Fake News, Freedom of Speech, and the Dichotomous Role of

Law
FL Franco Luis G. Lopez

The right to freedom of speech, of expression, of the press, and of

the right of the people to peaceably assemble and petition the
government for redress of grievances1 has always enjoyed
preferential protection from the courts with respect to other
fundamental rights found in our Constitution, as Justice Makasiar in
Philippine Blooming Mills Employment Organization v. Philippine
Blooming Mills Co.2 explains:

“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.”

Notably, however, the right itself makes no preferential treatment in

terms of its scope, also protecting the kind of speech that society may
find unconventional at best, and unacceptable at worst. To
paraphrase Justice Holmes, it is freedom for the thought that we hate,
no less than for the thought that we agree with 3.

It is against this backdrop that, ostensibly, fake news may survive, or

even thrive. Given the premium our fundamental law places on the
freedom of speech, as influenced not just by the doctrines espoused
in the oft-cited United States Supreme Court First Amendment cases,
but also crafted as a preventive measure to and a reactive adaptation
from totalitarian dictatorships, fake news may be considered
constitutionally protected speech. This paper aims to dispel such
notion.

1
CONST. art. III, sec. 4
2
Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., G.R. No. L-31195
(1973)
3
U.S. v. Schwimmer, 279 U.S. 644 (1929)

1
Working within the current legal and jurisprudential framework, this
paper aims to establish fake news as unprotected speech, i.e.,
speech that can be subject to stricter regulation, without
compromising vested fundamental rights; to propose remedies for
those aggrieved by fake news; and to propose guidelines that ensure
that the right to due process of those responsible for fake news are
not violated.

According to media analysts, developing countries such as the

Philippines, with the generally new access to social media and
democracy, feel the problem of fake news to a larger extent 4.

Fake news is defined by the Cambridge Dictionary, as false stories

that appear to be news, spread on the internet or using other media,
usually created to influence political views or as a joke.

Claire Wardle of First Draft News, an online project “to fight mis- and
disinformation online founded by nine organizations, including
Facebook, Twitter, the Open Society Foundations and several
philanthropies, brought together by Google, identifies seven types of
fake news in her article5

1. satire or parody ("no intention to cause harm but has

potential to fool")

2. false connection ("when headlines, visuals or captions don't

support the content")

3. misleading content ("misleading use of information to frame

an issue or an individual")

4. false context ("when genuine content is shared with false

contextual information")

5. impostor content ("when genuine sources are impersonated"

with false, made-up sources)

4
Mozur, Paul; Scott, Mark. ‘Fake news in U.S. election? elsewhere, that’s nothing new’ Available
https://www.nytimes.com/2016/11/18/technology/fake-news-on-facebook-in-foreign-elections-thats-
not-new.html. November 18, 2016.
5
Wardle, Claire. "Fake news. it's complicated". Available https://medium.com/1st-draft/fake-news-its-
complicated-d0f773766c79. April 22, 2017.

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 6. manipulated content ("when genuine information or imagery
is manipulated to deceive", as with a "doctored" photo)

7. fabricated content ("new content is 100% false, designed to

deceive and do harm")

On fake news being unprotected speech for its innate falsity, the case
of In Re Jurado6 is instructive, where an attorney-journalist published
certain articles in the Manila Standard that made substantial, but
unsubstantiated allegations of corruption against members of the
Judiciary, claiming the freedom of speech and of the press
guaranteed by the Constitution when asked to explain why he should
not be cited for contempt.

The Court, through Chief Justice Narvasa, held that the utterance or
publication by a person of falsehoods or half-truths, or of slanted or
distorted versions of facts—or accusations which he made no bona
fide effort previously to verify, and which he does not or disdains to
prove—cannot be justified as a legitimate exercise of the freedom of
speech and of the press guaranteed by the Constitution, and cannot
be deemed an activity shielded from sanction by that constitutional
guaranty.

To illustrate, well-known ‘Queen of Fake News’ Mocha Uson, in the

middle of the high-profile extra-judicial killing (EJK) case of Kian
Delos Santos, shared an Inquirer.net article7 on a policeman’s burial.

In said post8, she asked Vice-President Leni Robredo, senators Bam

Aquino, Antonio Trillanes, and Risa Hontiveros on when they plan on
visiting the policeman, apparently one of those responsible for
murdering Delos Santos under the suspicion that he was a drug
pusher.

