J. Brion's dissent re patay-buhay/RH Law issue

By Justice Arturo Dizon Brion (January 21, 2015); The diocese of Bacolod v. Comelec (G.R. No. 205728).

Section 3.3 of RA 9006 and Section 6(c) of Comelec Resolution No. 9615 are valid content-neutral regulations on election propaganda.

Even assuming that the Court can give due course to the present petition, I strongly disagree with the ponencia’s finding that the notices, as well as the regulations they enforce, are unconstitutional for violating the petitioners’ right to free speech.

According to the ponencia, the Comelec’s attempt to enforce Comelec Resolution No. 9615 is a content-based regulation that is heavily burdened with unconstitutionality. Even assuming that the letter and notice contain a content-neutral regulation, the ponencia asserts that it still fails to pass the intermediate test of constitutionality.

The letter and notice sent by the Comelec’s legal department both sought to enforce the size restrictions on election propaganda applicable to the subject poster. The Comelec advised the petitioners to comply with these size restrictions or take down the poster, or else it would be compelled to file an election offense against him. Thereby, the Comelec recognized that it would not have any cause of action or complaint if only the petitioners would comply with the size restriction.

The size restrictions are found in Comelec Resolution No. 9615, which implements Section 3 of the Fair Elections Act. Section 3.3 of the Fair Elections Act and Section 6(c) of Comelec Resolution No. 9615 mandate that posters containing election propaganda must not exceed an area of two by three feet.

Three queries must be resolved in determining the legality of Comelec’s letter and notice:

First, whether the subject poster falls within the election propaganda that may be regulated by the Comelec;

Second, whether the size restrictions in Comelec Resolution No. 9615 and RA 9006 impose content-neutral or content-based restrictions on speech; and

Third, whether this regulation pass the appropriate test of constitutionality.

A. The subject poster falls within the regulated election propaganda in RA 9006 and Comelec Resolution No. 9615.

The subject poster carries the following characteristics:

(1) It was postedduring the campaign period, by private individuals and within a private compound housing at the San Sebastian Cathedral of Bacolod.

(2) It was posted with another tarpaulin with the message "RH LAW IBASURA."

(3) Both tarpaulins were approximately six by ten feet in size, and were posted in front of the Cathedral within public view.

(4) The subject poster contains the heading "conscience vote" and two lists of senators and members of the House of Representatives. The first list contains names of legislators who voted against the passage of the Reproductive Health Law, denominated as Team Buhay. The second listcontains names of legislators who voted for the RH Law’s passage, denominated as "Team Patay." The "Team Buhay" list contained a check mark, while the Team Patay list an X mark. All the legislators named in both lists were candidates during the 2013 national elections.

(5) It does not appear to have been sponsored or paid for by any candidate.

The content of the tarpaulin, as well as the timing of its posting, makes it subject of the regulations in RA 9006 and Comelec Resolution No. 9615.

Comelec Resolution No. 9615 contains rules and regulations implementing RA 9006 during the 2013 national elections. Section 3 of RA 9006 and Section 6 of Comelec Resolution No. 9615 seek to regulate election propaganda, defined in the latter as:

The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed, displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic representation that iscapable of being associated with a candidate or party, and is intended to draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a public office. In broadcast media, political advertisements may take the form of spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers. Political advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet website, including, but not limited to, social networks, blogging sites, and microblogging sites, in return for consideration, or otherwise capable of pecuniary estimation. [Emphasis supplied]

Based on these definitions, the subject poster falls within the definition of election propaganda. It named candidates for the 2013 elections, and was clearly intended to promote the election of a list of candidates it favors and oppose the election of candidates in another list. It wasdisplayed in public view,and as such is capable of drawing the attention of the voting public passing by the cathedral to its message.

That the subject poster was posted by private individuals does not take it away from the ambit of the definition. The definition found in Comelec Resolution No. 9615 does not limit election propaganda to acts by or in behalf of candidates.

Neither does RA 9006 contain such restrictions: a look at what constitutes lawful election propaganda in RA 9006 also does not specify by whom or for whom the materials are posted, viz.:

Sec. 3. Lawful Election Propaganda. - Election propaganda whether on television, cable television, radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the partylist elections and for all bona fide candidates seeking national and local elective positions subject to the limitation onauthorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC). x x x [Emphasis supplied]

Further, lawful election propaganda under the Omnibus Election Code, which RA 9006 cites as part of its definition of what constitutes lawful propaganda, does not limit the materials enumerated therein to those posted by or in behalf of candidates. Neither does the definition of what constitutes an election offense limit the unlawful posting of election propaganda to those posted by, or in behalf of candidates and their parties.

