
given to noncommercial forms of expression. The Constitution protects commercial
speech that is not false or misleading and that does not advertise illegal or harmful
activity. Commercial speech may be restricted only to further a substantial government
interest and only if the restriction actually furthers that interest. (see Central Hudson
Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561 (1980; Gale
Encyclopedia of American Law, 3rd Edition Volume 4, p. 549)

In, Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557,
561 (1980) the U.S. Supreme Court held that a statute banning promotional advertising
by public utilities was unconstitutional and that commercial speech will be protected if:
(1) it concerns lawful activity and is not misleading; (2) the asserted government
interest is not substantial; (3) the regulation does not directly advance the asserted
governmental interest; and (4) the regulation is more extensive than is necessary to
serve that interest. (Gale Encyclopedia of American Law, 3rd Edition Volume 4, p. 549)

Libel as Unprotected Speech


Meaning of libel

To be liable for libel, the following elements must be shown to exist:


(a) the allegation of a discreditable act or condition concerning another
(defamatory imputation);
(b) publication of the charge;
(c) identity of the person defamed; and
(d) malice. (Brilliante v. Court of Appeals, 19 October 2004)

The last element, malice, is presumed, if the first element, defamatory


imputation is present. Under Article 354 of the Revised Penal Code, every defamatory
imputation is presumed to be malicious.

Defenses in libel:
Private communications; fair and true report;
and public figure doctrine

General Rule: Every defamatory imputation is presumed malicious. (Malice is


presumed)
P a g e | 19

Exceptions: Privileged communications

Here, there is no presumption of malice.


Thus, the person who filed the civil suit for damages for defamation or
the government prosecuting the crime of libel must prove actual malice or malice
in fact of the defendant or accused.

Privileged communications
1) Private communications.
A private communication made by any person to another in the
performance of any legal, moral or social duty (Article 354, Revised Penal Code;
Borjal v. Court of Appeals 14 January 1999); and
2) A fair and true report.
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. (Article 354, Revised Penal Code; Borjal v. Court of Appeals 14
January 1999)
3) Criticisms of public figures (Public Figure Doctrine)
Criticisms on the conduct of public officials and public figures are not
presumed malicious. To be liable for libel for such speech, there must be proof of
actual malice that the statement was made with knowledge that it was false or
with reckless disregard of whether it was false or not. (Borjal v. Court of Appeals
14 January 1999)

Public Figure Doctrine


Honest criticisms on the conduct of public officials and public figures are
insulated from libel judgments. The guarantees of freedom of speech and press prohibit
a public official or public figure from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement was made with
actual malice, i.e., with knowledge that it was false or with reckless disregard
of whether it was false or not. (Borjal v. Court of Appeals 14 January 1999)
(Emphasis supplied)
The raison d'etre for the New York Times doctrine was that to require critics of
official conduct to guarantee the truth of all their factual assertions on pain of libel
judgments would lead to self-censorship, since would-be critics would be deterred from
voicing out their criticisms even if such were believed to be true, or were in fact true,
because of doubt whether it could be proved or because of fear of the expense of
having to prove it. (Borjal v. Court of Appeals 14 January 1999)
P a g e | 20

Who is a public figure?


We have also defined "public figure" in Ayers Production Pty., Ltd. v.
Capulong as -
x x x x a person who, by his accomplishments, fame, mode of living, or
by adopting a profession or calling which gives the public a legitimate interest in
his doings, his affairs and his character, has become a public personage. He is,
in other words, a celebrity. Obviously, to be included in this category are those
who have achieved some degree of reputation by appearing before the public, as
in the case of an actor, a professional baseball player, a pugilist, or any other
entertainer. The list is, however, broader than this. It includes public officers,
famous inventors and explorers, war heroes and even ordinary soldiers, infant
prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It
includes, in short, anyone who has arrived at a position where the public
attention is focused upon him as a person.
A newspaper or broadcaster publishing defamatory falsehoods about an
individual who is neither a public official nor a public figure may not
claim a constitutional privilege against liability, for injury inflicted, even if the
falsehood arose in a discussion of public interest. (Emphases supplied)
(Philippine Journjalists Inc. v. Theonen 13 December 2005)

