Facebook shout-outs, likes, tags and shares as Protected Speech: Special Problems with the Doctrine...

CONTEMPORARY LEGAL ISSUES 2 In Christ Alone

Facebook shout-outs, likes, tags and shares as ProtectedSpeech:

Special Problems with the Doctrine of Sub Judice1

by

Jeffrey J. Roden2

I. Introduction, Definitions and Parameters

This paper seeks to examine a virgin zone in

the area of Freedom of Speech,3 Freedom of Expression,4 and

Freedom of the Press5 as these liberties are limited by

the Doctrine of Sub Judice.6 This virgin zone consists

of shout-outs, likes, tags and shares in Facebook and

other social networking sites directed towards cases

which are ongoing or are yet to be decided. Shout-

outs are a form of logs on a website. The term has

1 Cite as Jeffrey J. Roden, ‘Facebook shout-outs, likes, tags and shares asProtected Speech: Special Problems with the Doctrine of Sub Judice’. This is a legalpaper submitted to Professor Marcelino C. Maxino, Esq., as requirement inthe course Contemporary Legal Issues (CLI) 2 of the Silliman UniversityCollege of Law (SU Law).2 The author is a student under the program of Juris Doctor (J.D.) ofthe Silliman University College of Law (SU Law).3 Article III, section 4, 1987 Constitution4 Article III, section 4, 1987 Constitution5 Article III, section 4, 1987 Constitution6 The doctrine of sub judice basically prohibits commenting on cases pending in a court of law.

1


since been contracted to web-logs or simply “blogs.”

These are digitally printed words, matters,

characters or symbols. They may also be in the form

of broadcast video or audio. “Like” is a functional

button on a standard Facebook account which anyone

having access to the blog may press. This usually

means he or she approves or “likes” the statement or

expression done in the blog. “Tag” is a function in

Facebook which allows the active author to post his

or her blog on the wall or Facebook page of a

contact, who would then become a passive author of

the statement or expression in the blog. “Share” is a

more active function in Facebook which allows the

sharer to make the statement or expression done in

the blog by the original author available to other

people who would not otherwise gain access to the

blog on their own; usually because they are not

direct contacts of the original author.

2


All these are relevant because the Dangerous

Tendency test7 and even the Clear and Present Danger test 8

adopted by the Supreme Court as standards for

restraint in sub judice issues are based on the

perceived danger to the judicial institution. The

perceived danger is created by the “publicity” of

the statement or expression which is deemed

contumacious. Thus, it is critical to know first

whether the statement or expression was done in

public, before we can even begin to examine whether

it did pose a dangerous statement or expression,

assuming it was public. This is important because

the flip-side is that no statement done within the

7 “In the early stages of Philippine jurisprudence, the acceptedrule was that speech may be curtailed or punished when it “creates adangerous tendency which the State has the right to prevent. Thisstandard has been labeled the “dangerous tendency” rule. All isrequires, for speech to be punishable, is that there be a rationalconnection between the speech and the evil apprehended.” Bernas, The 1987Constitution of the Republic of the Philippines: A Commentary (2009), at p. 2498 “In American jurisprudence, chiefly through the efforts ofJustice Holmes, the “dangerous tendency” rule yielded to the “clear andpresent danger” text, a standard which serves to emphasize theimportance of free speech to a free society without sacrificing otherfreedoms essential to a democracy…. The question in every case iswhether the words used are used in such circumstances and are of such anature as to create a clear and present danger that they will bringabout the substantive evils that Congress has a right to prevent”Bernas, at p. 249.

3


confines of one’s living room or bedroom can acquire

either a character or context of public danger.

Freedom of Speech and Freedom of Expression are basic

human rights which are guaranteed by the 1987

Constitution of the Republic of the Philippines, and

protected at the international level by the

Universal Declaration of Human Rights (UDHR)9 and

the International Covenant on Civil and Political

Rights (ICCPR).10

These guarantees and protections basically

state any human being may say or express anything he

or she wants, subject to certain limitations set by

law. On the other hand, the Doctrine of Sub Judice is a

principle in law which sets limits on the tenor and

allowed scope of comments and remarks that citizens,

especially lawyers, can say concerning or about

judicial proceedings which are still ongoing or

those which are yet to be decided by a court of law.

9 Universal Declaration of Human Rights (UDHR)10 International Covenant on Civil and Political Rights (ICCPR), article 19

4


We will do this by revisiting the traditional

scope of protected speech as a first step. Protected

speech involves kinds of speech that have intrinsic

value on the inherent liberty of the individual

human being. The origins of the concept of protected

speech can be traced to the “Safety Value” Theory of

Democracy. The “Safety Value” Theory posits the view that

protected speech involves a citizen-critic who is

merely exercising his or her right and duty to

expose problems before they explode. The rationale

of protected speech is that in a free society, there

is great value in the free exposition of ideas.

The conventional dichotomy of free speech is

that speech can be either protected or unprotected.

In the case of protected speech, the relevant issue

is this: is the speech content-based or content-

neutral? In other words, are we regulating the

message or the medium?

