FREEDOM OF SPEECH AND EXPRESSION

Facial Challenge/Overbreadth Doctrine

SPOUSES vs. Ochoa

Facial Challenges; While the Supreme Court has withheld the application of facial challenges to strictly
penal statutes, it has expanded its scope to cover statutes not only regulating free speech, but also those
involving religious freedom, and other fundamental rights.—In this jurisdiction, the application of
doctrines originating from the U.S. has been generally maintained, albeit with some modifications. While
this Court has withheld the application of facial challenges to strictly penal statutes, it has expanded its
scope to cover statutes not only regulating free speech, but also those involving religious freedom,
and other fundamental rights. The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental
Law not only to settle actual controversies involving rights which are legally demandable and enforceable,
but also to determine whether or not there has been a grave abuse of discretionamounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to
maintain the supremacy of the Constitution.

Constitutional Law; Equal Protection of the Laws; It is apparent that the Framers of the Constitution
emphasized that the State shall provide equal protection to both the mother and the unborn child from the
earliest opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female
ovum.—It is apparent that the Framers of the Constitution emphasized that the State shall provide equal
protection to both the mother and the unborn child from the earliest opportunity of life, that is, upon
fertilization or upon the union of the male sperm and the female ovum. It is also apparent is that the
Framers of the Constitution intended that to prohibit Congress from enacting measures that would allow
it determine when life begins.

ROMUALDEZ vs. SANDIGANBAYAN

Statutory Construction; The overbreadth and the vagueness doctrines have special application only to free-
speech cases.—It is best to stress at the outset that the overbreadth and the vagueness doctrines have
special application only to free-speech cases. They are not appropriate for testing the validity of penal
statutes.

The absence of a statutory definition of a term used in a statute will not render the law “void for
vagueness” if the meaning can be determined through the judicial function of construction.—As to
petitioner’s claim that the term intervene is vague, this Court agrees with the Office of the Solicitor
General that the word can easily be understood through simple statutory construction. The absence of a
statutory definition of a term used in a statute will not render the law “void for vagueness,” if the
meaning can be determined through the judicial function of construction. Elementary is the principle that
words should be construed in their ordinary and usual meaning.

If a particular mode of constitutional challenge, such as one predicated on the “void for vagueness”
doctrine is available to an ordinary person deprived of property or means of expression then more so should
it be accessible to one who is in jeopardy of being deprived of liberty or of life.—It should also be reckoned
that the Bill of Rights likewise guarantees that no person shall be held to answer for a criminal offense
without due process of law, and that the accused enjoys the right to be informed of the nature and cause
of the accusation against him or her. The Bill of Rights ensures the fullest measure of protection to an
accused. If a particular mode of constitutional challenge, such as one predicated on the “void for
vagueness” doctrine, is available to an ordinary person deprived of property or means of expression, then
more so should it be accessible to one who is in jeopardy of being deprived of liberty or of life.

ROMUALDEZ vs. COMELEC, 553 SCRA 370

Void-for-Vagueness Doctrine; Facial Challenges; Words and Phrases; The void-for-vagueness doctrine
holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning
and differ as to its application; Facial invalidation or an “on-its-face” invalidation of criminal statutes is
not appropriate.—The void-for-vagueness doctrine holds that a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its application. However, this Court
has imposed certain limitations by which a criminal statute, as in the challenged law at bar, may be
scrutinized. This Court has declared that facial invalidation or an “on-its-face” invalidation of criminal
statutes is not appropriate. We have so enunciated in no uncertain terms in Romualdez v.
Sandiganbayan, 435 SCRA 371 (2004).

The test in determining whether a criminal statute is void for uncertainty is whether the
language conveys a sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practice. This Court has similarly stressed that the vagueness doctrine merely
requires a reasonable degree of certainty for the statute to be upheld—not absolute precision or
mathematical exactitude. As structured, Section 45 of Republic Act No. 8189 makes a recital of election
offenses under the same Act. Section 45(j) is, without doubt, crystal in its specification that a violation of
any of the provisions of Republic Act No. 8189 is an election offense. The language of Section 45(j) is
precise. The challenged provision renders itself to no other interpretation. A reading of the challenged
provision involves no guesswork. We do not see herein an uncertainty that makes the same vague.

CARPIO,J., Dissenting Opinion:

Due Process; Void-for-Vagueness Doctrine; Voter’s Registration Act of 1996 (R.A. No. 8189); The due
process clause requires that citizens are given sufficient notice or warning of what is lawful and unlawful
conduct under a penal statute; The void for vagueness doctrine expresses the rule that for an act to
constitute a crime, the law must expressly and clearly declare such act a crime.—The due process clause,
which guarantees that no person shall be deprived of life, liberty or property without due process of law,
requires that citizens are given sufficient notice or warning of what is lawful and unlawful conduct under
a penal statute. To enforce this guarantee, courts have developed the void for vagueness doctrine. The
void for vagueness doctrine expresses the rule that for an act to constitute a crime, the law must
expressly and clearly declare such act a crime. A related doctrine is that penal statutes are construed
strictly against the state and liberally in favor of the accused. Petitioners’ constitutional attack on Section
45(j) under the due process clause puts in issue two other requirements for the validity of a penal statute.
First, a penal statute must prescribe an ascertainable standard of guilt to guide courts in adjudication.
Second, a penal statute must confine law enforcers within well-defined boundaries to avoid arbitrary or
discriminatory enforcement of the law.

“As Applied” and “Facial” Challenges; Overbreadth Doctrine; Words and Phrases; In an “as applied”
challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional
ground—whether absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth,
or vagueness; The “as applied” approach embodies the rule that one can challenge the constitutionality of a
statute only if he asserts a violation of his own rights.—Petitioners challenge the constitutionality of
Section 45(j) “as applied” to them in a live case under which they face prosecution. This is the traditional
“as applied” approach in challenging the constitutionality of any statute. In an “as applied” challenge, the
petitioner who claims a violation of his constitutional right can raise any constitutional ground—whether
absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. The
“as applied” approach embodies the rule that one can challenge the constitutionality of a statute only if he
asserts a violation of his own rights. The rule prohibits one from challenging 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.

The U.S. Supreme Court has created a notable exception to the prohibition against third-party standing—a
petitioner may mount a “facial” challenge to the constitutionality of a statute involving free speech even if
he claims no violation of his own rights under the assailed statute, the petitioner only to show violation
under the assailed statute of the rights of third parties not before the court.—The U.S. Supreme Court has
created a notable exception to the prohibition against third-party standing. Under the exception, a
petitioner may mount a “facial” challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute. To mount a “facial” challenge, a petitioner has only
to show violation under the assailed statute of the rights of third parties not before the court. This
exception allowing “facial” challenges, however, applies only to statutes involving free speech. The ground
allowed for a “facial” challenge is overbreadth or vagueness of the statute.

The rationale for this exception allowing a “facial” challenge is to counter the “chilling effect” on protected
speech that comes from statutes violating free speech.—The rationale for this exception allowing a “facial”
challenge 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 refuse to speak to avoid being charged of a crime. The overbroad or vague law chills him
into silence.

The overbreadth doctrine permits a person to challenge a statute on the ground that it violates the First
Amendment (free speech) rights of third parties not before the court, even though the law is constitutional
as applied to that defendant—the overbreadth doctrine provides that: “Given a case or controversy, a
litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it
substantially abridges the First Amendment rights of other parties not before the court.”—Prof. Erwin
Chemerinsky, a distinguished American textbook writer on Constitutional Law, explains clearly the
exception of overbreadth to the rule prohibiting third-party standing in this manner: The third exception
to the prohibition against third-party standing is termed the “overbreadth doctrine.” A person generally
can argue that a statute is unconstitutional as it is applied to him or her; the individual cannot argue that
a statute is unconstitutional as it is applied to third parties not before the court. For example, a
defendant in a criminal trial can challenge the constitutionality of the law that is the basis for the
prosecution solely on the claim that the statute unconstitutionally abridges his or her constitutional
rights. The overbreadth doctrine is an exception to the prohibition against third-party standing. It
permits a person to challenge a statute on the ground that it violates the First Amendment (free speech)
rights of third parties not before the court, even though the law is constitutional as applied to that
defendant. In other words, the overbreadth doctrine provides that: “Given a case or controversy, a litigant
whose own activities are unprotected may nevertheless challenge a statute by showing that it
substantially abridges the First Amendment rights of other parties not before the court.” The overbreadth
doctrine is closely related to the vagueness doctrine. Both doctrines are often simultaneously invoked to
mount “facial” challenges to statutes violating free speech.

A penal law void for vagueness is not made valid by a specification in the Information correcting the
vagueness in the law.—A penal law void for vagueness is not made valid by a specification in the
Information correcting the vagueness in the law. No court of law has adopted a doctrine that the
prosecutor has the power to correct a vagueness in a penal law. Whether a law is void for vagueness under
an “as applied” challenge must be tested under the provisions of the law as found in the statute books, and
not as interpreted by the prosecutor in the Information.

This Court must revisit Gatchalian’s holding that makes a crime “not only those (acts) expressly declared
unlawful but even those not so declared but are clearly enjoined to be observed to carry out the
fundamental purpose of the law.”—This Court must revisit Gatchalian’s holding that makes a crime “not
only those (acts) expressly declared unlawful but even those not so declared but are clearly enjoined to be
observed to carry out the fundamental purpose of the law.” Unlike the U.S. Fair Labor Standards Act
after which our Republic Act No. 602 was patterned, RA 602 does not specify the provisions of the law the
violation of which is declared unlawful. This Court must categorically rule that only acts expressly
declared unlawful or prohibited by law, and penalized as such, are crimes. Acts not expressly declared
unlawful or prohibited can never give rise to criminal liability. Any ambiguity in the law whether an act
constitutes a crime is resolved in favor of the accused.

