Atty. Gregorio B. Austral, CPA
Limits to free speech in one’s private property
A controversy has erupted when COMELEC started to take down oversized tarpaulins erected inside private property. Property owners endorsing their preferred candidates cried encroachment of free speech and violation of private property rights. The issue is not new. In fact, there is a judicial precedent that has already settled the issue.
During the campaign period, COMELEC has the power to regulate the use of election propaganda or political advertisement subject to the limitation on authorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the COMELEC.
The law defines lawful election propaganda to include pamphlets, leaflets, cards, decals, stickers or other written or printed, handwritten or printed letters, cloth, paper or cardboard posters, paid advertisement in print or broadcast media, and all other forms of election propaganda not prohibited by the Omnibus Election Code and RA 9006 (Secs. 3.1 to 3.5). The law even gives the maximum size of tarpaulins and other campaign materials.
There is no question whether the law applies if the one who is using an election propaganda is a candidate for election since it is clear that he is covered by the said law. However if a person who is not candidate makes a statement which is either intended to indorse a particular candidate or urges the public not to vote for a particular candidate, is he covered by COMELEC’s power to regulate the campaign of candidates?
In the case of The Diocese of Bacolod vs. COMELEC, G.R. No. 205728, January 21, 2015, the Court said that regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only.
The court noted that election paraphernalia from candidates and political parties are more declarative and descriptive and contain no sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public to vote for a person with a brief description of the attributes of the candidate. For example “Vote for [x], Sipag at Tiyaga,” “Vote for [y], Mr. Palengke,” or “Vote for [z], Iba kami sa Makati.”
The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time, place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its content. For this purpose, it will not matter whether the speech is made with or on private property.