EN BANC
G.R. No. 277608, July 08, 2025
EDGAR R. ERICE, PETITIONER,
vs.
COMMISSION ON ELECTIONS AND RAYMOND D.C. SALIPOT, RESPONDENTS.
SEPARATE CONCURRING OPINION
LEONEN, SAJ.:
I concur that the Petition for Disqualification under Section 68 of the Omnibus Election Code filed by respondent Raymond D.C. Salipot against petitioner Edgar R. Erice must be dismissed because the Commission on Elections (COMELEC) has no power to disqualify a candidate on the ground of an election offense under Section 261(z)(11) of the Omnibus Election Code.1
However, I wish to take this opportunity to draw the parameters of freedom of expression for future cases involving laws that penalize or curtail certain forms of speech. This is because without clear legal boundaries, attempts to regulate speech may risk being overly broad or vague, leading to censorship or the suppression of legitimate speech. Having carefully defined parameters ensures that any harmful or malicious speech or any malicious publication of any false information can be addressed without compromising the democratic space for open, honest, and even critical expression. In this way, drawing the line becomes not about limiting speech for its own sake, but about protecting both public order and the integrity of free expression itself. Thus, it becomes a striking of a balance between protecting individual rights and promoting public good, public order, and public interest.
I
Freedom of speech is an essential pillar of a democratic society.2 Article III, Section 4 of the Constitution reflects not only the high value that a democratic society places on the free exchange of ideas, but also serves as a safeguard against censorship and governmental overreach, ensuring that individuals can speak truth to power without fear of punishment.3
Enshrined in our constitutional framework, freedom of speech allows individuals to express opinions, criticize government actions, and engage in open discussion on matters of public concern. In the context of elections, such freedom enables transparency, accountability, and citizen participation.4
In Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc.:5
The rights of free expression. . . [is] not only [a] civil right[] but also [a] political right[] essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru [this freedom] the citizens can participate not merely in the periodic establishment of the government through their suffrage[,] but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded [this right] so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees.6
In ABS-CBN Corp. v. Ampatuan, Jr.,7 this Court elaborated how freedom of speech can be a powerful weapon of accountability:
Freedom of expression is the "means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change." The exercise of one's self by an individual alone or in association with those of similar interests is the least limitable right. It guarantees the inherent sovereignty of a person to be human and the "dignity of individual thought."
The external expression of a thought or idea by way of words, or some other action, is bound to clash with competing ideas and interests.
Freedoms of speech and of the press are the most contentious liberties. These freedoms are guaranteed to keep the power surrendered to government in check, and these freedoms are powerful weapons of accountability. Thus, freedoms of speech and press are "[liberties] to discuss publicly and truthfully any matter of public interest without censorship or punishment" to keep public debates "uninhibited, robust, and wide-open."
. . . .
We have given the "broadest scope" and "widest latitude" to these freedoms:
. . . At the very least, free speech. . . may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social including political decision-making, and of maintaining the balance between stability and change. The trend as reflected in Philippine and American decisions is to recognize the broadest scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and wide-open. It is not going too far, according to another American decision, to view the function of free speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."8 (Emphasis supplied, citations omitted)
Nonetheless, even as "a full discussion of public affairs is indispensable,"9 the freedom of speech is not absolute and must be balanced against the need to preserve the integrity of public discourse:
[the freedom of speech and its cognate rights] "may be regulated to some extent to serve important public interests, with some forms of speech not being protected." Even as these freedoms are integral to a free society, they must be limited when they go beyond mere expression of views and become acts that threaten society. This distinction is basic to understanding the democratic process.10
To draw the parameters of freedom of speech in relation to laws that curtail it, this Court must perform a balancing act between the constitutional right to free speech and legitimate state interests, as will be explained below.
II
In resolving cases involving the curtailment of speech, this Court must, in considering the merits, "tread carefully with understanding, compassion, and reason."11 Constitutional text derives its most effective meaning when "read within the context of the entire Constitution, along with contemporary circumstances, advised but not straightjacketed by judicial doctrines sufficient during their times and always with a view to achieving the ideals of social justice."12
In evaluating a law curtailing speech, this Court must guard against overbreadth and vagueness; evaluate such law through the lens of clear and present danger test, and ensure that restrictions are proportional, the least restrictive, and necessary to protect democratic processes.