Content-based regulations examine the

communicative impact of the speech. However, the danger

5


with a content-based regulation is that what is

being judged may be the truth of the published

matter instead of the tendency of the speech to

cause damage. There is a gray area in this issue: at

what point does the regulation become purely

content-based? This becomes all the more important

since a content-based regulation is strictly-

construed by the courts because they go to the very

core and grain of the right to express one’s self.

This paper is concerned only with shout-outs on

Facebook and other social networking sites as the

medium under examination. A Facebook shout-out is a

form of a written log on a website; more popularly

known now as “microblogs” or “status updates”. For

brevity, speech containing words, matters,

characters, symbols, videos or audios is called

simply “speech” while speech thru functions and

actions but without words, characters, videos or

audios, such as “likes”, “tags” and “shares” is

called “speech-plus”.

6


This paper does not concern itself with remarks

and comments made in other media such as traditional

ones - television, radio broadcasting, newspapers

and magazines. Neither does this paper concern

itself with expressions and statements made in more

unconventional media such as billboards, t-shirts,

walls, and other media of expression which the

advertisement industry would call ‘below-the-line’.

This paper limits itself to shout-outs in Facebook

and other social networking sites as the medium and

form of protected speech being examined.

The other dimension of analyzing protected

speech this paper sets as a parameter is the

regulation of prior restraint. The constitutional

prohibition in Article III, section 4 consists of a

two-fold injunction on free speech, which are: a)

prior restraint and b) subsequent punishment. This

paper’s analysis is limited to the injunction of

prior restraint as a gag on protected speech. More

specifically, this paper limits its analysis to the

7


doctrine of sub judice as a form of prior restraint.

The doctrine of sub judice is analyzed as against its

potential application to speech in Facebook and

other social networking sites.

II. The traditional tension between prior restraint and

sub judice

The common-law doctrine on liberty of the press

was first elevated to a constitutional principle

through the First Amendment of the American Federal

Constitution. Blackstone had this to say about

liberty of the press:

“The liberty of the press is indeedessential to the nature of a free state;but this consists in laying no previousrestraint upon publication, and not infreedom from censure for criminal matterwhen published. Every freeman has anundoubted right to lay what sentiments hepleases before the public: to forbid thisis to destroy the freedom of the press….To subject the press to the restrictivepower of a licenser, as was formerly done,both before and since the Revolution, isto subject all freedom of sentiment to theprejudices of one man, and make him thearbitrary and infallible judge of all

8


controverted points in learning, religionand government…. Thus, the will ofindividuals is still left free: the abuseonly of that free will is the object oflegal punishment. Neither is any restrainthereby laid upon freedom of thought orinquiry: liberty of private sentiment isstill left….”11

Thus, the constitution prohibits prior

restraint on free speech, expression or of the

press. “Prior restraint simply means official

governmental restrictions on the press or other

forms of expression in advance of actual publication

or dissemination.”12 One form of prior restraint is

requiring licenses and permits as prerequisites to

publication. Another form is “judicial prior

restraint which takes the form of an injunction

against publication.”13

When it comes to prior restraint on protected

speech, the leading case is Near v. Minnesota.14 In

this case, the State of Minnesota had a statute11 W. BLACKSTONE, COMMENTARIES 145 (1876)12 Bernas, at p. 233; citing Near v. Minnesota, 283 U.S. 697 (1931) andNew York Times Co. v. United States, 403 U.S. 713 (1971). 13 Id.14 Near v. Minnesota, 283 U.S. 697 (1931)

9


which in Chapter 285 of its Session Laws provides

for the abatement, as a public nuisance, of a

‘malicious, scandalous and defamatory newspaper,

magazine or other periodical.’ The paper, known as

Saturday Press, came up with certain editions which

were alleged to be largely devoted to malicious,

scandalous and defamatory articles against public

officers. The articles claimed that ‘a Jewish

gangster was in control of gambling, bootlegging and

racketeering in Minneapolis, and that law

enforcement agencies were not energetically

performing their duties.’15

The Supreme Court in Near v. Minnesota held that

the statute was unconstitutional; in essence, the

statute amounts to censorship because public

authorities may bring the owner or publisher of a

newspaper/periodical before a judge on charges of

conducting a business of publishing scandalous and

defamatory matter. Under the Minnesota statute,

15 Id., at 714

1


unless the owner or publisher is able to prove good

intentions and justifiable ends, his newspaper or

periodical is suppressed and further publication is

made punishable as contempt. The Supreme Court said:

‘In determining the extent of the constitutional

protection, it has been generally, if not

universally, considered that it is the chief purpose

of the guaranty to prevent previous restraints of

publication.’16 The Court held that the Minnesota

statute cannot hide under the pretext that the

provision in the statute is valid because it permits

the publisher to show, before injunction, he has

good motives. The statute was struck down for being

overbroad.

Near’s significance is that the statute in

question contained a total prior restraint; it was

by far one of the most sweeping forms of prior

restraint. The point of Near is even in instances

16 Id.

1


when prior restraint on the freedom of speech is

allowed, such allowance should be narrowly-tailored.

