1/4/2021 E-Library - Information At Your Fingertips: Printer Friendly Even if there is no prior restraint, the exercise of expression may still be subject to subsequent punishment, either civilly or criminally. If the expression is not subject to the lesser restriction of subsequent punishment, it follows that it cannot also be subject to the greater restriction of prior restraint. On the other hand, if the expression warrants prior restraint, it is unavoidably subject to subsequent punishment.[54] Because our Constitution favors freedom of expression, any form of prior restraint is an exemption and bears a heavy presumption of invalidity.[55] Nevertheless, free speech is not absolute, and not all prior restraint regulations are held invalid. Free speech must "not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society."[56] Doctrinally, this Court has settled the applicable tests in determining the validity of free speech regulations. To justify an intrusion on expression, we employ two (2) tests, namely: (1) the clear and present danger test; and (2) the dangerous tendency test. In Cabansag v. Fernandez,[57] this Court laid down what these tests entail: The [clear and present danger test], 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. And this evil is primarily the "disorderly and unfair administration of justice." This test establishes a definite rule in constitutional law. provides the criterion as to what words may be published. Under this rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such advocacy will harm the administration of justice. .... 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. The "dangerous tendency" rule, on the other hand, has been adopted in cases where extreme difficulty is confronted in determining where the freedom of expression ends and the right of courts to protect their independence begins. There must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against contempt. https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/65669 31/60