THE ANTI-TERROR LAW: A reversion to the ‘dangerous tendency doctrine’

By Atty. Eduardo T. Reyes III

 

The last embers of hope were doused with cold ink when Republic Act No. 11479 or the anti-terror bill was signed into law last July 3^rd. Different legal sectors are now raising a howl of protest against many of the law’s provisions that run afoul of the constitution even  as it will come into effect fifteen (15) days from its publication in the Official Gazette.

While many features of the anti-terror law will most likely be challenged before the Supreme Court on constitutional grounds, this article will focus only on the possible incursions of this law on freedom of speech.

Section 4 of the 2020 anti-terror law, reads:

“Provided, That, terrorism as defined in this Section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.”(emphasis supplied)

While the proponents of the law contend that Section 4 provides for the legal safeguard that ensures that legitimate protests and dissents will not be criminalized for being acts of terrorism; nonetheless, what might be deemed as insidious in this provision are the words: “which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety”.

The same Section 4 considers as “terror acts” those that are “meant” to:

• intimidate the general public
• create an atmosphere or spreading message of fear
• provoke or influence by intimidation the government or any of its international organizations
• seriously destabilize or destroy the fundamental political, economic, or social structures of the country
• create a public emergency
• seriously undermine public safety

Simply put, a most legitimate protest or dissent can be treated as a “terror act” if law enforcement officers will assert that it is “meant to”, for instance, “intimidate the general public” or “undermine public safety”. What is most worrying is that these clauses are so broad as to refer to practically the most innocent of protests or dissents.

 

While it devolves upon the government -it must be conceded- to act swiftly in order to deter terroristic acts from causing damage or harm on its citizens especially those of a large magnitude, it had been stressed in this column quite repeatedly that: civil liberties are too precious  to be sacrificed in the altar of terror, panic or fear.

 

Which now begs the question: Where does the government’s right to protect its citizens against terrorism end, and freedom of speech begin? Where do we draw the line?

 

The treatment of freedom of speech had been a thorny issue with the courts since the early 1900’s that saw World War I and World War II in succession. The US Supreme Court had to cautiously grapple with the twin horns of “The 1917 Espionage Act” and “The Sedition Act of 1918” which considered as “undesirable activities” and forbade the “uttering, printing, writing, or publishing any disloyal, profane, scurrilous or abusive language”.

 

The prevailing doctrine at that time was Patterson v. Colorado (1907) which held that the government could not repress its citizens from saying or writing things, but it could penalize them for the content of their speech afterward, especially if the courts find that the speech had a “bad tendency”. This became known as the “dangerous tendency” or “bad tendency” test which espouses the doctrine that the government can punish a speech that merely creates a bad or dangerous tendency of the evil sought to be prevented.

 

This test did not sit well with Justice Oliver Wendell Holmes, Jr. who eschewed the “dangerous tendency test” when he advocated the “clear and present danger test”. He articulated the clear and present danger doctrine in this fashion: “The question in every case is 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”.

 

And the anecdotal analogy is that when one shouts “bomb” in a secluded beach within the hearing distance of no one but his own echo, then there is no clear and present danger; unlike in an instance when he shouts “bomb” that reverberates inside an airport filled with people as it would create a clear and present danger that should be repressed.

 

Thus when the US Supreme Court again applied the “dangerous tendency test” in Abrams v US 250 U.S. 616 (1919), Justice Holmes entered a strong dissent by advocating the theory that society benefits in a “free exchange of ideas” in line with the clear and present danger doctrine.

 

And then came Justice Louis D. Brandeis who went even further than Holmes’s clear and present danger test. In Whitney v. California (1927), Justice Brandeis showcased what is considered as the best-written dissent in jurisprudential history when he penned these words: “The constitutional right of free speech has been declared to be the same in peace and in war. X x x No matter how grossly unfair as an interpretation of facts or even wholly unfounded in fact, an opinion represented what a person believed, and belief could not be made criminal.” x x x The legal remedy for “bad speech” is “more speech”.  Thus according to Brandeis, not even a clear and present danger can muzzle a person’s freedom of speech for he advocates for the people to speak their minds with the least possible restriction.

 

There is no escaping Holmes and Brandeis when the legal issue revolves around freedom of speech for even our own Philippine Supreme Court had articulated in our jurisprudence, that “we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test”.  ~ FRANCISCO CHAVEZ v. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), G.R. No. 168338             February 15, 2008

 

There is more to Holmes and Brandeis. Their prescience had been proven unmatched as their thoughts formulated a good century ago, had reverberated down in US jurisprudence when in  Bond v. Floyd (1966), Chief Justice Warren did not mention the “bad tendency” standard and abandoned the clear and present danger test altogether. While in 1980 Justices Blackmun and Stevens in concurring opinions and Justice Rehnquist in a dissent all cited the Brandeis’ concurrence in Whitney v. California (1927) and in 2011 Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett 131 S. Ct 2806, 2837, Justice Elena Kagan cited Brandeis that the Free Speech Clause always favors more speech than less.

 

Reverting back to the 2020 anti-terror law, its Section 4 is a retrogression to the anachronistic “dangerous tendency test” as it seeks to punish a mere dangerous tendency. Not even a clear and present danger need be established for speech to be suppressed. It foments less speech, not more. The 2020 anti-terror law is an antithesis to Brandeis’s assertion that the remedy for bad speech is: more speech.

 

Lastly, to quote Holmes, “the life of the law is not logic, it is experience. x x x The felt necessities of the times..” In the midst of a pandemic, the passage of the 2020 anti-terror law is neither felt nor needed. It does not resonate in logic or experience.

 

(Atty. Eduardo T. Reyes, III is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).