Battling over billboards

About five years ago Manila was already battling over billboards. As I recall, however, the issue then was fairly simple. The campaign was not so much about what the billboards contained but about where they were placed and how they were built. If place and quality of construction are the only factors in issue, regulation can easily be justified. The state is sufficiently armed with police power which enables it to protect the health and safety of the public. Protection of life and limb is a perfectly valid basis for regulation or even prohibition.

The MMDA has echoed safety as its concern in the current controversy. But the issue of decency is what triggered the current campaign. That is more delicate.

Billboards, of course, are property and definitely property is subject to regulation. But billboards are also a form of speech. So you will have to deal with the distinctions and sub-distinctions related to the regulation of speech. Billboards might contain political speech urging support for a proposed law or a senatorial candidate. They might also contain religious speech. Political speech and religious speech enjoy the highest form of constitutional protection.

The current billboard controversy is about commercial speech. Commercial speech is speech whose object is to invite a commercial transaction such as a sale or a contract. The billboards in issue are about gentlemen’s briefs and ladies’ bras.

How is commercial speech regulated? For many years jurisprudence did not consider commercial speech protected by the Constitution. The reasoning was that the broad powers of the state to regulate business included an equally broad power to regulate commercial speech. But now commercial advertising enjoys constitutional protection. Jurisprudence now says that “society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely ‘commercial,’ may be of general public interest. The facts of decided cases furnish illustrations: … a manufacturer of artificial furs promotes his product as an alternative to the extinction by his competitors of fur-bearing mammals, . . . a domestic producer advertises his product as an alternative to imports that tend to deprive American residents of their jobs …”

Nevertheless commercial speech has not been accorded the same level of protection as that given to what is called “core” speech, that is, political and religious speech. Thus the need for standards of regulation specific for commercial speech.

Regulation of commercial speech now sets down four requirements. First, the advertisement being regulated must not propagate what is false or illegal. Second, the regulation must be intended to protect a substantial governmental interest. Third, the regulation must directly advance the governmental interest. And fourth, the regulation must not be more than necessary to serve the government interest.

We do not see what is covered by the briefs and the bras, so we cannot tell whether what lies behind is false. But is the advertisement illegal? There are two categories of speech which are not constitutionally protected, namely libel and obscenity. There is nothing libelous about the briefs and bras on exhibit. But are they obscene?

If you measure them by the accepted legal definition of obscenity, they are far from being obscene. But there is a distant relative of obscenity which Philippine courts have used to pass judgment on certain forms of expression. The most recent decision calls it “relative obscenity.” Relative to what? Relative to the age level of the viewers.

This is what happened in the case involving a television preacher who was found guilty of having used inappropriate language in a television program aired at a time when minors would be expected to be still awake and watching. Should this standard be used for regulating billboards?

What is notable about this standard is that it recognizes that there are materials inappropriate for minors but not inappropriate for adults. That, in fact, is the standard used by the Censorship Board. Moreover, it is standard that is used for a type of expression the spread of which can conveniently be enclosed. How would you regulate ads for briefs and bras intended for adults and which commercially are meant to be spread as widely as possible? Should their effect on minors be the standard?

This, in fact, is also the problem confronted by those who wish to regulate sex on the Internet. They have not succeeded in formulating a law regulating the Internet which will not deprive adults of what, in this our world, they have a right to see.

Should the law then use aesthetics or beauty as standard? As the US Supreme Court said, “It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.” Or, as a New York court echoed, “We accept beauty as a proper community objective, attainable through the use of police power.”

But this too is problematic. Who is to judge whether a billboard projects beauty or ugliness?

In the end, it is perhaps best to leave the matter to the civic sense of advertisers and advertising agencies.