DIOCES VS COMELEC (2015)

There were 2 tarps made by the San Sebastian Cathedral of Bacolod. Ang measurement was six feet (6') by ten feet (10') in size- 2 tarps. One
tarp presented the candidates for the elections as Team Buhay because they were against the RH Law. And the other tarpaulin presents the
Team Patay because they were in favor of the RH Law.

So this was the content of the tarpaulin. Now the COMELEC on Feb. 22, 2013 issued a notice to remove campaign materials to this Diocese
because it was oversized under existing COMELEC regulations.

The size requirement for such campaign materials or propaganda should only be 2x3; kani 6x10 so nilapas daw. Nag explain si Diocese but
eventually Feb. 27, 5 days after, COMELEC issued an order for the immediate removal of the tarpaulin. So the case reached the Supreme Court
kay gipatanggal ang tarpaulin; Team Patay, Team Buhay. And the Court here agreed with the Diocese.

The COMELEC here committed grave abuse of discretion in issuing this notices against this Diocese. First of all the COMELEC had no legal basis to
regulate expressions made by private citizens. It was admitted here that these tarps were made by the members of this Diocese. Not by any
specific candidate. Wala may nagbayad ana from Team Buhay or Team Patay. Rather it was the church or its constituents that posted that. The
provision cited by the COMELEC to support its argument that it had basis to regulate the size of the tarpaulin pertain to candidates and political
parties. Here however the one who posted these tarps and funded them were not these candidates and neither the political parties.

Therefore COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-
candidate.

Was there a violation here of the right to free speech? YES.

So who penned this decision?

Justice Leonen.

That is why it’s very long :) so anyway he discussed the provisions, Sec.4 Art.3 “No law shall be passed abridging the freedom of speech, of
expression, or of the press…” First of all the provision says “no law”.

Does that mean that the restriction should only be applied if there is a law passed by Congress?

NO.

While it is true that the provision says “no law”, the provision extends even to governmental acts. So it’s not limited to laws passed by
Congress that limit the freedom of expression. The protection extends to any form of governmental act that restricts the freedom.

For example, we have cases here Primicias v. Fugoso. Issuance of permit by the mayor violative of the right to free speech.

ABS-CBN v. COMELEC on the COMELEC resolution restraining the conduct of exit surverys that involves a COMELEC act. That’s not a law. The
Court said that is also covered by the restriction against the restraining of free speech. Now, no law shall be abridging or curtailing noh the
freedom of speech.

This prohibition does not mean that any form of regulation is now prohibited. It is not an absolute prohibition against regulation. The primary
and incidental burden on speech must be weighed against a compelling state interest clearly allowed in the Constitution. So if there is a
regulation it must be tested by applicable tests present in jurisprudence.

If that regulation passes the test then it can considered as reasonable. By no means does this provision prohibit regulation of speech. Now the
protection protects expressions. So it is not limited to speech, verbal utterances or any form of expression. Kaganina diba katong cybersex, it is a
form of expression and it is protected. Now, the court emphasized that the extent of the right of the freedom of expression is not limited to
verbal utterances but to any form of expression.

For example Ebranilag v. Division Superintendent. The issue there is the flag salute. Jehovah ka, bawal ka mag salute salute; the court discussed
there nga protected na siya. So even if it is not a verbal utterance, that’s protected by the right. Gonzalez v. Katigbak kaning “kapit sa patalim”
na movie nga gi sensor for adults only that is not anything that’s verbal but protected gihapon. So it is not limited to verbal utterances.

Now let’s go to the issue of the tarps. The court said that the size of the medium actually matter. The size pertains to the form of expression or
of the medium. Size matters according to Leonen. The form of expression is just as important as the information conveyed as it forms part of the
expression. Why? First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier to view its messages
from greater distances. Diba? Kay kung imong tarpaulin murag calling card o nagkuan pa ka :) Second, the size of the tarpaulin may underscore
the importance of the message. Because if you are proud of the message, mas dako imong tarp. Pero kung dili ka proud sa imong message diba
paghuman sa imong exam pilion nimo. Anyway, the size underscores the message.
Meaning the larger the tarpaulin, the bolder your statement is, the more important it is for you. Third, larger spaces allow for more messages.
Larger spaces, may translate to more opportunities to amplify, explain, and argue points. These points become more salient when it is the
electorate, the voters themselves, and not the candidates or the political parties, who speak.