Fair commentaries on matters of public interest are also


privileged and hence, not presumed malicious.
To reiterate, fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action for libel or slander. The
doctrine of fair comment means that while in general every discreditable
imputation publicly made is deemed false, because every man is presumed
innocent until his guilt is judicially proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable imputation is directed against a
public person in his public capacity, it is not necessarily actionable. In order that
such discreditable imputation to a public official may be actionable, it must either
be a false allegation of fact or a comment based on a false supposition. If the
comment is an expression of opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken, as long as it might
reasonably be inferred from the facts. (Borjal v. Court of Appeals 14 January
1999; restated in Philippine Journalists v. Theonen, G.R. No. 143372 December
13, 2005)
But even assuming ex-gratia argumenti that private respondent, despite
the position he occupied in the FNCLT, would not qualify as a public figure,
it does not necessarily follow that he could not validly be the subject of a public
comment even if he was not a public official or at least a public figure, for he
could be, as long as he was involved in a public issue. If a matter is a subject
of public or general interest, it cannot suddenly become less so merely
because a private individual is involved or because in some sense the
individual did not voluntarily choose to become involved. The publics
primary interest is in the event; the public focus is on the conduct of
P a g e | 21

the participant and the content, effect and significance of the conduct,
not the participant's prior anonymity or notoriety. (Borjal v. Court of
Appeals 14 January 1999) (Emphasis supplied)

Effect of privileged communication:


Plaintiff or prosecution has the burden of proving actual malice
or malice in fact

The prosecution must prove that the statement was made with actual
malice, i.e., with knowledge that it was false or with reckless disregard of
whether it was false or not. (Borjal v. Court of Appeals 14 January 1999)

Once it is established that the article is of a privileged character, the


onus of proving actual malice rests on the plaintiff who must then convince the
court that the offender was prompted by malice or ill will. (Vicario v. Court of
Appeals 398 SCRA 25, 35 [1 June 1999])
While, generally, malice can be presumed from defamatory words, the
privileged character of a communication destroys the presumption of malice. The
onus of proving actual malice then lies on plaintiff. (Borjal v. Court of Appeals 14
January 1999)
In cases of privileged communications (private communications, fair and
true report, criticisms of public figures or fair comments on matters of public
interest, the plaintiff seeking to recover damages for libel or the government in
prosecuting the crime of libel -- must prove that the defendant or the accused in
making the statement in question did so with malice in fact (ill will, ill intent, ill
motive) or actual malice (with the knowledge that the statement is false or in
reckless disregard of whether it is false or not

Actual malice defined


To be considered malicious, the libelous statements must be shown to
have been written or published with the knowledge that they are false or in
reckless disregard of whether they are false or not. "Reckless disregard of what
is false or not" means that the defendant entertains serious doubt as to the truth
of the publication, or that he possesses a high degree of awareness of their
probable falsity. (Borjal v. Court of Appeals, 301 SCRA 1, 28, 29 [4 January 1999]
14 January 1999)

Malice in fact defined

Malice in fact may be shown by proof of ill-will, hatred or purpose to


injure. (US v. Montalvo 29 Phil. 595)
P a g e | 22

Malice connotes ill will or spite and speaks not in response to duty but
merely to injure the reputation of the person defamed, and implies an intention
to do ulterior and unjustifiable harm. Malice is bad faith or bad motive. It is the
essence of the crime of libel. (Borjal v. Court of Appeals 301 SCRA 1, 28, 29 [4
January, 1999])

In order to constitute malice, ill will must be personal. So if the ill will is
engendered by one's sense of justice or other legitimate or plausible motive,
such feeling negatives actual malice. (Vicario v. Court of Appeals 308 SCRA 25,
33 [1 June 1999])

Malice exists when there is an intentional doing of a wrongful act without


just cause. An imputation is legally malicious if done without any reason that
would justify a normally conscientious man in so making the imputation.
(Fortich v. Court of Appeals, 268 SCRA 152, 158 [12 February 1997.])

Examples of actual malice or malice in fact

Indiscriminately airing fabricated comments


Both petitioner and Tugas failed to adduce evidence to show the truth of
the allegations in the article despite the opportunity to do so.

Further worthy of mention is the admission of petitioner before the trial


court that she had very close association with then Congressman Golez and
mayoralty candidate Joey Marquez, and that she would use her skills as a writer
to campaign for them. Complainant Eddie Gutierrez ran against then incumbent
Golez for the congressional seat in Paraaque City.

