Bar Q and A #22

Since the protesters merely reached three meters beyond the boundary of Quezon City, the police authorities in Manila should not have stopped them, as there was no clear and present danger to public order. In accordance with the policy of maximum tolerance, the police authorities should have asked the protesters to disperse and if they refused, the public assembly may be dispersed peacefully.

1. The closing down of Radio Station XX during the fighting is permissible. With respect to news media, wartime censorship has been upheld on the ground that “when a nation is at war many things that might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” The security of community life may be protected against incitements to acts of violence and the overthrow by force of orderly government (Near v. Minnesota, 283 U.S. 697 (1931), Justice Holme’s opinion in Schenck v. United States, 249 U.S. 47 (1919); New York
Times v. United States, 403 U.S. 713 (1971)). With greater reason then may censorship in times of emergency be justified in the case of broadcast media since their freedom is somewhat lesser in scope. The impact of the vibrant speech, as Justice Gutierrez said, is forceful and immediate. Unlike readers of the printed work, a radio audience has lesser opportunity to cogitate, analyze and reject the utterance (Eastern Broadcasting Corp (DYRE) v. Dans, 137 SCRA 647 (1985)).

2. But the cancellation of the franchise of the station on October 6, 1987, without prior notice and hearing, is void. As held in 137 SCRA 647 (1985), the cardinal primary requirements in administrative proceedings (one of which is that the parties must first be heard) as laid down in Ang Tibay v. CIR, 69 Phil. 635 (1940) must be observed in closing a radio station because radio broadcasts are a form of constitutionally- protected expression.

I  would challenge its validity in court on the ground that it constitutes a prior restraint on freedom of expression. Such a limitation is valid only in exceptional cases, such as where the purpose is to prevent actual obstruction to recruitment of service or the sailing dates of transports or the number and location of troops, or for the purpose of enforcing the primary requirements of decency or the security of community life (Near v. Minnesota, 283 U.S. 697 (1931)). Attacks on the government, on the other hand, cannot justify prior restraints. For as has been pointed out, “the interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech (United States v. Bustos, 37 Phil. 741 (1918)).

The parties adversely affected may also disregard the regulation as being on its face void. As has been held, “any system of prior restraints of expression comes to the court bearing a heavy presumption against its constitutional validity,” and the government “thus carries a heavy burden of showing justification for the imposition of such a restraint” (New York Times Co. v. United States, 403 U.S. 713 (1971)). The usual presumption of validity that inheres in legislation is reversed in the case of laws imposing prior restraint on freedom of expression.

A statute is overbroad when a governmental purpose to control or prevent activities constitutionally subject to state regulations is sought to be achieved by means which sweep unnecessarily broadly and invade the area of protected freedom. It applies both to free speech cases and penal statues.

However, a facial challenge on the ground of overbreadth can only be made in free speech cases because of its chilling effect upon protected speech. A facial challenge on the ground of overbreadth is not applicable to penal statutes, because in general they have an in terrorem effect (Southern Hemisphere Engagement Network, Inc. v. Anti-terrorism Council, 632 SCRA 146)

A facial challenge is one that is launched to assail the validity of statutes concerning not only protected speech, but also all other rights (in the First Amendment [U.S.]) including religious freedom, freedom of the press, and the rights of the people to peaceably assemble and to petition the Government for a redress of grievances.

While the Court has withheld the application of facial challenges to strictly penal statutes, it has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights.

For unlike its counterpart in the U.S., the Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014, 721 SCRA 146)

If I were the judge, I would rule that the distribution of the newspaper cannot be banned. Freedom of the news should be allowed although it induces a condition of unrest and stirs people to anger. Freedom of the press includes freedom of circulation (Chavez v. Gonzales, 545 SCRA 441). When governmental action that restricts freedom of the press is based on content, it is given the strictest scrutiny and the government must show that there is a clear and present danger of the substantive evil which the government has the right to prevent. The threats of violence and even the destruction of properties while hurting hose selling the newspaper do not constitute a clear and present danger as to warrant curtailment of the right of DeepThroat to distribute the newspaper (Chavez v. Gonzales, 545 SCRA 441)

Commercial speech is communication which involves only the commercial interests of the speaker and the audience, such as advertisements.

Commercial speech is entitled to constitutional protection (Ayer Productions Pty., Ltd. v. Capulong 160 SCRA 861)

Commercial speech may be required to be submitted to a governmental agency for review to protest public interests by preventing false or deceptive claims (Pharmaceutical and Health Care Association of the Philippines v. Duque, 535 SCRA 265)