OF all the rights and freedoms enshrined in the Bill of Rights, freedom of expression, of speech, and the press takes precedence.
As former Chief Justice Reynato S. Puno noted in Chavez vs. Gonzales (see previous piece): “Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties.”
It has occupied a permanent and paramount place in all our constitutions from 1899 to 1987.
And on more occasions than one, the Supreme Court has cited freedom of expression as “an indispensable condition for nearly every other form of freedom.”
“For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant,” said Puno.
Be that as it may, freedom of expression is neither absolute nor without limit.
While it may never be curtailed, it may be regulated so that its exercise, the SC has pointed out time and again, “may not be injurious to the equal right of others or those of the community or society.”
Not all speech is treated the same. And to determine “permissible limits,” courts use different tests for different types of speech: political, obscene, subversive, libelous, and media speech, among others.
The SC has ruled, for example, that “slander or libel, lewd and obscene speech, as well as ‘fighting words’ are not entitled to constitutional protection and may be penalized.”
But what constitutes prior restraint?
Let’s leave it to the SC to define its parameters:
“Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.
“Freedom from prior restraint is largely freedom from government censorship of … whatever … form … whether … wielded by the executive, legislative or judicial branch.
“… it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication, including the payment of license taxes … and even injunctions against publication.
“… the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed a previous restraint or censorship.
“Any law or official that requires some form of permission to be had before publication can be made commits an infringement of the constitutional right.”
Still, as Puno pointed out, “not all prior restraints on speech are invalid … and certain previous restraints may be permitted … but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against.”
The SC cited three tests, which may be used singly or in combination:
“the dangerous-tendency doctrine, which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated;
“the balancing-of-interests test, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation; and
“the clear-and-present-danger rule, which rests on the premise that speech may be restrained because there is substantial danger that [it] will likely lead to an evil the government has a right to prevent, [but] … the evil consequences sought to be prevented must be substantive, ‘extremely serious, and the degree of imminence extremely high’.”
More than this, “a distinction has to be made whether the restraint is content-neutral regulation, [meaning] merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards; or a content-based … or the restriction is based on the subject matter of the speech.”
When the restraint is content-neutral, “only a substantial governmental interest is required for its validity. Because [it is] not designed to suppress any particular message, [it is] not subject to the strictest form of judicial scrutiny but … somewhere between the mere rationality… required of any other law and the compelling interest standard applied to content-based restrictions.
But a restraint based on content is scrutinized more strictly “in light of its inherent and invasive impact.” It is tested under the clear-and-present-danger rule and the government bears the burden of proving that it is not unconstitutional.
The government must also “show the harm the speech sought to be restrained would bring about— especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be invalid.”
Stressed the SC: “Prior restraint on speech based on its content cannot be justified by hypothetical fears, ‘but only by showing a substantive and imminent evil that has taken the life of a reality already on the ground.’”
It is against these rulings that any law Congress would enact to regulate social media must be measured.
Again, as CJ Puno stressed, “When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified.”
