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Monday, June 24, 2024

Freedom of speech in our times

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“The dialogue between freedom of expression and the sanctity of judicial proceedings will undoubtedly continue as more media outlets transmit more messages in the age of digital communication”

THIS is the last of four columns on the Badoy case. I wrote this series with my colleague Ally Munda from LVZ Law.

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 it 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 was carefully discussed by ponente Justice 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.

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 her posts should not be construed so literally and seriously.

However, the Court 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 media outlets 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 the legal system has a vested interest in regulating.

Website: Facebook: Tony La Viña or tonylavs X: tonylavs


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