FACIAL CHALLENGE v.

AS-APPLIED CHALLENGE
“Freedom of Expression/ Speech”

FACIAL CHALLENGE "A facial challenge is allowed to be made to a

vague statute and to one which is overbroad because of possible
'chilling e ect' upon protected speech.

- '[w]hen statutes regulate or proscribe speech and no readily

apparent construc on suggests itself as a vehicle for rehabilita ng
the statutes in a single prosecu on, the transcendent value to all
society of cons tu onally protected expression is deemed to
jus fy allowing a acks on overly broad statutes with no
requirement that the person making the a ack demonstrate that
his own conduct could not be regulated by a statute drawn with
narrow speci city. [ in other words, a case or even a test case
need not have been led or exists]

- The possible harm to society in permi ng some unprotected

speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived
grievances le to fester because of possible inhibitory e ects of
overly broad statutes.

This ra onale does not apply to penal statutes.

Madrilejos v. Gatdula, G.R. No. 184389 , [September 24, 2019]

This ra onale does not apply to penal statutes. Criminal statutes have general in
terrorem e ect resul ng from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enac ng laws
against socially harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.|||

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 Note:
- EX POST FACTO LAW, law that retroac vely makes criminal conduct that
was not criminal when performed, increases the punishment for crimes
already commi ed, or changes the rules of procedure in force at the me
an alleged crime was commi ed in a way substan ally disadvantageous to
the accused.

- BILL OF ATTAINDER (also known as an act of a ainder or writ of a ainder

or bill of penal es) is an act of a legislature declaring a person, or a group of
persons, guilty of some crime, and punishing them, o en without a trial.

A facial challenge contends that a government law, rule, regula on, or

policy is uncons tu onal as wri en — that is, on its face. This challenge
di ers from an as-applied challenge in that it invalidates a law for
everyone — not just as that law is applied to the par cular li gant
challenging it.

In U.S. cons tu onal law, a facial challenge is a challenge where the

plain alleges that the legisla on is always uncons tu onal, and
therefore void. It is contrasted with an:

• AS-APPLIED CHALLENGE, which alleges that a par cular

applica on of a statute is uncons tu onal.

• If a facial challenge is successful, a court will declare the statute in

ques on facially invalid, which has the e ect of striking it down
en rely. This contrasts with a successful as-applied challenge,
which will result in a court narrowing the circumstances in which
the statute may cons tu onally be applied without striking it
down. In some cases—e.g., Gonzales v. Carhart or Crawford v.
Marion County Elec on Board, a facial challenge has been rejected
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 with either the court or concurring Jus ces in ma ng that the
upheld statute might be vulnerable to an as-applied challenge.

An as-applied challenge alleges that a statute or regula on is uncons tu onal in a speci c context. A
plain in an as-applied challenge is not arguing that the en re statute is uncons tu onal, but instead
that it is being applied in an uncons tu onal manner.

Facial challenge is a challenge to a statute in which the plain alleges that the
legisla on is always uncons tu onal, and therefore void. It is contrasted with
an as-applied challenge, which alleges that a par cular applica on of a statute is
uncons tu onal.
facial challenge may be brought soon a er a statute's passage in a legislature;
however, an as-applied challenge, as the name suggests, can only be brought once
it has been enforced.
If a facial challenge is successful, a court will declare the statute in
ques on facially invalid, which has the e ect of striking it down en rely. This
contrasts with a successful as-applied challenge, which will result in a court
narrowing the circumstances in which the statute may cons tu onally be applied
without striking it down.
Facial challenges have the poten al to invalidate a statute in its en rety, they are
said to be disfavored.[
facial challenge is prospec ve, or forward looking, because it seeks to prevent a
law from being enforced and thus viola ng someone's cons tu onal rights, and
an as-applied challenge is retrospec ve, or backward looking, because it seeks to
redress a cons tu onal viola on that has already occurred.
Due to the specula ve, possibly premature, and an -democra c nature of judicial
review of a facial challenge, the Supreme Court has placed a higher burden on
those wishing to establish a facial challenge. In U.S. v. Stevens, it stated, "To
succeed in a typical facial a ack, [the respondent] would have to establish “that
no set of circumstances exists under which [the statute] would be valid”,

facial challenges are not framed by only a few aberrant cons tu onal tests. As
claimed by the ar cle, facial challenges are cons tuted by important
cons tu onal tests such as the "ra onal basis test", which may some mes