Against this backdrop of Near and its

prohibition on prior restraint is the doctrine of

sub judice. The doctrine of sub judice prohibits remarks

and comments on cases which are pending or are yet

to be decided by a court of law. There is an

inherent tension between prior restraint and sub judice

because prior restraint prohibits gags on expression

and speech prior to their being made; while the

doctrine of sub judice is exactly that - a gag on

expression and speech about cases pending in court.

The traditional tension between prior restraint

and sub judice has been the zone of remarks and

comments made by members of the bar, as well as by

non-lawyers, about cases pending in court.

The leading case on this issue in American

jurisprudence is U.S. v. Toledo Newspaper Co. (1915).17

17 220 Fed. 458 (1915)

1


This case was upheld in Toledo Newspaper Co. v. U.S.,18

and overruled in Nye v. United States.19

In the Philippine jurisdiction, cases decided

by the Supreme Court reveal a two-tiered policy on

comments made about pending cases. The first-tier is

a strict policy against comments made about

decisions of the Supreme Court. The second tier is a

more liberal policy against comments made about

decisions of the lower courts. In fact, it may even

be said when it comes to lower courts, the Supreme

Court tended to restrain judges from exercising

their contempt powers against comments directed

towards decisions of such lower courts.

The leading Philippine case on the question of

sub judice is In re Kelly,20 a 1916 case. Kelly was a

Supreme Court decision based on the now discredited

case of U.S. v. Toledo Newspaper Co.21 In Kelly, Amzi B.

Kelly, an American, had been previously found guilty

18 247 U.S. 454 (1917)19 313 U.S. 33 (1941)20 35 Phil. 944 (1916)21 supra

1


of contempt. He was granted a rehearing and, pending

final decision, he caused a letter to be published

in “The Independent,” a Manila paper, in which he

severely castigated the Supreme Court.

‘Characterizing the initial decision as “atrocious,”

“arbitrary and arrogant and knowingly and

maliciously perpetrated… for the purpose of

terrorizing people and intimidating the press,” he

accused members of the Court of “arrogantly misusing

imaginary judicial powers (to punish for contempt),”

of being made of mud, and of “cowardly shielding

themselves behind contempt proceedings.’22

Mr. Justice Johnson, writing for a unanimous

court laid down the following rule: ‘Any publication

pending a suit, reflecting upon the court, the jury,

the parties, the officers of the court, the counsel,

etc., with reference to the suit, or tending to

influence the decision of the controversy, is

contempt of court and is punishable.’ Kelly’s letter

22 35 Phil. at 947-8

1


was viewed by the Court as manifesting an

intentional attempt to bring the Supreme Court and

its members ‘into contempt and to ridicule and to

lower their dignity, standing and prestige… and to

hinder and delay the due administration of justice.’

The publication tended ‘directly to affect and

influence the action of the Supreme Court.’23

Two years later in United States v. Bustos,24 the

Supreme Court asserted: ‘The guarantees of a free

speech and a free press include the right to

criticize judicial conduct.’25 The opinion in Bustos

was again written by Mr. Justice Malcolm. Of Malcolm

it is said no other American has contributed to

early constitutional development in the Philippines

than he did.

Mr. Justice Malcom wrote: ‘The interest of

society and the maintenance of good government

demand a full discussion of public affairs. Complete

23 35 Phil. at 951-224 37 Phil. 731, 740-1 (1918)25 supra, at 740-1, as cited in Bernas, at p. 258.

1


liberty to comment on the conduct of public men is a

scalpel in the case of free speech. The sharp

incision of its probe relieves the abscesses of

officialdom…. A public officer must not be too thin

skinned with reference to comment upon his official

acts.’26

The doctrine in Kelly was upheld in El Hogar Filipino

v. Prautch (1926).27 ‘So long as it is done in good

faith,’ the Court said in El Hogar Filipino, ‘the

newspapers have the legal right to have and express

opinions on legal questions. To deny them that right

would infringe upon the freedom of the press.’ ‘But

legal opinions are frequently expressed with less

than Olympian detachment and courts have frequently

moved in to defend themselves by the use of contempt

powers. The history of this aspect of the contempt

powers of courts is not uninteresting.’28

26 U.S. v. Bustos, 37 Phil. 731, 740-1 (1918)27 49 Phil. 171 (1926)28 Bernas, at p. 257

1


Other cases soon followed. There are three

subsequent contempt decisions penned by Mr. Justice

Malcolm which still stand as landmarks in the

Philippine juridical sphere. In re Lozano and Quevedo29

arose out of an article published in “El Pueblo”, an

Iloilo newspaper, ostensibly to relate the

proceedings in an investigation of a district judge.

The investigation was held behind closed doors. This

was to comply with a Supreme Court resolution

requiring such investigations to be secret and

confidential. The Court cited for contempt both the

editor of the paper and the author of the article.