Thus, I find it clear that the law does not distinguish between materials posted by or in behalf of candidates or by private individuals who have no political affiliation. When the law does not distinguish, neither should we.

Had Congress intended to limit its definition of election propaganda to materials posted for or in behalf of candidates, it could have so specified. Notably, Section 9 on the Posting of Campaign Materials indicates who the Comelec may authorize to erect common poster areas for campaign materials in publicplaces. It does not, as the ponencia makes it appear, limit the definition of election propaganda to those posted by candidates and parties.

The title of Section 9 uses the word "campaign materials" and not election propaganda; thus, it refers to a particular type of election propaganda. Election propaganda becomes a campaign material once it is used by candidates and political parties. Nevertheless, the latter is different from the more generic term ‘election propaganda’ in the other parts of RA 9006.

As worded, Section 9 regulates the manner by which candidates may post campaign materials, allowing them, subject to the Comelec’s authorization, to erect common poster areas in public places, and to post campaign materials in private property subject to its owner’s consent. It does not, by any stretch of statutory construction, limit election propaganda to posts by parties and candidates.Notably, the word "campaign material" appears only once in RA 9006, signifying its limited application to Section 9, and that it should not be interchanged with the term "election propaganda" appearing in other parts of the law.

In these lights, I disagree with the ponencia’s insistence that the Comelec had no legal basis to regulate the subject posters, as these are expressions made by private individuals.

To support this conclusion, the ponencia pointed out that first, it may be inferred from Section 9 of RA 9006 and Section 17 of Comelec Resolution No. 9615 (both referring to campaign materials) that election propaganda are meant to apply only topolitical parties and candidates because the provisions on campaign materials only mention political parties and candidates; second, the focus of the definition of the term election propaganda hinges on whether it is "designed to promote the election or defeat of a particular candidate or candidates to a public office;" and third, the subject poster falls within the scope of personal opinion that is not considered as political advertising under Section 1, paragraph 4 of Comelec Resolution No. 9615.

To my mind, the first two arguments lead us to navigate the forbidden waters of judicial legislation. We cannot make distinctions when the law provides none– ubi lex non distinguit, nec nosdistinguere debemos.

As I have earlier pointed out, the definition of election propaganda is not limited to those posted by, or in behalf of candidates. Further, campaign materials are different from election propaganda – the former refers to election propaganda used by candidates and political parties, and hence it is understandable that it would only mention candidates and political parties. Indeed, the definition of election propaganda focuses on the impact of the message, i.e., that it is intended to promote or dissuade the election of candidates, and not for whom or by whom it is posted. This nuance in the definition recognizes that the act ofposting election propaganda can be performed by anyone, regardless of whether he is a candidate or private individual.

It does not serve to limit the definition of election propaganda to materials posted by candidates. At this point, I find it worthy toemphasize that our first and primary task is to apply and interpret the law as written, and not as how we believe it should be.

With respect to the third argument, personal opinions are of course not included within the definition of election propaganda. But when these opinions on public issues comingle with persuading or dissuading the public to elect candidates, then these opinions become election propaganda.

Notably, the exclusion of personal opinions in the definition of political advertisements refers to mattersthat are printed in social media for pecuniary consideration. The entire provision was meant to cover the phenomenon of paid blogs and advertisements in the Internet, without including in its scope personal opinions of netizens. I do not think it can be extended to election propaganda, as exceptions usually qualify the phrase nearest to it – in this case, it was meant to qualify matters appearing in the Internet.

Further, if we were to follow the ponencia’s logic, and proclaim a personal opinion by a private individual meant to influence the public as regards their vote an exemption to the election propaganda definition, then it would render the entire definition useless. Since Comelec Resolution No. 9615 does not limit personal opinions to private individuals, then it applies with equal force to candidates, who necessarily have a personal opinion that they should get elected, and would not pay themselves to utter these opinions. I dare say that such an absurd situation, where an exception nullifies the general provision, had not been the intent of Comelec Resolution No. 9615.

Additionally, the definition of election propaganda under RA 9006 has no mention of personal opinions, and in case of inconsistency (which to me does not exist in the present case) between a law and a regulation implementing it, the law should prevail.