To punish as crimes acts not expressly declared unlawful or prohibited by law violates the Bill of
Rights—due process requires that the law expressly declares unlawful, and punishes as such, the act for
which the accused is held criminally liable; A blanket and unconditional declaration that any violation of
an elaborate and detailed law is a crime is too imprecise and indefinite, and fails to define with certitude
and clarity what acts the law punishes as crimes.—To punish as crimes acts not expressly declared
unlawful or prohibited by law violates the Bill of Rights. First, the Constitution provides that “[N]o person
shall be held to answer for a criminal offense without due process of law.” Due process requires that the
law expressly declares unlawful, and punishes as such, the act for which the accused is held criminally
liable. The void for vagueness doctrine is aimed precisely to enforce this fundamental constitutional
right. Second, the Constitution provides that “[I]n all criminal prosecutions, the accused shall x x x enjoy
the right x x x to be informed of the nature and cause of the accusation against him.” This right of the
accused requires that the Information states the particular act the accused committed in violation of a
specific provision of a law defining such act a crime. A blanket and unconditional declaration
that any violation of an elaborate and detailed law is a crime is too imprecise and indefinite, and fails to
define with certitude and clarity what acts the law punishes as crimes. Such a shotgun approach to
criminalizing human conduct is exactly what the void for vagueness doctrine outlaws.

TINGA,J., Dissenting Opinion:

Due Process; Void-for-Vagueness Doctrine; Criminal Law; A vague criminal statute at its core violates due
process, as it deprives fair notice and standards to all—the citizens, the law enforcement officers,
prosecutors and judges.—A vague criminal statute at its core violates due process, as it deprives fair
notice and standards to all—the citizens, the law enforcement officers, prosecutors and judges. The
petition in this case has allowed the Court to engage in as thorough inquiry as there ever has been on the
constitutional right to due process, to infuse vitality and sophistication in the litigation of such primordial
right. Yet, in the end, instead of reinforcing a perspective more attuned to the fullest measure of the
people’s democratic rights, the Court has chosen not to rise to the challenge. The petition should have
been granted. The assailed Resolution of the Commission on Elections (COMELEC) directs the filing of
criminal informations against petitioners Carlos and Erlinda Romualdez for violation of Section 10 (g)
and (j) of Republic Act No. 8189 (Rep. Act 8189), also known as the Voter’s Registration Act, in relation to
Section 45(j) of the same law. It is Section 45(j) which criminalizes the violation of Section 10, as well as
the violation of any and all other provisions of Rep. Act 8189, as an election offense. Yet in the final
analysis, Section 45(j) is unconstitutional, violative as it is of the due process clause, and thus should be
voided.

Void-for-Vagueness Doctrine; The flaw of a statute in failing “to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid” is one characteristic of a vague statute, the other being
that “it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary
flexing of the Government muscle.”—Among the components of due process, particularly concerning penal
statutes, is the fair notice requirement. The Court, through Justice Sarmiento, acknowledged in People v.
Nazario, 165 SCRA 186 (1988), that a statute violates due process, and thus repugnant to the
Constitution, if it fails “to accord persons, especially the parties targeted by it, fair notice of the conduct to
avoid.” Such flaw is one characteristic of a vague statute, the other being that “it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.” Both attributes earmark a statute as “vague,” the generally accepted definition of a vague
statute being one that lacks comprehensible standards that people “of common intelligence must
necessarily guess at its meaning and differ as to its application.”
There are three concerns animating the vagueness doctrine: First, courts are rightly concerned that citizens
be fairly warned of what behavior is being outlawed, second, courts are concerned because vague laws
provide opportunities for arbitrary enforcement and put the enforcement decisions in the hands of police
officers and prosecutors instead of legislatures, finally, where vague statutes regulate behavior that is even
close to constitutionally protected, courts fear a chilling effect will impinge on constitutional rights; In its
essence, the vagueness doctrine is a critical implement to the fundamental role of the courts to rule justly
and fairly.—The inquiry into whether a criminal statute is “meaningfully precise” requires the
affirmative satisfaction of two criteria. First, does the statute fairly give notice to those it seeks to bind of
its strictures? Second, is the statute precise enough that it does not invite arbitrary and discriminatory
enforcement by law enforcement authorities? Unless both criteria are satisfied, the statute is void for
vagueness. There are three concerns animating the vagueness doctrine. First, courts are rightly
concerned that citizens be fairly warned of what behavior is being outlawed; second, courts are concerned
because vague laws provide opportunities for arbitrary enforcement and put the enforcement decisions in
the hands of police officers and prosecutors instead of legislatures; finally, where vague statutes regulate
behavior that is even close to constitutionally protected, courts fear a chilling effect will impinge on
constitutional rights. These three interests have been deemed by the U.S. Supreme Court as important
enough to justify total invalidation of a statute, such invalidation warranted unless there is some
intervening act that has eliminated the threat to those interests. In its essence, the vagueness doctrine is
a critical implement to the fundamental role of the courts to rule justly and fairly. Uncertainty in statutes
enables persons to be penalized for acts which are not precisely defined in law as criminal, or for acts
which are constitutionally protected but cast within an overbroad definition of a crime.
Same; Same; Two coordinate functions are served by the doctrine—guidance to the individual in planning
his future conduct, and guidance to those adjudicating his rights and duties; The requirement of certainty
arose from a fundamental common-law concept, a matter of fairness, and an element of due process of
law.—Our special focus now lies with the “void-for-vagueness” or “procedural due process uncertainty”
rule. Two coordinate functions are served by the doctrine: guidance to the individual in planning his
future conduct, and guidance to those adjudicating his rights and duties. It is clear that some substantial
degree of definiteness should be required of penal statutes, for if a person is to be charged with knowledge
of all his rights and duties under a statute regardless of whether he has read or understood it,
fundamental fairness requires that he be given at least the opportunity to discover its existence, its
applicability, and its meaning. While the due process requirements of publication are designed to fill the
first of those needs, the due process requirements of definiteness are designed to fill the latter two. The
requirement of certainty arose from a fundamental common-law concept, a matter of fairness, and an
element of due process of law. No one will deny that a criminal statute should be definite enough to give
notice of required conduct to those who would avoid its penalties, and to guide the judge in its application
and the attorney defending those charged with its violation. The rules must be definite enough to enable
the judge to make rulings of law which are so closely referable to the statute as to assure consistency of
application. In addition, the statute must serve the individual as a guide to his future conduct, and it is
said to be too indefinite if “men of common intelligence must necessarily guess at its meaning and differ
as to its application.” If the statute does not provide adequate standards for adjudication, by which guilt
or innocence may be determined, it will be struck down.

The overbreadth doctrine developed amidst concerns over restrictions on First Amendment rights and can
be said was formulated to bolster the guarantee of free expression.—Do the same concerns on the
overbreadth doctrine that informed Broadrick extend as well to vagueness? It must be recognized that the
problem of overbreadth has no integral relation to procedural due process, which is the fundamental
constitutional problem brought forth by vagueness. Moreover, the overbreadth doctrine developed amidst
concerns over restrictions on First Amendment rights and can be said was formulated to bolster the
guarantee of free expression. It is not as clear that the same degree of concern over the right of free
expression was key to the development of the vagueness doctrine, which after all, primarily offended a
different constitutional value.

“Facial Challenges” and “As-Applied” Challenges; Facial Invalidation; Locus Standi; Words and Phrases;
The difficulty with Justice Carpio’s submission discussing both concepts—“facial challenge” and “as-
applied” challenge—from the perspective of standing is that in United States jurisprudence, a “facial
challenge” pertains not only to third-party standing in constitutional cases, but also the “facial
invalidation” of statutes.—Justice Carpio offers his own analysis of “facial challenge” and “as-applied”
challenge. His submission discusses both concepts from the perspective of standing, contending that the
present suit cannot be considered as a “facial challenge,” or a challenge against the constitutionality of a
statute that is filed where the petitioner claims no actual violation of his own rights under the assailed
statute, but relies instead on the potential violation of his or other persons’ rights. Instead, according to
Justice Carpio, the present suit may be considered as an “as-applied” challenge, the traditional approach
where the petitioner raises the violation of his constitutional rights irrespective of the constitutional
grounds cited. I have no dispute with the characterization of the present suit as an “as-applied” challenge,
as well as the statement that third-party standing to assail the constitutionality of statutes is
impermissible as a general rule. Said positions can be accommodated following our traditional rules of
standing in constitutional cases, even if these rules hardly employ the terms “facial challenge” or “as-
applied challenge.” The difficulty with the submission’s preferred terms is that in United States
jurisprudence, a “facial challenge” pertains not only to third-party standing in constitutional cases, but
also the “facial invalidation” of statutes. This matter is problematic if we are to consider the holding of the
U.S. Supreme Court in U.S. v. Salerno, 481 U.S. 739 (1987) penned by the conservative Chief Justice
Rehnquist.

ROMUALDEZ vs. COMELEC 573 SCRA 639

Constitutional Law; Statutes; Statutory Construction; Court did not intimate that penal statutes are
beyond scrutiny; Court emphasized the critical limitations by which a criminal statute may be challenged;
Let it be underscored that “on-its-face” invalidation of penal statutes, as is sought to be done by petitioners
in this case, may not be allowed.—We reject the contentions put forth by esteemed colleagues Mr. Justice
Dante O. Tinga in his Dissent, dated 2 September 2008, which are also mere reiterations of his earlier
dissent against the majority opinion. Mr. Justice Tinga’s incessant assertions proceed from the wrong
premise. To be clear, this Court did not intimate that penal statutes are beyond scrutiny. In our Decision,
dated 30 April 2008, this Court emphasized the critical limitations by which a criminal statute may be
challenged. We drew a lucid boundary between an “on-its-face” invalidation and an “as applied” challenge.
Unfortunately, this is a distinction which Mr. Justice Tinga has refused to understand. Let it be
underscored that “on-its-face” invalidation of penal statutes, as is sought to be done by petitioners in this
case, may not be allowed.

