Legal Infringements on the Freedom of Expression

Since the right or freedom of expression is not absolute, there are legal exceptions that allow the State to “infringe” on Mass Media’s constitutional guarantees. Such regulation or infringement of Mass Media’s freedom of expression is a valid exercise of police powers of the State.

Police Power

“The police power of the State is co-extensive with self-protection and it is not inaptly termed “the law of overruling necessity”” [1]

A valid exercise of police power by the State will allow it to interfere with constitutionally protected rights – including the right of freedom of expression and of the press. Although police power has no definition, case law has clearly and consistently shown that it may be invoked in all aspects of modern day life provided that the requisites of the Constitution and Law are observed.

Hence, Broadcast Media – being merely a privilege emanating from the sovereign power of the State – is subject to regulation by the state by virtue of its police power”. [2]

Like the great powers of eminent domain and of taxation, the State’s police power is inherent in and to any government and is, in fact, a power it may use in its duty to balance the exercise of the freedom of expression, the obligation of Mass Media to be a vehicle for public service and their commercial objective to be profitable.

A constitutionalist puts it aptly when he said that “a constitution does not grant such powers to government; a constitution can only define and delimit them and allocate their exercise among various government agencies”. [3] The same author goes on to say that “the story of constitutional jurisprudence is the story of great minds striving to strike a balance between governmental power and personal freedom”. [4]

Another author [5] posits that police power is based on the Latin maxims salus populi suprema est lex [6] and sic utere tuo ut alienum non laedas [7] . According to the same author the two maxims taken together mean that as the price of living in a civilized society, individuals must part some rights and privileges for the common good. The United States case of Barbier vs. Connally [8] put it aptly when it said “every citizen of every community must bear certain burdens imposed for the good of all”. Therefore, it can be said that no right is absolute.

Fundamentally then, the freedom of expression can be validly and legally regulated by the state since police power is so awesome that it has been used to implement or enforce public safety measures [9] , public morals [10] , and the general welfare [11] . One case [12] put it succinctly when it said:

“The field and scope of police power have become almost boundless, just as the fields of public interest and public welfare have become almost all embracing and have transcended human foresight. Since the courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the State seeks to attain or achieve public interest and welfare”

The exercise by the State of its police power to regulate Mass Media is presumed to be a valid exercise of the state, although it is still subject to restrictions set by the constitution. The valid exercise of police power is such that the State can deprive persons of life, liberty and property, provided there is due process of law; and persons may be classified into classes and groups, provided everyone is given the equal protection of the law.

“The test or standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means”. [13] Therefore one can say that the proper exercise of police power requires the concurrence of a lawful object and a lawful method. [14]

Moreover, any valid exercise of police power must hurdle the Due Process Clause [15] found in the Bill of Rights of the 1987 Philippine Constitution. The said clause contains three guarantees, procedural due process and substantive due process. Procedural due process has been defined as a “law which hears before it condemns”. [16]

The valid exercise of police power must also hurdle the equal protection clause [17] found in the Bill of Rights in the 1987 Philippine Constitution. This clause is “a specific constitutional guarantee of the Equality of the Person” [18] , it means legal equality before the law. However, this constitutional guarantee is not iron-clad but admits certain exceptions provided it meets the requisites laid down in jurisprudence.

Exceptions to Mass Media’s Constitutional Protection Against Prior Restraint

One author has said that the “freedom of expression implies the right to freely utter or publish one’s beliefs, ideas, or opinions without prior restraint, and to be protected against any subsequent responsibility for so doing as long as it does not violate the law or injure someone’s character, reputation or business”. [19]

The freedom of expression also includes the protection against subsequent punishment or the power of the state to impose punishment after the utterance of an expression.

The first prohibition provided in the 1987 Philippine Constitution is the prohibition against prior restraint. Prior restraint has been defined by one author as to mean “official governmental restrictions on the press or other forms of expression in advance of actual publication of dissemination” [20] or a form of pre-publication injunction.

Although the Constitution commands that there be no abridgment of speech, the courts have made certain exceptions. “The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography [21] , false or misleading advertisement [22] , advocacy of imminent lawless action [23] , and danger to national security [24] “. [25]

In the separate opinion of Justice Antonio T. Carpio in the case Chavez v. Gonzales, it was said that if the expression is not the focus of prior restraint, then it is protected speech or “high value expression” [26] . The case further notes that “any content-based prior restraint on protected speech is unconstitutional without exception.” [27]

Prior restraint may be classified as either content-based or content-neutral. The treatment of content-based restraint will be subject to strict scrutiny. If the content-based prior restraint is directed at protected expression, courts will strike down the restraint as unconstitutional because there can be no content-based prior restraint on protected expression. “The analysis thus hinges on whether the prior restraint is content-based, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the recognized categories of unprotected expression.” [28]

On the other hand, if it is content-neutral, the object of the restraint is to “regulate the time, place or manner of the expression in public places” [29] and the courts will subject the restraint to “intermediate scrutiny” [30] . Therefore, the content-neutral restraint “enjoys the presumption of validity and is thus enforceable subject to appeal to the courts” [31] . The courts, as jurisprudence provides, will uphold content-neutral restraints if it is “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression” [32] .

