Consumo

Freedom of Expression

141.

Distinguish “content -based restrictions” on free speech from

“content -neutral restrictions,” and give example of each.

Held:

Held: Content-based restrictions are imposed because of the content of the speech and are, therefore, subject to the clear-and-present danger test. For example, a rule such as that involved in Sanidad v.

Comelec (181 SCRA 529 [1990]), prohibiting columnists, commentators, and announcers from campaigning either for or against an issue in a plebiscite must have compelling reason to support it, or it will not pass muster under strict scrutiny. These restrictions are censorial and therefore they bear a heavy presumption of constitutional invalidity. In

Political Law Reviewer by SANDOVAL 71 addition, they will be tested for possible

overbreadth and vagueness.

Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646, which prohibits the sale or donation of print space and air time to political candidates during the campaign period, are not concerned with the content of the speech. These regulations need only a substantial governmental interest to support them. A deferential standard of review will suffice to test their validity. The clear-and-present danger rule is inappropriate as a test for determining the constitutional validity of laws, like Sec. 11(b) of R.A. No. 6646, which are not concerned with the content of political ads but only with their incidents. To apply the clear-and-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is needed.

The test for this difference in the level of justification for the restriction of speech is that content-based restrictions distort public debate, have improper motivation, and are usually imposed because of fear of how people will react to a particular speech. No such reasons underlie content-neutral regulations, like regulation of time, place and manner of holding public assemblies under B.P. Blg. 880, the Public Assembly Act of 1985. (Osmen a v. COMELEC, 28 8 SCRA 447, March 31, 1 998 [Mendo za])

142. Does the conduct of exit poll by ABS CBN present a clear and present danger of destroying the credibility and integrity of the electoral process as it has the tendency to sow confusion considering the randomness of selecting interviewees, which further makes the exit poll highly unreliable, to justify the promulgation of a Comelec resolution prohibiting the same?

Held:

Held: Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls.

The holding and the reporting of the results

of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other.

The COMELEC‟s concern with the possible noncommunicative effect of exit polls – disorder and confusion in the voting centers – does not justify a total ban on them.

Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not. There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters‟ answers to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters‟ choices.

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys.

With foregoing premises, it is concluded that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls – properly conducted and publicized – can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills. (ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 1334 86, Jan. 28, 2000 , En Ban c [Panganiban])

Political Law Reviewer by SANDOVAL 72 143. Section 5.4 of R.A. No. 9006 (Fair

Election Act) which provides: “Surveys affecting national candidates shall not be published fifteen (15) days before an election

and surveys affecting local candidates shall not be published seven (7) days before an election.” The Social Weather Stations, Inc.

(SWS), a private non-stock, non-profit social research institution conducting surveys in various fields; and Kamahalan Publishing Corporation, publisher of the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys, challenged the constitutionality of aforesaid provision as it constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. Should the challenge be sustained?

Held:

Held: For reason hereunder given, we hold that Section 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press.

To be sure, Section 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. 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 x x x. 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.

Nor may it be argued that because of Art. IX-C, Sec. 4 of the Constitution, which gives the Comelec supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like Sec. 5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the Comelec under Art. IX-C, Sec. 4 is limited to ensuring “equal opportunity, time, space, and the right to reply” as well as uniform and reasonable rates of charges for the use of such media facilities for “public information campaigns and forums among candidates.”

X x x

Nor can the ban on election surveys be justified on the ground that there are other

countries x x x which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive.

It is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries.

X x x.

What test should then be employed to determine the constitutional validity of Section 5.4? The United States Supreme Court x x x held in United States v. O‟ Brien:

[A] government regulation is sufficiently justified (1) if it is within the constitutional

power of the government; (2) if it f urthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms (of speech, expression and press) is no greater than is essential to the furtherance of that interest (391 U.S.

367, 20 L. Ed. 2d 692, 680 [1968]

[bracketed numbers added]).

This is so far the most influential test for distinguishing based from content-neutral regulations and is said to have

“become canonical in the review of such laws.” It is noteworthy that the O‟ Brien test has been applied by this Court in at least two cases (Adiong v. Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec, supra.).

Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is “not unrelated to the suppression of free expression.” Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to Sec.

5.4.

First. Sec. 5.4 fails to meet criterion (3) of the O‟ Brien test because the causal connection of expression to the asserted governmental interest makes such interest

“not unrelated to the suppression of free expression.” By prohibiting the publication of

Political Law Reviewer by SANDOVAL 73 election survey results because of the

possibility that such publication might undermine the integrity of the election, Sec.

5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, Sec. 5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that “the government has no power to restrict expression because of its message, its ideas, its subject matter, or its contents.”

The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire (315 U.S.

568, 571-572, 86 L. Ed. 1031, 1035 [1942]), thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or „fighting‟

words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Nor is there justification for the prior restraint which Sec. 5.4 lays on protected speech. In Near v. Minnesota (283 U.S. 697, 715-716, 75 l. Ed. 1357, 1367 [1931]),it was held:

[T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases x x x. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government x x x.

Thus, x x x the prohibition imposed by Sec.

5.4 cannot be justified on the ground that it is only for a limited period and is only

incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election.

This sufficiently distinguishes Sec. 5.4 from R.A. No. 6646, Sec. 11(b), which this Court found to be valid in National Press Club v.

Comelec (supra.), and Osmena v. Comelec (supra.). For the ban imposed by R.A. No.

6646, Sec. 11(b) is not only authorized by a specific constitutional provision (Art. IX-C, Sec. 4), but it also provided an alternative so that, as this Court pointed out in Osmena, there was actually no ban but only a substitution of media advertisements by the Comelec space, and Comelec hour.

Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, Sec. 5.4 nonetheless fails to meet criterion (4) of the O‟ Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, Sec. 5.4. aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect,

“junking” of weak or “losing” candidates, and resort to the form of election cheating called

“dagdag-bawas.” Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987(Bk.

V, Tit. I, Subtit. C, Ch 1, Sec. 3[1]), the Comelec is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in Sec. 5.4.

Pursuant to this power of the Comelec, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the

Political Law Reviewer by SANDOVAL 74 Government can deal with this

natural-enough tendency of some voters. Some voters want to be identified with the

“winners.” Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has been held that “[mere]

legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.”

To summarize then, we hold that Sec. 5.4. is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. (Social Wea ther Stations, I nc., v. COMELEC, G.R. No. 147571, May 5, 2001, En Ban c [Mend oza])

144. Discuss the " doctrine of fair comment "

as a valid defense in an action for libel or slander.

Held:

Held: Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.

The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. (Bor jal v. CA, 301 SCRA 1, Jan. 14, 1999, 2 ^nd Div.

[Bellosillo])

145. What is the “raison d‟etre” for the New York Times v. Sullivan (376 US 254) holding that honest criticisms on the conduct of public officials and public figures are

insulated from libel judgments?

Held:

Held: The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not.

The raison d‟etre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would would-be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it.

(Bor jal v. CA , 301 SCRA 1, Jan. 14, 199 9, 2 ^nd Div. [Bellosillo])

146. Who is a “public figure,” and therefore subject to public comment?

Held:

Held: [W]e deem private respondent a public figure within the purview of theNew York Times ruling. At any rate, we have also defined “public figure” in Ayers Production Pty., Ltd. v. Capulong (G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861)as –

X x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a „public personage.‟ He is, in other words, a celebrity. Obviously, to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person.

The FNCLT (First National Conference on Land Transportation) was an undertaking infused with public interest. It was promoted as a joint project of the government and the private sector, and organized by top government officials and prominent businessmen. For this reason, it attracted media mileage and drew public attention not