Comelec’s war with ‘Buhay’ and ‘Patay’ tarps

Does the Commission on Elections have the power to order churches to take down posters hanging on church walls expressing their views about the Reproductive Health Law and senatorial preferences? The Bacolod diocese says no, and other dioceses are threatening to follow. I too would say no.

Involved is the power of the Comelec to regulate elections and implement election laws. The power flows from the Comelec’s constitutional duty to ensure fair and honest elections. But because election campaigns highly involve competing communications, election rules can heavily involve regulation of speech. The Constitution gives to speech the highest degree of protection.

Jurisprudence distinguishes between content-neutral regulations and content-based regulation of speech. A content-neutral regulation is merely concerned with the incidents of the speech and merely controls the time, place and manner of the speech under well-defined standards. A content-based restraint is censorship and is concerned with the content of the speech.

Clearly, the tarps involved contain both political speech and religious speech, both highly protected by the Constitution. The political aspect of the tarps involves electoral choices. It urges people to vote for senatorial candidates who opposed the RH Law and to vote against those who supported the RH Law. The religious aspect arises from the fact that the tarps express competing religious views about the morality of the reproductive health regulation. And since both aspects of the tarps are intended to influence the choice of the voters, they are a form of electoral campaigning.

Clearly, the political and religious aspects of the tarps are beyond the jurisdiction of the Comelec.  But it is within the power of the Comelec to impose regulations that are content-neutral, such as those touching on size, place and manner of publication.  This is the sticky part of the controversy between the Comelec and the Diocese of Bacolod.

The regulation of the size of posters and tarpaulins is probably the least controversial. The cost of posters and tarpaulins depends on their size, and the reach of their influence also depends on size. The Comelec has the duty to maintain equality of electoral opportunity. My understanding is that the diocese is willing to trim down the size of the tarps but, in the spirit of a cat-and-mouse game perhaps, alternatively to increase their number.

Another problem about outdoor signs are the aesthetic and public safety aspects. As one decision put it, “While signs are a form of expression protected by the free-speech clause, they pose distinctive problems that are subject to the municipalities’ police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs—just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise.” However, this has not come up in the Bacolod controversy at all.

A more problematic aspect of what the Comelec wants to do with the Bacolod tarps is their location. They are hung outside the church building within private property. Comelec regulations allow the posting of signs on private property provided that the property owner consents. The church has not only consented but is in fact the sponsor of the tarps.

The current controversy is perhaps the first of its kind in Philippine jurisprudence. It may be for this reason that the Supreme Court is handling it gingerly. This, however, is not a new problem in United States jurisprudence to which we usually have recourse when dealing with local laws that are of US origin.

The case I remember best is one involving a sign posted by a property owner on her front lawn proclaiming, “Say No to War in the Persian Gulf, Call Congress Now.” The sign violated a city ordinance. When prosecuted, she challenged the constitutionality of the ordinance. She won. The Court ruled, among others, that the city had “totally foreclosed that medium (of communication) to political, religious or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the resident’s support for particular candidates, parties or causes. They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression.”

Because of this, I would defend the legal position of the diocese. However, let me conclude by saying that while I would defend the action of the diocese on constitutional grounds, I oppose it for pastoral reasons. The content of the tarps are both politically and religiously divisive. Catholics are divided over whom to vote for; they are also divided over the morality of the RH Law. To brand as “Patay” those who in good faith believe in the morality of the RH Law following the teaching of some moral theologians is not an effective way of fostering church unity. It can drive away people from the church.