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A. Free Speech
TEST DEFINITION/REQUISITES/ELEMENTS APPLICATION
There must be a clear and present danger of an evil
substantive enough to warrant state interference. It is a
Clear and Regime for free speech
question of proximity and degree.
present danger
test cases in the Philippines
Success of the obstruction is unnecessary; the tendency
and intent of the act are sufficient.
State should not forbid advocacy of the use of force or of
law violation, except if advocacy is directed to inciting or
producing imminent lawless action, and is likely to incite
Brandenburg
and produce such action.
test (Imminent
Advocacy speech
lawless action
Requisites
or IIL)
1. Incitement
2. Imminence
3. Likelihood
B. Content-based or content-neutral restrictions
1. Regulation is within the constitutional power of
the Government;
2. It furthers an important or substantial
governmental interest;
3. The government interest is unrelated to the
suppression of free expression; and Determination of whether
O’Brien test 4. The incidental restriction on alleged First statute is content-based or
Amendment freedoms is no greater than is content-neutral
essential to the furtherance of that interest
If the regulation fails the third prong, it is a content-
based regulation, and therefore restricts a fundamental
right. Strict scrutiny must thus be used. If all four
requisites are met, it is a content-neutral regulation.
C. Standards of judicial review
Requisites:
1. Government must allege a state interest.
2. Classification must bear a reasonable relation to Classification and
Rational basis
the purpose. differentiation statutes
3. There is a strong presumption of validity in favor
of the classification.
Applies to gender &
Requisites:
legitimacy cases, content-
1. Government must show the classification serves
Immediate neutral prohibitions, and
an important state interest.
scrutiny substantive due process
2. Classification must be substantially related to
cases (see White Light v. City
the interest alleged.
of Manila)
1. Government must allege a compelling interest.
2. The regulation must be narrowly tailored to the When regulation infringes
Strict scrutiny interest. on a fundamental right (i.e.
3. It must be the least restrictive means to achieve speech, religion, privacy)
such interest.
D. Libel
Malice is present when:
When statement is made
1. The author had knowledge of the statement’s
Actual malice about a public official,
falsity; or
rule public figure, or a matter of
2. The author recklessly disregarded whether or not
public interest
the statement was false.
References:
- A2015 Consti 2 Finals Reviewer
- B2015 Consti 2 Finals Reviewer
- A2016 Consti 2 Digests