Pablito Sanidad vs Commission on Elections

73 SCRA 333 Political Law Constitutional Law Amendment to the

Constitution
On 2 Sept 1976, Marcos issued PD No. 991 calling for a national referendum on
16 Oct 1976 for the Citizens Assemblies (barangays) to resolve, among other
things, the issues of martial law, the interim assembly, its replacement, the
powers of such replacement, the period of its existence, the length of the period
for the exercise by the President of his present powers. Twenty days after, the
President issued another related decree, PD No. 1031, amending the previous
PD No. 991, by declaring the provisions of PD No. 229 providing for the manner
of voting and canvass of votes in barangays applicable to the national
referendum-plebiscite of Oct 16, 1976. Quite relevantly, PD No. 1031 repealed
inter alia, Sec 4, of PD No. 991. On the same date of 22 Sept 1976, Marcos
issued PD No. 1033, stating the questions to he submitted to the people in the
referendum-plebiscite on October 16, 1976. The Decree recites in its whereas
clauses that the peoples continued opposition to the convening of the interim
National Assembly evinces their desire to have such body abolished and
replaced thru a constitutional amendment, providing for a new interim legislative
body, which will be submitted directly to the people in the referendum-plebiscite
of October 16.
On September 27, 1976, Sanidad filed a Prohibition with Preliminary Injunction
seeking to enjoin the Commission on Elections from holding and conducting the
Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to
the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the
Commission on Elections to supervise, control, hold, and conduct the
Referendum-Plebiscite scheduled on October 16, 1976.Petitioners contend that
under the 1935 and 1973 Constitutions there is no grant to the incumbent
President to exercise the constituent power to propose amendments to the new
Constitution. As a consequence, the Referendum-Plebiscite on October 16 has
no constitutional or legal basis. The Soc-Gen contended that the question is
political in nature hence the court cannot take cognizance of it.
ISSUE: Whether or not Marcos can validly propose amendments to the
Constitution.
HELD: Yes. The amending process both as to proposal and ratification raises a
judicial question. This is especially true in cases where the power of the
Presidency to initiate the amending process by proposals of amendments, a
function normally exercised by the legislature, is seriously doubted. Under the
terms of the 1973 Constitution, the power to propose amendments to the
Constitution resides in the interim National Assembly during the period of
transition (Sec. 15, Transitory Provisions). After that period, and the regular

National Assembly in its active session, the power to propose amendments

becomes ipso facto the prerogative of the regular National Assembly (Sec. 1,
pars. 1 and 2 of Art. XVI, 1973 Constitution). The normal course has not been
followed. Rather than calling the interim National Assembly to constitute itself into
a constituent assembly, the incumbent President undertook the proposal of
amendments and submitted the proposed amendments thru Presidential Decree
1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the
regularity of the procedure for amendments, written in lambent words in the very
Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly
purport to have the force and effect of legislation are assailed as invalid, thus the
issue of the validity of said Decrees is plainly a justiciable one, within the
competence of this Court to pass upon. Section 2 (2) Article X of the new
Constitution provides: All cases involving the constitutionality of a treaty,
executive agreement, or law shall be heard and decided by the Supreme Court
en banc and no treaty, executive agreement, or law may be declared
unconstitutional without the concurrence of at least ten Members. . . .. The
Supreme Court has the last word in the construction not only of treaties and
statutes, but also of the Constitution itself. The amending, like all other powers
organized in the Constitution, is in form a delegated and hence a limited power,
so that the Supreme Court is vested with that authority to determine whether that
power has been discharged within its limits.
This petition is however dismissed. The President can propose amendments to
the Constitution and he was able to present those proposals to the people in
sufficient time. The President at that time also sits as the legislature.
GITLOW VS NEW YORK

Term:
1901-1939
1922
Location: Gitlow's Office (Left Wing of the Socialist Party)
Facts of the Case
Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto"
that called for the establishment of socialism through strikes and class action of
any form. Gitlow was convicted under a state criminal anarchy law, which
punished advocating the overthrow of the government by force. At his trial, Gitlow
argued that since there was no resulting action flowing from the manifesto's
publication, the statute penalized utterences without propensity to incitement of
concrete action. The New York courts had decided that anyone who advocated
the doctrine of violent revolution violated the law.
Question