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 indicate that a statute is invalid on its face because it does not posit any ra onal
rela on to a legi mate state interest.[2]

OVERBREATH [OVERLY BROAD] Doctrine: States have some la tude to regulate

unprotected speech. A statute doing so is overly broad (hence, overbreadth) if, in
proscribing unprotected speech, it also proscribes protected speech. Because an
overly broad law may deter cons tu onally protected speech, the overbreadth
doctrine allows a party to whom the law may cons tu onally be applied to
challenge the statute on the ground that it violates the First Amendment rights of
others. See, e.g., Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483
(1989), and R. A. V. v. City of St. Paul, 505 U.S. 377 (1992).

- Overbreadth is closely related to vagueness; if a prohibi on is expressed in

a way that is too unclear for a person to reasonably know whether or not
their conduct falls within the law, then to avoid the risk of legal
consequences they o en stay far away from anything that could possibly t
the uncertain wording of the law.
o The law's e ects are thereby far broader than intended or than
the U.S. Cons tu on permits, and hence the law is overbroad.

The overbreadth doctrine is to "strike a balance between compe ng social

costs". U.S. v. Williams, 553 U.S. 285, 292.

- The doctrine seeks to balance the "harmful e ects" of "invalida ng a law

that in some of its applica ons is perfectly cons tu onal" as a possibility
that "the threat of enforcement of an overbroad law deters people from
engaging in cons tu onally protected speech".

- In determining whether a statute's overbreadth is substan al, the courts

consider a statute's applica on to real-world conduct, not fanciful
hypothe cals.

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 Philippine Jurisprudence:

Madrilejos v. Gatdula, G.R. No. 184389 , [September 24, 2019]

[FHM Publica ons]
...overbreadth doctrine nds special and limited applica on only to free speech
cases. The present pe on does not involve a free speech case; it stemmed,
rather, from an obscenity prosecu on. As both this Court and the US Supreme
Court have consistently held, obscenity is not protected speech. No court has
recognized a fundamental right to create, sell, or distribute obscene material.
Thus, a facial overbreadth challenge is improper as against an an -obscenity
statute.

Falcis III v. Civil Registrar General, G.R. No. 217910, [September 3,

2019] [LGBTIA Right to Marriage]

A FACIAL CHALLENGE is "an examina on of the en re law,

pinpoin ng its aws and defects, not only on the basis of its actual opera on
to the par es, but also on the assump on or predic on that its very existence
may cause others not before the court to refrain from cons tu onally
protected speech or ac vi es." It is dis nguished from "AS-APPLIED"
CHALLENGES, which consider actual facts a ec ng real li gants.

Facial challenges are only allowed as a narrow excep on to the

requirement that li gants must only present their own cases, their extant
factual circumstances, to the courts. In David v. Arroyo:
[F]acial invalida on of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;" The reason for this is obvious. Embedded
in the tradi onal rules governing cons tu onal adjudica on is the
principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be
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 applied uncons tu onally to others, i.e., in other situa ons not
before the Court. A writer and scholar in Cons tu onal Law
explains further:
The most dis nc ve feature of the overbreadth
technique is that it marks an excep on to some of
the usual rules of cons tu onal li ga on. Ordinarily,
a par cular li gant claims that a statute is
uncons tu onal as applied to him or her; if the
li gant prevails, the courts carve away the
uncons tu onal aspects of the law by invalida ng its
improper applica ons on a case to case basis.
Moreover, challengers to a law are not permi ed to
raise the rights of third par es and can only assert
their own interests.
In overbreadth analysis, those rules give way;
challenges are permi ed to raise the rights of third
par es; and the court invalidates the en re statute
"on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable un l a
properly authorized court construes it more
narrowly. The factor that mo vates courts to depart
from the normal adjudicatory rules is the concern
with the "chilling;" deterrent e ect of the overbroad
statute on third par es not courageous enough to
bring suit. The Court assumes that an overbroad law's
"very existence may cause others not before the
court to refrain from cons tu onally protected
speech or expression." An overbreadth ruling is
designed to remove that deterrent e ect on the
speech of those third par es.