Bernas said that the rule applied in Lozano as

called ‘by any other name, still smells “prior

restraint.”30 The Court in Lozano said: ‘There are no

juries to be kept free from outside influence, yet

there are lawyers to be shielded and judges to be

respected. Ordinary libel laws are deemed not

29 54 Phil. 801 (1930)30 Bernas, at p. 260

1


sufficient for these.’31 Malcolm reinforced this

thesis rule in In Re Abistado32 and in In Re Torres 33 he

further gave it a novel twist.

The direction of Philippine doctrine with

respect to prior restraint on protected speech based

on the sub judice rule was not to acquire a different

direction until the 1935 Constitution was ratified,

under which Justice Laurel wrote for the Court in

People v. Alarcon.34 In Alarcon, Justice Laurel said: ‘It

must however clearly appear that such publications

do impede, interfere with and embarrass the

administration of justice before the author of the

publications should be held in contempt.’35 Two

things about Alarcon must be noted though as limits

of its juridical operation. First is that the case

was, technically speaking, no longer pending by the

time the Court took cognizance of the contempt

matter. Second is that the case again involved a31 In re Lozano and Quevedo, supra, at 17632 57 Phil. 668 (1932)33 55 Phil. 799 (1931)34 69 Phil. 265 (1939)35 supra, at 271

1


judge of a lower court and not a justice of the

Supreme Court.

III. The penumbral and nascent zones occupied by “blogs”

as protected speech

Facebook shout-outs, likes, tags and shares

which are speech and speech-plus occupy penumbral

and nascent zones as protected speech vis-à-vis the

doctrine of sub judice. There are no existing rules yet

which govern them, and there are no cases decided by

the Supreme Court.

In the United States, federal courts recently

ruled on cases involving Facebook speech. One such

case involved Katherine Evans, now 19 and attending

college, a former student of Pembroke Pines Charter

high school in Florida, who was suspended in 2007 by

her principal after she set-up a Facebook page to

criticize her teacher, titled “Ms. Sarah Phelps is

the worst teacher I’ve ever met.”36

36 “Facebook gripes protected by free speech, ruling says,” CNNonline edition (Please see:

1


Federal magistrate Barry Garber said: ‘Evan’s

speech falls under the wide umbrella of protected

speech. It was an opinion of a student about a

teacher, that was published off-campus… was not

lewd, vulgar, threatening, or advocating illegal or

dangerous behavior.’37

There is also the case of MySpace postings by

the minor Justin Layshock.38 In Layshock, the minor

Justin Layshock was a seventeen-year old senior at

the Hickory High School which is part of the

Hermitage School District in Hermitage,

Pennsylvania. Sometime between December 10 and 14,

2005, while Justin was at his grandmother’s house

during non-school hours, he used her computer to

create what he would later refer to as a “parody

profile” of his principal, Eric Trosch. The only

http://articles.cnn.com/2010-02-16/tech/facebook.speech.ruling_1_facebook-social-networking-site-first-amendment?_s=PM:TECH, last visited 29March 2012) 37 Id.38 Justin Layshock, a minor by and through his parents, Donald andCheryl Layshock v. Hermitage School District, Nos. 07-4465 and 07-4555, in theUnited States Court of Appeals for the Third Circuit, (04 February2010), as appealed from the United States District Court for the WesternDistrict of Pennsylvania (Civ. No. 06-cv-00116)

2

http://articles.cnn.com/2010-02-16/tech/facebook.speech.ruling_1_facebook-social-networking-site-first-amendment?_s=PM:TECH

http://articles.cnn.com/2010-02-16/tech/facebook.speech.ruling_1_facebook-social-networking-site-first-amendment?_s=PM:TECH


school resource that was even arguably involved in

creating the profile was a photograph of Trosch that

Justin copied from the school district’s website.

Justin copied that picture with a simple “cut and

paste” operation using the computer’s internet

browser and mouse. Justin created the profile on

MySpace.

The Court in Layshock of course had to refer to

the landmark 1969 case of Tinker v. Desmoines39 in which

a group of high school students decided to wear

black arm bands to school to protest the war in

Vietnam.40 As early as Tinker, the Supreme Court has

held: ‘student expression may not be suppressed

unless school officials reasonably conclude that it

will “materially and substantially disrupt the work

and discipline of the school.’41

In Layshock, too, early signs that situs of

expression and publication is an emerging special

39 Tinker v. Desmoines Independent Community School District, 393 U.S. 503 (1969).40 Id. at 504.41 Id. at 513.

2


issue appeared when the Court had to grapple with

the issue of whether Justin’s speech was done at

school or outside school. This was crucial if the

school district was to pin down Justin because they

had to establish a ‘sufficient nexus’ between the

MySpace speech and disruption of school activities.

To establish a sufficient nexus, the school district had

to rely on Thomas v. Board of Education.42 About this

issue, the Court held: ‘the School District’s

attempt to forge a nexus between the school and

Justin’s profile by relying upon his “entering” the

school’s website to “take” the photo of Trosch is

unpersuasive at best.’43 The court rejected the

argument equating with Thomas, Justin’s act of

signing onto a website with the kind of trespass he

would have committed had he broken into the

principal’s office.

