Narrowly-tailored free speech regulations

For content-neutral regulations that affect free speech and expression, they should be tested or measured against the intermediate scrutiny, viz.:

  1. The regulation is within the constitutional power of the government;
  2. It furthers an important or substantial governmental interest;
  3. Such governmental interest is unrelated to the suppression of the free expression; and
  4. The incidental restriction on the alleged freedom of expression is no greater than (narrowly tailored with) what is essential to the furtherance of the governmental interest. (Chavez v. Gonzales, 569 Phil. 155, 195, 2008)

The failure to meet the fourth criterion is fatal to the regulation's validity as even if it is within the Constitutional power of the government agency or instrumentality concerned and it furthers an important or substantial governmental interest which is unrelated to the suppression of speech, the regulation shall still be invalidated if the restriction on freedom of expression is greater than what is necessary to achieve the invoked governmental purpose.[1]

In the judicial review of laws or statutes, especially those that impose a restriction on the exercise of protected expression, it is important that we look not only at the legislative intent or motive in imposing the restriction, but more so at the effects of such restriction when implemented. The restriction must not be broad and should only be narrowly-tailored to achieve the purpose. It must be demonstrable. It must allow alternative avenues for the actor to make speech.[2]

[1] Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571, 588 (2001).

[2] The Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015.

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