However, in Disini, Jr. v. Secretary of Jus ce, 156 this Court dis nguished
those facial challenges that could be properly considered as presen ng an
actual case or controversy:

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 When a penal statute encroaches upon the
freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As
Jus ce Antonio T. Carpio explained in his dissent in Romualdez v.
Commission on Elec ons, "we must view these statements of
the Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as appropriate
only insofar as these doctrines are used to mount 'facial'
challenges to penal statutes not involving free speech."
In an "as APPLIED" CHALLENGE, the pe oner who
claims a viola on of his cons tu onal right can raise any
cons tu onal ground — absence of due process, lack of fair
no ce, lack of ascertainable standards, overbreadth, or
vagueness.
▪ Here, one can challenge the cons tu onality of a
statute only if he asserts a viola on of his own
rights.
▪ It prohibits one from assailing the cons tu onality of
the statute based solely on the viola on of the rights of
third persons not before the court.
▪ This rule is also known as the prohibi on against third-
party standing.
o EXCEPTIONS: But this rule admits of excep ons:
▪ A pe oner may for instance mount a "facial"
challenge to the cons tu onality of a statute even if he
claims no viola on of his own rights under the assailed
statute where it involves free speech on grounds of
overbreadth or vagueness of the statute. The ra onale
for this excep on is to counter the "chilling e ect" on
protected speech that comes from statutes viola ng
free speech.

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 ▪ A person who does not know whether his speech

cons tutes a crime under an overbroad or vague law
may simply restrain himself from speaking in order to
avoid being charged of a crime. The overbroad or
vague law thus chills him into silence. (Cita ons
omi ed)

To be entertained by this Court, a facial challenge requires a showing of

curtailment of the right to freedom of expression, because its basis is that an
overly broad statute may chill otherwise cons tu onal speech.

Celdran y Pamintuan v. People, G.R. No. 220127 (No ce), [November

21, 2018]

In his Concurring Opinion in Estrada, Jus ce Mendoza succinctly

discussed the nature of a facial and as applied challenges and its applicability
to penal statutes:
The overbreadth and vagueness doctrines then have special
applica on only to free speech cases. They are inapt for tes ng
the validity of penal statutes. As the U.S. Supreme Court put it, in
an opinion by Chief Jus ce Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases
involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial challenge
to a legisla ve Act is the most di cult challenge to mount
successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." As for
the vagueness doctrine, it is said that a li gant may challenge a