Exceptions to Mass Media’s Constitutional Protection Against ‘Subsequent Punishment’

The second Constitutional prohibition is ‘subsequent punishment’ or the limitation on the state to impose criminal or civil liability after the utterance of an expression. Unlike prior restraint, subsequent punishment allows the expression to be disseminated but the effect is the same.

Like prior restraint, subsequent punishment admits certain exceptions as well. The Court has used three different tests to determine the validity of the restraint although the Chavez v Gonzales case [33] states that (in the Philippine jurisdiction) the prevailing test is the clear and present danger test. However, the Court did not categorically abandon the dangerous tendency and balancing of interests test.

The first test applied in the Philippines was the dangerous tendency test. It allowed speech to be curtailed when it “creates a dangerous tendency which the state has the right to prevent”. [34] The only requirement of this test is “there be a rational connection between the speech and the evil apprehended”. [35]

According to a legal authority the dangerous tendency test has given way to the clear and present danger test. [36]

The clear and present danger test is a “standard which serves to emphasize the importance of speech to free society without sacrificing other freedoms essential to a democracy”. [37] This test requires this question to be answered: “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.” [38] The United States Supreme Court expounded on this point in the case of Dennis v. United States: [39]

“Obviously, the words cannot mean that, before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt. In the instant case, the trial judge charged the jury that they could not convict unless they found that petitioners intended to overthrow the Government “as speedily as circumstances would permit.” This does not mean, and could not properly mean, that they would not strike until there was certainty of success. What was meant was that the revolutionists would strike when they thought the time was ripe. We must therefore reject the contention that success or probability of success is the criterion.”

The caveat of the clear and present danger test was explained by Professor Freund when he said:

“Even where it is appropriate the clear-and-present-danger test is an oversimplified judgment unless it takes account also of a number of other factors: the relative seriousness of the danger in comparison with the value of the occasion for speech or political activity; the availability of more moderate controls than those the state has imposed; and perhaps the specific intent with which the speech or activity is launched. No matter how rapidly we utter the phrase ‘clear and present danger,’ or how closely we hyphenate the words, they are not a substitute for the weighing of values. They tend to convey a delusion of certitude when what is most certain is the complexity of the strands in the web of freedoms which the judge must disentangle.” [40]

The balancing of interests test was first enunciated in the case of American Communications Associations v. Douds [41] , it states:

“When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented”.

Professor Kauper, restated the balancing of interests test as follows:

“It rests on the theory that it is the Court’s function in the case before it when it finds public interests served by legislation on the one hand, and First Amendment freedoms affected by it on the other, to balance the one against the other and to arrive at a judgment where the greater weight shall be placed. If on balance it appears that the public interest served by restrictive legislation is of such a character that it outweighs the abridgment of freedom, then the Court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the First Amendment, and that they may be abridged to some extent to serve appropriate and important public interests.” [42]

Regulating Broadcast Media

In the United States, broadcast media has been treated differently from the other forms of expression. There are three reasons [43] why broadcast media has been treated differently. First, the number of frequencies available to the broadcast media is limited. The limited number of frequencies was discussed in the case of Red Lion Broadcasting Company v. Federal Communications Commission [44] when the Court said:

“It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard.”

Second, as a medium it is pervasive. In the case of Federal Communications Commission v. Pacifica Foundation [45] the Court said:

“the broadcast media have established a uniquely pervasive presence in the lives of all Americans.xxx the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.”

And third, broadcast media can be easily accessed by the children. This was also discussed in the Federal Communications Commission v. Pacifica Foundation [46] and the United States Supreme Court said:

“broadcasting is uniquely accessible to children, even those too young to read.xxxThe ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.”

In Philippine jurisprudence, the test commonly applied to content-based regulation is the clear and present danger test [47] , which is also applied to print and broadcast media. The difference between print and broadcast media lies in the “regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process”. [48]

The Supreme Court in the case of Eastern Broadcasting Corporation v. Dans [49] discussed the difference of broadcast media and print media. The Court for future reference discussed it and said:

All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule, that 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 the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4)The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.

Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others.

All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out.

Similar considerations apply in the area of national security.

The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance.

(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling.

The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection.

(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that.

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. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.

(7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted]

“On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance”.

It is interesting to note that in the cited case, the Supreme Court differentiated print and broadcast media. Also, the Supreme Court said that the freedom enjoyed by broadcast media is lesser in scope as opposed to print media.