The limits to free speech

The recent deadly attack on a magazine publication in France by Muslim extremists may have been justifiably condemned worldwide as an assault on the right of free expression, but from a larger viewpoint, there is really no issue at stake here. Physical violence by one against another is never justified, except in the most extreme cases, such as in the right to self-defense. The State has created a system of law, a legal milieu, in which any person aggrieved by the acts of another can resort to vindication—if they believe they have been wronged, they must avail of the legal process, but they can never take the law into their own hands, even if the criticism they receive from others mocks their way of life. This is the philosophy behind the establishment of the rule of law in society.

There is an issue when, invoking certain ends, the State is the one that curtails the right of free expression. The bill of rights in a constitution has developed as a limitation on the power of the State to control individual liberty. When, for instance, the State refuses to issue a permit to a group of persons to hold a rally in a certain place because to do so will lead to public disorder, there is now what some jurists call a clash between right and right.

If anything, this shows that individual rights are not absolute. There are obviously limits to free speech, because the Constitution embodies other values and interests which also need protection. The problem for constitutional law is striking the right balance in the exercise of these competing rights.

Schenck vs United States, decided by the US Supreme Court in 1919, was the first case of major importance that sought to resolve the clash between the right of free speech of the individual and the police power of the State. Here, Justice Oliver Wendell Holmes made a very fundamental point: The character of an act forming part of the ensemble of free speech depends on the conditions in which it is done. A state limitation on free speech may be justified under one set of circumstances but not under another. The conviction of Schenck under the Espionage Act of 1917 was upheld on the ground that when a nation is at war, as the United States was in 1917, a person may be punished for saying things which will not be punishable in time of peace. Holmes introduced what has now come to be known as the clear and present danger rule. When the words used are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent, liability for words that produce that effect may be enforced.

The conditions of the test laid down by Holmes were found by some jurists to be too supportive of free speech, and in Gitlow vs United States in 1925, a more relaxed standard favorable to legislative action was devised—the dangerous tendency rule. The cases after Gitlow concerned threats to national security, but eventually, the clear and present danger rule was extended to other substantive evils that the State also has the right to prevent. In 1951, in Feiner vs New York, Justice Fred Vinson, speaking for the US high court, said that when clear and present danger of riot, disorder, interference with traffic in public streets, or other immediate threats to the peace appears, the power of the State to prevent or punish speech is obvious.

In the Philippines, as late as 1983 in Reyes vs Bagatsing, our Supreme Court compelled the government to issue a permit to a group to hold a public assembly near the US Embassy in Roxas Boulevard, there being no showing of any clear and present danger to public order. On the other hand, in the 1956 case of Ignacio vs Ela, a minority sect was allowed to hold a meeting only at a part of the plaza not near a Catholic church so as to avoid breaches of the peace. Our high court upheld this condition of the permit, and did not even require evidence that such disturbance was imminent.

A third rule that received recognition by our Court is the balancing of interests test enunciated by Vinson in 1947 in American Communications Association vs Douds. As pointed out by Justice Fred Ruiz Castro in the 1969 case of Gonzales vs Comelec, there are instances when the first two tests do not lend themselves to easy application, such as in cases to reform the electoral process; so the courts have only to weigh the circumstances and appreciate the substantiality of the reasons for the regulation of free speech.

We make this presentation to show that a proper understanding of the right to free speech requires an analysis of the competing rights and interests in a particular situation. This was precisely done in the recent decision of the Court of Appeals in Celdran vs People, which took into account the constitutionality of Article 133 of the Revised Penal Code penalizing the doing of acts that offend the feelings of the faithful in a place devoted to religious worship or during the celebration of any religious ceremony. The competing value here is the right to worship in a private place without interference from either an overzealous state official or intolerant nonbeliever.

If the analysis of the choice made by the appellate court is to be contested, it deserves better attention than the dismissive attitude of some quarters in media. Article 133 is a singular provision in that it is meant to protect freedom of religion. Not only of those belonging to the Catholic Church, but the minority sects as well. What if someone enters a mosque where Muslims are in prayer and displays a caricature of the Prophet Mohammad? Surely no one can claim constitutional protection for this act.

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