FREEDOM OF EXPRESSION

Meaning and Scope

1. Constitutional Provision. Section 4, Article III provides 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 right underscores tolerance
to different views and thoughts.
2. Aspects of the Right. Freedom of expression has four aspects, to wit: (a) freedom of speech;
(b) freedom of expression; (c) freedom of the press; and (d) freedom of assembly. Nonetheless,
the scope of the protection extends to right to form associations or societies not contrary to law,
right to access to information on matters of public concern, and freedom of religion. These are all
crucial to the advancement of beliefs and ideas and the establishment of an uninhibited, robust
and wide-open debate in the free market of ideas.[23]
3. Importance of the Right. Freedom of expression is accorded the highest protection in the Bill
of Rights since it is indispensable to the preservation of liberty and democracy. Thus, religious,
political, academic, artistic, and commercial speeches are protected by the constitutional
guarantee.
4. Limitation. The right is not absolute. It must be exercised within the bounds of law, morals,
public policy and public order, and with due regard for others rights. Thus, obscene, libelous,
and slanderous speeches are not protected by the guarantee. So are seditious and fighting words
that advocate imminent lawless conduct.
Freedom from Prior Restraint and Subsequent Punishment
1. Freedom of speech and of the press has two aspects: (a) freedom from prior restraint, and (b)
freedom from subsequent punishment.
2. On the one hand, freedom from prior restraint means freedom from censorship or
governmental screening of what is politically, morally, socially, and artistically correct. In here,
persons and the media are freed from total suppression or restriction by the government of what
could be disseminated, and prevents the government from being a subjective arbiter of what is
acceptable and not. Although the system of prior restraint is presumed unconstitutional, it is
allowed under the following instances:[24]
(a) Undue utterances in time of war;
(b) Actual obstruction or unauthorized dissemination of military information;
(c) Obscene publication; and

(d) Inciting to rebellion.

3. On the other hand, freedom from subsequent punishment refers to the assurance that citizens
can speak and air out their opinions without fear of vengeance by the government. Subsequent
chastisement has the effect of unduly curtailing expression, and thus freedom therefrom is
essential to the freedom of speech and the press. The State, however, can validly impose
subsequent punishment under the following instances:
(a) Libel which is the most common form of subsequent punishment, refers to a public and
malicious imputation of a crime, vice or defect, real or imaginary or any act or omission, status
tending to cause dishonor, discredit or contempt of a natural or juridical person, or blacken the
memory of one who is dead;[25]
(b) Obscenity which includes works (taken as a whole) appealing to prurient interest or depicting
sexual conduct as defined by law or lacking of serious literary, artistic, political or scientific
value;[26]
(c) Criticism of official conduct made with actual malice;[27] and
(d) School articles which materially disrupt class work or involves substantial disorder or
invasion of rights of others.[28]
Tests to Determine When Right Maybe Suppressed
There are six tests or rules to determine when the freedom may be suppressed. These are:
(1) Dangerous Tendency Test which provides that if a speech is capable of producing a
substantive evil which the State is mandated to suppress or prevent, even if it did not materialize,
the State is justified of restricting the right. This rule has already been abandoned;
(2) Clear and Present Danger Test which is a more libertarian rule, provides that the finding out
of substantive evil is not enough to suppress the right. Rather the substantive evil must have clear
and present danger type depending on the specific circumstances of the case. This rule is
consistent with the principle of maximum tolerance and is often applied by the Court in
freedom of expression cases;
(c) Balancing of Interest Test which provides that when there is conflict between a regulation and
freedom of speech, the court has the duty to determine which of the two demands greater
protection;
(d) Grave-but-Improbable Danger Test which was meant to supplant the clear and present danger
test, determines whether the gravity of the evil, less its improbability to happen, can justify the
suppression of the right in order to avoid the danger;[29]

