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P
u e r t o R i c o 1. CONSTITUTIONAL FRAMEWORK The provision in the Constitution of 1952 concerning freedom
of expression is similar to that in the United States Constitution,
Section 4 of Article II stating: ?Congress shall pass no law abridging
freedom of speech and of the press or the right of people to peaceful
assembly and to petition the government for the redress of grievances.? Section 8 of Article II stipulates: ?Every person has the right
to protection under the law against abusive attacks on his honor,
his reputation and his private or family life.? Legislation is subject, under the Constitution, to the same
kind of judicial scrutiny or review regarding restrictions to free
speech and press freedom as applies in the United States. This scrutiny
is called ?strict scrutiny,? which means that the courts must find
a compelling interest on the part of the government to intervene
in these freedoms and must be the least onerous and burdensome for
individuals. Laws that in any way limit the constitutional right
of freedom of expression must be interpreted restrictively so that
the limitation does not go beyond the absolutely necessary, as in
the ruling in The People v. Burgos (1953). Accepted in case law regarding the free exercise of expression
has been a distinction between the content of information and regulations
merely referring to the place, time and manner of expression. This
latter permits the intervention of the government in this fundamental
freedom. To intervene on the basis of content would be equivalent,
for example, to prohibiting seditious allusions or expressions.
This would distinguish it from the regulations prohibiting the manifestation
of expression in certain cases in the public streets (place), at
certain times of the day and with certain permits (manner). There are Supreme court guidelines regarding the manner of
seeing and judging the government?s interventions in expression.
As mentioned, there is the strict scrutiny that the court applies
in looking at and seeking justification for the government to intervene
in areas of expression. The judicial techniques of protecting this
freedom independent of its content are: the concepts of excessive
scope, vagueness and prior censorship. The courts, for example, have upheld the doctrine of clear
and present danger to regulate some aspects of the content of utterances
concerning subversion. As for the protection the courts have applied, there are the
concepts of excessive scope and vagueness. When the government intervenes
in expression, the court examines whether the intervention, for
example through a law, is excessive on the face of it or in the
wording or if it is very vague, and therefore very general, and
thus is an unconstitutional intervention. Also looked at is any
adverse effect on the holders of this right of expression and it
is determined whether there is another means by which the government
might intervene and achieve its objective, in which case the court
will declare the law in question unconstitutional. Of course, the
justices base their decision on other considerations, such as the
area in which the government intended to intervene, case law, etc. The doctrine of vagueness on the other hand is applied in criminal
cases. That is, when the government intends to intervene through
a criminal law and regulates by reference to some aspect of expression
in a very general and vague way. The court certainly will look at
such a situation, applying the concept of vagueness and will determine
whether the information in the law that makes that expression punishable
is sufficiently clear about which acts are punishable.
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