Diba here, kinsa man naghimo atong tarp? Diba katong mga Diocese. Rather than provide obstacles to their speech, government should in fact
encourage it. Between the candidates and the electorate, the latter have the better incentive to demand discussion of the more important
issues.

Hence, large tarpaulins, therefore, are not analogous to time and place. Ngano nato ni siya gidiscuss? Because the assertion here is that this is a
content-neutral regulation and therefore dapat dili kaayo strikto ang Supreme Court or any court for that matter in assessing whether or not it is
valid. It’s a content neutral intermediate approach not clear and present danger.

But the court said we’re talking here of the medium itself that is related to the message. That is why strict and pag interpret sa court noh sa
freedom vis a vis the regulation. Why is it protected? This freedom of expression? Again it relates to the right of the people to participate in
public affairs etc. So take note of these reasons why freedom of expression is important.

Another, free speech should be encouraged under the concept of a market place of ideas.

That the best test of truth is the power of the thought to get itself accepted in the competition of the market. Third, free speech enhances
human dignity. Fourth, expression is a marker for group identity. Lastly, free speech must be protected under the safety valve theory. Basig
mugawas ni sa bar.

Safety valve theory- what is this?

This means that "nonviolent manifestations of dissent reduce the likelihood of violence ”. What does that mean? Ang image sa court here is a
dam about to burst resulting in the ‘banking up of a menacing flood of sullen anger behind the walls of restriction’ may be reduced by giving
nonviolent outlets noh to release are the sentiments of the people.

So instead of prohibiting this form of expression, might as well allow the expression with restrictions. In order to avoid this situation or prevent
people from resulting to violence, there is a need for peaceful methods in making passionate dissent. So that is the “Safety Valve Theory”.

The court emphasized this discussion because it talks about political speech. This right of free speech and other intellectual freedoms are highly
ranked in our scheme of constitutional values. This right enjoys precedence and primacy.

Now considering that were talking about the content noh because the size of the tarpaulin relates to the content or the message, the court
applied here the test against content based regulations. Nonetheless noh because there were dissenting opinions from other justices that it
should be content neutral, Leonen also explained using that test, the content neutral test or intermediate approach test to invalidate this size
requirement. But anyway we’re focusing on this content-based restriction. This restriction noh passes constitutional scrutiny if you would be
able to show the restriction on the freedom of speech would prevent an imminent danger. Here the COMELEC would not point to a definitive
view. It did not prove unsa ang view that they wanted to suppress or give about this clear and present danger.

So walay basis according to the court noh for COMELEC to limit this size requirement at least for private propaganda. Now the size limitations
during elections, it formed part of the expression. The content of the tarpaulin is not easily divorced from the size of its medium. Here there is
no compelling and substantial state interest endangered by the posting of the tarp as to justify curtailment of the right of freedom of
expression. Again, the medium is the message.

The court made this discussion because ang difference here is the regulation was applied to a tarpaulin created by a private group. Had it been
the tarpaulin of a candidate then the discussion would have been different. This does not mean however that private speech cannot be
cosidered as election paraphernalia that is beyond regulation by the COMELEC.

A regulation is invalid on this private speech if it is made by persons who are candidates or who do not speak as members of the political party
but when the communication is taken as a whole, the regulation of speech in the context of electoral campaigns made by persons who are not
candidates or who do not speak as members of a political party which are, taken as a whole, principal advocacies of a social issue that the public
must consider during elections is unconstitutional. In other words, the limitation of the restraint of any governmental agency including the
COMELEC noh, if it is a speech made by non-candidates and the content of that speech or that propaganda is not to promote a candidate but
rather to advocate a social issue- that is regulated.

That is considered as invalid. However a COMELEC or any regulation would be considered as valid even if made by noncandidates if the message
taken as a whole has for its principal object the endorsement of a candidate. So that is the distinction. When private speech can be considered
as election paraphernalia. Kung social issues iyang ginapresent, naay stricter view ang pag treat sa regulation. That is usually considered as
unconstitutional. But even if it is a privately made statement, if ang intent niya is to promote a candidate then any regulation on that, the
valuation of which may be lighter. Or the regulation can be considered as valid. Because you are not promoting social issues but rather
promoting a candidate.
 So when is a regulation valid?

Under that second instance noh. The regulation for it to be considered valid should be provided by law, it

(a) should be provided by law,

(b) reasonable,

(c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and

(d) demonstrably the least restrictive.

This enumeration is actually an enumeration of the intermediate approach.

Now we go to another case involving elections