Low-value speech

By Dominador Awiten

WHAT is protected speech and what is not is once more made clear and in straightforward detail in the Supreme Court decision (April 29, 2009) in the consolidated cases of Eliseo F. Soriano v.  Ma. Consoliza P. Laguardia, et. al. (G.R. No. 164785) and Eliseo F. Soriano v. MTRCB, et. al. (G.R. No. 165836).

Involved in the two cases were the alleged cuss words uttered in a television broadcast that prompted the offended parties to complain before the Movie and Television Review and Classification Board.

Initially, the MTRCB issued an order of preventive suspension of the respondent as a TV program host and, later, after an administrative hearing of the complaint promulgated the decision that found the respondent liable for the utterances and imposed the penalty of three months suspension from hosting the TV program.

Among the cuss words allegedly expressed by respondent were “lehitimong anak ng demonyo,” “sinungaling,” “g*go ka talaga,” “masahol ka pa sa p*tang babae.”

To the High Court, in agreement with the decision of the MTRCB, the petitioner’s statements are unprotected speech.

Unprotected speech or low-value expression includes “libelous statements, obscenity or pornography, false or misleading advertisement, insulting or ‘fighting words,’ i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace or expression endangering national security.”

The court sensed that if not obscene, the utterances in question may still be considered as “indecent.”

While the court’s decision seems to be grounded on the “balancing of interests test,” as elucidated in the case of Gonzales v. Comelec (G.R. No. L-27833, April 18, 1969, in which the law regulating political campaign was upheld as a valid restriction of free speech), it may also be considered as a throwback to the regrettable doctrine known as the “dangerous tendency rule.”

More favored in early Philippine jurisprudence, due to the fact that we were then under American colonial rule and later when the government had to quell the Huk insurgency, the “dangerous tendency rule” was used to justify the curtailment and even punishment of speech that “creates a dangerous tendency which the State has the right to prevent.”

All that is required for speech to be punishable is that “there be a rational connection between the speech and the evil apprehended.”

For instance, in the case of People v. Perez (G.R. No. L-21049, Dec. 22, 1923), in the ponencia by Justice George A. Malcolm (who is considered an influential figure in the development of law practice in our country and who nurtured our nation’s legal education as dean of the UP College of Law) the accused was convicted not under the libel law but under the then sedition law.

The accused uttered certain words out of his disgust at American rule:  “The Filipinos, like myself, must use bolos for cutting off (Governor-General) Wood’s head for having recommended a bad thing for the Filipinos, for he has killed our independence.”

Such statements were considered unlawful, for tending to incite the people to rise against the government, for inciting the people to cabal and conspire against the government.

On the other hand, the dissenting opinion argued that the decision was unfair for convicting the accused upon a theory which was not espoused by the prosecution.

Later jurisprudence has favored the doctrine of “clear and present danger.”

Chiefly developed by Justice Oliver Wendell Holmes Jr. the latter rule is rendered succinctly in the case of Schenck v. United States (249 U.S. 47, 1919), thus:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

The circumstances determine the case such that the legal protection is not available to someone who falsely shouts “Fire!” in a theater that causes panic among the audience.

To go back to the decision in the Soriano cases, the dissenting opinion of Justice Antonio Carpio is telling and worthy of consideration.

Citing the Holmes formulation, the dissent states: “Freedom of speech includes the expression of thoughts that we do not approve of, not just thoughts that are agreeable.”

To Carpio, the imposition of the penalty of suspension by the MTRCB for the indecent speech of Soriano amounts to a law that infringes on free speech and is, therefore, contrary to the Constitution.