Media and journalism issues

[OPINION] Social media and limits of protected speech

Tony La Viña, Ally Munda

This is AI generated summarization, which may have errors. For context, always refer to the full article.

[OPINION] Social media and limits of protected speech

Marian Hukom

While the right to freedom of expression is guaranteed, not all speech is constitutionally protected. When speech is wielded in a weaponized way, it cannot be protected.

Last of 2 parts

Part 1: [OPINION] Badoy’s red-tagging and freedom of expression

Free speech in the context of criticizing or disagreeing with judicial decisions is a rich topic and a question that the Court has had occasion to address many times over. In answering these questions, the Court has adopted several tests to determine the proper balance of these rights, particularly when their exercise crosses over into abuse.

The Philippines has long upheld a robust tradition of championing freedom of expression, including the invaluable rights to free speech and press, passed from our colonial past to more recent struggles with censorships during dictatorships. These experiences have led our courts to acknowledge the indispensable necessity of allowing individuals the unfettered ability to articulate their views without the looming specter of censorship or retribution. The “chilling effect” of prohibiting speech would lead to the absolute downfall of our democratic society. But unfettered expression comes with its own challenges, hence the Court has on many occasions been called to settle what must be protected and what cannot be protected.  Accountability goes both ways between the public and the government. 

Article III of the 1987 Constitution is the Bill of Rights, a list of protected rights to be enjoyed by all persons, guaranteed by the fundamental law of the land. Section 4 of this article says:

“No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

It is of paramount importance to understand that while the right to freedom of expression is guaranteed, not all speech is constitutionally protected. Words can be weapons, and when they are allowed to travel, they carry the power to liberate and harm. The rule of law cannot condone speech that would act against it, inciting violence against others or the government. When speech is wielded in a weaponized way where words lead to violence, it cannot be protected. Objective criticism of the acts of our government are protected, even encouraged, as a democratic society reaches its full potential when citizens are empowered to speak truth to powerful institutions. 

Throughout our legal history, freedom of speech and the press have been staunchly defended by the courts. Yet, criticism is not the same as condemnation. Dissent isn’t a license to erode public trust in our judiciary. Instead, it’s a call to uphold the integrity of our institutions and ensure that our voices contribute to positive change. Even when dissenting, there is a responsibility not to sow distrust with the judicial system. Lorraine Badoy said the decision of Judge Marlo Magdoza-Malagar was penned under the influence of the NPP-CPA. Absent any judicial reasoning founded upon our laws, she says that the rule of law no longer protects Filipinos. That’s a blatant, hurtful, and dangerous untruth.

The decision of the Court here is not meant to stifle criticism, but a reminder that every exercise of a right needs to be individually weighed by its consequences. Given all these guarantees given to freedom of expression as a precious right of the people, Badoy’s own exercise of speech was carefully weighed by the Court against multiple tests and found to be far outside the ambit of what is allowable.

The mere existence of a right, even one granted the widest latitude and afforded the greatest importance, does not give a blanket pass for every exercise of this right.

The power of contempt

A stable judicial system is not merely a luxury afforded by the courts onto themselves, but a fundamental right of the people, indispensable for the functioning of a just and orderly society. 

What happens then when individuals disrespect the sanctity of the judicial system and diminish the faith we as people are entitled to have in our courts? 

The power of contempt is a judicial tool of paramount importance, wielded by courts to maintain their authority and ensure the proper administration of justice. 

This power has two primary forms: direct and indirect contempt. Direct contempt occurs in the presence of the court, constituting overt acts that disrupt the proceedings or insult the dignity of the institution. Indirect contempt, the charge levied against Badoy, involves actions taken outside the court, not in front of the judge, but nonetheless pose a significant threat to judicial authority and the administration of justice. 

This distinction is crucial, as it underscores the court’s reach in preserving respect for the judiciary, extending beyond the physical courtroom to behavior in the public sphere that impacts the legal process. Think of it this way: You commit direct contempt when you are in the audience of the court, standing before the bench. Facing the judge and office, you attack its legitimacy. Indirect contempt is the same attack, but done outside the courtroom, remote from the proceedings, yet still carrying the same damaging potentials and effects – yes, even on social media.

