The Case of Nicolas-Lewis v. COMELEC: Maintaining the Balance Between Freedom of Speech and State Regulation

By: Geraldine Princess A. Lintag

“The right to express one’s preference for a candidate or the right to influence others to vote or otherwise not vote for a particular candidate… maintains the balance between stability and change.”

      The cornerstone of any functioning democratic country is the freedom of speech, a fundamental facet of which is the right to participate in electoral processes. This includes not only the right to vote, but also the right to express one’s preference for a candidate.

      This push and pull process of expressing thoughts, opinions, and observations on the candidates assists in maintaining the integrity of the electoral process. In this process, however, constitutionally-guaranteed rights would often clash with State action.

      This clash is the core issue in Nicolas-Lewis v. Commission on Elections[1]. Petitioner Loida Nicolas-Lewis, a former immigration lawyer who helped found the Asian American Legal Defense and Education Fund[2], challenges the constitutionality of Section 37 of Overseas Voting Act of 2013 or R.A. No. 10590. This provision amended the Overseas Voting Act of 2003 or R.A No. 9189. Both statutes aim to ensure equal opportunity to all qualified Filipino citizens abroad to exercise the fundamental right of suffrage pursuant to Section 2, Article V of the 1987 Constitution. As the provision now stands, any person is prohibited from engaging in partisan political activity abroad during the 30-day overseas voting period.

      In this case, Nicolas-Lewis alleges that pursuant to the provision, she, “together with thousands of Filipinos all over the world,” were prohibited by different Philippine consulates from conducting information campaigns, rallies, and outreach programs in support of their respective candidates. Petitioner explains that the prohibited partisan political activities as defined under the law are necessary for the voters to formulate an educated decision on who to vote for. As such, it is petitioner’s position that the prohibition on partisan political activities by any person abroad is a clear curtailment of the right to free speech, expression, and assembly, as well as the right to suffrage.

      The Supreme Court ruled that Section 37 of R.A. No. 10590 is an impermissible content-neutral regulation for being overbroad, violating, thus, the free speech clause under Section 4, Article III of the 1987 Constitution. Content-neutral regulation is a form of restraint which is merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards[3].

      In order to be permissible, content-neutral regulation should pass the intermediate test, viz.:

          (1) the regulation is within the constitutional power of the government;

          (2) it furthers an important or substantial governmental interest;

          (3) such governmental interest is unrelated to the suppression of the free expression; and

          (4) the incidental restriction on the alleged freedom of expression is no greater than what is essential to the furtherance of the governmental interest.

      The failure to meet the fourth criterion is fatal to the regulation’s validity. In this case, the challenged provision’s sweeping and absolute prohibition against all forms of expression considered as partisan political activities without any qualification is more than what is essential to the furtherance of the contemplated governmental interest.

      On its face, the challenged provision provides for an absolute and substantial suppression of speech as it leaves no ample alternative means for one to freely exercise his or her fundamental right to participate in partisan political activities.

      Specifically, the use of the unqualified term “abroad” would bring any intelligible reader to the conclusion that the prohibition was intended to also be extraterritorial in application. In addition, the use of the general term, i.e., “any person” as distinguished from “candidates” who are prohibited to engage in any partisan political activity within the voting period is overbroad.

In sum, there are two concepts that are to be emphasized in this case, and their possible implications in future policy-making and subsequent court rulings.

      First, it is to be noted that generally, statutes enjoy the presumption of constitutionality. This means that every law is presumed to be valid unless there is a showing of clear and unequivocal breach of the Constitution. In this case, the Court held that the issue involved warrants deviation from such principle. It stated that a law or a statute which purports to restrain the right to free speech and expression is “an outright departure from the express mandate of the Constitution against the enactment of laws abridging free speech and expression, warranting, thus, the presumption against its validity.”

      Second, freedom of expression is a preferred right that “stands on a higher-level than substantive economic freedom or other liberties”. Despite the legislative regulation having a valid rationale, it cannot be upheld if it threatens to violate the constitutional right to free speech, unless it passes the required judicial scrutiny.

[1] G.R. No. 223705, August 14, 2019.

[2] Ligaya Mishan, Loida Nicolas Lewis and Her Love of Lobster, THE NEW YORK TIMES, (December 7, 2015),

[3] Francisco Chavez v. Raul M. Gonzales, G.R. No. 168338, February 15, 2008


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