CONSTITUTIONAL LAW 2
C. FACIAL CHALLENGES AND THE OVERBREADTH DOCTRINE OVERBREADTH DOCTRINE
General Rule: A party can question the validity of a statute only if, as applied to him, it is unconstitutional. [Southern Hemisphere v. Anti-Terrorism Council (2010)]
Exception: Facial Challenges C.1 FACIAL CHALLENGES
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech. The theory is that “[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.”
The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes (without a free-speech aspect). 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. [Southern Hemisphere, supra]
However, said doctrines apply to penal statutes when
(1) The statute is challenged as applied; or (2) The statute involves free speech [Disini v.
Sec. of Justice (2014)]
C.2 OVERBREADTH DOCTRINE
A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.
A plain reading of PP 1017 shows that it is not primarily directed to speech, rather it covers a spectrum of conduct. It is a call upon the AFP to prevent or suppress all forms of lawless violence. Facial challenge on the ground of overbreadth is a very strong medicine.
Petitioners did not show that there is no instance when PP1017 may be valid. [David vs.
Arroyo (2006)]
D. TESTS
Test Definition
Dangerous Tendency Doctrine
Limitations on speech are permissible once a rational connection has been established between the speech restrained and the danger contemplated.
Balancing of Interests Test
When particular conduct is regulated for public order, and
141 [Soriano v.
Laguardia]
the regulation results in an indirect abridgment of speech, the court must determine which of the two conflicting interests demand greater protection.
Factors to consider:
(1) Social value of the freedom restricted;
(2) Specific thrust of the restriction, i.e. direct or indirect, affects many or few;
(3) Value of the public interest sought to be secured by the regulation;
(4) Whether the restriction is reasonably appropriate and necessary for the protection of the public interest;
(5) Whether the necessary safeguarding of the public interest may be achieved by a measure less restrictive of the protected freedom.
Clear and
Present Danger Rule
Speech may be restrained because there is a substantial danger that the speech will likely lead to an evil the government has a right to prevent. Requires that the evil consequences sought to be
prevented must be
substantive, “extremely serious and the degree of imminence extremely high.”
D.1 DANGEROUS TENDENCY TEST
If the words uttered create a dangerous tendency of an evil which the State has the right to prevent, then such words are punishable.
[Cabansag v. Fernandez (1957)]
It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent. [People v. Perez (1956)]
D.2 CLEAR AND PRESENT DANGER TEST 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 Congress has a right to prevent. It is a question of proximity and degree.
[Schenck v. United States (1919)]
This rule requires that “the danger created must not only be clear and present but also traceable to the ideas expressed”. [Gonzales v. COMELEC (1969)]
Note: This test has been adopted by the Philippine SC lock, stock and barrel and is the test most applied to cases re: freedom of expression.
D.3 BALANCING OF INTEREST TEST When a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional and partial abridgement of speech, the duty of the courts is to determine which of the two conflicting interests demands greater protection.
[American Communications Assoc. v. Douds, 339 US 282]
The test is applied when two legitimate values not involving national security crimes compete.
[Gonzales v. COMELEC (1969)]
142 D.4 DIRECT INCITEMENT TEST
The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
[Brandenburg v. Ohio (395 U.S. 444)]
It is incumbent on the court to make clear in some fashion that the advocacy must be of action and not merely of abstract doctrine.
[Yates v. US (1957)]
Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization.
[Salonga v. Cruz Paño (1986)]
D.5 INTERMEDIATE REVIEW
Applied to content-neutral regulations, the test has been formulated in this manner: A governmental regulation is sufficiently justified (1) if it is within the constitutional power of the
Government;
(2) if it furthers an important or substantial governmental interest;
(3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incident restriction on alleged
[freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [Chavez v. Gonzales (2008)]
D.6 GRAVE-BUT-IMPROBABLE DANGER TEST
To determine the clear and present danger of the utterances bringing about the evil which that legislature has the power to punish, "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is
necessary to avoid the danger." In this case, an attempt to overthrow the Government by force is a sufficient evil for Congress to prevent. It is the existence of the conspiracy which creates the danger. [Dennis v. US (1951)]
D.7 MILLER TEST To determine obscenity:
(1) Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to prurient interest
(2) Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law
(3) Whether the work, taken as a whole, lacks serious, literary, artistic, political, or scientific value [Miller v. CA (1973) also applied in Fernando v. CA (2006)]
D.8 TEST FOR CONTENT-NEUTRAL REGULATION
O’ Brien Test – content-neutral regulation is valid:
(1) If it is within the constitutional power of the government
(2) If it furthers an important or substantial government interest
(3) If the government interest is unrelated to the suppression of free expression
(4) If the incidental restriction is no greater than is essential to the furtherance of that interest COMELEC banned the publication of surveys 15 and 7 days prior to election concerning national and local candidates, respectively. The SC held that this regulation is content-based because applying the third prong of the O-Brien Test, it actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by other opinion takers. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial.
[SWS v. COMELEC (2001)]
143