Worthy of note, lastly, is that the commingling of the subject poster’s content with a public issue in another poster does not exempt the former from regulation as an election propaganda. The definition of election propaganda necessarily includes issues that candidates support, because these issues can persuade or dissuade voters to vote for them. To be sure, it is a very short-sighted view to claim that propaganda only relates to candidates, not to the issues they espouse or oppose.

The present case reached this Court because the petitioners, who apparently are bent on carrying their Reproductive Health (RH) message to the people, and as a means, rode on tothe then raging electoral fight by identifying candidates supporting and opposing the RH. While indeed the RH issue, by itself, is not an electoralmatter, the slant that the petitioners gave the issue converted the non-election issue into a live election one hence, Team Buhay and Team Patay and the plea to support one and oppose the other.

From this perspective, I find it beyond question that the poster containing the message "RH LAW IBASURA" was an election propaganda, and should thus comply with the size limitations. To stress, the subject poster and its Team Buhay and Team Patay message advocated support or opposition to specific candidates based ontheir respective RH stand and thus cannot but fall within the coverage of what constitutes as election propaganda.

Lastly, that the subject poster was posted on private property does not divest the Comelec of authority toregulate it. The law specifically recognizes the posting of election propaganda on private property provided its owner consents to it. In the present case, the property owner is the Diocese of Bacolod itself, and the posting of the subject poster was made upon its own directive.

B. The notice and letter enforce a content-neutral regulation.

Philippine jurisprudence distinguishes between the regulation of speech that is content-based, from regulation that is content-neutral. Content-based regulations regulate speech because of the substance of the message it conveys. In contrast, content-neutral regulations are merely concerned with the incidents of speech: the time, place or manner of the speech’s utterance under well-defined standards.

Distinguishing the nature of the regulation is crucial in cases involving freedom of speech, as it determines the test the Court shall apply in determining its validity.

Content-based regulations are viewed with a heavy presumption of unconstitutionality. Thus, the governmenthas the burden of showing that the regulation is narrowly tailored tomeet 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 notprohibit anyone from posting materials that contain election propaganda, so long as it meets the size limitations.

Limitations on the size of a poster involve a content-neutral regulation involving the manner by which speech may be uttered. It regulates how the speech shall be uttered, and does not, inany manner affect or target the actual content of the message.

That the size of a poster or billboard involves a time, manner and place regulation is not without judicial precedent, albeitin the US jurisdiction where our Bill of Rights and most of our constitutional tests involving the exercise of fundamental rights first took root. Several cases decided by the US Supreme Court treated size restrictions in posters as a content-neutral regulation, and consequently upheld their validity upon a showing of their relationship to a substantial government interest.Admittedly, the size of the poster impacts on the effectiveness of the communication and the gravity of its message. Although size may be considered a part of the message, this is an aspect that merely highlights the content of the message. It is an incident of speech that government can regulate, provided it meets the requirements for content-neutral regulations.

That the incidents of speech are restricted through government regulation do not automatically taint them because they do not restrict the message the poster itself carries. Again, for emphasis, Comelec Resolution No. 9615 and RA 9006 regulate how the message shall be transmitted, and not the contents of the message itself.

The message in the subject poster istransmitted through the text and symbols that it contains. We can, by analogy, compare the size of the poster to the volume of the sound of a message. A blank poster, for instance and as a rule, does not convey any message regardless of its size (unless, of course, vacuity itself is the message being conveyed). In the same manner, a sound or utterance, without words or tunes spoken or played, cannot be considered a message regardless of its volume. We communicate with each other by symbols – written, verbal or illustrated – and these communications are what the freedom of speech protects, not the manner by which these symbols are conveyed.

Neither is the ponencia’s contention ―that larger spaces allow for more messages persuade to treat the size limitation as a content-based regulation – persuasive. RA 9006 and Comelec Resolution No. 9615 do not limit the number of posters that may be posted; only their size is regulated. Thus, the number of messages that a private person may convey is not limited by restrictions on poster size.

Additionally, I cannot agree with the ponencia’s assertion that the assailed regulation is content-based because it only applies to speech connected to the elections, and does not regulate other types of speech, such as commercial speech.

I am sure there are cases in the United States that recognize that a difference in treatment of speech based on the content of the message involves a content-based regulation. These cases, however, involve a single law providing either a preferential or prejudicial treatment on certain types of messages over other messages. In contrast, the assailed regulation covers only election propaganda (without regard to the actual message), and applies only during the election period.