(e) OBrien Test which provides that when speech and non-speech elements are combined in
the same course of conduct, a sufficiently important government interest that warrants the
regulation of the non-speech element can also justify incidental limitations on the speech
element; and
(f) Direct Incitement Test which determines what words are uttered and the likely result of the
utterance, that is, whether or not they will directly incite or produce imminent lawless action.
Restrictions on Freedom of Speech
1. Two Kinds of Restrictions. The State may impose two kinds of restrictions on speech under a
system of prior restraint: content-based restriction and content-neutral restriction. The restriction
is content-based when restriction is directed to the speech itself, while the restriction is contentneutral when it is directed, not to the speech itself, but to the incidents (such as time, place, or
manner) of the speech. An example of a content-based restriction is when the government
prohibits speeches against the President, in which case the restriction is on the speech itself. An
example of a content-neutral restriction is when the government regulates the manner of posting
campaign advertisements, in which case the restriction is on the manner the right is made.
2. Appropriate Tests for Each Restriction. If the governmental restriction is content-based, the
applicable rule or test is the clear and present danger test. This is to give the government a heavy
burden to show justification for the imposition of such prior restraint which bears a heavy
presumption of unconstitutionality. If the restriction is content-neutral, the applicable rule is only
an intermediate approach, inasmuch as the restraint is only regulatory and does not attack the
speech directly.
3. Example. In one case, the court held that the act of granting a permit to rally under the
condition that it will be held elsewhere is a content-based restriction and not content-neutral
because it is directed to the exercise of the speech right itself and not merely to the manner. As
such, the applicable test is the clear and present danger test.[30]
Regulations on Mass Media
Mass media may be broadcast media (e.g. television and radio) or print media (e.g. newspaper).
The two have a substantial difference in that broadcast media has a uniquely pervasive presence
in the lives of Filipinos. Thus, freedom of television and radio broadcasting is somewhat lesser
than the freedom accorded to the print media;[31] greater regulation is imposed over broadcast
media because of its greater tendency to invade the privacy of everyone than print media.
Doctrine of Fair Comment
1. Meaning. Under the doctrine of fair comment, a discreditable imputation directed against a
public person in his public capacity, does not necessarily make one liable. Although generally
every discreditable imputation publicly made is deemed false and malicious because every man

is presumed innocent until proven guilty, nevertheless, if the imputation directed against a person
in his public is based on established facts, even if the inferred opinion is wrong, the comments
as justified. As long as the opinion might reasonably inferred from the facts, it is not actionable.
In order to that such discreditable imputation to a public official may be actionable, it must either
be a false allegation or a baseless comment.[32]
2. Example. If a case of theft was filed against a barangay official, and someone commented that
he maliciously stole things from the local residents, the doctrine of fair comment is applicable,
inasmuch as the opinion was based on such fact. In here, the comment is justified.
Commercial Speech
1. Meaning. Commercial speech is one that proposes a commercial transaction done in behalf of
a company or individual for purposes of profit. It is a protected speech for as long as it is not
false or misleading and does not propose an illegal transaction.[33]
2. But if the government has a substantial interest to protect, even a truthful and lawful
commercial speech may be regulated.[34]
3. Private speech is accorded more freedom and protection than commercial speech.
Freedom of Assembly
1. Meaning. Freedom of assembly refers to the right to hold a rally to voice out grievances
against the government.
2. Freedom not Subject to Prior Restraint. As a rule, freedom of assembly is not subject to prior
restraint or prior issuance of permit by government authorities. Nevertheless, it must be
exercised in such a way that will not to prejudice public welfare. Freedom of assembly is
reinforced by Batas Pambansa Blg. 880, otherwise known as the Public Assembly Acts of 1985,
which basically provides the requirements and procedure for holding rallies. It also implements
the observance of maximum tolerance towards participants of rallies consistent with the clear
and present danger test.
3. Permit Requirement. Under the said law, permit is required to hold a rally. It must be
emphasized, however, that the permit is not a requirement for the validity of the assembly or
rally, because the right is not subject to prior restraint. Rather, the permit is a requirement for the
use of the public place.
4. When Permit not Required. Permit is not required if the rally is held in a private place, in a
campus of a state college or university, or in a freedom park, in which case only coordination
with the police is required. If the application for permit is not acted upon by the mayor within
two working days, then the same is deemed granted.

5. Political rally during election is regulated by the Omnibus Election Code, not by BP 880.
Right to Form Associations
1. Constitutional Provision. Section 8, Article III provides that the right of the people, including
those employed in the public and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not be abridged.
2. Who may Exercise the Right. The right of association may be exercised by the employed or the
unemployed and by those employed in the government or in the private sector. It likewise
embraces the right to form unions both in the government and private sector. The right of civil
servants to unionize is expressly provided in Section 2(5), Article IX-B: The right to selforganization shall not be denied to government employees. The right of labor in general to
unionize is likewise provided in Section 3, Article XIII: [The State] shall guarantee the rights of
all workers to self-organization, collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law.
3. Right to Strike not Included. The right to form associations or to self-organization does not
include the right to strike. Thus, public school teachers do not enjoy the right to strike even if
they are given the constitutional right of association.[35] The terms and conditions of
employment in the Government, including in any political subdivision or instrumentality thereof
and government owned and controlled corporations with original charters, are governed by law
and the employees therein shall not strike for purposes of securing changes.[36]
Right to Information
1. Constitutional Provision. Section 7, Article III provides that the right of the people to
information on matters of public concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
2. Scope and Limitation. The right guarantees access to official records for any lawful purpose.
However, access may be denied by the government if the information sought involves: (a)
National security matters, military and diplomatic secrets; (b) Trade or industrial secrets; (c)
Criminal matters; and (d) Other confidential information (such as inter-government exchanges
prior to consultation of treaties and executive agreement, and privilege speech).