BILL OF RIGHTS; FREEDOM OF SPEECH AND OF THE PRESS; SCOPE.
The primacy, the high estate accorded freedom of expression is a fundamental
postulate of our constitutional system. No law shall be passed abridging the freedom
of speech or of the press. What does it embrace? At the very least, free speech and
free press may be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship or punishment. There is to be then no
previous restrain on the communication of views or subsequent liability whether in
libel suits, prosecution for sedition, or action for damages, or contempt proceedings
unless there be a clear and present danger of substantive evil that Congress has a
right to prevent. The vital need in a constitutional democracy for freedom of
expression is undeniable whether as a means of assuring individual self-fulfillment,
of attaining the truth, of securing participation by the people in social including
political decision-making, and of maintaining the balance between stability and
change. The trend as reflected in Philippine and American decisions is to recognize
the broadest scope and assure the widest latitude to this constitutional guaranty. It
represents a profound commitment to the principle that debate of public issue
should be uninhibited, robust, wide-open. It is not going too far, according to
another American decision, to view the function of free speech as inviting dispute.
Freedom of speech and of the press thus means something more than the right to
approve existing political beliefs or economic arrangements, to lend support to
official measures, to take refuge in the existing climate of opinion on any matter of
public consequence. So atrophied, the right becomes meaningless. The right belongs
as well, if not more, for those who question, who do not conform, who differ. To
paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than
for the thought that agrees with us.
SUCH FREEDOM IS NOT AN ABSOLUTE. — From the language of the specific
constitutional provision, it would appear that the freedom of speech and of the press
is not susceptible of any limitation. No law may be passed abridging the freedom of
speech and of the press. The realities of life in a complex society preclude however a
literal interpretation. Freedom of expression is not an absolute. It would be too
much to insist that at all times and under all circumstances it should remain
unfettered and unrestrained. There are other societal values that press for
recognition.
TWO TESTS FOR PERMISSIBLE RESTRICTION. — This Court spoke, in Cabansag v.
Fernandez, of two tests that may supply an acceptable criterion for permissible
restriction. These are the "clear and present danger" rule and the "dangerous
tendency" rule.
DISTINCTION BETWEEN THE TWO TESTS. — The test, the "clear and present
danger" rule, as a limitation on freedom of expression is justified by the danger or
evil of a substantive character that the state has a right to prevent. Unlike the
dangerous tendency doctrine, the danger must not only be clear but also present.
The term clear seems to point to a causal connection with the danger of the
substantive evil arising from the utterance question. Present refers to the time
element. It used to be identified with imminent and immediate danger. The danger
must not only be probable but very likely inevitable.
DOCTRINES OF "DANGEROUS TENDENCY" AND "CLEAR AND PRESENT
DANGER," LIMIT SUCH FREEDOM; THE TWO DOCTRINES ARE DISTINGUISHED.
— The "dangerous tendency" and "clear and present danger" doctrines, it should
not escape notice, were fashioned in the course of testing legislation of a particular
type-legislation limiting speech expected to have deleterious consequences on the
security and public order of the community. The essential difference between the
two doctrines related to the degree of proximity of the apprehended danger which
justified the restriction upon speech. The "dangerous tendency" doctrine permitted
the application of restrictions once a rational connection between the speech
restrained and the danger apprehended — the "tendency" of one to create the other
— was shown. The "clear and present danger" rule, in contrast, required the
Government to defer application of restrictions until the apprehended danger was
much more visible, until its realization was imminent and nigh at hand. The latter
rule was thus considerably more permissive of speech than the former, in contexts
for the testing of which they were originally designed.