Further, this kind of assertion, if followed, would amount to the declaration that the entire RA 9006 is a content-based regulation of speech, because it only regulates speech related tothe elections. On the flipside, this kind of assertion would render time, manner and place regulations on commercial speech as content-based regulations because they regulate only speech pertaining to commerce and not others. I find these resulting situations to be absurd as, in effect, they eradicate the jurisprudential distinction between content-based and content-neutral regulations.

The more reasonable approach, tomy mind, is to examine the regulation based on what it has intended to regulate, i.e., the resulting impact of the regulation. In the present case,the assailed regulation results into restricting the size of posters containing election propaganda, which, as I have explained above, is a content-neutral regulation.

C. Comelec Resolution No. 9615 passes the intermediate scrutiny test for content-neutral regulation

Applying the test for the intermediate test to Section 3.3 of RA 9006 and Section 6(c) of Comelec Resolution No. 9615, I find that the size limitation on posters does not offend the Constitution.

[1] The size limitation for posters containing election propaganda in Section 6(c) of Comelec Resolution No. 9615 and Section 3.3 of RA 9006 is within the constitutional power of the Government.

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.

In considering the matter before us, it should not be lost to us that we are examining actions implementing election laws. Both interests – freedom of speech and honest, fair and orderly elections – have been specifically recognized, in our Constitution and in the jurisprudence applying them, as important constitutional values. If speech enjoys preference for the individualin the hierarchy of rights, election regulations likewise have their preferred status in the hierarchy of governmental interests and have no less basis than the freedom of speech.

[2] The size limitation for posters containing election propaganda furthers an important and substantial governmental interest.

To justify its imposition of size restrictions on posters containing election propaganda, the Comelec invokes its constitutional mandate to ensure equal opportunity for public information campaigns among candidates, to ensure orderly elections and to recommend effective measures to minimize election spending.

These, to me, are substantial government interests sufficient to justify the content-neutral regulation on the size of the subject poster. Their inclusion in the Constitution signifies that they are important. We have, in several cases, upheld the validity of regulations on speech because of these state interests.

Further, the limitation on the size of posters serves these interests: a cap on the size of a poster ensures, to some extent, uniformity in the medium through which information on candidates may be conveyed to the public. It effectively bars candidates, supporters or detractors from using posters too large that they result in skewed attention from the public. The limitation also prevents the candidates and their supporting parties from engaging in a battle of sizes (of posters) and, in this sense, serve to minimize election spending and contribute to the maintenance of peace and order during the election period.

The ponencia dismissed the government interests the Comelec cites for not being compelling enough to justify a restriction on protected speech. According to the ponencia, a compelling state interestis necessary to justify the governmental action because it affects constitutionally-declared principles, i.e., freedom of speech.

Firstof all, the ponenciahas mixed and lumped together the test for the constitutionality of a content-based regulation with that of a contentneutral regulation.

A compelling state interest is a requirement for the constitutionality of a content-based regulation. The ponencia imposes this requirement as an addition to the intermediate test for content-neutral regulations, while at the same time applying this modified intermediate test to a regulation that it has described as content-based. The test to determine the constitutionality of a content-based regulation is different, and in fact requires a higher standard, from the test to determine a content-neutral regulation’s validity. The requirements for the compelling state interest test should not be confused with the requirements for the intermediate test, and vice versa.

If we were to require a compelling state interest in content-neutral regulations, we, in effect, would be transforming the intermediate test to a strict scrutiny test, and applying it to both content-based and content-neutral regulations, as both regulations involve a constitutional principle (i.e. the content of speech and the manner of speech). In other words, we would be eradicating a crucial jurisprudential distinction on testing the validity of a speech regulation, something that I find no cogent reason to disturb.

Neither can I agree with the ponencia’suse of Adiong v. Comelec as authority for holding that ensuringe quality between candidates is less important than guaranteeing the freedom of expression. This pronouncement is within the context of characterizing the prohibition of stickers and decals to private places as a form of unjustified censorship. In contrast, the regulation in question does not prohibit anyone from posting any election propaganda, but only to regulate its size. Notably, the weighing of constitutional values applies on a case-to-case basis; we have, in the past, decided cases where the regulation of speech is allowed to ensure equal access to public service.

