By Atty. Eduardo T. Reyes III
The Anti-Terror Law of 2020 that is embodied in Republic Act No. 11479 is perhaps one of the most controversial in Philippine law making history as it reaped a whirlwind of petitions questioning the constitutionality of several of its provisions while in gestation as a bill until its passage into law.
Conflated with the war that is continuing to escalate in Ukraine after the February 24th invasion by Russia is the steady climb of the price of oil in the global market and Russia’s March 4th edict that muzzles the press relative to news about the war. Under pain of criminal sanctions, no other news materials about the war can be disseminated except by “official” means that could only emanate from state sponsored news outfits. This accentuates the en banc decision in Calleja v. Executive Secretary, G.R. No. 252578, et al. which was handed down by the Philippine Supreme Court on December 7, 2021 but was uploaded on its official website only on 15 February 2022.
Most of the provisions which came under scrutiny in this case were upheld for being valid as they do not infringe on civil liberties according to the Supreme Court. However, some of its provisions were found to be incursions on constitutional rights and were declared invalid.
Now that the Supreme Court has spoken, what are the do’s and don’ts?
This article is the first of a series of discussion on the legal implications of the Anti-Terror Law of 2020 and how they will shape and re-shape the legal landscape.
The first legal obstacle that was mounted in the joint petitions questioning the validity of the Anti-Terror Law of 2020 is on “PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT and on CONTENT-BASED AND CONTENT-NEUTRAL RESTRICTIONS”.
This challenge is latched on the constitutional provision which guarantees 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”. (PHIL. CONST., art. III, § 4). It encompasses any and all modes of expression. As held in one case, “The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct enacted (symbolic speech), and even to inaction itself as a symbolic manner of communication. In Ebralinag v. The Division Superintendent of Schools of Cebu, students who were members of the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute the flag, sing the national anthem, and recite the patriotic pledge. In his concurring opinion, Justice Cruz discussed how the salute is a symbolic manner of communication and a valid form of expression. He adds that freedom of speech includes even the right to be silent [The Diocese of Bacolod represented by the Most Rev. Bishop Navarra vs. COMELEC (2015)]. One author has also pointed out 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”. (Political Law Reviewer by Justice Nachura, 2014 Edition, pg. 147).
Prior Restraint. The first prohibition provided in the 1987 Philippine Constitution is the prohibition against prior restraint. Prior restraint has been defined by one author as “official governmental restrictions on the press or other forms of expression in advance of actual publication of dissemination” or a form of pre-publication injunction. There need not be total suppression; even restriction of circulation constitutes censorship [Grosjean v. American Press Co., 297 U.S. 233]. In Burgos v. Chief of Staff, supra., the search, padlocking and sealing of the offices of Metropolitan Mail and We Forum by military authorities, resulting in the discontinuance of publication of the newspapers, was held to be prior restraint. See also: Corro v. Using, supra. In Eastern Broadcasting v. Dans, 137 SCRA 647, the arbitrary closure of radio station DYRE was ruled as violative of the freedom of expression. In Mutuc v. Comelec, 36 SCRA, the Comelec prohibition against the use of taped jingles in the mobile units used in the campaign was held to be unconstitutional, as it was in the nature of censorship (Political Law Reviewer by Justice Nachura, 2014 Edition, pg. 147).
The well-settled rule on the prohibition against curtailing speech, however, is subject to exceptions narrowly carved out by courts over time because of necessity. In this jurisdiction, we recognize only four exceptions, namely: pornography (or obscenity), false or misleading advertisement, advocacy of imminent lawless action, and danger to national security. These are considered as “unprotected speech” and it is only in these instances that expression may be hamstrung by prior restraint. All other expression is not subject to prior restraint (Soriano v. Laguardia, G.R. No. 164785, April 29, 2009). Although pornography, false or misleading advertisement, advocacy of imminent lawless action, and expression endangering national security may be subject to prior restraint, such prior restraint must hurdle a high barrier. First, such prior restraint is strongly presumed as unconstitutional. Second, the government bears a heavy burden of justifying such prior restraint – the test to determine the constitutionality of prior restraint on pornography, advocacy of imminent lawless action, and expression endangering national security is the clear and present danger test. The expression subject to prior restraint must present a clear and present danger of bringing about a substantive evil the State has a right and duty to prevent, and such danger must be grave and imminent.