The opinions of the dissent which seek to bring to the fore the purported ambiguities of a long list of
provisions in Republic Act No. 8189 can be deemed as a facial challenge.—Neither does the listing by Mr.
Justice Tinga of what he condemns as offenses under Republic Act No. 8189 convince this Court to
overturn its ruling. What is crucial in this case is the rule set in our case books and precedents that a
facial challenge is not the proper avenue to challenge the statute under consideration. In our Decision of
30 April 2008, we enunciated that “the opinions of the dissent which seek to bring to the fore the
purported ambiguities of a long list of provisions in Republic Act No. 8189 can be deemed as a facial
challenge.”

The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged; Under no case may ordinary penal statutes be subjected to
a facial challenge.—In conclusion, I reiterate that the doctrine embodied
in Romualdez and Estrada remains good law. The rule established in our jurisdiction is, only statutes on
free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case
may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial
challenge to a penal statute is permitted, the prosecution of crimes maybe hampered. No prosecution
would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if
the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and
concrete controversy before judicial power may be appropriately exercised. A facial challenge against a
penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider
third parties who are not before it.

LEONARDO-DE CASTRO, J., Concurring Opinion:

Constitutional Law; Statutes; Statutory Construction; The “on-its-face” invalidation of the penal provision
contained in Section 45(j) of Republic Act No. 8189 under the facts obtaining in this case should not be
countenanced.—The “on-its-face” invalidation of the penal provision contained in Section 45(j) of Republic
Act No. 8189 under the facts obtaining in this case should not be countenanced, particularly where the
petitioners are charged in separate informations of violating Section 10(g) and (j) in relation to Section
45(j) of the said statute, for their alleged willful and unlawful failure to fill up the required period of
residence in the place of registration in their Voter Registration Record (VRR), which allegedly
constituted material misrepresentation in their application for registration as new registrants in Precinct
No. 11-A, Barangay District No. 3, Municipality of Burauen, Leyte, and for having allegedly declared
under oath that they were not registered voters in another precinct when they were in fact registered
voters in Barangay Bagong Lipunan ng Crame, Quezon City. Obviously, the acts/omissions charged
against petitioners are germane to the declared policy of Republic Act No. 8189 and the evil it seeks to
avoid. The said law leaves no room for doubt as to the significance of the factual details pertaining to the
period of one’s

TINGA, J., Dissenting Opinion:

Constitutional Law; Statutes; Statutory Construction; The doctrine that the void for vagueness rule does
not apply to penal laws—is of dubious origin.—It is distressing that the majority continues to fail to
recognize that the doctrine they have adopted—that the void for vagueness rule does not apply to penal
laws—is of dubious origin. It did not originate from the majority opinion in Estrada v. Desierto, 353 SCRA
452 (2001), which merely echoed the Separate Opinion of Justice Mendoza in the same case. As pointed
out in my earlier Dissenting Opinion, Justice Mendoza clarified his views in his Separate Opinion on the
Resolution denying the Motion for Reconsideration in Estrada. Justice Mendoza said that it was not
intended to suggest that the doctrine of vagueness does not apply to criminal statutes at all, that they did
“although they do not justify a facial challenge, but only an as-applied challenge to those statutes.”

From whatever perspective, the void for vagueness challenge should apply to penal cases as much as it does
to free speech cases.—It was in Romualdez v. Sandiganbayan, 435 SCRA 371 (2004), that the notion that
void for vagueness does not apply to penal cases was fleshed out as a view of the Court. Unfortunately,
that decision mistakenly assumed that Justice Mendoza’s earlier opinion was his final word on the matter
as it failed to take stock of the crucial clarification laid down in his subsequent Separate Opinion. The
Court through this case has the golden opportunity to rectify the error, but instead it perpetuated the
unsound doctrine as pronounced in Romualdez v. Sandiganbayan. If this error, reflective as it is of a
fundamental lack of understanding of what the due process clause means, is not corrected now, it may
never be corrected at all. It will stand as one of the most tragic denigrations of the Philippine constitution.
From whatever perspective, the void for vagueness challenge should apply to penal cases as much as it
does to free speech cases.

If vagueness is not appropriate for testing the validity of penal statutes, it necessarily follows that a vague
penal statute cannot be scrutinized or invalidated because it is vague.—The ponente now begrudgingly
concedes that the assailed decision “did not intimate that penal statutes are beyond scrutiny.” Yet that
bare, ambiguous statement hardly addresses the constitutional flaws of the earlier ruling. In the next
breath, the ponente asserts that the doctrine embodied in Romualdez “remains good law.” What is the so-
called Romualdez doctrine? To quote from Romualdez: “It is best to stress at the outset that the
overbreadth and the vagueness doctrines have special application only to free-speech cases…
they are not appropriate for testing the validity of penal statutes.” The Court in Romualdez went
as far as to observe that no penal laws in the Philippines have ever been invalidated on the ground of
vagueness. If vagueness is not appropriate for testing the validity of penal statutes, it necessarily follows
that a vague penal statute cannot be scrutinized or invalidated because it is vague. Ergo, a vague penal
statute is constitutional. That was the absence of Romualdez, as well as our earlier ruling
herein.

EJERCITO vs. COMELEC

Due Process; The essence of due process is simply an opportunity to be heard, or, as applied to
administrative proceedings, an opportunity to explain one’s side or an opportunity to seek for a
reconsideration of the action or ruling complained of.—Ejercito’s dependence on Ang Tibay v. Court of
Industrial Relations, 69 Phil. 635 (1940), is weak. The essence of due process is simply an opportunity to
be heard, or, as applied to administrative proceedings, an opportunity to explain one’s side or an
opportunity to seek for a reconsideration of the action or ruling complained of. Any seeming defect in its
observance is cured by the filing of a motion for reconsideration and denial of due process cannot be
successfully invoked by a party who had the opportunity to be heard thereon. In this case, it is undisputed
that Ejercito filed a motion for reconsideration before the COMELEC En Banc. Despite this, he did not
rebut the authenticity and due execution of the advertising contracts when he decided not to discuss the
factual findings of the COMELEC First Division on the alleged ground that it may be construed as a
waiver of the jurisdictional issues that he raised.

Election Law; Political Advertisement; Freedom of Speech and Expression; Any restriction on speech or
expression is only incidental and is no more than necessary to achieve the substantial governmental
interest of promoting equality of opportunity in political advertising.—The inclusion of the amount
contributed by a donor to the candidate’s allowable limit of election expenses does not trample upon the
free exercise of the voters’ rights of speech and of expression under Section 4, Article III of the
Constitution. As a content-neutral regulation, the law’s concern is not to curtail the message or content of
the advertisement promoting a particular candidate but to ensure equality between and among aspirants
with “deep pockets” and those with less financial resources. Any restriction on speech or expression is
only incidental and is no more than necessary to achieve the substantial governmental interest of
promoting equality of opportunity in political advertising. It bears a clear and reasonable connection with
the constitutional objectives set out in Section 26, Article II, Section 4, Article IX-C, and Section 1, Art.
XIII of the Constitution.

DISINI, JR. vs. SEC. OF JUSTICE

Libel; Libel, like obscenity, belongs to those forms of speeches that have never attained Constitutional
protection and are considered outside the realm of protected freedom.—The majority of the movants
believe that the Court’s decision upholding the constitutionality of Section 4(c)(4), which penalizes online
libel, effectively tramples upon the right to free expression. But libel is not a protected speech. There is no
freedom to unjustly destroy the reputation of a decent woman by publicly claiming that she is a paid
prostitute. As early as 1912, the Court held that libel is a form of expression not protected by the
Constitution. Libel, like obscenity, belongs to those forms of speeches that have never attained
Constitutional protection and are considered outside the realm of protected freedom.

Constitutional Law; Freedom of Speech; Freedom of the Press; As long as the expression or speech falls
within the protected sphere, it is the solemn duty of courts to ensure that the rights of the people are
protected.—The constitutional guarantee against prior restraint and subsequent punishment, the
jurisprudential requirement of “actual malice,” and the legal protection afforded by “privilege
communications” all ensure that protected speech remains to be protected and guarded. As long as the
expression or speech falls within the protected sphere, it is the solemn duty of courts to ensure that the
rights of the people are protected.

Online libel is not a new crime. It is essentially the old crime of libel found in the 1930 Revised Penal
Code and transposed to operate in the cyberspace. Consequently, the mass of jurisprudence that secures the
freedom of expression from its reach applies to online libel.—The movants argue that Section 4(c)(4) is
both vague and overbroad. But, again, online libel is not a new crime. It is essentially the old crime of
libel found in the 1930 Revised Penal Code and transposed to operate in the cyberspace. Consequently,
the mass of jurisprudence that secures the freedom of expression from its reach applies to online libel.
Any apprehended vagueness in its provisions has long been settled by precedents.