This was one of many articles where Uson put forth a narrative that
the police suffer as much as, if not more than, the victims themselves.

However, the article shared turns out to be about a police officer that
was killed in a buy-bust operation, which transpired a year before the
case of Kian Delos Santos occurred, therefore falling under the 4 th
classification of fake news—false context.

6
In re Jurado, A.M. No. 93-2-037 (1995)
7
Agoncillo, Jodee. “’Best intel cop’ killed during third drug bust of the day”. Available
https://newsinfo.inquirer.net/808095/best-intel-cop-killed-after-3rd-bust-in-a-day
8
Arias, Jacqueline. “A list of Mocha Uson’s fake news posts”. Wardle, Claire. "Fake news. it's
complicated". Available https://preen.ph/58185/a-list-of-mocha-usons-fake-news-posts

3
When confronted about the article, Uson claimed that she was merely
sharing articles from other reliable sources to facilitate public
discourse, without intent to deceive anyone.

The lame form of defense Uson posed—claiming that it was actually

for the benefit of the public is unavailing of constitutional protection in
light of her irresponsible dissemination of information, as explained in
the case of Re News Report of Mr Jomar Canlas 9, where a journalist
was severely reprimanded for publishing unverified allegations of
bribery in the Supreme Court:

[…] such assertions of having acted in the best interest of the

Judiciary are belied by the fact that he could have caused the
creation of an investigating panel to look into such allegations in a
more rational and prudent manner.

It is precisely because of his failure to abide by the tenets of

responsible journalism that we accept the findings of the Investigating
Committee in holding respondent Macasaet guilty of indirect
contempt of court. He must be made accountable for his complete
failure to exercise even a single vestige of responsible journalism in
publishing his unfounded and ill-thought diatribes against the
Judiciary and the honorable people who serve it. (Underscoring
supplied)

On fake news being unprotected speech for being designed to

deceive and do harm, former Justice Carpio’s dissent in the case of
MVRS Publications, Inc. v. Islamic Da’wah Council 10 is elucidating:

The blatant profanity contained in the newspaper article in question is

not the speech that is protected by the constitutional guarantee of
freedom of expression.

Words that heap extreme profanity, intended merely to incite hostility,

hatred or violence, have no social value and do not enjoy
constitutional protection. (Underscoring supplied)

9
In Re Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated
September 18, 19, 20 and 21, 2007, A.M. No. 07-09-13-SC (2008)
10
MVRS Publications, Inc. v. Isalmic Da’Wah Council, G.R. No. 135306 (2003)

4
To illustrate, referring once again to Mocha Uson, an article she
posted regarding the indigenous Lumads, in their protest caravan to
Metro Manila, was criticized by human rights groups for linking the
Lumads and participants in the organization to communist rebels. 11

The University of the Philippines Diliman Student Council criticized

Usons’s actions and presence in the campus. In a statement 12, it said
that the public should be wary of those invoking freedom of
expression when they are in fact endangering the lives of others,
among them IP groups, progressive organizations, and students.

Equally important to emphasize, apart from being devoid of social

value, fake news runs against the preservation and vitality of our civil
and political institutions13 which is exactly why the freedom of speech
was prioritized in the first place.

In her book14, Boston University Law School Professor Danielle Keats

Citron notes that cyber harassment, an aspect of fake news, does
little to enhance self-governance and does much to destroy it. We
gain little and lose much from online abuse. It destroys victims’ ability
to interact in ways that are essential to self-governance.

Fake news therefore, is not only lacking in qualities that warrant a

form of speech or expression constitutional protection; it even goes
so far as to chill forms of expression that do. In fine, fake news is not
merely unprotected speech, it is anti-speech that warrants protection
against it.

This paper now therefore puts into perspective the role law can play
in addressing fake speech on the internet. Specifically, it adopts the
paradigm put forth by eminent Austrian Jurist Hans Kelsen, in his
seminal work, The General Theory of Law15.

