1.5 Bibliografía
2.1.2 Trascendencia: de la galvanización a otras ciencias, de la
2.1.2.1 El vivisector
FREEDOM OF EXPRESSION
SCOPE SCOPE
Freedom of speechFreedom of speech
Freedom of the pressFreedom of the press
Freedom of assemblyFreedom of assembly
Freedom of petitionFreedom of petition
Freedom of religionFreedom of religion
Right of associationRight of association
Right to access to information on matters of publicRight to access to information on matters of public concern
concern
Right notRight not to be detained solely by reason of one’sto be detained solely by reason of one’s political beliefs and aspirations
political beliefs and aspirations
A. FREEDOM OF SPEECH AND PRESS A. FREEDOM OF SPEECH AND PRESS
Speech, expression, and press include every form of Speech, expression, and press include every form of expression whether oral, written, tape or disc recorded. It also expression whether oral, written, tape or disc recorded. It also includes movies as well as what is referred to as symbolic
(1) Freedom of expression is available onl y insofar as it is exercised for the discussion of matters affecting the public interest. Purely private matters do not come within the guaranty (Cruz).
(2) Primarily protects speech which communicates political, social or religious ideas.
(3) The freedom to speak includes the right to be silent.
This freedom also includes the right to an audience.
(4) The right to listen also includes the right not to listen.
(5) Commercial speech does not enjoy the same degree of protection as the “core” speech (i.e. political, social or religious ideas).
COMMERCIAL SPEECH
Communication which “no more than proposes a commercial transaction.” (Bernas)
General rule: To enjoy protection from curtailment, commercial speech:
1. Must not be false and misleading (truthful) 2. Should not propose an illegal transaction
(lawful) Exceptions
• Government has substantial interest to protect;
• The regulation directly advances that interest;
• It is not more extensive than is necessary to protect their interest.
PRIVATE VERSUS GOVERNMENT SPEECH Parliamentary immunity guarantees the members the freedom of expression without fear of being made responsible in criminal or civil actions before courts or forum outside of Congress. But this does not protect them from responsibility from the legislative body. The members may nevertheless be questioned in Congress itself for unparliamentary conduct.
Members of the Congress have been, or could be censured, committed to prison, even expelled by the votes of their colleagues. (Osmen ̃a v. Pendatun, 1960)
“But a libelous letter of a congressman, published on a newspaper, does not fall under “speech or debate” protected by the Constitution. Speech or debate refers to speeches/statements/votes made within Congress while it is in session, or duly authorized actions of congressmen in the discharge of their duties.” (Jimenez v. Cabangbang, 1966)
HECKLER’S VETO 1. an attempt to limit unpopular speech.
For example, an unpopular group wants to hold a rally and asks for a permit. The government is not allowed to refuse the permit based upon the beli efs of the applicants. But the government can deny the permit, reasoning that it is not because the government disapproves of the group's message, it is just afraid that so many people will be outraged that there might be violent protests. Under the Free Speech Clause of Sec. 4, Art III, the government
may not silence speech based on the reaction (or anticipated reaction) of a hostile audience, unless there is a "clear and present danger" of grave and imminent harm, which is not easy to prove.
POLITICAL SPEECH
Political speech is one of the most important expressions protected by the Fundamental Law. “x x x and have to be protected at all costs for the sake of democracy." (GMA Network v. COMELEC, G.R. No. 205357, Sept. 2, 2014).
Political speech is motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right to change the contours of power whether through the election of representatives in a republican government or the revision of the basic text of the Constitution. We evaluate restrictions on freedom of expression from their effects. We protect both speech and medium because the quality of this freedom in practice will define the quality of deliberation in our democratic society (Diocese of Bacolod v. COMELEC, G. R. No. 205728, January 21, 2015).
ELEMENTS OF FREEDOM OF EXPRESSION
• Freedom from previous restraint or censorship
• Freedom from subsequent punishment
FORMS OF ABRIDGMENT (1) Prior restraint
(2) Subsequent punishment
LIMITATIONS ON FREEDOM OF EXPRESSION (2014 BAR)
It should be exercised within the bounds of laws enacted for the promotion of social interests and the protection of other equally important individual rights such as:
(1) Laws against obscenity, libel and slander (contrary to public policy)
(2) Right to privacy of an individual
(3) Right of state/government to be protected from seditious attacks
(4) Legislative immunities (5) Fraudulent matters
(6) Advocacy of imminent lawless conducts (7) Fighting words
(8) Guarantee implies only the right to reach a willing audience but not the right to compel others to listen, see or read
PRIOR RESTRAINT
Official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.