Sereno,CJ., Dissenting and Concurring Opinion:

Constitutional Law; Freedom of Speech; View that freedom of speech is the nucleus of other rights. That is
why it is the first right that is curtailed when a free society falls under a repressive regime. That is also
why the Supreme Court has acknowledged freedom of speech as occupying a preferred position in the
hierarchy of rights.—I maintain my dissent insofar as the application of Section 6 to libel is concerned
because the one degree higher penalty it imposes creates a chilling effect on the exercise of free speech.
Hence, while a solitary sentence to that effect would have sufficed, I respectfully but vigorously reassert
my dissent, considering the far-reaching effects of Section 6 on the lives and liberty of the Filipino people.
Freedom of speech is the nucleus of other rights. That is why it is the first right that is curtailed when a
free society falls under a repressive regime. That is also why this Court has acknowledged freedom of
speech as occupying a preferredposition in the hierarchy of rights.
Criminal Law; Penalties; View that penal statutes cannot be facially invalidated on the ground that they
produce a “chilling effect,” since they are intended to have an in terrorem effect to deter criminality.
However, when a law provides for a penalty that goes beyond the in terrorem effect needed to deter crimes
and impedes the exercise of freedom of speech, it should be quashed at once without hesitation.—As a
general rule, penal statutes cannot be facially invalidated on the ground that they produce a “chilling
effect,” since they are intended to have an in terroremeffect to deter criminality. However, when a law
provides for a penalty that goes beyond the in terroremeffect needed to deter crimes and
impedes the exercise of freedom of speech, it should be quashed at once without hesitation. As
I previously demonstrated, the increase in penalty under this seemingly innocuous provision of Section 6,
insofar as it is applied to libel, indirectly but absolutely results in chilling the right of the people to free
speech and expression. Therefore, it is unconstitutional.

Brion,J., Dissenting Opinion:

Criminal Law; Libel; View that jurisprudence has long settled that libel is not protected speech, and that
Congress, in the exercise of its power to define and penalize crimes, may validly prohibit its utterance.—At
the outset, allow me to clarify that I do not think that libel per se is unconstitutional; neither is its
application in communications made through ICT violative of the Constitution. Jurisprudence
has long settled that libel is not protected speech, and that Congress, in the exercise of its power to define
and penalize crimes, may validly prohibit its utterance. Increasing the penalty of libel when committed
through ICT, however, is another matter. I submit that Section 6 of the Cybercrime Law, insofar as it
qualifies the crime of libel, violates freedom of speech because it unduly increases the prohibitive effect of
libel law on online speech. My reasons are twofold: first, I do not believe that there is sufficient
distinction between libelous speech committed online and speech uttered in the real, physical world to
warrant increasing the prohibitive impact of penal law in cyberlibel. Second, the increase in the penalty
of libel when committed through computer systems can have the effect of imposing self-censorship in the
Internet and of curtailing an otherwise robust avenue for debate and discussion on public issues. In other
words, over-penalizing online speech could overreach into matters other than libelous and can thus
prevent protected speech from being uttered.

Cyberlibel; Freedom of Speech; View that increasing the penalty of cyberlibel could curtail speech in the
Internet.—The publicity element of libel in the Revised Penal Code does not take into consideration the
amount of audience reached by the defamatory statement. Libelous speech may be penalized when, for
instance, it reaches a third person by mail, or through a television program, or through a newspaper
article published nationwide. All these defamatory imputations are punishable with the same penalty
of prision correccionalin its minimum and medium periods or a fine ranging from 200 to 6,000 pesos or
both. I do not see any reason why libel committed through ICT should be treated in a harsher manner. I
submit that we cannot rule on the basis of extreme, outlying situations, especially since, as I would
explain in my succeeding discussion, increasing the penalty of cyberlibel could curtail speech in the
Internet. If we must err in this decision, we must err on the side of protecting freedom of speech, a
fundamental right ranking high in the value of constitutional freedoms, so cherished because it is crucial
to the functioning of a working democracy.

Electronic Violence; Words and Phrases; View that Electronic Violence has been defined as any act
involving the exploitation of data that “can cause or is likely to cause mental, emotional and psychological
distress or suffering to the victim.”—As a final point in the matter, I note that despite the Cybercrime
Law’s passage, bills punishing cyber-bullying and electronic violence have been filed in Congress. As filed,
the bills penalize cyber-bullying, or the act of using social media to “harm or harass other people in a
deliberate, repeated and hostile manner.” Electronic Violence, on the other hand, has been defined as any
act involving the exploitation of data that “can cause or is likely to cause mental, emotional and
psychological distress or suffering to the victim.” To my mind, these bills represent Congress’ intent to
penalize the extreme situation that the ponencia contemplates; at most, these bills are a recognition that
cyberlibel has not been intended to cover such extreme situation, but only to recognize and clarify that the
crime of libel may be committed through computer systems.

Leonen,J., Dissenting Opinion:

Criminal Law; Libel; View that it is not enough that we proclaim, as the majority does, that libel is
unprotected speech.—It is not enough that we proclaim, as the majority does, that libel is unprotected
speech. The ponencia’s example, i.e., “[t]here is no freedom to unjustly destroy the reputation of a decent
woman by publicly claiming that she is a paid prostitute,” fails to capture the nuances of criminalizing
libel in our jurisprudence and in reality. It is a precarious simplification of the issue inferred from one
imagined case. This obfuscation practically neuters the ability of this court to do incisive analysis in order
to provide the necessary protection to speech as it applies to the internet.
Same; Cybercrime Prevention Act of 2012; Freedom of Speech; View that the text of Section 4(c)(4) of
the Cybercrime Prevention Act of 2012 is a swing towards lesser protection of the primordial right to
speech.—The majority now condones the same 1930s text definition of libel effectively discarding the
carefully crafted exception painstakingly built from the assertion of fundamental rights in this court. This
condonation reveals the legislative blinders to the radically different context of the internet. The text of
Section 4(c)(4) of the Cybercrime Prevention Act of 2012 is a swing towards lesser protection of the
primordial right to speech. The position taken by the majority deserves a second hard look, if only to
ensure the constitutional guarantee that our people truly have freedom of expression as a means to assert
their sovereignty and governmental authority in cyberspace.
Same; Same; Cyberlibel; View that criminal libel has an in terrorem effect that is inconsistent with the
contemporary protection of the primordial and necessary right of expression enshrined in our
Constitution.—The chilling effect on various types of speech with just the possibility of criminal libel
prosecution compared with the consequences of civil liabilities for defamation presents another dimension
that have been glossed over by the main opinion and the resolution on the various motions for
reconsideration. We have to acknowledge the real uses of criminal libel if we are to be consistent to
protect speech made to make public officers and government accountable. Criminal libel has an in
terrorem effect that is inconsistent with the contemporary protection of the primordial and necessary
right of expression enshrined in our Constitution. The history and actual use of criminal libel should be
enough for us to take a second look at the main opinion in this case. The review should include a
consideration of the nature of cyberspace as layered communities used to evolve ideas. Such review
should result in a declaration of unconstitutionality of criminal libel in the Revised Penal Code and in the
Cybercrime Prevention Act of 2012.

View that the Cybercrime Prevention Act of 2012 does not prohibit advertising. It simply requires that
whoever advertises must be accountable to the user, not use false identities and allow for opt out
mechanisms so that the user will not continue to receive unwelcome advertising ad nauseum.—I view the
current provisions as sufficiently narrow and tailored to meet legitimate and compelling state interests. It
protects the ordinary internet user against unwarranted intrusions. Certainly, freedom of expression
should not evolve into a fundamental and protected right to badger. The Cybercrime Prevention Act of
2012 does not prohibit advertising. It simply requires that whoever advertises must be accountable to the
user, not use false identities and allow for opt out mechanisms so that the user will not continue to
receive unwelcome advertising ad nauseum.

Modes of Expression

FERMIN vs. PEOPLE

A libel is defined 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.—A libel is defined
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. In determining whether a
statement is defamatory, the words used are to be construed in their entirety and should be taken in their
plain and ordinary meaning as they would naturally be understood by persons reading them, unless it
appears that they were used and understood in another sense. To say that the article, in its entirety, is
not libelous disturbs one’s sensibilities; it would certainly prick one’s conscience. There is evident
imputation of the crime of malversation (that the complainants converted for their personal use the
money paid to them by fellow Filipinos in America in their business of distributing high-end cookware); of
vices or defects for being fugitives from the law (that complainants and their family returned to the
Philippines to evade prosecution in America); and of being a wastrel (that Annabelle Rama Gutierrez lost
the earnings from their business through irresponsible gambling in casinos). The attribution was made
publicly, considering that Gossip Tabloid had a nationwide circulation. The victims were identified and
identifiable. More importantly, the article reeks of malice, as it tends to cause the dishonor, discredit, or
contempt of the complainants.

Although a wide latitude is given to critical utterances made against public officials in the performance of their
official duties, or against public figures on matters of public interest, such criticism does not automatically fall
within the ambit of constitutionally protected speech—if the utterances are false, malicious or unrelated to a
public officer’s performance of his duties or irrelevant to matters of public interest involving public figures, the
same may give rise to criminal and civil liability.—Neither can petitioner take refuge in the constitutional
guarantee of freedom of speech and of the press. Although a wide latitude is given to critical utterances made
against public officials in the performance of their official duties, or against public figures on matters of public
interest, such criticism does not automatically fall within the ambit of constitutionally protected speech. If the
utterances are false, malicious or unrelated to a public officer’s 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.

TULFO vs. PEOPLE

Freedom of the Press; Libel; Journalist’s Code of Ethics; The exercise of this right or any right enshrined in
the Bill of Rights, indeed, comes with an equal burden of responsible exercise of that right—the recognition
of a right is not free license for the one claiming it to run roughshod over the rights of others; The
Journalist’s Code of Ethics adopted by the National Union of Journalists of the Philippines shows that the
press recognizes that it has standards to follow in the exercise of press freedom; that this freedom carries
duties and responsibilities.—The Court has long respected the freedom of the press, and upheld the same
when it came to commentaries made on public figures and matters of public interest. Even in cases
wherein the freedom of the press was given greater weight over the rights of individuals, the Court,
however, has stressed that such freedom is not absolute and unbounded. The exercise of this right or any
right enshrined in the Bill of Rights, indeed, comes with an equal burden of responsible exercise of that
right. The recognition of a right is not free license for the one claiming it to run roughshod over the rights
of others. The Journalist’s Code of Ethics adopted by the National Union of Journalists of the Philippines
shows that the press recognizes that it has standards to follow in the exercise of press freedom; that this
freedom carries duties and responsibilities. Art. I of said code states that journalists “recognize the duty
to air the other side and the duty to correct substantive errors promptly.” Art. VIII states that journalists
“shall presume persons accused of crime of being innocent until proven otherwise.”