Is the New York law punishing advocacy to overthrow the government by force
an unconstitutional violation of the free speech clause of the First Amendment?
Conclusion
Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of
the liberty protected by due process that no state shall deny (14th Amendment).
On the merits, a state may forbid both speech and publication if they have a
tendency to result in action dangerous to public security, even though such
utterances create no clear and present danger. The rationale of the majority has
sometimes been called the "dangerous tendency" test. The legislature may
decide that an entire class of speech is so dangerous that it should be prohibited.
Those legislative decisions will be upheld if not unreasonable, and the defendant
will be punished even if her speech created no danger at all.
SCHENCK VS US

Term:
1901-1939
1918
Location: Socialist Headquarters
Facts of the Case
During World War I, Schenck mailed circulars to draftees. The circulars
suggested that the draft was a monstrous wrong motivated by the capitalist
system. The circulars urged "Do not submit to intimidation" but advised only
peaceful action such as petitioning to repeal the Conscription Act. Schenck was
charged with conspiracy to violate the Espionage Act by attempting to cause
insubordination in the military and to obstruct recruitment.
Question
Are Schenck's actions (words, expression) protected by the free speech clause
of the First Amendment?
Conclusion
Decision: 9 votes for United States, 0 vote(s) against
Legal provision: 1917 Espionage Act; US Const Amend 1
Holmes, speaking for a unanimous Court, concluded that Schenck is not
protected in this situation. The character of every act depends on the
circumstances. "The question in every case 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." During wartime, utterances tolerable in peacetime can be punished.
National Press Club v. COMELEC

207 SCRA 1-March 5, 1992Ponente: Feliciano

Case:
3 consolidated petitions, with the common question: the constitutionality of11(b),
of RA6646Petitoners: representatives of mass media which are prevented
from sellingor donating space and time for political advertisements; 2 candidates
for office (1national, 1 provincial) in the coming May 1992 elections; taxpayers
and voters whoclaim that their right to be informed of election issues and of
credentials of thecandidates is being curtailed. (I will refer to these folks as
Petitoners (P))
Facts:
Petitioners argument:

That 11(b), of RA6646 invades and violated theconstitutional

comprising freedom of expression;

guarantees

That the prohibition imposed by 11(b) amounts tocensorship, because it selects

and singles out for suppression andrepression with criminal sanctions, only
publications of a particularcontent, namely, media-based election or political
propaganda duringthe election pd. of 1992;

That the prohibition is in derogation of medias role,function and duty to provide

adequate channels of public informationand public opinion relevant to election
issues;

That 11(b) abridges the freedom of speech ofcandidates,

and
that
the
suppression of media-based campaign orpolitical propaganda except
those appearing in the Comelec space ofthe newspapers and on Comelec time
of radio and tv broadcasts,would bring about a substantial reduction in
the quantity
or
volume
ofinfo concerning candidates and issues in the election, therebycurtailing
and
limiting the right of voters to info and opinion.
Issue:
WON 11(b) of RA 6646 has gone beyond the permissible supervision
orregulation of media operations so as to constitute unconstitutional repression
offreedom of speech & freedom of the press
SC says:

Nope. It has not gone outside the permissible bounds of supervision orregulation
of media operations during election periods.
Ratio:
The assailed statute

The statutory text the P want to strike down asunconstitutional is 11(b) of RA

6646, aka the Electoral Reforms Lawof 1987Section 11.
Prohibited Forms of Election Propaganda
-in addition to theforms of election propaganda prohibited under Section 85
of Batas Pambansa Blg.881, it shall be unlawful;(b) for any
newspapers, radio broadcasting or television station,other mass media,
or any person making use of the mass media to
sell or to give free of charge print space or air time for campaign or other political
purposes except
to the
Commission as provided under Sections 90 and
92 of Batas Pambansa Blg. 881.
Any mass media columnist, commentator, announcer, orpersonality who is
candidate for any elective public office shall take a leave ofabsence from his
work as such during the campaign period.

