Far Eastern University-Makati

Constitutional Law II

CALVO, SHAIRA GRACE B. May 20,

2020

ATYY. JV SALUD 2014619311

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IS THE CONGRESS’S INACTION ON ABS-CBN'S FRANCHISE RENEWAL A VIOLATION OF FREE SPEECH?

YES. The congress violated the right to freedom of expression

ABS-CBN is a television network that broadcasts news, television shows, movies etc. For a
broadcasting network like ABS-CBN to operate, it needs to obtain a permit or license from NTC. On
1995, the ABS-CBN franchise was granted a 25-year contract to operate. However, on 2020 the
President ordered to shut down it for an alleged violation of its contract. A hearing was set to determine
if the ABS-CBN has indeed violated the same. During the hearing, it was ruled that the ABS-CBN has not
violated any laws. However, their victory was short-lived. When ABS-CBN's contract expired on May
2020, the Congress refused to renew its franchise. This brings us to the question whether the congress’s
inaction on ABS-CBN's franchise renewal a violation of free speech.

First let us determine if this issue is a political question or a judicial question.

In the case of Diocese of Bacolod v. Comelec, wherein the COMELEC ordered the removal of
tarpaulins which contain the names of candidates for the 2013 elections who voted for the passage of
the RH Law. The petitioners contend that it violated their right to expression. On the other hand, the
COMELEC argued that the issue is a political question, hence, not within the ambit of the Supreme
Court’s power of review. The Court ruled that it a judicial question and not a political question. In the
words of Justice Leonen:
“the concept of a political question never precludes judicial review when the act of a constitutional organ
infringes upon a fundamental individual or collective right. Even assuming arguendo that the COMELEC
did have the discretion to choose the manner of regulation of the tarpaulin in question, it cannot do so by
abridging the fundamental right to expression.

xxxthe Bill of Rights gives the utmost deference to the right to free speech. Any instance that this right
may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that a political
question brings.”1

Following the principle in Diocese of Bacolod v. COMELEC, the issue on the renewal of ABS-CBN
franchise is justiciable question because it involves the right to freedom of expression. The inaction of
Congress to renew the franchise constitutes a chilling effect on freedom of expression. It also constitutes
prior restraint. There is prior restraint when government officially restricts the press or other forms of
1
Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015.
expression in advance of actual publication or dissemination. In Chavez v. Secretary Gonzales, the court
held that freedom from prior restraint is largely freedom from government censorship, and regardless of
whether it is wielded by the executive, legislative, or judicial branch of the government. 2

In the case of Near v. Minnesota, the Court held that the issuance of the permanent injunction
on Saturday Press, a Minneapolis newspaper, constitutes a prior restraint which made the injunction
invalid. The court further elaborated that even if the communication might be punishable in a criminal
or other proceeding, that publication could not be censored in advance by the government. There are
only certain exceptions where prior restraint is permissible. These include speeches that contain
obscenity, incite violence, or reveal military secrets. 3 Thus, the non-renewal of the ABS-CBN franchise
constitutes prior restraint which is violative of the right to freedom of expression.

In the case of Eastern Broadcasting v. Dans 4, all forms of media, whether print or broadcast, are
entitled to the broad protection of the freedom of speech. Even though the radio and television has
accorded a lesser freedom than newspaper and print media it nevertheless protected. In the Eastern
Broadcasting case the court also stated that the test for limitations on freedom of expression continues
to be the clear and present danger rule. It also stated that the case of Ang Tibay v. CIR laid out the rules
to be followed in closing or curtailing the operation of a broadcast station. Such as:

1. right to a hearing, which includes the right to present one’s case and submit evidence
in support thereof.

2. the tribunal must consider the evidence presented.

3. the decision must have something to support itself.

4. the evidence must be substantial. Substantial evidence means such reasonable

evidence as a reasonable mind might accept as adequate to support a conclusion.

5. the decision must be based on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected.

6. the tribunal or body or any of its judges must act on its or his own independent
consideration of the law and facts of the controversy and not simply accept the views of a
subordinate.

7. the board or body should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and the
reasons for the decision rendered5.

Even though the constitution granted the Congress the power to revoke any privileges that it
granted to the ABS-CBN, it nevertheless infringes the right to freedom of expression. The court in the
case of Chavez v Secretary Gonzales ruled that the acts of the Secretary of Justice and National
Telecommunication Commission in warning television stations against playing the “Garci tapes” under
pain of revocation of their license were content based restrictions and should be subjected to the clear
2
Chavez v. Gonzales, G.R. No. 168338, February 15, 2008
3
Near v. Minnesota, 283 U.S. 697 (1931)
4
Eastern Broadcasting v. Dans, G.R. No. L-59329, July 19, 1985.
5
Ang Tibay v. CIR, G.R. No. L-46496, February 27, 1940.
and present danger test. 6 The Congress has not overcome the clear and present danger rule, the
government having the burden of overcoming the presumed unconstitutionality. Furthermore, if the
clear and present danger test need not be proven, the Congress can always infringe the right to freedom
of expression by revoking all the privileges that it granted to all broadcasting networks.

It must also be noted that the Court ruled in the case of Phil. Blooming Mills Employees
Organization v. Phil. Blooming Mills Co. Inc., in the words of Justice Makasiar that:
“In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and such
priority ‘gives these liberties the sanctity and the sanction not permitting dubious intrusions.’

The superiority of these freedoms over property rights is underscored by the fact that a mere
reasonable or rational relation between the means employed by the law and its object or purpose — that
the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law which
restricts or impairs property rights. On the other hand, a constitutional or valid infringement of human
rights requires a more stringent criterion, namely existence of a grave and immediate danger of a
substantive evil which the State has the right to prevent.

Chief Justice Vinson is partial to the improbable danger rule formulated by Chief Judge Learned
Hand, viz. — whether the gravity of the evil, discounted by its improbability, justifies such invasion of free
expression as is necessary to avoid the danger.” 7

Furthermore, the case of Dioceses of Bacolod v. COMELEC highlights the importance of the
freedom of expression in a society. The case presented several theories and schools of thought to prove
the importance of it.

First. This relates to the right of the people to participate in public affairs, including the
right to criticize government actions.

Second, free speech should be encouraged under the concept of a marketplace of ideas.
This theory was articulated by Justice Holmes in that “the ultimate good desired is better
reached by the free trade in ideas”.

Third, free speech involves self-expression that enhances human dignity. This right is “a
means of assuring individual self-fulfillment,” among others.

Fourth, expression is a market for group identity. For one, “voluntary associations
perform an important democratic role in providing forums for the development of civil skills, for
deliberation, and for the formation of identity and community spirit, and are largely immune
from any governmental interference.”

Fifth, the Bill of Rights, free speech included, is supposed to “protect individuals and
minorities against majoritarian abuses perpetrated through framework of democratic
governance.”

6
Chavez v. Secretary Gonzales, G.R. No. 168338, February 15, 2008.
7
Phil. Blooming Mills Employees Organization v. Phil. Blooming Mills Co. Inc., G.R. No. L-31195, June 5, 1973
 Lastly, free speech must be protected under safety waive theory. This provides that
“nonviolent manifestations of dissent reduce the likelihood of violence.” 8

On a final note, ABS-CBN is known to be the largest broadcasting network in the Philippines. By
shutting down the ABS-CBN, it prevented others form expressing what’s in their minds. It also deprived
people from gathering relevant information. The Congress has limited the marketplace of ideas. Thus,
non-renewal of ABS-CBN franchise is violative of the right to freedom of expression.

8
Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015.