• The prohibition of “prior restraint” is not absolute.
• Forms of prior restraint includes (but is not limited to):
licensing and permit as prerequisite to publication;
censorship; judicial prior restraint; license taxes; flat license fees
PRESUMPTION OF INVALIDITY
Any system of prior restraints of expression bears a heavy presumption against its constitutional validity. The Government thus carries the burden of showing justification for the enforcement of such restraint. (NY Times v. US)
LIMITATIONS UPON THE IMMUNITY FROM PREVIOUS RESTRAINT OF THE PRESS (W-O-I)
(1) When a nation is at war (2) Obscene publications
(3) Incitements to acts of violence and the overthrow of force of orderly government (Near v. Minnesota, 283 U.S. 697)
(1) Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. (INC v. CA, 259 SCRA 529)
(2) Any system of prior restraints of expression come to the Court bearing a heavy presumption against its constitutional validity. (New York Times v. United States, 403 U.S. 713)
SUBSEQUENT PUNISHMENT
The State imposes punishment after the dissemination or publication.
• Basis: Freedom of speech includes freedom after the speech (Cruz).
• Tests
(1) Dangerous Tendency – when it creates a denagerous tendency, which the state has the right to prevent. There must be rational connection between the speech and evil apprehended. Ex.
People v. Perez (inciting to sedition)
(2) Clear and Present Danger – In determining WON a circumstance constitute clear and present danger, the court must inquire WON in each case the gravity of the evil, discounted by its improbability, justifies an invasion of free speech to avoid the
danger.
(3) Balancing of Interests– It is the courts function to balance public interest and the freedoms affected by it, and to arrive at a judgment where the greater weight shall be placed.
CONTENT NEUTRAL AND CONTENT BASED REGULATION
CONTENT NETURAL REGULATION
CONTENT BASED RESTRAINT Merely concerned with the
incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards.
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 assailed with.
No presumption of unconstitutionality
There is presumption of unconstitutionality
NOTE: The burden of proof to overcome the
presumption of
unconstitutionality is with the government
Test to be used:
Intermediate Approach
Clear and Present Danger
If unpaid, the business or activity does not become illegal.
If unpaid, the business or activity itself can become illegal
TESTS AND APPLICATIONS INTERMEDIATE APPROACH TEST
Used 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 (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008).
NOTE: A law is narrowly-tailored if it is for the advancement of state’s interest, if it does not restrict a significant amount of speech that does not implicate the government interest and if it is the least restrictive alternative available to serve such interest (Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U.
Pennsylvania L. Rev. 2417, 1997).
DANGEROUS TENDENCY RULE
Speech may be curtailed or punished when it creates a dangerous tendency which the State has the right to prevent.
• For speech to be punishable, all it requires it that there be a rational connection between the speech and the evil apprehended.
• If the words uttered create a dangerous tendency which the State has a right to prevent, then such words are punishable. (Cabansag v. Fernandez, 102 Phil. 152)
• It is not necessary to create the evil; a mere tendency towards the evil was enough (Cruz).
CLEAR AND PRESENT DANGER RULE
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 the State has a right to prevent. It is a question of proximity and degree. (Schenk v. United States, 249 U.S. 97)
Requisites in determining clear and present danger
(1) Means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished. (Cabansag v. Fernandez, supra.) (2) The danger must not only be c lear but also present.
(Gonzalez v. COMELEC, G.R. No. L-27833) Clear
A causal connection with the danger of the substantially evil arising from the utterance questioned.
Present
Refers to a time element; the danger must not only be probable but very likely inevitable (used to be id entified with imminent and immediate danger).
BALANCING OF INTERESTS TEST
When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. (American Communications Assocation v. Douds, 339
U.S. 282)
UNPROTECTED SPEECH
Both historically and doctrinally, freedom of expression has never been understood to be an absolute right (Bernas).
There are certain 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 . (Chaplinsky v. New Hampshire, 315 US 568)
LIBEL
• “A libel is a public and malicious imputation of a crime, or of a vice or a 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.” (Art. 353, RPC)
• Publicity means “making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written.” (Bernas).
• The evil which the law on libel seeks to punish is its tendency to injure the person defamed, regardless of its effect upon the public. (People v. del Rosario, 86 Phil.
163)
• The constitutional guarantees require a rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was must with actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
(NY Times v. Sullivan, 376 US 254)
OBSCENITY
Obscenity is not within the area of protected speech or press.