It can be gleaned from her testimony that petitioner had the motive to
make defamatory imputations against complainants. There was also malice in
fact, as there was motive to talk ill against complainants during the electoral
campaign.
If the utterances are false, malicious or unrelated to a public officers
performance of his duties or irrelevant to matters of public interest involving
public figures, the same may give rise to criminal and civil liability. While
complainants are considered public figures for being personalities in the
entertainment business, media people, including gossip and intrigue writers and
commentators such as petitioner, do not have the unbridled license to malign
their honor and dignity by indiscriminately airing fabricated and malicious
comments, whether in broadcast media or in print, about their personal lives.
(Fermin v. People, 28 March 2008)

Hasty publication, without inquiry into the merits


P a g e | 23

As a journalist and as a candidate for public office, Brillante should have


known that it is necessary to further verify the truth or at least the reliability of
the intelligence reports before making them public. His hasty publication thereof
negates the existence of good faith and justifiable motives. (Brilliante v. Court of
Appeals, 19 October 2004)

And a party will be taken to have acted maliciously if he eagerly seizes on


some slight and frivolous matter, and without any inquiry into the merits, without
even satisfying himself that the account of the matter that has reached him is
correct, hastily concludes that a great public scandal has been brought to light
which calls for the immediate intervention of the people. (Brilliante v. Court of
Appeals, 19 October 2004)

Void-for-Vagueness &
Overbreadth Doctrines
Void-for-vagueness

The void-for-vagueness doctrine states that "a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law. (Estrada v. Sandiganbayan, 19 November 2001)

A law is unconstitutionally vague if a reasonable person cannot tell what speech


is prohibited and what is permitted. Unduly vague laws violate due process whether or
not speech is regulated. (Chemerinsky, Constitutional Law: Principles and Policies, 4th
ed. 2011, Worsters Kluwer, New York, p. 1097)

In part, the void-for-vagueness doctrine is about fairness, it is unjust to punish a


person without providing clear notice as to what conduct is prohibited. (Cherminsky,
Constitutional Law: Principles and Policies, 4th ed. 2011, Worsters Kluwer, New York, p.
970)

The void-for-vagueness doctrines requires that a penal statute define the


criminal offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement. (See Kolender v. Lawson, 461 U.S. 352, 357 [1983])

Overbreadth

The overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms."i (Estrada v. Sandiganbayan, 19 November 2001)

A law is unconstitutionally overbroad, if it regulates substantially more speech


than the Constitution allows to be regulated, and a person to whom the law can be
P a g e | 24

applied can argue that it would be unconstitutional as applied to others. (Cheriminsky,


Constitutional Law: Principles and Policies, 4th ed. 2011, Worsters Kluwer, New York, p.
972)

A petitioner may for instance mount a "facial" challenge to the constitutionality of


a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid being charged of a crime. The
overbroad or vague law thus chills him into silence. (Disini v. Secretary of Justice, G.R.
No. 203335, February 11, 2014)

Facial challenges based


on void-for-vagueness and overbreadth doctrines

When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable.

In an "as applied" challenge, the petitioner who claims a violation of his


constitutional right can raise any constitutional ground absence of due process, lack of
fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can
challenge the constitutionality of a statute only if he asserts a violation of his own rights.
It prohibits one from assailing the constitutionality of the statute based solely on the
violation of the rights of third persons not before the court. This rule is also known as
the prohibition against third-party standing.

But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his own
rights under the assailed statute where it involves free speech on grounds of
overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid being charged of a crime. The
overbroad or vague law thus chills him into silence. (Disini v. Secretary of Justice, G.R.
No. 203335, February 18, 2014)

A facial challenge is allowed to be made to a vague statute and to one which is


overbroad because of possible "chilling effect" upon protected speech. The possible
harm to society in permitting some unprotected speech to go unpunished is outweighed
by the possibility that the protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of overly broad statutes.
P a g e | 25

(Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552,


October 5, 2010)

Example of a void law for being vague or overbroad: Section 5 of


The Cybercrime Prevention Act of 2012

The law penalizing aiding and abetting the commission of internet libel is
void for being vague and overbroad. The terms "aiding or abetting" unnecessarily
sweep broadly, thereby invading the area of protected freedoms, generating a
chilling effect on those who express themselves in cyberspace. Also, netizens are
not given "fair notice" or warning as to what is criminal conduct and what is
lawful conduct. Its vagueness also causes a chilling effect on the freedom of
expression. (Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014)