By Atty. Eduardo T. Reyes III
It is such a major letdown of confidence when the people’s own government trammels their most-prized freedoms and liberties.
The freedom to think and to believe, as well as the concomitant right to extrapolate on such thoughts and beliefs, are not only inborn rights- they are also absolute.
For as long as the idea or the thought remains to be so, no matter how vile, unacceptable, or even dangerous- it is never criminal. Until and unless this subjective phase is passed, and the idea morphs into overt or external acts, punishing a person for his/ her ideas is always condemnable in any democratic society. The Supreme Court explained that “an overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense”. (Edwina Rimando Y Fernando v. People, G.R. No. 229701, 29 November 2017).
In the early 1900’s, any governmental act that clamped down on the freedom of thought had received much opprobrium from progressive jurists led by Oliver Wendell Holmes, Jr. and Louis D. Brandeis. Both dissenting against a precocious stifling of freedom of expression by the US Supreme Court, they argued in words so elegant that they are still being invoked to this day, viz:
“When men have realized that time has upset many fighting faiths, they may come to believe… that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes may be safely carried out. That, at any rate, is the theory of our Constitution. It is an experiment as all life is an experiment”. (Justice Oliver Wendell Holmes, Jr., dissenting in Abrams v. United States, 250 U.S. 616 (1919), p. 553, Louis D. Brandeis, A Life, by Urofsky).
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government….
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. (Justice Brandeis dissenting in Whitney v. California, (1920) p. 182 Dissents and the Supreme Court by Urofsky).
Approximately eighty-eight years after- or in 2008, our own Philippine Supreme Court had adopted the then progressive views of Holmes and Brandeis. Upholding freedom of speech, the Court pronounced that this freedom “to be truly meaningful”, “should allow and even encourage the articulation of the unorthodox view”. Thus:
“Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. When atrophied, the right becomes meaningless. The right belongs as well — if not more – to those who question, who do not conform, who differ. The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. (FRANCISCO CHAVEZ v. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), G.R. No. 168338 February 15, 2008)
We look to the Constitution as the edifice of our freedoms and liberties. Academic freedom is one such meaningful and imperative right. Its concept had been explained, viz:
“Academic freedom or, to be precise, the institutional autonomy of universities and institutions of higher learning, has been enshrined in our Constitutions of 1935, 1973, and 1987. In Garcia, this Court espoused the concurring opinion of U.S. Supreme Court Justice Felix Frankfurter in Sweezy v. New Hampshire, which enumerated “the four essential freedoms” of a university: To determine for itself on academic grounds (1) who may teach, (2) what may be taught, (3) how it shall be taught, and (4) who may be admitted to study. An educational institution has the power to adopt and enforce such rules as may be deemed expedient for its government, this being incident to the very object of incorporation, and indispensable to the successful management of the college. It can decide for itself its aims and objectives and how best to attain them, free from outside coercion or interference except when there is an overriding public welfare which would call for some restraint.”(FIRST CLASS CADET ALDRIN JEFF P. CUDIA of the Philippine Military Academy, represented by his father RENATO P. CUDIA, who also acts on his own behalf, and BERTENI CATALUNA CAUSING, v. THE SUPERINTENDENT OF THE PHILIPPINE MILITARY ACADEMY (PMA), THE HONOR COMMITTEE (HC) OF 2014 OF THE PMA and HC MEMBERS, and the CADET REVIEW AND APPEALS BOARD (CRAB), Respondents. x – – – – x FILIPINA P. CUDIA, in behalf of CADET FIRST CLASS ALDRIN JEFF P. CUDIA, and on her own behalf, Petitioner-Intervenor. G.R. No. 211362 February 24, 2015, citations omitted.)
Society is a marketplace of ideas. Its microcosm is the school or any institution of learning where students are allowed, let alone encouraged, to speak their minds. Their teachers are not mutinous instigators; but rather, they are stimulators of thought and enhancers of ideas- just like sculptors who can see in a rock the proverbial Statue of David.
Education furthers ideas. It empowers the thought to be conveyed and challenged in the marketplace of ideas to the end that it is harnessed, not reined in.
No school deserves to be condemned simply for carrying an idea.
(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).