Our greatest freedom

It is in times of grave crises like the ongoing COVID-19 pandemic that our freedom of expression is in danger of being sacrificed on the altar of public order. It is timely to remind ourselves that we must defend our freedom of expression as staunchly as we are defending our lives against COVID-19.

Freedom of expression, which includes freedom of speech and freedom of the press, is the foundation of our free, open, and democratic society. Without freedom of expression, all our other freedoms—civil and political rights — cannot exist. Freedom of expression is the freedom to engage in full, spirited, and even contentious discussion of all social, economic, and political issues. It is the freedom to express the idea that others hate, to the same extent as the freedom to express the idea that others like. Freedom of expression is guaranteed under the Constitution, which mandates that “no law shall be passed abridging the freedom of speech, of expression, or the press.” A state of martial law does not suspend freedom of expression. The Supreme Court has ruled that even if the Constitution is abolished by a revolutionary government, our fundamental rights, which include freedom of expression, cannot be taken away because they form part of customary international law under the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights which are binding on any government, whether constitutional or revolutionary.

Freedom of expression is truly our greatest freedom. However, freedom of expression is not absolute. The Supreme Court has carved out four exceptions when the State may impose prior restraint, or subsequent punishment, on the exercise of freedom of expression, namely: pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security. There is a very high bar to hurdle before the State can successfully invoke these exceptions. The State must establish that the expression creates a clear and present danger of an evil that the State has a right and duty to prevent. The danger from the expression must be extremely imminent, and the evil must be substantive and extremely serious.

Expression that is libelous may also be subject to subsequent punishment but not to prior restraint or censorship. If the libeled person is a private individual, there is a rebuttable presumption of malice on the part of the offender because a private individual, having a right to privacy, is not subject to public scrutiny. But if the libeled person is a public officer, the public officer has the burden of establishing actual malice by the offender because a public officer is subject to public scrutiny for acts related to his public office.

The Bayanihan Act, enacted to address the COVID-19 crisis, penalizes “individuals or groups xxx spreading false information regarding the COVID-19 crisis on social media and other platforms xxx.” Any prosecution under this provision must hurdle the high bar before the State can successfully invoke advocacy of imminent lawless action as an exception to freedom of expression.

Besides, this provision is practically impossible to utilize because the Bayanihan Act has a lifetime of only 90 days, after which this provision ceases to have any effect. Any pending prosecution upon the expiration of the 90-day period will have to be dismissed. Any sentence still being served upon the expiration of the period will also have to be terminated. An act is not a crime if there is no longer a law prohibiting the act and prescribing a penalty for its commission. This principle has been given retroactive effect to release convicts still serving sentence upon the repeal of the law under which they were convicted.

This is probably the reason why the Philippine National Police has instead utilized Article 154(1) of the Revised Penal Code to prosecute those who “publish as news any false news which may endanger public order.” However, any prosecution under this law must still hurdle the high bar to successfully invoke the exception of advocacy of imminent lawless action. Since the enactment of the Code 88 years ago, no case applying Article 154(1) has reached the Supreme Court. Prosecutors probably know it is extremely difficult to overcome the high bar that protects our freedom of expression.

[email protected]