FACIAL CHALLENGES AND OVERBREADTH DOCTRINE

Q: What is a Facial Challenge?

A. A 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.

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)

Q: How is "facial" challenge different from "as- applied" challenge?

A: Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.(Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, Oct. 5, 2010)

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A: No. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.(KMU v. Ermita, G.R. No. 17855, Oct. 5, 2010

Note: A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.

The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. (Southern Hemisphere

Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, Oct. 5, 2010)

Q: What is the Overbreadth Doctrine?

A: The overbreadth doctrine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to others not before the Court whose activities are constitutionally protected. (Separate opinion of Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources, GR. 135385, Dec. 6, 2000) It is a type of facial challenge that prohibits the government from achieving its purpose by means that “sweep unnecessarily broadly, reaching constitutionally protected as well as unprotected activity.

Note: The application of the overbreadth doctrine is limited to a facial kind of challenge

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of the third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute “on its face”, not merely “as applied for” so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates court to depart from the normal adjudicatory rules is the concern with the “chilling”, deterrent effect of the overbroad statute on third parties not courageous enough to bring suit.The Court assumes that an overbroad law’s “very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties. .(Southern Hemisphere Engagement

Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, Oct. 5, 2010)

TESTS

Q: What are the tests for valid governmental interference to freedom of expression?

A:

1. Clear and Present Danger test

Question: Whether the words 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 Congress has a right to prevent. It is a question of proximity and degree (Schenck v. US, 249 US 47, 1919)

Emphasis: The danger created must not only be clear and present but also traceable to the ideas expressed. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969)

Note: This test has been adopted by our SC, and is most applied to cases involving freedom of expression.

2. Dangerous Tendency test

Question: Whether the speech restrained has a rational tendency to create the danger apprehended, be it far or remote, thus government restriction would then be allowed. It is not necessary though that evil is actually created for mere tendency towards the evil is enough.

Emphasis: Nature of the circumstances under which the speech is uttered, though the speech per se may not be dangerous.

3. Grave-but-Improbable Danger test

Question: Whether the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger (Dennis v. US, 341 US 494, 1951)

Note: This test was meant to supplant the clear and present danger test.

4. Balancing of interest test

Question: which of the two conflicting interests (not involving national security crimes) demands the greater protection under the particular circumstances presented:

a. When particular conduct is regulated in the interest of public order

b. And the regulation results in an indirect, conditional and partial abridgement of speech (Gonzales v. COMELEC, G.R. No. L-27833, Apr. 18, 1969).

5. O’Brien test

Question: in situations when “speech” and “non- speech” elements are combined in the same course of conduct, whether there is a sufficiently important governmental interest that warrants regulating the non-speech element, incidentally limiting the “speech” element.

Note: A government regulation is valid if:

a. It is within the constitutional power of the government;

b. In furtherance of an important or substantial governmental interest;

c. Governmental interest is unrelated to the suppression of free expression; and

d. The incidental restriction on the freedom is essential to the furtherance of that interest.

(US v. O’Brien, 391 US 367, 1968; SWS v. COMELEC, G.R. 147571, May 5, 2001)

6. Direct Incitement test

Question: What words did a person utter and what is the likely result of such utterance

Emphasis: The very words uttered, and their ability to directly incite or produce imminent lawless action.

Note: It criticizes the clear and present danger test for being too dependent on the specific circumstances of each case.

STATE REGULATION OF DIFFERENT