42 Thomas v. Board of Education, 607 F. 2d 1043 (2d Cir. 1979).43 Layshock v. Hermitage School District, supra, at p. 35.

2


On the issue of the school’s reaching into the

activities and speech of the minor outside the

school premises, the court in Layshock held:

‘It would be an unseemly anddangerous precedent to allow the state inthe guise of school authorities to reachinto a child’s home and control his/heractions there to the same extent that theycan control that child when he/sheparticipates in school activities.Allowing school authorities to punishJustin for conduct he engaged in using hisgrandmother’s computer while at hisgrandmother’s house would create just sucha precedent and we therefore conclude thatthe district court correctly ruled thatthe District’s response to Justin’sexpressive conduct violated the FirstAmendment guarantee of the freedom ofexpression.’44

This part of the holding in Layshock would be

useful when the time comes to examine the importance

of situs of the speech. This paper does not deal with

that yet but rather deals with the potential tension

between Facebook speech and the doctrine on sub judice.

The analysis of situs is best reserved for a different

work.44 Id., at p. 37.

2


Finally there is J.S. v. Blue Mountain District.45 Blue

Mountain is an interesting development of how the

jurisprudential series is moving because the Court

here pronounced that ‘We decline to say that simply

because the disruption to the learning environment

originates from a computer located off campus, the

school should be left powerless to discipline the

student.’46 This is a point of divergence from the

existing juridical line.

In the Philippine jurisdiction, the most

proximate case on Facebook speech is the case of

lawyer Argee Guevarra who was sued by Dr. Vicky

Belo.47 Guevarra was sued by Belo for his comments

about Belo which were quite unflattering. Belo sued

45 J.S., a minor through her parents, Terry Snyder and Steven Snyder v. BlueMountain School District, Joyce Romberger; James McGonigle, in the United StatesCourt of Appeals for the Third District, No. 08-4138 (Argued: 02 June2009; Filed: 04 February 2010), on appeal from the United StatesDistrict Court for the Middle District of Pennsylvania (D.C. No. 07-cv-00585).46 Id., at footnote 6, page 21.47 Filipino court unlikely to recognize Facebook libel (http://www.zdnetasia.com/filipino-court-unlikely-to-recognize-facebook-libel-62058040.htm, last visited 29 March 2012).

2

http://www.zdnetasia.com/filipino-court-unlikely-to-recognize-facebook-libel-62058040.htm

http://www.zdnetasia.com/filipino-court-unlikely-to-recognize-facebook-libel-62058040.htm


Guevarra for libel. However, the lower court

dismissed the case for lack of jurisdiction on the

ground that venue was improperly laid. This case is

different because the speech was directed towards a

private person, and the case was dismissed on the

technical ground of improper venue.

IV. Some special problems of sub judice as applied to

Facebook speech and speech-plus

A. The special issue of publication

The first special issue posed by Facebook

speech and speech-plus is the problem of

publication. There is a problem of publication

because there are no decided cases yet on the issue

of whether or not personal blogs made within the

confines of one’s own Facebook account and not

available to the general public can be considered

publication.

B. The special issue of “internet-generated

distribution” thru metatags

2


The second special issue posed by Facebook

speech and speech-plus is the problem of “internet-

generated distribution” thru metatags. Thru

metatags, it is the internet and not the author

himself or herself, which distributes or publishes

the article. A metatag is programming language

embedded on a webpage, but is not visible to the end

user. Metatags come in various types, but the

critical metatag type is the “keyword” metatag. The

website programmer can use keyword metatags to

specify terms that describe the site. A search

engine then indexes these terms by the use of a

“spider.” A spider crawls the “web” looking at every

website and building an index. When building the

index, oftentimes the spider prioritizes the terms

in the metatags. When a user searches something thru

the search engine, what the engine does is that it

reviews the index previously generated by the spider

to determine which sites match the search request

submitted by the user. After the search, the search

2


engine then loads and returns all the sites that are

found to have terms matching the request.48

C. The special issue of “passive authorship” thru

links, shares, tags

The third special issue posed by Facebook

speech and speech-plus is the problem posed by

“passive authorship” thru links, shares, and tags.

The practice of “linking” is another activity that

is ubiquitous on the World Wide Web. A “link” is an

embedded electronic address that points to another

web location. Links may be of at least two different

types – the “out link” and the “in-line link.”49 Both

types of links lead the user to another web page. By

clicking on the “out link,” a person browsing a web

page can go to another site. On the other hand, the

“in-line link” is a “pointer to a document, image,

audio clip or the like somewhere on the web

contained in another’s web page which, in effect,

48 Vicente B. Amador, The E-Commerce Act and other Laws @ Cyberspace(2002), at p. 25949 Id., at p. 258

2


pulls the image, text, or audio clip from the other

web page into the current document for display.”50

The process wherein material from an in-line link is

displayed within the frame or window border of a

page of the linking website is often called

“framing”. This is important because the person who

framed did not utter speech but merely used an

internet function.