Obscene material is material which deals with sex in a manner appealing to prurient interest. (Roth v. United States, 354 US 476)
TEST FOR OBSCENITY, AS ESTABLISHED IN MILLER V. CALIFORNIA (413 US 15)
(PI-SD-LV)
(1) Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole appeals to the prurient interest;
(2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
• “Community standards” x x x does not mean that there are, or should or can be, fixed uniform national standards of precisely what appeals to the “prurien t interest” or is “patently offensive. These are essentially questions of fact. (Miller v. California, supra.)
FACIAL CHALLENGES AND OVERBREADTH DOCTRINE
Facial Challenge
Facial challenge is a challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void.
Overbreadth
A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Ordinances that go beyond what is reasonably necessary to solve the problems. (Lucena Grand Central v JAC Liner, 452 SCRA 174
NOTE: Facial challenge to a statute is allowed only when it operates in the area of freedom of expression. Invalidation of the statute on its face, rather than as applied, is permitted in the interest of preventing a chilling effect on freedom of expression. (Separate opinion of Justice Mendoza in Cruz v.
Secretary of Environment and Natural Resources, GR. 135385, Dec. 6, 2000)
STATE REGULATION OF DIFFERENT TYPES OF M ASS MEDIA
Live Media Coverage of Court Proceedings
The propriety of granting or denying permission to the media to broadcast, record, or photograph court proceedings involves weighing the constitutional guarantees of freedom of the press, the right of the public to information and the right to public trial, on the one hand, and on the other hand, the due process rights of the defendant and the inherent and constitutional power of the courts to control their proceedings in order to permit the fair and impartial administration of justice. Collaterally, it also raises issues in the nature of media, particularly television and its role in society, and of the impact of new technologies on law.
An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secret conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with proper decorum and observe the trial process. (Secretary of Justice v. Estrada, A.M. No. 01-4-03-SC, Sept. 13, 2001)
PROTECTION OF CHILDRENS’ RIGHTS
The Court , using the balancing of interest test, it ruled that the government’s interest to protect the and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on and offensive or obscene language uttered on prime-time televeision broadcast to which children have clear access to. (Soriano v.
MTRCB, GR No. 165636)
NOTE:In his dissenting opinion, Justice Carpio cited Action for Children's Television v. FCC which establishes the safe harbor period to be from 10:00 in the evening to 6:00 in the morning, when the number of children in the audience is at a minimum. In effect, between the hours of 10:00 p.m. and 6:00 a.m., the broadcasting of material considered indecent is permitted. Between the hours of 6:00 a.m. and 10:00 p.m., the broadcast of any indecent material may be sanctioned.
B. FREEDOM OF ASSEMBLY AND PETITION The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. The standards for allowable impairment of speech and press are also those for assembly and petition.
The mayor possesses reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order. (Navarro v.
Villegas, 31 SCRA 721)
RULES ON ASSEMBLY AND PETITION
(1) Inform the licensing authority of the date, the public place where and the time it will take place (private place-only consent of owner required)
(2) Application – filed ahead of time to enable public officials concerned to appraise WON there may be valid objections.
(3) (Indispensable condition to refusal or modification that the CPD test be standard for the decision reached) (4) If public authority believes that there is an imminent and
grave danger of substantial evil, applicants must be heard on the matter. Decision must be transmitted at the earliest opportunity (Reyes v. Bagatsing, G.R. No. L-65366).
• The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place.
• Application should filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached.
• The decision of the public official, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity.
BP 880 - THE PUBLIC ASSEMBLY ACT OF 1985 Public assembly
Any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of:
(1) presenting a lawful cause; or
(2) expressing an opinion to the general public on any particular issue; or
(3) protesting or influencing any state of affairs whether political, economic or social; or
(4) petitioning the government for redress of grievances.
Permit shall be required for any person or persons to organized and hold a public assembly in a public place.
NO PERMIT SHALL BE REQUIRED IF:
(1) Public assembly shall be done or made in a freedom park duly established by law or ordinance
(2) Private property, in which case only the consent of the owner or the one entitled to its legal possession is required,
(3) Campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said institution.
APPLICATION REQUIREMENTS (1) Application shall be in writing and shall include:
a. names of the leaders or organizers;
b. purpose of such public assembly;
c. date, time and duration;
d. place or streets to be used;
e. probably number of persons participating;
f. transport and public address systems to be used (2) Must incorporate duties and responsibilities of applicant (3) Filed at least five (5) working days before the scheduled
public assembly with the office of the city or municipal mayor in whose jurisdiction the activity is to be held (4) Upon receipt of the application, office of the municipal
or city mayor shall post t he application at a conspicuous
or city mayor shall post t he application at a conspicuous