11(b) of RA 6646 should be taken together withSections 90 & 92 of BP 881 aka

Omnibus Election Code of thePhilippines. (for the full text, see p. 7)
90
refers to the Comelec space- space in the newspaper to beallocated equally
and impartially to all the candidates within the area of coverage,free of charge
92
refers to the Comelec time air time in radio and tv to be allocatedequally and
impartially to all the candidates within the area of coverage, free ofcharge.
Objective of the statute

Objective of 11(b)-to equalize, as far as practicable,the situations of rich and

poor
candidates
by
preventing
the
richfrom
enjoying
undue advantage offered by huge campaign warchests.

It prohibits the sale or donation of print space and airtime for campaign or other
political purposes except to Comelec.

90&92 of the OEC on the other hand, require theComelec to procure Comelec
space and Comelec time to be allocatedto all candidates for free.

No one seriously disputes the legitimacy or theimportance of the objective sought

to be secured by 11(b) of RA6646 in relation to 90&92 of the OEC

Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996
DECISION

PUNO, J.:

I.

THE FACTS

Several pre-taped episodes of the TV program Ang Iglesia ni Cristo of the

religious group Iglesia ni Cristo (INC) were rated X i.e., not for public viewing
by the respondent Board of Review for Moving Pictures and Television (now
MTRCB). These TV programs allegedly offend[ed] and constitute[d] an attack
against other religions which is expressly prohibited by law because of petitioner
INCs controversial biblical interpretations and its attacks against contrary
religious beliefs.

Petitioner INC went to court to question the actions of respondent Board.

The RTC ordered the respondent Board to grant petitioner INC the necessary
permit for its TV programs. But on appeal by the respondent Board, the CA
reversed the RTC. The CA ruled that: (1) the respondent Board has jurisdiction
and power to review the TV program Ang Iglesia ni Cristo, and (2) the

respondent Board did not act with grave abuse of discretion when it denied
permit for the exhibition on TV of the three series of Ang Iglesia ni Cristo on the
ground that the materials constitute an attack against another religion. The CA
also found the subject TV series indecent, contrary to law and contrary to good
customs. Dissatisfied with the CA decision, petitioner INC appealed to the
Supreme Court.

II.

THE ISSUES

(1) Does respondent Board have the power to review petitioners TV

program?

(2) Assuming it has the power, did respondent Board gravely abuse its
discretion when it prohibited the airing of petitioners religious program?

III. THE RULING

[The Court voted 13-1 to REVERSE the CA insofar as the CA sustained

the action of the respondent Boards X-rating petitioners TV Program Series
Nos. 115, 119, and 121. It also voted 10-4 to AFFIRM the CA insofar as the CA it
sustained the jurisdiction of the respondent MTRCB to review petitioners TV
program entitled Ang Iglesia ni Cristo.]

1. YES, respondent Board has the power to review petitioners TV

program.

Petitioner contends that the term television program [in Sec. 3 of PD No.
1986 that the respondent Board has the power to review and classify] should not
include religious programs like its program Ang Iglesia ni Cristo. A contrary

interpretation, it is urged, will contravene section 5, Article III of the Constitution

which guarantees that no law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise and enjoyment
of religious profession and worship, without discrimination or preference, shall
forever be allowed.

[The Court however] reject petitioners postulate. Petitioners public

broadcast on TV of its religious program brings it out of the bosom of internal
belief. Television is a medium that reaches even the eyes and ears of children.
The Court iterates the rule thatthe exercise of religious freedom can be regulated
by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious detriment
to the more overriding interest of public health, public morals, or public welfare.
A laissez faire policy on the exercise of religion can be seductive to the liberal
mind but history counsels the Court against its blind adoption as religion is and
continues to be a volatile area of concern in our country today. . . [T]he Court]
shall continue to subject any act pinching the space for the free exercise of
religion to a heightened scrutiny but we shall not leave its rational exercise to the
irrationality of man. For when religion divides and its exercise destroys, the State
should not stand still.