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 statute on its face only if it is vague in all its possible applica ons.
"A plain who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the
conduct of others." EcTCAD
In sum, the doctrines of strict scru ny, overbreadth, and
vagueness are analy cal tools developed for tes ng "on their
faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to
such statute, the established rule is that "one to whom applica on
of a statute is cons tu onal will not be heard to a ack the statute
on the ground that impliedly it might also be taken as applying to
other persons or other situa ons in which its applica on might be
uncons tu onal." As has been pointed out, "vagueness
challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalida on, while statutes
found vague as a ma er of due process typically are invalidated
[only] 'as applied' to a par cular defendant." Consequently, there
is no basis for pe oner's claim that this Court review the An -
Plunder Law on its face and in its en rety. 12 (Cita ons omi ed
and emphasis ours)
As an excep on, a facial challenge grounded on the void-for-vagueness
doctrine may be allowed when the subject penal statute encroaches upon the
freedom of speech. Thus, in Disini, Jr., et al. v. The Secretary of Jus ce, et al., 13
this Court allowed facial invalida on of the criminaliza on of aiding and
abe ng cyberlibel because of its chilling e ect on the cons tu onally-
protected freedom of expression of the great masses that use the cyberspace,
and boost a social media post by liking, commen ng or sharing the same.
Evidently, such is not the case here. Ar cle 133 of the RPC does not
encroach on the freedom of expression as it does not regulate free speech. The
gravamen of the penal statute is the disrup on of a religious ceremony and/or
worship by commi ng acts that are notoriously o ensive to the feelings of the
faithful inside a place devoted to religious worship or during the celebra on of
a religious ceremony. There is nothing in the provision that imposes criminal
liability on anyone who wishes to express dissent on another religious group. It
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 does not seek to prevent or restrict any person from expressing his poli cal
opinions or cri cisms against the Catholic church, or any religion.
A facial challenge on the ground of the overbreadth doctrine is also
impermissible in this case. In Prof. David v. Pres. Macapagal-Arroyo, 14 this
Court refused to facially invalidate Presiden al Proclama on No. 1017 on such
ground that it does not regulate free speech but covers a spectrum of conduct
which is manifestly within the State's authority to regulate. The Court held that
"claims of facial overbreadth are entertained in cases involving statutes which,
by their terms, seek to regulate only spoken words." 15 Again, Ar cle 133 of
the RPC does not regulate only spoken words. It encompasses all acts that are
notoriously o ensive to the religious feelings. Such acts are within the State's
authority to regulate.

Zabal v. Duterte, G.R. No. 238467, [February 12, 2019]

Leonen, dissen ng:

In Southern Hemisphere Engagement Network, Inc. v. An -
Terrorism Council, the Court clari ed that the void for vagueness
doctrine may only be invoked in as-applied cases. The Court
explained:
While Estrada did not apply the overbreadth
doctrine, it did not preclude the opera on of the
vagueness test on the An -Plunder Law as applied to
the therein pe oner, nding, however, that there
was no basis to review the law "on its face and in its
en rety." It stressed that "statutes found vague as a
ma er of due process typically are invalidated only
'as applied' to a par cular defendant."
However, in Disini v. Secretary of Jus ce, the Court extended
the applica on of the doctrine even to facial challenges, ruling
that "when a penal statute encroaches upon the freedom of
speech, a facial challenge grounded on the void-for-vagueness
doctrine is acceptable." Thus, by this pronouncement the void for

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 vagueness doctrine may also now be invoked in facial challenges
as long as what it involved is freedom of speech.
On the other hand, the void for overbreadth doctrine
applies when the statute or the act "o ends the cons tu onal
principle that a governmental purpose to control or prevent
ac vi es cons tu onally subject to state regula ons may not be
achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms."
In Southern Hemisphere Engagement Network, Inc. v. An -
Terrorism Council, the Court held that the applica on of the
overbreadth doctrine is limited only to free speech cases due to
the ra onale of a facial challenge. The Court explained:
By its nature, the overbreadth doctrine has to
necessarily apply a facial type of invalida on in order
to plot areas of protected speech, inevitably almost
always under situa ons not before the court, that are
impermissibly swept by the substan ally overbroad
regula on. Otherwise stated, a statute cannot be
properly analyzed for being substan ally overbroad if
the court con nes itself only to facts as applied to the
li gants.
The Court ruled that as regards the applica on of the
overbreadth doctrine, it is limited only to "a facial kind of
challenge and, owing to the given ra onale of a facial challenge,
applicable only to free speech cases."