Otherwise stated, to pass constitutional muster, a law that allegedly infringes upon the freedom of speech must pass the following tests: (a) it must not suppress free speech too broadly or otherwise be void under the overbreadth doctrine; (b) it must be a content-neutral regulation and accordingly not a prior restraint upon free speech; (c) it must pass the strict scrutiny test and therefore must be narrowly tailored and proportionate; and (d) it must pass either the clear and present danger test or the dangerous tendency rule.
In my Concurring and Dissenting Opinion in Calleja v. Executive Secretary:13
One of the analytical tools to test whether a statute that regulates free speech can be invalidated is the overbreadth doctrine. Under the overbreadth doctrine, a law is void when it unnecessarily sweeps broadly and invades on the area of protected freedoms to further a governmental purpose. The law casts too wide a net in its looseness and imprecision such that it is susceptible to many interpretations, including sanctions on the legitimate exercise of one's fundamental rights.
The overbreadth doctrine posits that any "possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes." In Estrada:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or prescribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a stature drawn with narrow specificity."
It is easy to see why overbroad laws should be struck down: They give off a "chilling effect" on free speech and expression. These fundamental rights sit at the core of our democracy, so delicate and protected, that the "threat of sanctions may deter their exercise almost as potently as the actual application of sanctions."14 (Citations omitted)
Another test involves distinguishing whether the relevant criminal law provision is content-neutral or content-based—a law that constitutes prior restraint on speech:
Content-neutral regulation is 'merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards,' regardless of the content of the speech.
Meanwhile, a regulation is content-based if it restricts the speech or expression's subject matter. It constitutes prior restraint, which curtails speech or expression in advance of its actual utterance, dissemination, or publication. A content-based regulation bears a heavy presumption of unconstitutionality, and to be valid, any form of prior restraint must be narrowly tailored and least restrictive to achieve a compelling State interest.15 (Citations omitted)
To determine whether the relevant criminal law constitutes a prior restraint on speech, this Court may apply either the clear and present danger rule or the dangerous tendency rule:
Prior restraint on protected speech will only be valid if they pass the governing jurisprudential test. Two tests in determining the validity of restrictions in the exercise of free speech have been recognized:
These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be 'extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented . . .
. . . .
The 'dangerous tendency' rule, on the other hand, . . . may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.
This Court had previously applied either test to resolve free speech challenges. Recently, however, we have generally adhered to the clear and present danger test, under which speech may be restrained when there is "substantial danger that the speech will likely lead to an evil the government has a right to prevent."
In the early case of Cabansag v. Fernandez, this Court described the clear and present danger test:
The question in every case, according to Justice Holmes, is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree.
As the test itself words it, the danger must not only be clear but also present. By clear, there must be "a causal connection with the danger of the substantive evil arising from utterance questioned." Meanwhile, "present" indicates the time element — imminent, immediate, not just possible "but very likely inevitable."16 (Citations omitted)
III
The constitutional guarantee under Article III, Section 4 is not intended to give immunity to every possible form of speech. There are certain well-defined classes of speech, "the prevention and punishment of which has never been thought to raise any Constitutional problems"17 In Soriano v. Laguardia:18
[a] speech would fall under the unprotected type[,] if the utterances involved are 'no essential part of any exposition of ideas, and are of such slight social value as a step of truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality'. Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application of the clear and present danger rule or the balancing-of-interest test, they being essentially modes of weighing competing values, or, with like effect, determining which of the clashing interests should be advanced.19 (Citations omitted)
In our jurisdiction, unprotected speech or low-value expression includes "libelous statements, obscenity or pornography, false or misleading advertisement, insulting or 'fighting words,' i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security."20
Despite the broad protections afforded to free speech, this Court has recognized the need to curtail speech that causes undue harm, such as when speech: (a) is seditious21 or tends to incite sedition,22 (b) involves comments that constitutes contempt of court,23 (c) is libelous,24 (d) involves the malicious publication of disinformation or false news which may endanger the public order or cause damage to the interest or credit of the State,25 or (e) involves communication of false information which is expected to have deleterious consequences on public security and order.26
It bears noting, however, that a law that regulates or proscribes unprotected speech or speech falling beyond the ambit of constitutional protection cannot be subject to facial invalidation because there is 'no transcendent value to all society' that would justify such attack.27
Nonetheless, such a law may still be vulnerable to constitutional attack by a litigant who stands charged under a law that regulates unprotected speech insofar as it is applied to him or her.28 In that case, a court may examine the provisions of law allegedly violated in light of the conduct for which a litigant has been charged; and if said litigant prevails, a court may carve away the unconstitutional aspects of the relevant legal provision by invalidating its improper application on a case-to-case basis.29
IV
While the State has a legitimate interest in combating disinformation, especially during elections, any restriction on speech must be narrowly-tailored, clearly defined, and constitutionally sound—carefully balanced to protect both public order and the fundamental right to free expression. Indeed, the State may penalize the malicious publication or spread of disinformation, but in doing so, it must not compromise a citizen's constitutional right to free expression, which remains essential to an open and accountable democracy.