D. The special issue of ‘protected speech’

The fourth special issue posed by Facebook

speech and speech-plus is the problem that assuming

the speech was published, the content is protected

speech nonetheless.

E. The special issue of ‘prior restraint’

The fifth special issue posed by Facebook


the content is not neutral, or that it is not

protected speech, then prior restraint still has to

be narrowly-tailored.

50 Id., citing Advanced Copyright Issues on the Internet, David L.Hayes, Esq., Fenwick & West LLP, January 2000 edition

2


F. The special issue of situs

The sixth special issue posed by Facebook


the content was duly published, is not protected,

and prior restraint rule was narrowly-tailored,

where was the speech published? Further issues under

this issue are: whether the situs is determined by the

situs of the person, the situs of the computer where

the speech was made or broadcasted, the situs of the

internet service provider, the situs of the server,

the situs of the Facebook registration, or the situs of

the email which was used for the Facebook

registration. This is important because a national

court cannot pretend to have jurisdiction over

publications made outside the confines of its legal

jurisdiction. This is all the more important when

tied to the next special issue of dual and multiple

citizenships.

G. The special issue of dual and multiple citizenship

2


The seventh special issue posed by Facebook

speech and speech-plus is the problem of dual and

multiple citizenships. Given that all the other

requisites are met, may a person invoke that the

speech and/or speech-plus were uttered in the

personality of another citizenship?

This paper does not pretend to resolve all

these issues, but they are all simultaneously raised

for their pedagogic worth and for their enlightening

value to the researcher’s task of analysis.

V. The Integral Calculus of Approaches to the special

problem

A. The prevailing rule on prior restraint and sub

judice

The prevailing rules on prior restraint and

sub judice may be summed up based on the

jurisprudential series discussed above, as

follows:

3


Tablet 1. Analytic Summary of Ruling Case Law in the

Philippines on sub judice.

Rule Analytics Factual Basis Juridical Basis

1. Publicationof a statementor expressiondone during thependency of acase ispunished forcontempt.

● Publication ofletter of Kelly in“The Independent”

‘Any publicationpending a suit,reflecting upon thecourt, the jury, theparties, the officersof the court, thecounsel, with referenceto the suit, or tendingto influence thedecision of thecontroversy, iscontempt of court andis punishable.’ In reKelly, 35 Phil. 944(1916)

2. Scope ofdoctrine of subjudice includespost-promulgation ofcases whenpossibility ofreconsiderationstill exists.

● Judge Quirino ofthe Fifth Divisionof the People’sCourt criticizedthe SupremeCourt’s resolutionwhich reversed thePeople’s Court.The criticismswere uttered whileit was stillpossible for theSupreme Court toreconsider the

‘A case is pending notonly prior to thepromulgation of thedecision but even afterpromulgation when thepossibility ofreconsideration by thesame Court stillexists,’ In re Quirino, 76Phil., at 362 (1946).

3


case.

3. The onlytestconclusivelyestablished bythe SupremeCourt decisionsis the“dangeroustendency” rule

● Publication in“El Debate” of anarticleanticipatory of aSupreme Courtdecision in In ReTorres. The articleclaimed knowledgeof the actualdecision alreadymade, the writerof the decision,and the likelihoodof votes amongjustices.

‘The court musttherefore insist onbeing permitted toproceed to thedisposition of itsbusiness in an orderlymanner, free fromoutside interferenceobstructive of itsfunctions and tendingto embarrass theadministration ofjustice,’ In re Torres, 55Phil. 799, at 800(1931).

4. However, incertain casesinvolvingcontempt ofinferiorcourts, theclear andpresent danger”rule has beenaccepted asexception.

● ‘The allegedcontemptuousutterance was madeagainst a judge ofa Court of FirstInstance after hehad lostjurisdiction overthe case by theperfection of theappeal to theCourt of Appeals,’Bernas, footnote656, at p. 261.

‘It must howeverclearly appear thatsuch publications doimpede, interfere withand embarrass theadministration ofjustice before theauthor of thepublications should beheld for contempt,’People v. Alarcon, 69 Phil.265, 271 (1939).

5. The dangerguarded againstis distrust inthe court’s

● ‘The dangerguarded against inpunishing forcontempt is either

In re Torres, supra; People v.Alarcon, supra;

3


decisions whichcan be causedby appearanceof influencingor speechdisrespectingthe court.

extraneousinfluence on thecourt’s act ofdecision making ordisrespect anddisobedience whichcan breed populardistrust in courtsand courtdecisions,’ Bernasat pp. 266-267.

6. If thespeech isdirectedtowards theSupreme Courtand itsjustices, thenspeaker isalways held incontempt.

● Letter of Kellydirected towardsSupreme Court; ● Articlepublished in “ElDebate” directedtowards SupremeCourt; ● Criticisms ofJudge Quirinodirected towardsSupreme Court

‘In every case reachingthe Supreme Court wherethe questionedpublication was allegedto be contemptuous ofthe Supreme Court orits Justices, thepublication wasdeclared contemptuous,’Bernas, at pp. 266-267;citing In re Gomez, 43Phil. 376 (1922).

