CONTENT-BASED AND CONTENT- CONTENT-NEUTRAL REGULATIONS CONTENT-NEUTRAL REGULATIONS

In document Political Law Reviewer 2015 (Page 156-159)

CONSTITUTIONAL LAW 2

B. CONTENT-BASED AND CONTENT- CONTENT-NEUTRAL REGULATIONS CONTENT-NEUTRAL REGULATIONS

Content-Based Content-Neutral Definition Regulation of

the subject matter of the utterance or speech

Regulations of the incidents of speech – time,

place and

manner Standard of

Review

Strictest scrutiny Intermediate approach

B.1 CONTENT-BASED RESTRICTIONS The regulation is based on the subject matter of the utterance or speech. It merely controls time, place, or manner, under well-defined standards.

[Newsounds Broadcasting v. Dy (2009)]

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. [Chavez v. Gonzales (2008)]

Freedom of Expression and National Security Where a fictitious suicide photo and letter were published in newspapers of general circulation expressing disappointments of the Roxas administration and instructing fictitious wife to teach their children to burn pictures of the President, SC held that such act constitutes inciting to sedition.

It suggests or incites rebellious conspiracies or riots and tends to stir up the people against the constituted authorities, or to provoke violence from opposition groups who may seek to silence the writer, which is the sum and substance of the offense under consideration. [Espuelas v.

People (1951)]

Freedom of Expression and Libel

Libel is not a constitutionally protected speech and that the government has an obligation to

protect private individuals from defamation.

[Disini v. Sec. of Justice (2014)]

National community standard as basis of what is defamatory

Not belonging to a royal house does not constitute libel. In a community like ours which is both republican and egalitarian, such an ascription, whether correct or not, cannot be defamatory. It is to the standards of the national community, not to those of the region that a court must refer especially where a newspaper is national in reach and coverage.

[Bulletin Publishing v. Noel (1988)]

Report of official conduct is privileged and covered by press freedom

Where the defamation is alleged to have been directed at a group/class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. [Newsweek v. IAC (1986)]

Group Libel

As the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two important public policies:

(1) Where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and (2) The limitation on liability would

satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases. [MVRS v. Islamic Da’Wah Council of the Phil (2003)]

138 Actual Malice Standard for Public Officials and Matters of Public Interest

Even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

[Vasquez v. CA (1999) citing New York Times v.

Sullivan (1964)]

SC Administrative Circular No. 08-2008 implements a rule of preference for the imposition of fine only rather than imprisonment in libel suits.

Freedom of Expression and the Right to Privacy Being a public figure does not automatically destroy in toto a person’s right to privacy. The right to invade a person’s privacy to disseminate public info does not extend to a fictional representation of a person, no matter how public a figure he/she may be. [Lagunzad v.

Soto (1979)]

Freedom of speech and expression includes freedom to film and produce motion pictures and to exhibit them. The fact that such film production is a commercial activity is not a disqualification for availing of freedom of speech and expression.

The right to privacy cannot be invoked to resist publication and dissemination of matter of public interest. The intrusion is no more than necessary to keep the film a truthful historical account. Enrile is a public figure because of his participation as a principal actor in the culminating events of the EDSA revolution.

[Ayer Productions v. Capulong (1988)]

Freedom of Expression and the Administration of Justice

Due to the delay in the disposition of his original case, Cabansag asked for help from the

President through a letter addressed to the Presidential Complaints and Actions Commission (PCAC). He was charged for contempt because such complaint should have been raised to the Secretary of Justice or SC instead.

SC ruled that for his act to be contemptuous, the danger must cause a serious imminent threat to the administration of justice. It cannot be inferred that such act has "a dangerous tendency" to belittle the court or undermine the administration of justice for the writer merely exercised his constitutional right to petition the government for redress of a legitimate grievance. [Cabansag v. Fernandez (1957)]

Freedom of Expression and Obscenity Determination: Community standard

Pictures depicting native inhabitants in their native dresses as they appear and live in their native homelands are not obscene or indecent.

The pictures in question merely depict persons as they actually live, without attempted presentation of persons in unusual postures or dress. The aggregate judgment of the Philippine community, the moral sense of all the people in the Philippines, would not be shocked by photographs of this type. [People v.

Kottinger (1923)]

A hula-hula dance portraying a life of a widow who lost her guerrilla husband cannot be considered protected speech if the audience, about a hundred customers, were howling and shouting, “sige muna, sige nakakalibog” (go ahead first, go ahead, it is erotic), during the performance. [People v. Aparici (Court of Appeals 1955)]

139 B.2 CONTENT-NEUTRAL RESTRICTIONS Regulations on the incidents of speech — time, place and manner — under well-defined standards. [Newsounds, supra]

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. [Chavez v. Gonzales (2008)]

Content-Neutral (US v. O’Brien) test – A government regulation is sufficiently justified if:

(1) It is within the constitutional power;

(2) It furthers an important or substantial government interest;

(3) The government interest is unrelated to the suppression of free expression;

(4) The incident restriction is no greater than essential to the furtherance of that interest.

Freedom of Assembly

The right to freedom of speech and to peaceably assemble, and petition the government for redress of grievances are fundamental personal rights of the people guaranteed by the constitutions of democratic countries. City or town mayors are not conferred the power to refuse to grant the permit, but only the discretion in issuing the permit to determine or specify the streets or public places where the parade may pass or the meeting may be held.

[Primicias v. Fugoso (1948)]

Absent any clear and present danger of a substantive evil, peaceable assembly in public places like streets or parks cannot be denied.

[J.B.L. Reyes v. Bagatsing (1983)]

The Calibrated Pre-emptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is null and void.

CPR serves no valid purpose if it means the same thing as maximum tolerance [Sec. 3 [c] of B.P. 880], and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance. [Bayan v. Ermita (2007)]

B.P. 880 not unconstitutional

B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. The law is not vague or overbroad.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. A fair and impartial reading of B.P.

No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. [Bayan v. Ermita, supra]

Freedom Parks

B.P. 880 provides that every city and municipality must set aside a freedom park within six months from the law’s effectivity in 1985. Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time.

Without such alternative forum, to deny the permit would in effect be to deny the right to peaceably assemble. [Bayan v. Ermita, supra]

Permit Application

There is a need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. [Bayan v. Ermita, supra]

In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who

140 can show the police an application duly filed on a given date can, after two (2) days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

[Bayan v. Ermita, supra]

C. FACIAL CHALLENGES AND THE

In document Political Law Reviewer 2015 (Page 156-159)