A law that restricts free speech is presumed invalid

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.[1] In no equivocal terms did the fundamental law of the land prohibit the abridgement of the freedom of expression. Section 4, Article II of the 1987 Constitution expressly states:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
A fundamental part of this cherished freedom is the right to participate in electoral processes, which includes not only the right to vote, but also the right to express one's preference for a candidate or the right to influence others to vote or otherwise not vote for a particular candidate. The Supreme Court has always recognized that these expressions are basic and fundamental rights in a democratic polity[2] as they are means to assure individual self-­fulfillment, to attain the truth, to secure participation by the people in social and political decision-making, and to maintain the balance between stability and change.[3]

Rightfully so, since time immemorial, "it has been our constant holding that this preferred freedom [of expression] calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage."[4] In the recent case of 1-United Transport Koalisyon (1-UTAK) v. COMELEC,[5] the Court En Banc pronounced that any governmental restriction on the right to convince others to vote for or against a candidate - a protected expression - carries with it a heavy presumption of invalidity.

To be sure, this rather potent deviation from our conventional adherence to the presumption of constitutionality enjoyed by legislative acts is not without basis. Nothing is more settled than that any law or regulation must not run counter to the Constitution as it is the basic law to which all laws must conform. Thus, while admittedly, these rights, no matter how sacrosanct, are not absolute and may be regulated like any other right, in every case where a limitation is placed on their exercise, the judiciary is called to examine the effects of the challenged governmental action[6] considering that our Constitution emphatically mandates that no law shall be passed abridging free speech and expression. Simply put, a law or statute regulating or restricting free speech and expression is an outright departure from the express mandate of the Constitution against the enactment of laws abridging free speech and expression, warranting, thus, the presumption against its validity.

Over the years, guided by notable historical circumstances in our nation and related American constitutional law doctrines on the First Amendment, certain tests of judicial scrutiny were developed to determine the validity or invalidity of free speech restrictions in our jurisdiction.

Foremost, a facial review of a law or statute encroaching upon the freedom of speech on the ground of overbreadth or vagueness is acceptable in our jurisdiction. Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.[7] Put differently, an overbroad law or statute needlessly restricts even constitutionally-protected rights. On the other hand, a law or statute suffers from vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application.[8]

It is noteworthy, however, that facial invalidation of laws is generally disfavored as it results to entirely striking down the challenged law or statute on the ground that they may be applied to parties not before the court whose activities are constitutionally protected. It disregards the case and controversy requirement of the Constitution in judicial review, and permits decisions to be made without concrete factual settings and in sterile abstract contexts,[9] deviating, thus, from the traditional rules governing constitutional adjudication. Hence, an on-its-face invalidation of the law has consistently been considered as a "manifestly strong medicine" to be used "sparingly and only as a last resort."[10]

The allowance of a review of a law or statute on its face in free speech cases is justified, however, by the aim to avert the "chilling effect" on protected speech, the exercise of which should not at all times be abridged.[11] The High Court elucidated:
The theory is that "when statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity."[12] (Emphasis supplied, citation omitted)
Restraints on freedom of expression are also evaluated by either or a combination of the following theoretical tests, to wit: (a) the dangerous tendency doctrine,[13] which were used in early Philippine case laws; (b) the clear and present danger rule,[14] which was generally adhered to in more recent cases; and (c) the balancing of interests test,[15] which was also recognized in our jurisprudence.

In the landmark case of Chavez v. Gonzales,[16] the Supreme Court laid down a more detailed approach in dealing with free speech regulations. Its approach was premised on the rational consideration that "the determination of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint."

The High Court discussed further:
A distinction has to be made whether the restraint is (1) a content ­ neutral regulation, i.e., merely concerned with the incidents of 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.

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 and expression] is no greater than is essential to the furtherance of that interest.
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.

With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about - especially the gravity and the imminence of the threatened harm - otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, "but only by showing a substantive and imminent evil that has taken the life of a reality already on ground." As formulated, "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."

The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression.

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken.

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. (Emphasis supplied, citations omitted)[17]

[1] Chavez v. Gonzales, 569 Phil. 155, 195 (2008).

[2] The Diocese of Bacolod v. COMELEC, 751 Phil. 301, 444 (2015), citing National Press Club v. COMELEC, 283 Phil. 795, 810 (1992).

[3] ABS-CBN Broadcasting Corporation v. COMELEC, 380 Phil. 780, 792 (2000).

[4] Mutuc v. COMELEC, 146 Phil. 798, 805-806 (1970).

[5] 758 Phil. 67 (2015).

[6] BAYAN v. Ermita, 522 Phil. 201, 224 (2006), citing Reyes v. Bagatsing, 210 Phil. 457, 467 (1983).

[7] Disini v. The Secretary of Justice, 727 Phil. 28, 121 (2014).

[8] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452, 488 (2010).

[9] Estrada v. Sandiganbayan, 421 Phil. 290, 355 (2001).

[10] David v. Macapagal-Arroyo, 522 Phil. 705, 726 (2006).

[11] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452, at 489.

[12] Id. at 485-486.

[13] This test permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated; Chavez v. Gonzales, supra note 1, at 200.

[14] This rule 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; Chavez v. Gonzales, id.

[15] This is 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; Chavez v. Gonzales, id.

[16] Supra note 1.

[17] Id. at 204-208.