I note, too that ensuring equality between candidates is not the only goal achieved in regulating the size of election posters – it is also meant to enforce the constitutional goals of minimizing election spending, and ensuring orderly elections.

Lastly, I cannot agree with the ponencia’s contention that the Comelec’s interest and regulatory authority in the posting of election propaganda is limited to postings in public places. The regulatory frame work of RA 9006 is not limited to election propaganda in public places, and in fact recognizes that they may be posted inprivate property, subject to their owners’ consent.

Further, the pronouncement in Adiong, where the Court held that the regulation prohibiting the posting of decals and stickers in private property violates the property owners’ right to property, does not apply in the presently assailed regulation, because the latter does not prohibit the posting of posters but merely regulates its size.

The ponencia’s legal conclusion also contravenes settled doctrine regarding the government’s capacity to regulate the incidents of speech, i.e., its time, place and manner of utterance. Notably, paragraph 7, Section 2, Article IX-C of the 1987 Constitution ―one of the provisions the Comelec invokes to justify its regulation ―specifically recognizes that the Congress may regulate the places of posting election propaganda. This provision, like RA 9006, does not limit the generic term‘place,’ and thus applies to both public and private property. Justice Estela M. Perlas-Bernabe, on the other hand, argues that there is no substantial state interest in restricting the posters’ size, because like the posting of decals and stickers in Adiong, it does not endanger any substantial government interest and at the same time restricts the speech of individuals on a social issue.

It must be stressed, however, that unlike in Adiong, which prohibited the posting of decals and stickers in private places, the assailed regulation in the present case does not prohibit the posting of election propaganda, but merely requires that it comply with size requirements. These size requirements promote government interests enumerated in the Constitution, and its non-regulation would hinder them.

[3] The governmental interest in limiting the size of posters containing election propaganda is unrelated to the suppression of free expression.

The government’s interest in limiting the size of posters containing election propaganda does add to or restrict the freedom of expression. Its interests in equalizing opportunity for public information campaigns among candidates, minimizing election spending, and ensuring orderly elections do not relate to the suppression of free expression.

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.

On deeper consideration, elections act as one of the means by which the freedom of expression and other guaranteed individual rights are protected, as they ensure that our democratic and republican ideals of government are fulfilled. To put it more bluntly, unless there are clean, honest and orderly elections that give equal opportunities and free choice to all, the freedoms guaranteed to individuals may become a joke, a piece of writing held in reverence only when it suits the needs or fancy of officials elected in tainted elections.

[4] The incidental restriction on speech is no greater than is essential to further that interest.

Indeed, the restriction on the poster’s size affects the manner by which the speech may be uttered, but this restriction is no greater than necessary to further the government’s claimed interests.

Size limits to posters are necessary to ensure equality of public information campaigns among candidates, as allowing posters with different sizes gives candidates and their supporters the incentive to post larger posters. This places candidates with more money and/or with deep-pocket supporters at an undue advantage against candidates with more humble financial capabilities.

Notably, the law does not limit the number of posters that a candidate, his supporter, or a private individual may post. If the size of posters becomes unlimited as well, then candidates and parties with bigger campaign funds could effectively crowd out public information on candidates with less money to spend to secure posters – the former’s bigger posters and sheer number could effectively take the attention away from the latter’s message. In the same manner, a lack of size limitations would also crowd out private, unaffiliated individuals from participating in the discussion through posters, or at the very least, compel them to erect bigger posters and thus spend more.

Prohibiting size restrictions on posters is also related to election spending, as it would allow candidates and their supporters to post as many and as large posters as their pockets could afford.

In these lights, I cannot agree with Justice Antonio T. Carpio’s argument that the size restriction on posters restricts speech greater than what is necessary to achieve the state’s interests. The restriction covers only the size of the posters, and not the message it contains. If posting a longer message or its readability is the issue, then it must be pointed out that nothing in RA 9006 or Comelec Resolution No. 9615 prevents the posting of more than one poster containing the longer message in one site. Applying this to Justice Carpio's example, condominium owners in the 30th floor, should they be adamant in posting their message in the said floor, can post more than one poster to make their message readable.

Too, they can still post their message in other areas where their message may be read. It may be argued, at this point, that this would amount to an indirect regulation of the place where posters may be posted. It must be remembered, however, that the place of posting involves a content neutral regulation that the Comelec is authorized to implement, and that in any case, there is no explicit limitation as to where the posters may be posted. They may still be posted anywhere, subject only to the size requirements for election propaganda.