When speech is unprotected

Going back to the balance of rights, historically, the Philippine judiciary has exercised its contempt powers judiciously, aware of the implications for free speech and public discourse. The decisions to cite individuals for contempt are often accompanied by thorough reasoning that delineates the line between acceptable criticism and actions that undermine the court’s authority. It is important to remember the nature of contemptuous action is that is interferes with or frustrates the administration of justice.

Even in the Badoy decision, the negotiation between individual rights and the collective interest of all Filipinos in maintaining a functional legal system was carefully discussed. There are settled tests – and each were carefully discussed by ponente Justice Marvic Leonen – to support the conclusion of indirect contempt. Among these are the clear and present danger test, which determines whether speech is protected based on its potential to present a clear and present danger to public safety, and the Brandenburg test, which even further narrows the scope of earlier standards for the restriction of speech, limiting the threshold to when the use of force of law violation is advocated. 

In these tests, a common element is the likelihood that the speech will actually cause harm. Badoy, with her position of power being a former government official and a current influential figure in Philippine politics, does possess not only a significant audience but also significant sway over that audience. Given Badoy’s considerable influence, her statements carry a weight that could potentially translate into real-world actions, making the assessment of her speech’s impact under these tests both pertinent and necessary. 

Justice Leonen’s application of these tests to Badoy’s case, which included highlighting the discourse in the comments section of the posts, underscores the judiciary’s commitment to safeguarding both the principle of free speech and the public order. 

Social media, when protected and unprotected speech

In the day and age of social media, how do you know when a comment is just an angry expression of disagreement or a real and present threat that can be acted upon? When is it a call to action or a call to arms? Under the mask of anonymity or the guise of casual conversation, threats against the life of a judge are made, and who knows if someone will take them to be real invitations to cause bodily injury? These must be taken seriously and, in the decision, the Court did just that. Badoy sparked the dangerous fire to life and then fueled it. The Court cannot allow the flames to burn the system down, or, worse, claim a life.

Some may argue that social media posts do not carry with them the same weight as traditional publications. Badoy, in her defense of her posts, made similar arguments that her posts should not be construed so literally and seriously. However, the Court has already had the opportunity to weigh in on the matter, adapting to the changing landscapes of digital communication and acknowledging not only the legitimacy of social media communication but also the dangers it carries as a mode of media that lacks the checks and balances of print and broadcast media, yet has exponential capacity for the spread of information. 

The digital age has democratized content creation and mass communication, enabling voices like Badoy’s to reach far and wide, often without the mediating influence of traditional gatekeepers in journalism. This shift necessitates a reevaluation of how laws and societal norms around speech are applied in online spaces, where the line between personal expression and public impact is increasingly blurred. The dialogue between freedom of expression and the sanctity of judicial proceedings will undoubtedly continue as more mediums transmit more messages in the age of digital communication.

In short, the Court found that in using her platform to incite violence and disparage the integrity of the court, Badoy’s actions crossed the threshold from protected speech into a realm that the legal system has a vested interest in regulating. –

Ally Munda works as legal researcher at the Klima Center of Manila Observatory. She is a third year student at the University of the Philippines College of Law.


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  1. ET

    I also appreciate the work of the illustrator, who creatively depicts the ideas of this article’s writers. Can their names be written below the illustration so that I can cite them in my appreciation?

  2. ET

    Thanks to Tony La Viña and Ally Munda for their enlightening and inspiring article on “Social media and limits of protected speech.” Thanks also to Justice Marvic Leonen for his decision on Badoy’s case, especially for applying the so-called two tests. The Filipino People need these two groups of professionals: fair judges and journalists who can help the people understand the decisions of such judges. Lastly, I appreciate the effort of Rappler, which serves as the medium between these judges, journalists, and the Filipino people.

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