The consequence of free speech

By Michael Henry Yusingco, LL.M

“Drag” is art, certainly. Thus, any self-respecting drag artist would know that not everyone will appreciate this form of artistic expression. A true artist embraces the fact that there will always be negative reactions to his/her/their art. A genuine creative will not whinge like a spoiled child when faced by extreme public contempt and a torrent of ridicule.

However, for artistic expression to flourish in society, an artist should be able to rely on constitutional protection. Censorship, in any form, is the bane of culture. But it is important to remember that the right to free expression is not a carte blanche license for creatives. It is completely wrong for an artist to think that all creative works are entitled to constitutional protection. And of course, all artists must bear the consequences of their artistic creations.

For example, Article 133 of the Revised Penal Code states, “The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful.”

We know now that an artist can get convicted under this law if for example, he enters a church in full Spanish colonial-period attire and shouts the words “Padre Damaso” aloud. In the artist’s mind this act may be just the manifestation of his creative intent, but in the eyes of the law, the same can be considered a crime. An artist therefore would need to consider that a creative work may lead to imprisonment if this is found by a court to be offensive to the feelings of a church or a religious sect.

We are obviously dealing with an outdated law here. It can certainly be argued that this is a form of censorship that benefits only a particular group of people in the country. There is indeed, a case to be made that this kind of regulation contravenes the raison d’etre of free speech and free expression. But it is the law today. And the lone remedy for artists in this case, is to convince Congress to repeal this provision in our penal code.

It is crucial to repeat at this point that freedom of expression is not an absolute right. Indeed, some types of speech may be subjected to state regulation. For example, in our jurisdiction, slander, libel and obscene speech are not entitled to constitutional protection and may be punished. The Supreme Court has determined that “’immoral’ lore or literature comes within the ambit of expression, although not its protection.”

Crucially though, certain strategies of national security agencies need to be reconsidered, in relation to upholding free speech and expression. The policy of red-tagging, for example, is clearly untenable. The spirit of protest is integral to artistic expression. And therefore, creative works that evoke criticism of government, public officials or politicians must be expected. Clearly, a campaign of fear instigated by police and military as an anti-insurgency or anti-criminality tactic is a form of censorship that is not allowed by the 1987 Constitution.

Presumably, all creatives are aware of Article III, Section 4 of the 1987 Constitution which prescribes that, “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

The constitutional protection extends to nearly all forms of communication, including creative expression. It encompasses practically all matters of public interest. But the primordial importance of freedom of speech, and of the press as well, is that it is not simply a means to approve existing political beliefs or economic arrangements. It is not a ready justification to take refuge under the majority view.  Indeed, this constitutional right exists precisely for those who question and do not conform.

The landmark case of Chavez vs. Gonzales (G.R. No. 168338, February 15, 2008) explains it much better as follows:

“To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.”

Ultimately, this constitutional right aims to preserve the public space as a market place of information, ideas, and insights. Where citizens can engage each other to address common concerns. To find solutions to the problems they collectively face. Pertinently, this arena is not for the fainthearted. The exchanges are expected to be passionate, and possibly brutal at times. But the end goal must always be to elevate the polity from the untenable status quo.

In sum, artistic expression does not automatically mean a free reign for creatives. The constitutional protection afforded to them is not a license to destroy social norms or to tear apart national cohesion. They can, and often should, challenge prevailing views and perspectives, but they must do so for the greater good. The right to free expression does not countenance artistic self-indulgence. The protected space carved out for creatives entails both the privilege to express themselves without restraint and the solemn duty to exercise this freedom responsibly.