It cannot be said that a false article accusing a public figure would always be covered by the mantle of
qualified privileged communication.—The trial court found Tulfo’s accusations against Atty. So to be
false, but Tulfo argues that the falsity of contents of articles does not affect their privileged character. It
may be that the falsity of the articles does not prove malice. Neither did Borjal give journalists carte
blanche with regard to their publications. It cannot be said that a false article accusing a public figure
would always be covered by the mantle of qualified privileged communication. The portion of Borjal cited
by Tulfo must be scrutinized further: Even assuming that the contents of the articles are false, mere
error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are
inevitable in any scheme of truly free expression and debate. Consistent with good faith and
reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes
or imperfections in the choice of language. There must be some room for misstatement of fact as well as
for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively
function as critical agencies in our democracy.

Journalists may be allowed an adequate margin of error in the exercise of their profession, but this margin
does not expand to cover every defamatory or injurious statement they may make in the furtherance of their
profession, nor does this margin cover total abandonment of responsibility.—Reading more deeply into the
case, the exercise of press freedom must be done “consistent with good faith and reasonable care.” This
was clearly abandoned by Tulfo when he wrote the subject articles. This is no case of mere error or honest
mistake, but a case of a journalist abdicating his responsibility to verify his story and instead
misinforming the public. Journalists may be allowed an adequate margin of error in the exercise of their
profession, but this margin does not expand to cover every defamatory or injurious statement they may
make in the furtherance of their profession, nor does this margin cover total abandonment of
responsibility.

Although wider latitude is given to defamatory utterances against public officials in connection with or
relevant to their performance of official duties, or against public officials in relation to matters of public
interest involving them, such defamatory utterances do not automatically fall within the ambit of
constitutionally protected speech—journalists still bear the burden of writing responsibly when practicing
their profession, even when writing about public figures or matters of public interest.—Tulfo offered no
proof for his accusations. He claimed to have a source in the Bureau of Customs and relied only on this
source for his columns, but did no further research on his story. The records of the case are bereft of any
showing that Atty. So was indeed the villain Tulfo pictured him to be. Tulfo’s articles related no specific
details or acts committed to prove Atty. So was indeed a corrupt public official. These columns were
unsubstantiated attacks on Atty. So, and cannot be countenanced as being privileged simply because the
target was a public official. Although wider latitude is given to defamatory utterances against public
officials in connection with or relevant to their performance of official duties, or against public officials in
relation to matters of public interest involving them, such defamatory utterances do not automatically fall
within the ambit of constitutionally protected speech. Journalists still bear the burden of writing
responsibly when practicing their profession, even when writing about public figures or matters of public
interest.

Qualified Privileged Communications; Requisites.—Tulfo has clearly failed in this regard. His articles
cannot even be considered as qualified privileged communication under the second paragraph of Art. 354
of the RPC which exempts from the presumption of malice “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 any statement, report, or speech delivered in said proceedings, or of any other
act performed by public officers in the exercise of their functions.” This particular provision has several
elements which must be present in order for the report to be exempt from the presumption of malice. The
provision can be dissected as follows: In order that the publication of a report of an official proceeding
may be considered privileged, the following conditions must exist: (a) That it is a fair and true report
of a judicial, legislative, or other official proceedings which are not of confidential nature, or
of a statement, report or speech delivered in said proceedings, or of any other act performed
by a public officer in the exercise of his functions; (b) That it is made in good faith; and (c)
That it is without any comments or remarks.

Words and Phrases; “Fair” and “True,” Defined.—Breaking down the provision further, looking at the
terms “fair” and “true,” Tulfo’s articles do not meet the standard. “Fair” is defined as “having the qualities
of impartiality and honesty.” “True” is defined as “conformable to fact; correct; exact; actual; genuine;
honest.” Tulfo failed to satisfy these requirements, as he did not do research before making his
allegations, and it has been shown that these allegations were baseless. The articles are not “fair and true
reports,” but merely wild accusations.

“Actual Malice Test”; The test to be followed is that laid down in New York Times Co. v. Sullivan, 376 U.S.
254 (1964), which should be to determine whether the defamatory statement was made with actual malice,
that is, with knowledge that it was false or with reckless disregard of whether it was false or not.—The test
to be followed is that laid down in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and reiterated
in Flor v. People, 454 SCRA 440 (2005), which should be to determine whether the defamatory statement
was made with actual malice, that is, with knowledge that it was false or with reckless disregard of
whether it was false or not. The trial court found that Tulfo had in fact written and published the subject
articles with reckless disregard of whether the same were false or not, as proven by the prosecution.
There was the finding that Tulfo failed to verify the information on which he based his writings, and that
the defense presented no evidence to show that the accusations against Atty. So were true. Tulfo cannot
argue that because he did not know the subject, Atty. So, personally, there was no malice attendant in his
articles. The test laid down is the “reckless disregard” test, and Tulfo has failed to meet that test.

Freedom of Expression; Freedom of expression as well as freedom of the press may not be unrestrained, but
neither must it be reined in too harshly.—Though we find petitioners guilty of the crime charged, the
punishment must still be tempered with justice. Petitioners are to be punished for libel for the first time.
They did not apply for probation to avoid service of sentence possibly in the belief that they have not
committed any crime. In Buatis, Jr. v. People, 485 SCRA 275 (2006), the Court, in a criminal case for libel,
removed the penalty of imprisonment and instead imposed a fine as penalty. In Sazon v. Court of Appeals,
255 SCRA 692 (1996), the accused was merely fined in lieu of the original penalty of imprisonment and
fine. Freedom of expression as well as freedom of the press may not be unrestrained, but neither must it
be reined in too harshly. In light of this, considering the necessity of a free press balanced with the
necessity of a responsible press, the penalty of a fine of PhP 6,000 for each count of libel, with subsidiary
imprisonment in case of insolvency, should suffice. Lastly, the responsibilities of the members of the press
notwithstanding, the difficulties and hazards they encounter in their line of work must also be taken into
consideration.

PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT

FREEDOM FROM CENSORSHIP

CHAVEZ vs. GONZALES

Freedom of Expression; In line with the liberal policy of the Supreme Court on locus standi when a case
involves an issue of overarching significance to our society, the Court brushes aside technicalities of
procedure and takes cognizance of the instant petition, seeing as it involves a challenge to the most exalted
of all the civil rights, the freedom of expression.—In line with the liberal policy of this Court on locus
standi when a case involves an issue of overarching significance to our society, we therefore brush aside
technicalities of procedure and take cognizance of this petition, seeing as it involves a challenge to the
most exalted of all the civil rights, the freedom of expression.The petition raises other issues like the
extent of the right to information of the public. It is fundamental, however, that we need not
address all issues but only the most decisive one which in the case at bar is whether the acts
of the respondents abridge freedom of speech and of the press.

Freedom of Expression; Hierarchy of Rights; Freedom of expression has gained recognition as a

fundamental principle of every democratic government, and given a preferred right that stands on a higher
level than substantive economic freedom or other liberties.—Freedom of expression has gained recognition
as a fundamental principle of every democratic government, and given a preferred right that stands on a
higher level than substantive economic freedom or other liberties. The cognate rights codified by Article
III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of
Rights, were considered the necessary consequence of republican institutions and the complement of free
speech. This preferred status of free speech has also been codified at the international level, its
recognition now enshrined in international law as a customary norm that binds all nations.

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate
of our constitutional system; It is only when the people have unbridled access to information and the press
that they will be capable of rendering enlightened judgments—we cannot both be free and ignorant.—In
the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate
of our constitutional system. This right was elevated to constitutional status in the 1935, the 1973 and
the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of
speech is an indispensable condition for nearly every other form of freedom. Moreover, our history shows
that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle
for the indispensable preconditions for the exercise of other freedoms. For it is only when the people have
unbridled access to information and the press that they will be capable of rendering enlightened
judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

Freedom of the Press; To be truly meaningful, freedom of speech and of the press should allow and even
encourage the articulation of the unorthodox view, though it be hostile to or derided by others, or though
such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger.”—Freedom of speech and of the press means something more than the right to approve
existing political beliefs or economic arrangements, to lend support to official measures, and to take
refuge in the existing climate of opinion on any matter of public consequence. When atrophied, the right
becomes meaningless. The right belongs as well—if not more—to those who question, who do not conform,
who differ. The ideas that may be expressed under this freedom are confined not only to those that are
conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press
should allow and even encourage the articulation of the unorthodox view, though it be hostile to or
derided by others; or though such view “induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger.” To paraphrase Justice Holmes, it is freedom for the
thought that we hate, no less than for the thought that agrees with us.

Relativity of Liberties and Freedoms; The scope of freedom of expression is so broad that it extends
protection to nearly all forms of communication—it protects speech, print and assembly regarding secular
as well as political causes, and is not confined to any particular field of human interest; The constitutional
protection is not limited to the exposition of ideas—the protection afforded free speech extends to speech or
publications that are entertaining as well as instructive or informative; While all forms of communication
are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media,
as will be subsequently discussed.—The scope of freedom of expression is so broad that it extends
protection to nearly all forms of communication. It protects speech, print and assembly regarding secular
as well as political causes, and is not confined to any particular field of human interest. The protection
covers myriad matters of public interest or concern embracing all issues, about which information is
needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The
constitutional protection assures the broadest possible exercise of free speech and free press for religious,
political, economic, scientific, news, or informational ends, inasmuch as the Constitution’s basic
guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or
shared by a majority. The constitutional protection is not limited to the exposition of ideas. The protection
afforded free speech extends to speech or publications that are entertaining as well as instructive or
informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans, 137 SCRA 628 (1985),
this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection
of the clause on freedom of speech and of expression. While all forms of communication are entitled to the
broad protection of freedom of expression clause, the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other
print media, as will be subsequently discussed.