In our present political climate, an electoral campaign's ability to effectively utilize media and to dominate media spaces undoubtedly has become instrumental in shaping national opinion.30 In fact, coordinated disinformation campaigns has significant impact on electoral integrity as they have been designed not only "to manipulate public opinion and distort democratic discourse,"31 but also to influence political conversations and voting decisions.32
Misinformation threatens to sow further division in Philippine society and politics.33 It can cause serious harm as it can mislead voters, erode trust in institutions, incite panic, and even endanger lives. It can also "drown out conversations about human rights and silence criticism against the ruling government"34 and fuel intense polarization, oversimplify social dynamics, and create "stark dichotomies between perceived enemies and allies."35 Some misinformation is particularly aimed at confusing voters or suppressing voter turnout, such as fake news about voting locations and election procedures which potentially discouraged voters from participating and casting votes.36
This has prompted Congress to enact laws that combat misinformation, while institutionalizing mechanisms for stronger regulatory oversight and accountability. At present, multiple bills are pending before Congress that target the creation and spread of false content, as well as the organized networks behind them—including House Bill No. 11506, or the Anti-Fake News and Disinformation Act.37
This legislative effort is not unprecedented. The Congress has long deemed it fit to penalize certain categories of false or harmful speech, such as Article 154 of the Revised Penal Code, Section 261(z)(11) of the Omnibus Election Code, Presidential Decree No. 1727, among others.38 These laws reflect a continued concern over the proliferation of speech that may endanger public order or damage the credit of the State.
Still, the regulation of false information, particularly in the context of elections and public discourse, presents a complex legal and ethical challenge. The dangers posed by fake news are undeniably real, but any attempt to curtail speech must be approached with great caution.
Unlike well-defined categories of unprotected speech or low-value expression previously mentioned, which have long been recognized in our legal system, false information remains a dynamic and context-dependent phenomenon; it cannot be considered a monolith that uniformly falls beyond the ambit of constitutional protection. Its regulation must account for several factors which may include the intent, context, and likely harm. In my considered opinion, it is imperative that laws targeting false information be framed with clarity, proportionality, and respect for constitutional freedoms, to ensure that the regulatory mechanism does not become more damaging than the harm it seeks to prevent.
As earlier intimated, drawing clear and constitutionally-sound parameters is essential, not only to protect citizens from deliberate disinformation, but also guard against the misuse of laws as a weapon to suppress critical thought, political dissent, satire, honest error, or journalistic inquiry.
In the exercise of its judicial power, this Court plays a critical role in maintaining the delicate balance between freedom of expression and the State's legitimate interest in curbing the spread of false information. The task of regulating false information, particularly in the sensitive context of elections and public discourse, must be undertaken with both precision and prudence. Thus, a judicial effort to protect the integrity of public discourse, while preserving space for robust, even uncomfortable, and democratic debate is an act of constitutional calibration.
While the spread of disinformation poses genuine threats to public order, institutional trust, and democratic participation, efforts to counter it must not trample upon the very freedoms that give democracy its vibrance. This Court has consistently held that freedom of expression, though not absolute, enjoys a preferred status in our constitutional order.39 Accordingly, any law that seeks to restrict speech must be crafted narrowly, subject to strict scrutiny, and mindful of the chilling effects of vague or overbroad regulation.
By applying the tests enumerated above, this Court can ensure that the fight against false information does not come at the expense of the very freedoms this Court seeks to protect. Ultimately, our goal must not be merely to silence harmful or low-value expressions, but to foster a public sphere that is both free and responsible—where truth can thrive, accountability is upheld, and democracy is allowed to flourish.
