A line beyond which one may not go

Chief Justice Oliver Wendell Holmes reminds us that there are times when we need more an education in the obvious than an investigation of the obscure. The present debate on the question of free speech and freedom of religion presents one such occasion. It is obvious from the fact that both freedoms are protected by the Constitution that there must be a mechanism by which these rights can be adjusted or balanced in specific situations where they conflict. One right cannot be allowed to prevail at all times against the other, for that would be giving it a sacrosanct position that is not sanctioned by any reasonable interpretation of the Constitution.

This is what we learn from both US and Philippine jurisprudence. We need not delve into strange decisions in some other countries to justify an extravagant tolerance of words or acts that common sense tells us mock and insult the faith of people.

There is hardly any one in our society today who questions the value of free speech. But the rationale for this has been explained time and again by the courts. As stated by the US Supreme Court in its 1951 decision in Dennis vs United States, the leading cases on free speech had recognized that it is not an unlimited or unqualified right, but on occasion must be subordinated to other values and considerations. Holmes’ famous quip in the 1919 case of Schenck vs United States that the most stringent protection of free speech would not protect a man in falsely shouting “fire!” in a theater and causing panic serves to underscore this basic insight.

The constitutional limitations on free speech have crystallized in the cases into rules that provide guidance on where to draw the line. In Roth vs United States, decided in 1957, the US court took pains to identify the scope of free speech. This, it said, covered all ideas with the slightest redeeming social importance, ideas that are unorthodox and deviant and even hateful to prevailing opinion. For criticism and dissent, no matter how obnoxious to the hearer, comes under the mantle of free speech unless, and this is crucial, it encroaches in specific circumstances upon more important interests.

From a review of the cases, we can infer areas where more important interests come into play. It has been recognized since 1942 in Chaplinsky vs New Hampshire that there are some utterances that are constitutionally unprotected. Among them are the lewd, profane, libelous and insulting or fighting words. It is said there that they are words that by their very utterance inflict injury or tend to incite an immediate breach of the peace. The phrase by their very utterance must be taken in reference to the obscene and libelous which Bernas in his annotations on the 1987 Constitution, at 248, says are words that are in themselves injurious. The qualifying phrase tend to incite a breach of the peace, on the other hand, should be equated with the fighting or insulting words, if we are to reconcile later cases that continue to apply either of the two factual tests—the clear and present danger rule of Justice Holmes in the Schenck case or the dangerous tendency rule enunciated in 1925 in Gitlow vs New York.

What is meant by all this is that, unless they are obscene or libelous and punishable in themselves, or per se, you can say anything you want against somebody or something, up to a certain point. In the case of seditious speeches, this is when there is an advocacy to violent action against the state or the law, and in insulting words, when they incite violence or disorder. Where we tip the scale depends on which of the two tests cited we apply.

Yet this does not exhaust all the issues. Freedom of speech casts a very broad net. As Justice Fred Ruiz Castro intimates in the 1969 case of Gonzales vs Commission on Elections, there is speech the effect of which in terms of probability of a specific danger is not susceptible even to impressionistic calculation, for which reason a different test has to be applied. His observation harks back to the 1947 case of American Communications Association vs Douds where Chief Justice Fred Vinson suggested that in cases where there is conflict between free speech and another value or interest protected by the Constitution, courts must determine which demands greater protection under the circumstances and appraise the substantiality of the reasons for the regulation of free speech. This has come to be known in constitutional law as the balancing of interests test.

One of the most fertile areas of controversy is where the right to criticize freely clashes with the exercise of religion. The cases we know of involve the interpretation and application of Article 133 of the Revised Penal Code which penalizes the act of offending religious feelings in a place of worship or during a religious ceremony. Putting consideration of the clear and present danger test to one side, it is pertinent to ask whether, applying the balancing of interests test, the right to freedom of religion must be accorded primary importance under the circumstances specified in this law.

Our answer is in the affirmative. It will be noted that what is protected by the legal provision is a limited right to worship in peace in a private place. The restriction on free speech is too small a price to pay for the enjoyment of this right. The free-speech advocate can have the whole world as a platform for the propagation of his ideas. Must he still invade the few square meters of private space that a man needs when he is in communion with his Creator?

It has been argued that the phrase offending religious feelings is vague and subjective. Let us just recall the admonition in the Dennis case when the standard clear and present danger was questioned: It well serves to indicate to those who advocate constitutionally prohibited conduct that there is a line beyond which they may not go—a line which they well appreciate and understand.

Mario Guariña III is a former associate justice of the Court of Appeals.