Wednesday, February 17, 2010

Fair Elections Act Trumps Celebrities' Free Speech

By Jun Bautista

The entertainment industry recently rose up in arms against the Comelec for making known its intention to strictly enforce a resolution implementing the Fair Elections Act (R.A. 9006), which requires celebrities to resign or take a leave of absence from their work during the campaign period if they campaign for or against a candidate in the May 2010 elections. Although the Comelec ruled to make the requirement optional, some quarters, like the PPCRV, still appear poise to have the law implemented.

It is well known that many movie and television personalities have endorsed or campaigned for candidates, especially those vying for national elective positions, by appearing in political ads or campaign sorties. The Comelec and proponents of the law argue that candidates who employ celebrities derive undue advantage over other candidates due to the influence these celebrities wield over their massive viewers and followers.

Celebrities, on the other hand, counter that the strict enforcement of the law violates their free speech rights and rights as citizens to support the candidates they like, not to mention their right to earn a living. There is also argument that the law unduly singles them out.

Section 6, paragraph 6.6. of the Fair Elections Act provides that "[a]ny mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period . . ."

The above-quoted provision clearly requires the enumerated persons, which include movie and TV personalities, to either resign or take a leave of absence from work during the campaign period if they are (1) candidates (2) campaign volunteers (3) employed or retained in any capacity by any candidate or political parties, including coalitions and party-list groups.

The State's interest in allowing equal opportunities for candidates in reaching out to voters by leveling the playing field - achieved through regulation of the time, place and manner of communicating political or campaign messages - has long been recognized since National Press Club v. Comelec. In fact, the Supreme Court has justified legislations of this nature under the Constitution's social justice provisions guaranteeing equal access to opportunities for public service to everyone.

While there is no question on the rule prohibiting mass media personalities, such as actors and newscasters, who are candidates, from working as such during the campaign period, a similar restriction on others who are not candidates but merely supporters or workers of candidates is unreasonable. A celebrity candidate who continues to do his or her high profile work clearly gives undue advantage over other candidates who are not similarly situated; the constant exposure allows him or her to become well acquainted with voters. Not only that, it makes the regulatory limits on broadcast time and print space useless as against these candidates. The same is true of non-candidate celebrities and other media personalities who actively campaign for or against a candidate during their shows.

Requiring non-candidate celebrities or media personalities to resign or abstain from work under pain of penal sanctions for campaigning for or against a candidate, other than through their movie or television programs, invades the realm of constitutionally protected speech. The strictures of Section 6, par. 6.6. of the Fair Elections Act, as implemented by Sec. 36 of Comelec Resolution 8758, suffers from overbreath for stifling more speech than is necessary. When a celebrity endorses a candidate in a legitimate political ad or performs any act to generate support for such candidate, he or she engages in political speech protected by the Constitution. The law in question, however, in effect penalizes that speech by barring the celebrity from engaging in his or her means of livelihood, even though for a limited period only. Failure to resign or take a leave of absence from work would constitute an election offense punishable by imprisonment of up to six years.

The law does not only regulate the time, place and manner of the speech involved, but targets the content itself. It in effect restricts political speech by celebrities because it forces them to choose between engaging in political speech or their means of livelihood. To pass constitutional muster, the law must be justified by a compelling or overriding government purpose and the means employed must be necessary to achieve that purpose. As previously mentioned, it is now settled that the State has vital interest in having fair or level playing field among candidates in reaching out to voters, but the manner the questioned law seeks to achieve its objective does not appear to be necessary for it is not the least restrictive means of doing it.

The equalization of political speech and opportunities for reaching out to voters is no longer served here because the celebrity cannot be said to be still furthering a candidate's campaign by simply engaging in his or her normal work. True, the celebrity, by expressing support for a candidate, would henceforth be identified with that candidate, but identification or association cannot be justified as furtherance of a candidate's campaign anymore than a candidate choosing a certain network or newspaper for broadcast or publication of his or her political ads constitutes furtherance by that network or newspaper of the candidate's campaign.

What makes the questioned provision even more unreasonable is the fact that it applies as well to celebrities and media personalities who work for a candidate in capacities that do not necessarily expose them to the public, such as being a political or legal adviser, a consultant or a speech writer, since the law covers those who work in any capacity. The law is also vague as to what the term "campaign volunteer" means. If a celebrity cooks for the staff of a candidate or hosts meetings in his mansion, could he be considered a campaign volunteer? If so, how will that possibly obscure role, although performed by a well-known personality, give a candidate undue advantage over others, as does the adviser and consultant?


domingoarong said...