ACCORDINGLY, I vote to GRANT the Petition. The petition for disqualification filed against Edgar R. Erice should be DISMISSED.
Footnotes
1 Ponencia, pp. 8-13. See also Omnibus Election Code, sec. 261, which provides: Prohibited Acts. — The following shall be guilty of an election offense: . . . .(z) On voting: . . . .(11) Any person who, for the purpose of disrupting or obstructing the election process or causing confusion among the voters, propagates false and alarming reports or information or transmits or circulates false orders, directives or messages regarding any matter relating to the printing of official ballots, the postponement of the election, the transfer of polling place or the general conduct of the election.
2 See J. Leonen, Concurring and Dissenting Opinion in Atty. Calleja v. Executive Secretary Medialdea, 918-B Phil. 1, 770 (2021) [Per J. Carandang, En Banc].
3 See CONST., art. III, sec. 4, provides: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
4 See ABS-CBN Corp. v. Ampatuan, Jr., 941 Phil. 182, 102-103 (2023) [Per J. Leonen, En Banc].
5 151-A Phil. 656 (1973) [Per J. Makasiar, En Banc].
6 Id. at 675.
7 ABS-CBN Corp. v. Ampatuan, Jr., 941 Phil. 182 (2023) [Per J. Leonen, En Banc].
8 Id. at 201-203.
9 ABS-CBN Corp. v. Ampatuan, Jr., Phil. 941, 201 (2023) [Per J. Leonen, En Banc]. See also CONST., art. 11, sec. 1.
10 See J. Leonen, Concurring and Dissenting Opinion in Calleja v. Executive Secretary, 918-B Phil. 1, 790 (2021) [Per J. Carandang, En Banc].
11 See J. Leonen, Concurring and Dissenting Opinion in Calleja v. Executive Secretary, 918-8 Phil. 1, 754 (2021) [Per J. Carandang, En Banc].
12 Id. See also Nicolas-Lewis v. Commission on Elections, 859 Phil. 560 (2019) [Per J. Reyes, Jr., En Banc]; ABS-CBN Broadcasting Corporation v. Commission on Elections, 380 Phil. 780 (2000) [Per J. Panganiban, En Banc].
13 918-B Phil. 1, 752-833.
14 Id. at 773-774.
15 Id. at 790-791.
16 Id. at 791-794.
17 Madrilejos v. Gatdula, 863 Phil. 754 [Per J. Jardaleza, En Banc]. (Citations omitted)
18 605 Phil. 43 (2009) [Per J. Velasco Jr., En Banc].
19 Id. at 96-97.
20 Id. at 97. See also OMNIBUS ELECTION CODE, art. 261(z)(1), COMELEC Resolution No. 10425, sec. 14, Presidential Decree No. 1727 (1980), otherwise known as "Declaring as Unlawful the Malicious Dissemination of False Information of the Willful Making of any Threat Concerning Bombs, Explosives or any Similar Device or Means of Destruction and Imposing Penalties Therefor."
21 See People v. Perez, 45 Phil. 599 (1923) [Per J. Malcolm, Second Division]; People v. Feleo, 57 Phil. 451 (1932) [Per J. Street, En Banc]; People v. Evangelista, 57 Phil. 354 (1932) [Per J. Ostrand, En Banc].
22 See Espuelas v. People, 90 Phil. 524 (1951) [Per J. Bengzon, En Banc].
23 See Krivenko v. Register of Deeds, 79 Phil. 461 (1947) [Per C. J. Moran, Second Division]; In Re Parazo, 82 Phil. 230 (1948) [Per J. Montemayor, En Banc]; In Re Sotto, 82 Phil. 595 (1949) [Per J. Feria, En Banc]; In Re Contempt Proceedings Against Alfonso Ponce Enrile, G.R. No. L-22979, June 26, 1967 [Per J. Sanchez, En Banc].
24 See Borjal v. Court of Appeals, 361 Phil. 1 (1999) [Per J. Bellosillo, Second Division]; Policarpio v. Manila Times Publishing Co., G.R. No. L-16027, May 30, 1962 [Per J. Concepcion, En Banc]; Imperial v. Ziga, G.R. No. L-19726, April 13, 1967 [Per C. J. Concepcion, En Banc].