11
Gavilan, Jodesz. “Groups slam Uson for red-tagging Lumad rights organizations.” Available
https://www.rappler.com/nation/215512-groups-slam-mocha-uson-red-tagging-lumad-rights-
organizations
12
UP Diliman University Student Council, MARIING KINUKUNDINA NG KONSEHO NG... - UP DILIMAN UNIVERSITY
STUDENT COUNCIL, https://www.facebook.com/USCUPDiliman/posts/mariing-kinukundina-ng-konseho-ng-
mag-aaral-ng-unibersidad-ng-pilipinas-diliman-/1971058129621218/ (last visited Mar 10, 2020).
13
Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., G.R. No. L-31195
(1973)
14
D.K. CITRON, HATE CRIMES IN CYBERSPACE (2016)
15
H. KELSEN, THE GENERAL THEORY OF LAW (1945)

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Kelsen states that the social technique that we call “law” consists in
inducing the individual to refrain from forcible interference in the
sphere of interests of others by specific means: in case of such
interference, the legal community itself reacts with a like interference
in the sphere of interests of the individual responsible for the previous
interference.

Contextualizing these spheres of interests into those that are invaded

by fake news, we have relational interest and reactive interest.

Defamation propagated through fake news as fabricated content, that

is absolutely false, is an invasion of a relational interest16 since it
involves the opinion which others in the community may have, or tend
to have, of the plaintiff.

Uson’s ‘red-tagging’ of the Lumads and progressive organizations

tend to cause a change in public perception of the latter, perhaps
from peaceful indigenous peoples and interest groups with legitimate
concerns to potential enemies of the state.

Defamation may also be propagated through fake news as fabricated

content, that is designed to deceive and do harm, which will then be
an invasion of a reactive interest17 since it includes injuries to
individual emotional tranquility in the form of an infliction of emotional
distress.

Uson’s misquoting of an article as a response to the Kian Delos

Santos extrajudicial killing case can be considered an invasion of a
reactive interest, particularly on the part of Kian’s friends and family.

According to Kelsen, this is exactly where law comes in—as a social

technique that induces the individual to refrain from forcible
interference. Law, in this context, acts as an order, permitted as a
sanction, i.e. the reaction of the legal community against the
propagation of fake news.

The role that law plays, as manifested, however, presents a particular

paradox—the solution to fake news as anti-speech is regulation of the
speech, which, in and of itself, is anti-speech as well.

16
MVRS Publications, Inc. v. Isalmic Da’Wah Council, G.R. No. 135306 (2003), citing Prosser and Keeton on
Torts, (5th ed. 1984)
17
Id.

6
Such a paradox is quickly dispensed with by Kelsen. He notes that
while the coercive act of the sanction, is of exactly the same sort as
the act which it seeks to prevent in the relations of individuals, the
crime, such is justified for the sanction itself is qualified—it must be
reasonable, subject to conditions, and employed through valid agents
bound by their own morals and the law itself.

Having established that fake news can be validly regulated by law,

this paper now turns to guidelines that may be utilized, to ensure that
in a valid exercise of police power against unprotected forms of
speech and expression, the rule of law is still upheld and Kelsen’s
framework remains uncompromised.

In this regard, for confiscation of published fake news materials, the

guidelines governing obscene materials in the case of Pita v. Court of
Appeals18 is similarly applicable:

1. The authorities must apply for the issuance of a search warrant

from a judge, if in their opinion, an obscenity rap is in order;

2. The authorities must convince the court that the materials

sought to be seized are “obscene”, and pose a clear and
present danger of an evil substantive enough to warrant State
interference and action;

3. The judge must determine whether or not the same are indeed
“obscene:” The question is to be resolved on a case-to-case
basis and on His Honor’s sound discretion.

4. If, in the opinion of the court, probable cause exists, it may

issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of
the Revised Penal Code.

6. Any conviction is subject to appeal. The appellate court may

assess whether or not the properties seized are indeed
“obscene”.
18
Pita v. CA, G.R. No. 80806 (1989)

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Such strictures must be in place to ensure that the law is still
reasonable, and contextually, that it doesn’t encroach on the privacy
rights19 of the people behind the computers.

Furthermore, it must be emphasized that, similar to proper limitations

on what constitutes obscenity, a clear guideline must also be
provided for the courts to determine what fake news is—otherwise,
courts will be granted unreasonable latitude in determining what
constitutes fake news.

This paper recommends the guidelines aforementioned 20 as valid

classifications as to what constitutes fake news.

This danger is aptly cautioned against by Justice Puno in his

dissenting opinion in In re Jurado21.