Tests for Restraints on Freedom of Speech and Expression.—Generally, restraints on freedom of

speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous
tendency doctrine which permits limitations on speech once a rational connection has been established
between the speech restrained and the danger contemplated; (b) the balancing of interests tests, used
as a standard when courts need to balance conflicting social values and individual interests, and requires
a conscious and detailed consideration of the interplay of interests observable in a given situation of type
of situation; and (c) the clear and present danger rule which rests on the premise that speech may be
restrained because there is substantial danger that the speech will likely lead to an evil the government
has a right to prevent. This rule requires that the evil consequences sought to be prevented must be
substantive, “extremely serious and the degree of imminence extremely high.”As articulated in our
jurisprudence, we have applied either the dangerous tendency doctrine or clear and present
danger test to resolve free speech challenges. More recently, we have concluded that we have generally
adhered to the clear and present danger test.

Four Aspects of Freedom of the Press.—Philippine jurisprudence, even as early as the period under
the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from
prior restraint; (2) freedom from punishment subsequent to publication; (3) freedom of access to
information;and (4) freedom of circulation.

Prior Restraint; Words and Phrases; 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.—
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. Thus, it precludes
governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to
publication including the payment of license taxes for the privilege to publish; and even injunctions
against publication. Even the 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.
Any law or official that requires some form of permission to be had before publication can be made,
commits an infringement of the constitutional right, and remedy can be had at the courts.

Certain previous restraints may be permitted by the Constitution, but determined only upon a careful
evaluation of the challenged act as against the appropriate test by which it should be measured against.—
Given that 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,” it is important to stress not all
prior restraints on speech are invalid. Certain previous restraints may be permitted by the
Constitution, but determined only upon a careful evaluation of the challenged act as against the
appropriate test by which it should be measured against.

Words and Phrases; “Content-Neutral” and “Content-Based” Regulations, Distinguished.—It is not enough
to determine whether the challenged act constitutes some form of restraint on freedom of speech. A
distinction has to be made whether the restraint is (1) 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; or (2) a content-based restraint or censorship, i.e., the restriction is based
on the subject matter of the utterance or speech. The cast of the restriction determines the test by which
the challenged act is assayed with.

Content-Based and Content-Neutral Regulations; Standards of Review; When the speech restraints take
the form of a content-neutral regulation, only a substantial governmental interest is required for its
validity.—When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity. Because regulations of this type are not designed to
suppress any particular message, they are not subject to the strictest form of judicial scrutiny but
an intermediate approach—somewhere between the mere rationality that is required of any other law
and the compelling interest standard applied to content-based restrictions. The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also require
that the restrictions be narrowly-tailored to promote an important or significant governmental interest
that is unrelated to the suppression of expression. The intermediate approach has been formulated in this
manner: 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.

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, and 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.—On the other hand, 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. Unless the government can overthrow this presumption, the content-
based restraint will be struck down.

Press and Broadcast Media Dichotomy; Reasons; The dichotomy between print and broadcast media traces
its origins in the United States—there, broadcast radio and television have been held to have limited First
Amendment protection, and U.S. Courts have excluded broadcast media from the application of the “strict
scrutiny” standard that they would otherwise apply to contentbased restrictions; 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.—The regimes presently in
place for each type of media differ from one other. Contrasted with the regime in respect of books,
newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected
to regulatory schemes. The dichotomy between print and broadcast media traces its origins in the United
States. There, broadcast radio and television have been held to have limited First Amendment
protection, and U.S. Courts have excluded broadcast media from the application of the “strict scrutiny”
standard that they would otherwise apply to content-based restrictions. 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. Because
cases involving broadcast media need not follow “precisely the same approach that [U.S. courts] have
applied to other media,” nor go “so far as to demand that such regulations serve ‘compelling’ government
interests,” they are decided on whether the “governmental restriction” is narrowly tailored to
further a substantial governmental interest,” or the intermediate test.

While Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print
media, a review of Philippine case law on broadcast media will show that—as we have deviated with the
American conception of the Bill of Rights—we likewise did not adopt en masse the U.S. conception of free
speech as it relates to broadcast media, particularly as to which test would govern content-based prior
restraints.—As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in
treatment between broadcast and print media. Nevertheless, a review of Philippine case law on
broadcast media will show that—as we have deviated with the American conception of the Bill
of Rights—we likewise did not adopt en masse the U.S. conception of free speech as it relates to
broadcast media, particularly as to which test would govern content-based prior restraints. Our
cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in
the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and
narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is
based on a compelling government interest that also has constitutional protection, such as national
security or the electoral process. Second, 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.

Privacy of Communications; Anti-Wiretapping Act (R.A. No. 4200); Garci Tapes; Given all the unsettled
facets of the Garci tape, it is even arguable whether its airing would violate the anti-wiretapping law.—
This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a)
the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the
quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the
burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear
and present danger test. It appears that the great evil which government wants to prevent is the airing
of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar,
however, are confused and confusing, and respondents’ evidence falls short of satisfying the clear and
present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the
voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press
Secretary showed to the public two versions, one supposed to be a “complete” version and the other, an
“altered” version. Thirdly, the evidence of the respondents on the who’s and the how’s of the wiretapping
act is ambivalent, especially considering the tape’s different versions. The identity of the wiretappers, the
manner of its commission and other related and relevant proofs are some of the invisibles of this
case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would
violate the anti-wiretapping law.

Not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press—
the totality of the injurious effects of the violation to private and public interest must be calibrated in light
of the preferred status accorded by the Constitution and by related international covenants protecting
freedom of speech and of the press; The need to prevent the violation of laws cannot per se trump the
exercise of free speech and free press, a preferred right whose breach can lead to greater evils.—We rule
that not every violation of a law will justify straitjacketing the exercise of freedom of speech
and of the press. Our laws are of different kinds and doubtless, some of them provide norms of
conduct which even if violated have only an adverse effect on a person’s private comfort but does not
endanger national security. There are laws of great significance but their violation, by itself and
without more, cannot support suppression of free speech and free press. In fine, violation of law is
just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of
speech and of the press. The totality of the injurious effects of the violation to private and public
interest must be calibrated in light of the preferred status accorded by the Constitution and by related
international covenants protecting freedom of speech and of the press. In calling for a careful and
calibrated measurement of the circumference of all these factors to determine compliance with the clear
and present danger test, the Court should not be misinterpreted as devaluing violations of law.
By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil
consequence. But to repeat, the need to prevent their violation cannot per setrump the exercise
of free speech and free press, a preferred right whose breach can lead to greater evils. For this
failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has
no option but to uphold the exercise of free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national security of the State.

SANDOVAL-GUTIERREZ, J., Concurring Opinion:

Freedom of Expression; Freedom of the Press; Prior Restraint; Garci Tapes; The threat of suspension,
revocation and/or cancellation of the licenses or authorization hurled against radio and television stations
should they air the Garci Tape is definitely a form of prior restraint.—The threat of suspension,
revocationand/or cancellation of the licenses or authorizationhurled against radio and television
stations should they air the Garci Tape is definitely a form of prior restraint. The license or authorization
is the life of every media station. If withheld from them, their very existence is lost. Surely, no threat
could be more discouraging to them than the suspension or revocation of their licenses. In Far Eastern
Broadcasting v. Dans, 137 SCRA 628 (1985), while the need for licensing was rightly defended, the
defense was for the purpose, not of regulation of broadcast content, but for the proper allocation of
airwaves. In the present case, what the NTC intends to regulate are the contents of the Garci Tapes—the
alleged taped conversation involving the President of the Philippines and a Commissioner of the
Commission on Election. The reason given is that it is a “false information or willful misrepresentation.”
As aptly stated by Mr. Justice Antonio T. Carpio that “the NTC action in restraining the airing of
the Garci Tapes is a content-based prior restraint because it is directed at the message of the Garci
Tapes.”

Content-Based Regulations; History teaches us that licensing has been one of the most potent tools of
censorship; Clearly, content-based prior restraint is highly abhorred in every jurisdiction.—History
teaches us that licensing has been one of the most potent tools of censorship. This powerful bureaucratic
system of censorship in Medieval Europe was the target of John Milton’s speech Areopagita to the
Parliament of England in 1644. Under the Licensing Act of 1643, all printing presses and printers were
licensed and nothing could be published without the prior approval of the State or the Church
Authorities. Milton vigorously opposed it on the ground of freedom of the press. His strong advocacy led to
its collapse in 1695. In the U.S., the first encounter with a law imposing a prior restraint is in Near v.
Minnesota, 283 U.S. 697 (1931). Here, the majority voided the law authorizing the permanent enjoining of
future violations by any newspaper or periodical if found to have published or circulated an “obscene,
lewd and lascivious” or “malicious, scandalous and defamatory” issue. While the dissenters maintained
that the injunction constituted no prior restraint, inasmuch as that doctrine applied to prohibitions of
publication without advance approval of an executive official, the majority deemed the difference of no
consequence, since in order to avoid a contempt citation, the newspaper would have to clear future
publications in advance with the judge. In other similar cases, the doctrine of prior restraint was frowned
upon by the U.S. Court as it struck down loosely drawn statutes and ordinances requiring licenses to hold
meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or
not to issue them, and as it voided other restrictions on First Amendment rights. Then there came the
doctrine that prior licensing or permit systems were held to be constitutionally valid so long as the
discretion of the issuing official is limited to questions of times, places and manners. And in New York
Times Company v. United States, 403 U.S. 713. (1971), the same Court, applying the doctrine of prior
restraint from Near, considered the claims that the publication of the Pentagon Papers concerning the
Vietnam War would interfere with foreign policy and prolong the war too speculative. It held that such
claim could not overcome the strong presumption against prior restraints. Clearly, content-based prior
restraint is highly abhorred in every jurisdiction.
Any action of the government by means of which it might prevent free and general discussion of public
matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as
citizens.—Another objectionable portion of the NTC’s Press Release is the warning that it will not
hesitate to apply with full force the provisions of the Circulars and their accompanying
sanctions on erring radio and television stations and their owners/operators. This is a threat of
a subsequent punishment, an equally abhorred form of censorship. This should not also be countenanced.
It must be stressed that the evils to be prevented are not the censorship of the press merely, but any
action of the government by means of which it might prevent such free and general discussion
of public matters as seems absolutely essential to prepare the people for an intelligent
exercise of their rights as citizens. There is logic in the proposition that the liberty of the press will be
rendered a “mockery and a delusion” if, while every man is at liberty to publish what he pleases, the
public authorities might nevertheless punish him for harmless publications. In this regard, the fear of
subsequent punishment has the same effect as that of prior restraint.

