Osmena v. COMELEC, G.R. No. 132231, March 31, 1998
Osmena v. COMELEC, G.R. No. 132231, March 31, 1998
Petitioners
request a reexamination of the constitutionality of Sec. 11(b) of the Electoral
Reforms Law of 1987, prohibiting the mass media from selling or giving free of
charge print space or air time for campaign or other political purposes, except
to the Commission on Elections.
REASONABLE REGULATION –
AS TO TIME and SCOPE
The main purpose of §11(b) is
regulatory. Any restriction on speech is
only incidental, and it is no more than is necessary to achieve its purpose of
promoting equality of opportunity in the use of mass media for political advertising. The restriction on speech, as pointed out in NPC,
is limited both as to time and as to scope.
What makes the regulation reasonable is
precisely that it applies only to the election period. Its enforcement outside the period would make
it unreasonable. More importantly, it
should be noted that a “ban on mountain skiing” would be passive in
nature. It is like the statutory cap on
campaign expenditures, but is so unlike the real nature of §11(b), as already
explained.
CONTENT-NEUTRAL REGULATION
In Adiong v. COMELEC this
Court quoted the following from the decision of the U.S. Supreme Court in a
case sustaining a Los Angeles City ordinance which prohibited the posting of
campaign signs on public property:
A government
regulation is sufficiently justified if it is within the constitutional power
of the Government, if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incident restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest.
This test was actually formulated in
United States v. O’Brien. It is an appropriate test for restrictions on
speech which, like §11(b), are content-neutral.
Unlike content-based restrictions, they are not imposed because
of the content of the speech. For this
reason, content-neutral restrictions are tests demanding standards. For example, a rule such as that involved in Sanidad
v. COMELEC, prohibiting columnists, commentators, and announcers
from campaigning either for or against an issue in a plebiscite must have a
compelling reason to support it, or it will not pass muster under strict
scrutiny. These restrictions, it will be
seen, are censorial and therefore they bear a heavy presumption of
constitutional invalidity. In addition,
they will be tested for possible overbreadth and vagueness.
These regulations need only a
substantial governmental interest to support them. A deferential standard of
review will suffice to test their validity.
CLEAR AND
PRESENT DANGER TEST, NOT AN APPROPRIATE TEST IN DETERMINING VALIDITY OF
CONTENT-NEUTRAL REGULATIONS
Justice Panganiban’s dissent invokes
the clear-and-present-danger test and argues that “media ads do not partake of
the ‘real substantive evil’ that the state has a right to prevent and that
justifies the curtailment of the people’s cardinal right to choose their means
of expression and of access to information.” The clear-and-present-danger test
is not, however, a sovereign remedy for all free speech problems. As has been pointed out by a thoughtful
student of constitutional law, it was originally formulated for the criminal
law and only later appropriated for free speech cases. For the criminal law is necessarily concerned
with the line at which innocent preparation ends and a guilty conspiracy or
attempt begins. Clearly, it is inappropriate as a test for determining the constitutional
validity of laws which, like §11(b) of R.A. No. 6646, are not concerned with
the content of political ads but only with their incidents. To apply the clear-and-present-danger test to
such regulatory measures would be like using a sledgehammer to drive a nail
when a regular hammer is all that is needed.
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