Prior restraint may further be classified as either content-based or content-neutral restrictions/regulations.
- Content-Based. Discriminates against speech based on the substance of what it communicates. It is subject to the Strict scrutiny test. It is presumed invalid or unconstitutional, unless, the regulation/law/restriction can muster the clear and present danger test.
- In Chavez v. Secretary Gonzalez, G.R. No. 168338, February 15, 2008, the Supreme Court held that acts of the Secretary of Justice and the National Telecommunications Commission in warning television stations against playing the “Garci tapes” under pain of revocation of their licenses, were content-based restrictions, and should be subjected to the “clear and present danger test”. They focused only on one subject — a specific content — the alleged taped conversations between the President and a COMELEC official; they did not merely provide regulations as to time, place or manner of the dissemination of speech or expression. Respondents’ evidence fell short of satisfying the clear and present danger test.
- Content-neutral regulations. (Also called non-content-based restrictions): regulates speech without regard to its subject matter or the viewpoint conveyed. The object of the restraint is to “regulate the time, place or manner of the expression in public places”, and the courts will subject the restraint to “intermediate scrutiny”. It is presumed constitutional and only substantial governmental interest is required for its validity.
- The intermediate approach is based on the O’brien test that the SC has prescribed in several cases. A content-neutral government regulation is sufficiently justified when:  it is within the constitutional power of the Government;  it furthers an important or substantial governmental interest;  the governmental interest is unrelated to the suppression of free expression; and  the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest.
- Examples of content-neutral restrictions that have been upheld as constitutional include laws that restrict the distribution of printed materials to prevent littering in a public space or laws that prohibit the use of loudspeakers in order to reduce noise. The SC had also framed the parameters of “content-neutral” restraints starting with the 1948 case of Primicias v. Fugoso. The ordinance in this case was construed to grant the Mayor discretion only to determine the public places that may be used for the procession or meeting, but not the power to refuse the issuance of a permit for such procession or meeting. The SC explained that free speech and peaceful assembly are “not absolute for they may be so regulated so as not to be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society”.
Relatedly, the 2015 case of (T)he Diocese of Bacolod represented by the Most Rev. Bishop Navarra v. Comelec is worth noting. Here, the COMELEC contended that the order for removal of the tarpaulin is merely a content-neutral regulation; that the order was made simply because petitioners failed to comply with the maximum size limitation for lawful election propaganda. But the SC had emphasized the nexus between expression and the size of its medium. The tarpaulin content is not easily divorced from the size of its medium hence it is content-based. According to Justice Leonen, “Size limitations during elections hit at a core part of expression. The content of the tarpaulin is not easily divorced from the size of its medium. The form of expression is just as important as the information conveyed that it forms part of the expression. The present case is in point; SIZE DOES MATTER.”
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. However, case law has yet again carved out narrow exceptions to this rule based on necessity.
- Exceptions: The exceptions start with the four types of expression that may be subject to prior restraint. This is because if a certain expression is subject to prior restraint, its utterance or publication in violation of the lawful restraint naturally subjects the person responsible to subsequent punishment. The two other exceptions are defamation, which includes libel and slander, and tortious speech.
Note: Prior restraint is more deleterious to freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public (Soriano v. Laguardia, G.R. No. 164785, April 29, 2009).
The next article in the series will tackle the legal issue on FACIAL AND AS-APPLIED CHALLENGE and VAGUENESS AND OVERBREADTH DOCTRINES.
(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).