The right of the people to know matters pertaining to the integrity of the election process is of
paramount importance. It cannot be sideswiped by the mere speculation that a public disturbance will
ensue. Election is a sacred instrument of democracy. Through it, we choose the people who
will govern us. We entrust to them our businesses, our welfare, our children, our
lives. Certainly, each one of us is entitled to know how it was conducted. What could be more
disheartening than to learn that there exists a tape containing conversations that compromised the
integrity of the election process. The doubt will forever hang over our heads, doubting whether those who
sit in government are legitimate officials. In matters such as these, leaving the people in darkness is not
an alternative course. People ought to know the truth. Yes, the airing of the Garci Tapes may have
serious impact, but this is not a valid basis for suppressing it. As Justice Douglas explained in his
concurring opinion in the New York Times, “the dominant purpose of the First Amendment was to
prohibit the widespread practice of governmental suppression of embarrassing information. A
debate of large proportions goes in the nation over our posture in Vietnam. Open debate and
discussion of public issues are vital to our national health.”

The struggle for freedom of expression is as ancient as the history of censorship—from the ancient time
when Socrates was poisoned for his unorthodox views to the more recent Martial Law Regime in our
country, the lesson learned is that censorship is the biggest obstacle to human progress.—Burke once called
the Press the Fourth Estate in the Parliament. This is because its ability to influence public opinion made
it an important source in the governance of a nation. It is considered one of the foundations of a
democratic society. One sign of its importance is that when a tyrant takes over a country, his first act is to
muzzle the press. Courts should therefore be wary in resolving cases that has implication on the
freedom of the press—to the end that the freedom will never be curtailed absent a recognized and valid
justification. In fine let it be said that the struggle for freedom of expression is as ancient as the history of
censorship. From the ancient time when Socrates was poisoned for his unorthodox views to the more
recent Martial Law Regime in our country, the lesson learned is that censorship is the biggest obstacle to
human progress. Let us not repeat our sad history. Let us not be victims again now and in the future.

NEW SOUNDS BROADCASTING vs. DY

Constitutional Law; Freedom of Speech, Expression and of the Press; Prior restraint refers to official
governmental restrictions on the press or other forms of expression in advance of actual publication or
dissemination; Not all prior restraints on speech are invalid.—Without taking into account any
extenuating circumstances that may favor the respondents, we can identify 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. Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. While any system of prior restraint comes to
court bearing a heavy burden against its constitutionality, not all prior restraints on speech are invalid.
xpression in media such as print or the Internet is not burdened by such requirements as congressional
franchises or administrative licenses which bear upon broadcast media.—And there is the fact that the
mode of expression restrained in these cases—broadcast—is not one which petitioners are physically able
to accomplish without interacting with the regulatory arm of the government. Expression in media such
as print or the Internet is not burdened by such requirements as congressional franchises or
administrative licenses which bear upon broadcast media. Broadcast is hampered by its utilization of the
finite resources of the electromagnetic spectrum, which long ago necessitated government intervention
and administration to allow for the orderly allocation of bandwidth, with broadcasters agreeing in turn to
be subjected to regulation.

Any system of prior restraints of expression comes to the Court bearing a heavy presumption against its
constitutional validity.—That the acts imputed against respondents constitute a prior restraint on the
freedom of expression of respondents who happen to be members of the press is clear enough. There is a
long-standing tradition of special judicial solicitude for free speech, meaning that governmental action
directed at expression must satisfy a greater burden of justification than governmental action directed at
most other forms of behavior. We had said in SWS v. COMELEC, 357 SCRA 496 (2001): “Because of the
preferred status of the constitutional rights of speech, expression, and the press, such a measure is
vitiated by a weighty presumption of invalidity. Indeed, ‘any system of prior restraints of expression
comes to this Court bearing 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.”

The immediate implication of the application of the “strict scrutiny” test is that the burden falls upon
respondents as agents of government to prove that their actions do not infringe upon petitioners’
constitutional rights.—The Court is of the position that the actions of the respondents warrant heightened
or strict scrutiny from the Court, the test which we have deemed appropriate in assessing content-based
restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the political
process, of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights
as expansion from its earlier applications to equal protection. The immediate implication of the
application of the “strict scrutiny” test is that the burden falls upon respondents as agents of government
to prove that their actions do not infringe upon petitioners’ constitutional rights. As content regulation
cannot be done in the absence of any compelling reason, the burden lies with the government to establish
such compelling reason to infringe the right to free expression.

PRIOR RESTRAINT

PEOPLE vs. PEREZ

FREEDOM OF SPEECH AND RIGHT OF ASSEMBLY.—The provisions of Act No. 292 must not be
interpreted so as to abridge the freedom of speech and the right of the people peaceably to assemble and
petition the Government for redress of grievances. Criticism is permitted to penetrate even to the
foundations of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the
Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious.

SEDITIOUS ATTACK ON THE GOVERNOR-GENERAL.—The Gover-nor-General is the representative

of executive civil authority in the Philippines and of the sovereign power. A seditious attack on the
Governor-General is an attack on the rights of the Filipino people and on American sovereignty.

EASTERN BROADCASTING vs. DANS

Due Process; Radio and Television; Due process must be followed before a radio station may be ordered
closed.—The cardinal primary requirements in administrative proceedings laid down by this Court in Ang
Tibay v. Court of Industrial Relations (69 Phil. 635) should be followed before a broadcast station may be
closed or its operations curtailed. It is necessary to reiterate that while there is no controlling and precise
definition of due process, it furnishes an unavoidablestandard to which government action must conform
in order that any deprivation of life, liberty, or property, in each appropriate case, may be valid (Ermita-
Malate Hotel and Motel Operators Association v. City Mayor, 20 SCRA 849).

All forms of media are protected by the speech freedom clause under a reasonable application of the clear
and present danger test.—All forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for limitations on freedom of
expression continues to be the clear and present danger rule—that words 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 the lawmaker has a right to prevent. The clear and present danger test, however,
does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all
forums.

Police Powers; Government has the right to protect itself against broadcast media.—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. At the
same time, the people have a right to be informed. Radio and television would have little reason for
existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they
are the most convenient and popular means of disseminating varying views on public issues, they also
deserve special protection.

Broadcast stations deserve special protection.—Broadcast stations deserve the special protection given to
all forms of media by the due process and freedom of expression clauses of the Constitution.

SPEECH PLUS: SYMBOLIC SPEECH

CHAVEZ vs. GONZALES

DIOCESE OF BACOLOD vs. COMELEC

Constitutional Law; Freedom of Expression; In a democracy, the citizen’s right to freely participate in the
exchange of ideas in furtherance of political decision-making is recognized.—In a democracy, the citizen’s
right to freely participate in the exchange of ideas in furtherance of political decision-making is
recognized. It deserves the highest protection the courts may provide, as public participation in nation-
building is a fundamental principle in our Constitution. As such, their right to engage in free expression
of ideas must be given immediate protection by this court.

The right to suffrage not only includes the right to vote for one’s chosen candidate, but also the right to
vocalize that choice to the public in general, in the hope of influencing their votes.—In the case before this
court, there is a clear threat to the paramount right of freedom of speech and freedom of expression which
warrants invocation of relief from this court. The principles laid down in this decision will likely influence
the discourse of freedom of speech in the future, especially in the context of elections. The right to
suffrage not only includes the right to vote for one’s chosen candidate, but also the right to vocalize that
choice to the public in general, in the hope of influencing their votes. It may be said that in an election
year, the right to vote necessarily includes the right to free speech and expression. The protection of these
fundamental constitutional rights, therefore, allows for the immediate resort to this court.

This case concerns the right of petitioners, who are noncandidates, to post the tarpaulin in their private
property, as an exercise of their right of free expression.—The present petition does not involve a dispute
between the rich and poor, or the powerful and weak, on their equal opportunities for media coverage of
candidates and their right to freedom of expression. This case concerns the right of petitioners, who are
noncandidates, to post the tarpaulin in their private property, as an exercise of their right of free
expression. Despite the invocation of the political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case.
Political Speeches; Sovereignty resides in the people. Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental right.—
Petitioners’ exercise of their right to speech, given the message and their medium, had understandable
relevance especially during the elections. COMELEC’s letter threatening the filing of the election offense
against petitioners is already an actionable infringement of this right. The impending threat of criminal
litigation is enough to curtail petitioners’ speech. In the context of this case, exhaustion of their
administrative remedies as COMELEC suggested in their pleadings prolongs the violation of their
freedom of speech. Political speech enjoys preferred protection within our constitutional order. In Chavez
v. Gonzales, 545 SCRA 441 (2008), Justice Carpio in a separate opinion emphasized: “[i]f ever there is a
hierarchy of protected expressions, political expression would occupy the highest rank, and among
different kinds of political expression, the subject of fair and honest elections would be at the top.”
Sovereignty resides in the people. Political speech is a direct exercise of the sovereignty. The principle of
exhaustion of administrative remedies yields in order to protect this fundamental right.