I think there’s a need to take a closer at the term “Suffrage.” As it is now, the act of casting a ballot is referred to simply as some kind of a “privilege,” a “franchise,” or merely as a “right”--“the right to vote,” the very meaning of the term “suffrage” itself.

But to Dr. Alexander Meiklejohn, the act of voting is actually the people’s exercise of POWER, the reserved ELECTORAL POWER the people as sovereign under a democracy forever retain and do not delegate to government they created. It is the supreme power the people as “the governed” wield directly, exclusively as “the governors.”

The First Amendment (of the U.S. Constitution), in the words of Dr. Meiklejohn, “is the repository of these self-governing powers” for the reason that:

“…the people created a form of government under which they granted only some powers to the federal and state governments they established; they reserved very significant powers of government to themselves. This was because their basic decision was to govern themselves rather than be governed by others … The first amendment, in his view, is the repository of these self-governing powers that, because they are exclusively reserved to the people, are by force of that amendment immune from regulation by the agencies, federal and state, that are established as the people’s servants. These reserved powers, which he labeled powers of ‘governing importance’ are concerned, not with a private right, but with a public power, a governmental responsibility. Freedom of expression in areas of public affairs is an absolute. ‘Public discussion of public issues,’ he said, ‘together with the spreading of information and opinion bearing on those issues, must have a freedom unabridged by our agents. Though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing, we have sovereign power.’”

Or, in short, to Dr. Meiklejohn:

“The revolutionary intent of the First Amendment is, then, to deny to all subordinate agencies authority to abridge the freedom of the Electoral Power of the people.”

In line with this “revolutionary intent of the First Amendment” and citing the analogy in the immunity of Members of Congress from being “held liable in any other place for any speech or debate” (as in Art. VI, Sec. 11) when exercising their delegated Legislative Powers, Dr. Meiklejohn added:

“Just as our agents must be free in their use of their delegated powers, so the people must be free in the exercise of their reserved powers.”

In a speech delivered in 1965 at Brown University titled “The Supreme Court and the Meiklejohn Interpretation of the First Amendment” (79 Harvard Law Rev: 1-20), Justice William J. Brennan, Jr., who penned the “landmark” free speech case of New York Times Co. v. Sullivan (1963) said:

“Doubtless some of you may think that the sentence of the opinion, “for speech concerning public affairs is more than just self-expression; it is the essence of self-government,” echoes Dr. Meiklejohn’s statement, “the freedom that the First Amendment protects is not, then, an absence of regulation. It is the presence of self-government.”

Thus, employing the phraseology in defining the delegated constitutional powers (Legislative, Executive and Judicial), Article V (now titled “Suffrage”) should be changed (and a few lines added) to convey the supremacy of this Power the sovereign Filipino People reserve and forever retain, and that is—“The Electoral Power.”

In this way, perhaps, any subtle attempt by subordinate agencies of government to suppress “public discussion of public issues,” particularly during the election period would now constitute “contempt of the Sovereign Electoral Power.”

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Jun Bautista said...

Hi Domingoarong,

That is a very insightful view by Dr. Meiklejohn. I believe our version of such view is echoed in Art. 2, Sec.1,second sentence of our Constitution that says "sovereignty resides in the people and all government authority emanantes from them."

The essence of republicanism is that the people decided to govern themselves through representatives to whom they have invested powers. I agree that the fundamental rights found in the Bill of Rights should be seen more as expressions of self-government rather than absence of regulation.

Of course, there are limits imposed by the people themselves, since Meiklejohn himself states that the absolute exercise of power is limited to matters of public affairs. Thus, obscenity and defamatory language does not fall within the domain of constitutionally protected speech.

domingoarong said...


Yes, Dr. Meiklejohn contends that what the First Amendment protects is not "speech," but "the freedom of speech"--the "public discussion of public issues":

“The principle here at stake can be seen in our libel laws. In cases of private defamation, one individual does damage to another by tongue or pen; the person so injured in reputation or property may sue for damages. But, in that case, the First Amendment gives no protection to the person sued. His verbal attack has no relation to the business of government. If, however, the same verbal attack is made in order to show unfitness of a candidate for governmental office, the act is properly regarded as a citizen’s participation in government. It is, therefore, protected by the First Amendment. And the same principle holds good if a citizen attacks, by words of disapproval and condemnation, the policies of the government, or even the structure of the Constitution. These are ‘public’ issues concerning which, under our form of government, he has authority, and is assumed to have competence, to judge. Though private libel is subject to legislative control, political or seditious libel is not.”

blue_label said...

this is another one of those hare-brained ideas the comelec has been coming out with lately. at least this time, they got the ruling right.