I submit that it is not every falsehood that should incur the Court’s ire,
lest it runs out of righteous indignation. Indeed, gross falsehood,
vicious lies, and prevarications of paid hacks cannot deceive the
public any more than can they cause this Court to crumble…If we
adopt the dangerous rule that we should curtail speech to stop every
falsehood we might as well abolish freedom of speech for there is yet
to come a man whose tongue tells only the truth. In any event, we
should take comfort in the thought that falsehoods cannot destroy—
only truth does but only to set us free. (Underscoring supplied)

An example of the danger of the absence of guidelines can be found

in Section 6(6) of the recent Bayanihan Act 22, which punishes
“individuals or groups creating, perpetuating, or spreading false
information regarding the covid-19 crisis on social media and other
platforms, such information having no valid or beneficial effect on the
population, and are clearly geared to promote chaos, panic, anarchy,
fear, or confusion.

Former Supreme Court spokesperson and Criminal Law professor

Ted Te aptly noted in an article23 regarding the aforementioned
provision of the Bayanihan to Heal as One Act, that the particular
provision on the punishment of fake news “would be void”, given that
there is no law that punishes, or even defines fake news.

19
CONST. art. III, sec. 3(1)
20
See page 2
21
In re Jurado, A.M. No. 93-2-037 (1995)
22
Rep. Act No. 11469 (2020), sec. 6(6)
23
Lian Buan, “Duterte’s special powers bill punishes fake news by jail time, up to P1-M fine.” Available
https://www.rappler.com/nation/255753-duterte-special-powers-bill-coronavirus-fines-fake-news

8
Section 6(6) of the Bayanihan to Heal as One Act 24, therefore, goes
directly against the principle of criminality under Criminal Law—given
that there is no law defining fake news, it can not be a crime. Nulla
poena sine lege.

Moreover, given that there is yet to be a law that punishes, or even

defines, fake news, the provision can therefore be questioned as
being vague and overbroad, and therefore, unconstitutional for being
violative of substantive due process, which, according to the
commentary of former Supreme Court Justice and renowned
constitutionalist Justice Isagani Cruz25, requires the intrinsic validity of
the law in interfering with the rights of the person to his life, liberty, or
property.

The absence of any guidelines and definitions on fake news despite

its criminalization would easily lead to a chilling effect on the people’s
exercise of their right to free expression.

However, such a fundamental infirmity in the law has not stopped

authorities from implementing it immediately. As of April 7, 2020, 17
subpoenas have been issued by the National Bureau of Investigation
over fake news issues26,and 32 people have been charged by the
Philippine National Police with disseminating false information
regarding the COVID-19 health crisis 27.

The times being extraordinary, and displays of questionable

governance by the Duterte administration being commonplace, such
an implementation of “a law is a law” is reminiscent of the legal
zeitgeist in Hitler’s regime, aptly coined by German legal scholar and
politician Gustav Radbruch as “statutory lawlessness”, in his paper 28,
illustrated through various cases of German criminal law being
weaponized to silence critics and punish deserters.

Notably, however, Radbruch still points out that despite the need to
refer to a higher form of law in times of statutory lawlessness, a clear
definition is still a requirement of justice, and a vital component of a
working democracy:

24
Rep. Act No. 11469 (2020)
25
I. CRUZ, CONSTITUTIONAL LAW (2007)
26
ABS-CBN News, “17 subpoenas issued by NBI over fake news issues amid COVID-19 crisis: official.”
Available at https://news.abs-cbn.com/news/04/02/20/17-subpoenas-issued-by-nbi-over-fake-news-
issues-amid-covid-19-crisis-official
27
Sarah Coble, “Philippines arrests 32 on fake news charges.” Available at https://www.infosecurity-
magazine.com/news/philippines-arrests-32-on-fake/
28
G. RADBRUCH, Statutory Lawlessness and Supra-Statutory Law, 1 O.J.L.S 22 (2006)

9
We must seek justice, but at the same time attend to a legal certainty,
for it is itself a component of justice. And we must rebuild a
Rechtsstaat, a government of law that serves as well as possible the
ideas of both justice and legal certainty. Democracy is indeed
laudable, but a government of law is like our daily bread, like water to
drink and air to breathe, and the best thing about democracy is
precisely that it alone is capable of securing for us such a
government.

We are thus faced with the dichotomous role of law—it serves not
merely to punish those who propagate fake news, but also to protect
those who do not.

Laws that directly define and tackle fake news are, arguably, what are
exactly necessary in a time when legitimate and rightful dissent is so
easily silenced, while state-backed fake news propaganda machines
operate with impunity. These laws will allow our constitutionally
cherished right of free speech protection against both external forces
that aim to silence, and internal forces that aim to corrupt the
democracy it is supposed to give life to.

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