Constitutional Law; Freedom of Expression; In this case, the tarpaulin contains speech on a matter of
public concern, that is, a statement of either appreciation or criticism on votes made in the passing of
the Reproductive Health Law(RH Law). Thus, petitioners invoke their right to freedom of expression.—
True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be “designed to promote the election or
defeat of a particular candidate or candidates to a public office.” In this case, the tarpaulin contains
speech on a matter of public concern, that is, a statement of either appreciation or criticism on votes made
in the passing of the RH Law. Thus, petitioners invoke their right to freedom of expression.

The right to freedom of expression applies to the entire continuum of speech from utterances made to
conduct enacted, and even to inaction itself as a symbolic manner of communication.—Communication
exists when “(1) a speaker, seeking to signal others, uses conventional actions because he or she
reasonably believes that such actions will be taken by the audience in the manner intended; and (2) the
audience so takes the actions.” “[I]n communicative action[,] the hearer may respond to the claims by . . .
either accepting the speech act’s claims or opposing them with criticism or requests for justification.”
Speech is not limited to vocal communication. “[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’” such that “‘when ‘speech’ and ‘nonspeech’ elements are combined in the
same course of conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring into play
the [right to freedom of expression].’” The right to freedom of expression, thus, applies to the entire
continuum of speech from utterances made to conduct enacted, and even to inaction itself as a symbolic
manner of communication.

Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should be
protected and encouraged.—Proponents of the political theory on “deliberative democracy” submit that
“substantial, open, [and] ethical dialogue is a critical, and indeed defining, feature of a good polity.” This
theory may be considered broad, but it definitely “includes [a] collective decision-making with the
participation of all who will be affected by the decision.” It anchors on the principle that the cornerstone
of every democracy is that sovereignty resides in the people. To ensure order in running the state’s
affairs, sovereign powers were delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the theory on deliberative democracy may
evolve to the right of the people to make government accountable. Necessarily, this includes the right of
the people to criticize acts made pursuant to governmental functions. Speech that promotes dialogue on
public affairs, or airs out grievances and political discontent, should thus be protected and encouraged.

“Political Speech” and “Commercial Speech,” Distinguished.—We distinguish between political and
commercial speech. Political speech refers to speech “both intended and received as a contribution to
public deliberation about some issue,” “foster[ing] informed and civic-minded deliberation.” On the other
hand, commercial speech has been defined as speech that does “no more than propose a commercial
transaction.” The expression resulting from the content of the tarpaulin is, however, definitely
political speech.
Freedom of Expression; Limiting the maximum size of the tarpaulin would render ineffective petitioners’
message and violate their right to exercise freedom of expression.—In this case, the size regulation is not
unrelated to the suppression of speech. Limiting the maximum size of the tarpaulin would render
ineffective petitioners’ message and violate their right to exercise freedom of expression. The COMELEC’s
act of requiring the removal of the tarpaulin has the effect of dissuading expressions with political
consequences. These should be encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.

The guarantee of freedom of expression to individuals without any relationship to any political candidate
should not be held hostage by the possibility of abuse by those seeking to be elected.—The guarantee of
freedom of expression to individuals without any relationship to any political candidate should not be held
hostage by the possibility of abuse by those seeking to be elected. It is true that there can be
underhanded, covert, or illicit dealings so as to hide the candidate’s real levels of expenditures. However,
labelling all expressions of private parties that tend to have an effect on the debate in the elections as
election paraphernalia would be too broad a remedy that can stifle genuine speech like in this case.
Instead, to address this evil, better and more effective enforcement will be the least restrictive means to
the fundamental freedom.

In an equality-based approach, “politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech.”—In an equality-based approach, “politically
disadvantaged speech prevails over regulation[,] but regulation promoting political equality prevails over
speech.” This view allows the government leeway to redistribute or equalize ‘speaking power,’ such as
protecting, even implicitly subsidizing, unpopular or dissenting voices often systematically subdued
within society’s ideological ladder. This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that may drown out the
messages of others. This is especially true in a developing or emerging economy that is part of the
majoritarian world like ours.
Same; Same; Regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner.—Clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC, 288 SCRA 447 (1998) and National
Press Club v. COMELEC, 207 SCRA 1 (1992). Regulation of speech in the context of electoral campaigns
made by persons who are not candidates or who do not speak as members of a political party which are,
taken as a whole, principally advocacies of a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest possible
range of opinions coming from the electorate including those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a candidate.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons
who are not candidates or who do not speak as members of a political party if they are not candidates, only
if what is regulated is declarative speech that, taken as a whole, has for its principal object the
endorsement of a candidate only; The regulation must only be with respect to the time, place, and manner
of the rendition of the message.—Regulation of election paraphernalia will still be constitutionally valid if
it reaches into speech of persons who are not candidates or who do not speak as members of a political
party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has
for its principal object the endorsement of a candidate only. The regulation (a) should be provided by law,
(b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to
be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least
restrictive means to achieve that object. The regulation must only be with respect to the time, place, and
manner of the rendition of the message. In no situation may the speech be prohibited or censored on the
basis of its content. For this purpose, it will not matter whether the speech is made with or on private
property.
This caricature, though not agreeable to some, is still protected speech.—The tarpaulin in question may be
viewed as producing a caricature of those who are running for public office. Their message may be
construed generalizations of very complex individuals and party list organizations. They are classified
into black and white: as belonging to “Team Patay” or “Team Buhay.” But this caricature, though not
agreeable to some, is still protected speech.

Constitutional Law; Freedom of Expression; Free Speech Clause; To satisfy the strictures of the Free
Speech Clause, Congress needs to craft legislation on the sizing of campaign posters and other
paraphernalia with sufficient flexibility to address concerns inherent in the present fixed-dimension
model.—The practical effect of the fixed-size rule under Section 3.3 of RA 9006 (and its implementing
rule) is to further narrow the choices of poster locations for anyone wishing to display them in any of the
venues allowed by law. Voters who wish to make known to the public their choice of candidates (or for
that matter, candidates who wish to advertise their candidacies) through the display of posters are
precluded from doing so from certain areas not because these areas are off-limits but because, for reasons
of geography vis-à-vis the size of the poster, their contents simply become illegible. Such restriction on
campaign speech appears to me to be “greater than is essential” to advance the important government
interests of minimizing election spending and ensuring orderly elections. To satisfy the strictures of the
Free Speech Clause, Congress needs to craft legislation on the sizing of campaign posters and other
paraphernalia with sufficient flexibility to address concerns inherent in the present fixed-dimension
model.

Content-Neutral Regulations; View that the assailed regulations in the present case involve a content-
neutral regulation that controls the incidents of speech. Both the notice and letter sent by the Commission
on Elections (Comelec) to the Diocese of Bacolod sought to enforce Section 3.3 of Republic Act (RA) No. 9006
and Section 6(c) of Comelec Resolution No. 9615 which limits the size of posters that contain election
propaganda to not more than two (2) by three (3) feet. It does not prohibit anyone from posting materials
that contain election propaganda, so long as it meets the size limitations.—Content-based
regulationsare viewed with a heavy presumption of unconstitutionality. Thus, the government has the
burden of showing that the regulation is narrowly tailored to meet a compelling state interest, otherwise,
the Court will strike it down as unconstitutional. In contrast, content-neutral regulations are not
presumed unconstitutional. They pass constitutional muster once they meet the following
requirements: first, that the regulation is within the constitutional power of the Government; second,
that it furthers an important or substantial governmental interest; third, that the governmental interest
is unrelated to the suppression of free expression; and fourth, that the incidental restriction on speech is
no greater than is essential to further that interest. The assailed regulations in the present case
involve a content-neutral regulation that controls the incidents of speech. Both the notice and
letter sent by the Comelec to the Diocese of Bacolod sought to enforce Section 3.3 of RA 9006 and Section
6(c) of Comelec Resolution No. 9615 which limits the size of posters that contain election propaganda to
not more than two by three feet. It does not prohibit anyone from posting materials that contain election
propaganda, so long as it meets the size limitations.

Freedom of Expression; View that Philippine jurisprudence has long settled that the time, place, and
manner of speech may be subject to Government regulation. Since the size of a poster involves a time, place
and manner regulation, then it may be the proper subject of a government regulation.—Philippine
jurisprudence has long settled that the time, place, and manner of speech may be subject to Government
regulation. Since the size of a poster involves a time, place and manner regulation, then it may be the
proper subject of a government regulation. That Congress may impose regulations on the time place, and
manner of speech during the election period is even implicitly recognized in Section 2, paragraph 7,
Article IX-C of the 1987 Constitution. Under this provision, the Comelec is empowered to recommend to
Congress effective measures to minimize election spending, including limitation of places where
propaganda materials shall be posted. That Congress can pass regulations regarding places where
propaganda materials may be posted necessarily indicates that it can also pass other content-neutral
regulations, such as the time and manner of the speech’s utterance.
freedom of expression, in the first place, is not the god of rights to which all other rights and even
government protection of state interest must bow.—Freedom of expression, in the first place, is not the god
of rights to which all other rights and even government protection of state interest must bow. Speech
rights are not the only important and relevant values even in the most democratic societies. Our
Constitution, for instance, values giving equal opportunity to proffer oneself for public office, without
regard to a person’s status, or the level of financial resources that one may have at one’s disposal.