The Court's pronouncements in Disini v. Secretary of Jus ce

is also premised on the same tenor. Thus, it held:
Also, the charge of invalidity of this sec on
based on the overbreadth doctrine will not hold
water since the speci c conducts proscribed do not
intrude into guaranteed freedoms like speech. Clearly,
what this sec on regulates are speci c ac ons: the

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 acquisi on, use, misuse or dele on of personal
iden fying data of another. There is no fundamental
right to acquire another's personal data.

xxx xxx xxx

But this rule admits of excep ons. A pe oner

may for instance mount a "facial" challenge to the
cons tu onality of a statute even if he claims no
viola on of his own rights under the assailed statute
where it involves free speech on grounds of
overbreadth or vagueness of the statute. The
ra onale for this excep on is to counter the "chilling
e ect" on protected speech that comes from statutes
viola ng free speech. A person who does not know
whether his speech cons tutes a crime under an
overbroad or vague law may simply restrain himself
from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him
into silence.
It is true that in his Dissen ng Opinion in Estrada v.
Sandiganbayan, Jus ce V.V. Mendoza expressed the view that "the
overbreadth and vagueness doctrines then have special
applica on only to free speech cases. They are inapt for tes ng the
validity of penal statutes."

However, the Court already clari ed in Southern

Hemisphere Engagement Network, Inc. v. An -Terrorism Council,
that the primary criterion in the applica on of the doctrine is not
whether the case is a freedom of speech case, but rather,
whether the case involves an as-applied or a facial challenge.
The Court clari ed:

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 The confusion apparently stems from the
interlocking rela on of the overbreadth and
vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a
claim of viola on of due process of law) or a speech
regula on (under a claim of abridgement of the
freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the

doctrine of overbreadth do not operate on the same
plane.

xxx xxx xxx

The allowance of a facial challenge in free

speech cases is jus ed by the aim to avert the
chilling e ect on protected speech, the exercise of
which should not at all mes be abridged. As
re ected earlier, this ra onale is inapplicable to plain
penal statutes that generally bear an in terrorem
e ect in deterring socially harmful conduct. In fact,
the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it
refrains from diminishing or dissuading the exercise
of cons tu onally protected rights.

The Court then concluded that due to the ra onale of a

facial challenge, the overbreadth doctrine is applicable only to
free speech cases. Thus:

By its nature, the overbreadth doctrine has to

necessarily apply a facial type of invalida on in order
to plot areas of protected speech, inevitably almost

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 always under situa ons not before the court, that are
impermissibly swept by the substan ally overbroad
regula on. Otherwise stated, a statute cannot be
properly analyzed for being substan ally overbroad if
the court con nes itself only to facts as applied to the
li gants.

xxx xxx xxx

In restric ng the overbreadth doctrine to free

speech claims, the Court, in at least two cases,
observed that the US Supreme Court has not
recognized an overbreadth doctrine outside the
limited context of the First Amendment, and that
claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to
regulate only spoken words. In Virginia v. Hicks, it was
held that rarely, if ever, will an overbreadth challenge
succeed against a law or regula on that is not
speci cally addressed to speech or speech-related
conduct. A acks on overly broad statutes are jus ed
by the "transcendent value to all society of
cons tu onally protected expression."

As regards the applica on of the void for vagueness

doctrine, the Court held that vagueness challenges must be
examined in light of the speci c facts of the case and not with
regard to the statute's facial validity. Notably, the case need not be
a freedom of speech case as the Court cited previous cases where
the doctrine was applied:

In this jurisdic on, the void-for-vagueness

doctrine asserted under the due process clause has
been u lized in examining the cons tu onality of

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 criminal statutes. In at least three cases, the Court
brought the doctrine into play in analyzing an
ordinance penalizing the non-payment of municipal
tax on shponds, the crime of illegal recruitment
punishable under Ar cle 132 (b) of the Labor Code,
and the vagrancy provision under Ar cle 202 (2) of
the Revised Penal Code. Notably, the pe oners in
these three cases, similar to those in the two
Romualdez and Estrada cases, were actually charged
with the therein assailed penal statute, unlike in the
present case.

From these pronouncements, it is clear that what is relevant

in the applica on of the void-for-vagueness doctrine is not
whether it is a freedom of speech case, but rather whether it
violates the Due Process Clause of the Cons tu on for failure to
accord persons a fair no ce of which conduct to avoid; and
whether it leaves law enforcers unbridled discre on in carrying
out their func ons. (Emphasis in the original, cita ons omi ed)

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