7. In the earlycases, wherethe rule forcontempt bypublication wasforged,reliance washad on Americanstate courtcases and onFederal SupremeCourt casesdecided at a

● Note that In reKelly, which isstill followed inthe Philippinejurisdiction, wasdecided in 1916,prior to thedoctrine laid downin Gitlow in 1925.

The scope of the FirstAmendment was extendedto state actions viathe FourteenthAmendment. Thisextension was firstmade in Gitlow v. New York,268 U.S. 652 (1925).

3


time when theguarantees ofthe FirstAmendment hadnot yet beenrecognized asextending tostate actionsvia theFourteenthAmendment

8. The freedomof lawyers inrelation tocourts is lessthan that ofnon-lawyercitizens.

● ‘We concede thata lawyer may thinkhighly of hisintellectualendowment…. Somesuch frame ofmind, howevershould not beallowed to hardeninto the beliefthat he may attacka court’s decisionin wordscalculated tojettison the time-honored aphorismthat courts arethe temples ofright,’ In re AlfonsoPonce Enrile

In Re Contempt ProceedingsAgainst Alfonso Ponce Enrile,G.R. No. L-22979 (June26, 1967); see alsoRheem of the Philippines v.Ferrer, G.R. No. L-22979(June 26, 1967); SurigaoMineral Reservation Board v.Cloribel, G.R. No. L-27072 (January 09,1970); and In re Almacen,G.R. No. L-27654(February 18, 1970).

B. The integral calculus of approaches to the special

problem

3


From the rule analytics summarized above, this

paper formulates a tool of analysis. The tool of

analysis this paper seeks to establish is what the

author calls the Integral Calculus of Approaches to the

special problem of sub judice as applied to speech in

Facebook and other social networking sites.

Based on these formulations, we came up with

twelve (12) situations in which there is a potential

tension between the doctrine of sub judice and the

status of speech in Facebook and other social

networking sites as “protected speech”. The author

does not in any way claim that this formulated

calculus of approaches is exhaustive, but all

efforts have indeed been exhausted by the author to

identify every possible scenario which is

discoverable by the present capacity of the human

mind. Here is a brief discussion of each scenario:

Tablet 2. The integral calculus of approaches to the special

issues.

Access to speech Access to speech

3


(“shout-out” or“blog”) is limited

(“shout-out” or “blog”)is for general public

Speaker is anon-lawyer

● Speech is alwaysprotected.

● Speech is protected

Content of speechis neutral.


● Speech is protected.

Content of speechfalls under“personalexperience”.

● Speech is alwaysprotected. ● Speech is protected.

Content of speechis loaded.

● If access islimited to directcontacts, thenspeech is alwaysprotected.

● Court may apply testof tendency.

Speaker is alawyer

● If access islimited to directcontacts, thenspeech isprotected.

● Court may look intocontent of the speech.

Content of speechis neutral.


● If content isneutral, then speech isprotected.

Content of speechis neutral butpertains to a casehandled by the

● If access islimited to directcontacts, thenspeech is

● Court may apply testof tendency toinfluence or disrespectthe court:

3


speaker-lawyer. protected.

● If access ispermitted two-degrees (indirectcontacts), thencourt may applyclear and presentdanger test.

1. content of thespeech;

2. tenor of thespeech;

3. attitude towardsthe court;

Content of speechfalls under“personalexperience”.



● Court may apply testof tendency toinfluence or disrespectthe court:




Content of speechfalls under“personalexperience” butpertains to a casehandled by thespeaker-lawyer.



● Court may look intoindicators of intent toinfluence or disrespectthe court.




3


Content of speechis loaded butmade by thespeaker-lawyer ina capacity otherthan being alawyer.


● If access ispermitted two-degrees (indirectcontacts), thencourt may applydangerous tendencytest.

● Court may look intoindicators of intent toinfluence or disrespectthe court.




Speaker ismerelycommenting onthe mainspeech whichis at issue

● If access islimited to directcontacts, thenspeech is alwaysprotected.

● Speech is protected.Unless, speaker is alawyer, then apply testof tendency.

Speaker merelyclicked the“like” buttonon the mainspeech whichis at issue.

● Speech-plus isalways protected.

Speech-plus is alwaysprotected. Unless,“liker” is a lawyer,then apply test and theCode of ProfessionalResponsibility rule notto promote any activitywhich would underminepublic confidence inthe judicial system andthe administration ofjustice.

3


Speaker wasmerely taggedby the mainspeaker andthe speechappeared onhis or herwall orscreen,profile orhome page.


● Speech-plus (“passiveauthorship”) is alwaysprotected.

Speaker merelyshared thespeech of themain speakerwho utteredthe words.


● Speech-plus is alwaysprotected. Unless,“sharer” of speech-plusis a lawyer, then applytest and the Code ofProfessionalResponsibility not topromote any activitywhich would underminepublic confidence inthe judicial system andthe administration ofjustice.