25 REV. PEN. CODE, art. 154(1) provides:
Article 154. Unlawful use of means of publication. – The penalty of arresto mayor or a fine ranging from 200 to 1,000 pesos shall be imposed upon:
1. Any person who by means of printing, lithography, or any other means of publication, shall maliciously publish as news any false news which may endanger the public order or cause damage to the interest or credit of the State[.]
26 Soriano v. Laguardia, 605 Phil. 43 (2009) [Per J. Velasco Jr., En Banc].
27 Madrilejos v. Gatdula, 863 PHIL 754, 796(2019) [Per J. Jardeleza, En Banc].
28 See J. Leonen, Dissenting Opinion in Madrilejos v. Gatdula, 863 Phil. 754, 866 [Per J. Jardeleza, En Banc].
29 Madrilejos v. Gatdula, 863 PHIL 754, 802 [Per J. Jardeleza, En Banc].
30 JAPHET QUITZON, Social Media Misinformation and the 2022 Philippine Elections, Center for Strategic and International Studies, November 22, 2021, available at https://www.csis.org/blogs/newperspectives-asia/social-media-misinformation-and-2022-philippine-elections (last accessed on July 30, 2025).
31 Asian Journal Press, Fake Accounts, Real Impact: Lawmakers, Experts Warn of Disinformation Threat Ahead of Elections, April 24, 2025, available at https://asianjournal.com/philippines/fake-accounts-realimpact-lawmakers-experts-warn-of-disinformation-threat-ahead-of-elections/ (last accessed on July 30, 2025).
32 ASEAN Parliamentarians for Human Rights, Fact-Finding Mission: Impact of Online Disinformation in Elections and Democracy in the Philippines, August 28-31, 2022, p. 1, available at https://wp.aseanmp.org/wp-content/uploads/2024/03/24.03.28-FFM-the-Philippines.pdf (last accessed on July 30, 2025).
33 JAPHET QUITZON, Social Media Misinformation and the 2022 Philippine Elections, Center for Strategic and International Studies, November 22, 2021, available at https://www.csis.org/blogs/newperspectives-asia/social-media-misinformation-and-2022-philippine-elections (last accessed on July 30, 2025).
34 ASEAN Parliamentarians for Human Rights, Fact-Finding Mission: Impact of Online Disinformation in Elections and Democracy in the Philippines, August 28-31, 2022, p. 6, available at https://wp.aseanmp.org/wp-content/uploads/2024/03/24.03.28-FFM-the-Philippines.pdf (last accessed on July 30, 2025).
35 Id.
36 ASEAN Parliamentarians for Human Rights, Fact-Finding Mission: Impact of Online Disinformation in Elections and Democracy in the Philippines, August 28-31, 2022, p. 5, available at https://wp.aseanmp.org/wp-content/uploads/2024/03/24.03.28-FFM-the-Philippines.pdf (last accessed on July 30, 2025).
37 See DOMINIQUE NICOLE FLORES, Anti-fake news bill seeks up to 12-year jail time, P2M fine for disinfo peddlers, Philstar.com, available at https://www.philstar.com/headlines/2025/06/02/2447659/anti-fake-news-bill-seeks-12-year-jail-time-p2m-fine-disinfo-peddlers (last accessed on July 30, 2025).
38 Presidential Decree No. 1727 (1980), sec. 1 provides: [a]ny person who, by word of mouth or through the use of the mail, telephone, telegraph, printed materials and other instrument or means of communication, willfully makes any threat or maliciously conveys, communicates, transmits, imparts, passes on, or otherwise disseminates false information, knowing the same to be false, concerning an attempt or alleged attempt being made to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, by means of explosives, incendiary devices, and other destructive forces of similar nature or characteristics, shall upon conviction be punished with imprisonment of not more than five (5) years, or a fine or not more than forty thousand pesos (₱40,000.00) or both at the discretion of the court having jurisdiction over the offense herein defined and penalized.
39 See Reyes v. Bagatsing, 210 Phil. 457, 475 (1983) [Per C.J. Fernando, En Banc]; Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 151-A Phil. 656, 676 (1973) [Per J. Makasiar, En Banc]. See also The Diocese of Bacolod v. Commission on Elections, 751 Phil. 301-450 [Per J. Leonen, En Banc].
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