VI. Conclusion

This paper examines the undefined problem of

dormant but potential tension between the doctrine

of sub judice and its application, if ever, on shout-

outs in Facebook and other social networking sites.

3


At the start, we sketched the traditional concepts

of protected speech. We also discussed the

traditional tension between prior restraint and the

doctrine of sub judice.

Against this broad canvass, we identified an

undefined juridical zone. The juridical zone which

was identified in this paper is the zone occupied by

shout-outs in Facebook and other social networking

sites. At the boundaries of this undefined zone is

the doctrine of sub judice whose application unto this

specific undefined zone has not yet been tested in

the Philippine jurisdiction; hence, there are

neither laws, doctrines, nor rules and regulations

governing such a potential tension should one such

actual case and/or controversy present itself under

circumstances which are ripe for adjudication.

To solve this undefined zone, this paper

attempted to formulate a calculus of approaches

which serves as solution set to the undefined zone

of protected speech previously identified. The

4


author does not claim that this solution set is an

exhaustive set, but the author has taken all steps

and measures to explore all permutations of fact

sets which are discoverable within the power of the

human mind as of now. Finally, this paper presents

this calculus of approaches as an integration of all

possible functions. This solution set may serve as

the roadmap for the resolution of such cases should

they come before the courts in the near future.

VII. Bibliography

A. References

1. Vicente B. Amador, The E-Commerce Act and other

Laws @ Cyberspace (2002);

2. Joaquin G. Bernas, The 1987 Constitution of the

Republic of the Philippines: A Commentary (2009);

3. Civil Code of the Philippines;

4. International Covenant of Civil and Political

Rights (ICCPR);

5. Revised Penal Code;

6. Universal Declaration of Human Rights (UDHR);

4


7. 1987 Constitution of the Republic of the

Philippines;

B. Scholarly Journals and Articles

1. K.J. Hayward, ‘Five Spaces of CulturalCriminology,’ British Journal of Criminology (2012, CCJS);

2. Kathleen M. Sullivan, ‘Two Concepts of Freedom ofSpeech,’ Harvard Law Review, online edition:(http://www.harvardlawreview.org/media/pdf/vol_12401sullivan.pdf, last visited 29 March2012);

3. Gloria Cowan; Resendez, Miriam; Marshall,Elizabeth; and Quist, Ryan. ‘Hate speech andconstitutional protection: priming values ofequality and freedom,’ Journal of Social Issues (22 June2002);

C. Cases cited

1. Bethel School District No. 403 v. Fraser, 478 U.S.

675 (1986);

2. El Hogar Filipino v. Prautch, 49 Phil. 171 (1926);

3. Gitlow v. New York, 268 U.S. 652 (1925);

4. In re Abistado, 57 Phil. 668 (1932);

5. In re Almacen, G.R. No. L-27654 (February 18,

1970);

4

http://www.harvardlawreview.org/media/pdf/vol_12401sullivan.pdf

http://www.harvardlawreview.org/media/pdf/vol_12401sullivan.pdf


6. In Re Contempt Proceedings Against Alfonso Ponce

Enrile, G.R. No. L-22979 (June 26, 1967);

7. In re Gomez, 43 Phil. 376 (1922);

8. In re Kelly, 35 Phil. 944 (1916);

9. In re Lozano and Quevedo, 54 Phil. 801 (1930);

10. In re Quirino, 76 Phil. 631 (1946);

11. In re Torres, 55 Phil. 799 (1931);

12. Justin Layshock, a minor by and through hisparents, Donald and Cheryl Layshock v. HermitageSchool District, Nos. 07-4465 and 07-4555, in theUnited States Court of Appeals for the ThirdCircuit, (04 February 2010), as appealed from theUnited States District Court for the WesternDistrict of Pennsylvania (Civ. No. 06-cv-00116);

13. J.S., a minor through her parents, Terry

Snyder and Steven Snyder v. Blue Mountain SchoolDistrict, Joyce Romberger; James McGonigle, in theUnited States Court of Appeals for the ThirdDistrict, No. 08-4138 (Argued: 02 June 2009;Filed: 04 February 2010);

14. Near v. Minnesota, 283 U.S. 697 (1931);

15. New York Times Co. v. United States, 403 U.S.

713 (1971);

16. People v. Alarcon, 69 Phil. 265, 271 (1939);

4


17. Rheem of the Philippines v. Ferrer, G.R. No.

L-22979 (June 26, 1967);

18. Surigao Mineral Reservation Board v.Cloribel, G.R. No. L-27072 (January 09, 1970);

19. Thomas v. Board of Education, 607 F. 2d 1043(2d Cir. 1979);

20. Tinker v. Desmoines Independent CommunitySchool District, 393 U.S. 503 (1969);

21. United States. v. Bustos, 37 Phil. 731

(1918);

4

Date post:	30-Jan-2023
Category:	Documents
Upload:	independent
View:	1 times
Download:	0 times

Facebook shout-outs, likes, tags and shares as Protected Speech: Special Problems with the Doctrine...

Documents