2. YES, respondent Board gravely abuse its discretion when it

prohibited the airing of petitioners religious program.

[A]ny act that restrains speech is hobbled by the presumption of invalidity

and should be greeted with furrowed brows. It is the burden of the respondent
Board to overthrow this presumption. If it fails to discharge this burden, its act of
censorship will be struck down. It failed in the case at bar.

The evidence shows that the respondent Board x-rated petitioners TV

series for attacking either religions, especially the Catholic Church. An
examination of the evidence . . . will show that the so-called attacks are
mere criticisms of some of the deeply held dogmas and tenets of other religions.

The videotapes were not viewed by the respondent court as they were not
presented as evidence. Yet they were considered by the respondent court as
indecent, contrary to law and good customs, hence, can be prohibited from public
viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's
freedom of speech and interferes with its right to free exercise of religion. xxx.

The respondent Board may disagree with the criticisms of other religions
by petitioner but that gives it no excuse to interdict such criticisms, however,
unclean they may be. Under our constitutional scheme, it is not the task of the
State to favor any religion by protecting it against an attack by another religion. . .
In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo
simply because it attacks other religions, even if said religion happens to be the
most numerous church in our country. In a State where there ought to be no
difference between the appearance and the reality of freedom of religion, the
remedy against bad theology is better theology. The bedrock of freedom of
religion is freedom of thought and it is best served by encouraging the
marketplace of duelling ideas. When the luxury of time permits, the marketplace
of ideas demands that speech should be met by more speech for it is the spark
of opposite speech, the heat of colliding ideas that can fan the embers of truth.

In x-rating the TV program of the petitioner, the respondents failed to apply

the clear and present danger rule. In American Bible Society v. City of Manila,
this Court held: The constitutional guaranty of free exercise and enjoyment of
religious profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can be justified like other restraints on
freedom of expression on the ground that there is a clear and present danger of
any substantive evil which the State has the right to prevent. In Victoriano
vs. Elizalde Rope Workers Union, we further ruled that . . . it is only where it is
unavoidably necessary to prevent an immediate and grave danger to the security
and welfare of the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary to avoid the danger.

The records show that the decision of the respondent Board, affirmed by
the respondent appellate court, is completely bereft of findings of facts to justify

the conclusion that the subject video tapes constitute impermissible attacks
against another religion. There is no showing whatsoever of the type of harm the
tapes will bring about especially the gravity and imminence of the threatened
harm. Prior restraint on speech, including religious speech, cannot be justified by
hypothetical fears but only by the showing of a substantive and imminent evil
which has taken the life of a reality already on ground.

Miriam College Foundation, Inc. v CA 348 SCRA 265 (December 15, 2000)
Facts: The members of the editorial board of the Miriam College Foundations
school paper were subjected to disciplinary sanction by the College Discipline
Committee after letters of complaint were filed before the Board following the
publication of the school paper that contains obscene, vulgar, and sexually
explicit contents. Prior to the disciplinary sanction to the defendants they were
required tosubmit a written statement to answer the complaints against them to
the Discipline Committee but the defendants, instead of doing so wrote to the
Committee to transfer the case to the DECS which they alleged to have the
jurisdiction over the issue. Pushing through with the investigation ex parte the
Committee found the defendants guilty and imposed upon them disciplinary
sanctions. Defendantsfiled before the court for prohibition with preliminary
injunction on said decision of the Committee questioning the jurisdiction of said
Discipline Board over the defendants.

Issue: WON the Discipline Board of Miriam College has jurisdiction over
the defendants.

Held: The court resolved the issue before it by looking through the power of
DECS and the Disciplinary Committee in imposing sanctions upon
thedefendants. Section 5 (2), Article XIV of the Constitution guarantees all
institutions of higher learning academic freedom. This institutional academic
freedom includes the right of the school or college to decide for itself, its aims
and objectives, and how best to attain them free from outside coercion or
interference save possibly when the overriding public welfare calls for some
restraint. Such duty gives the institution the right to discipline its students and
inculcate upon them good values, ideals and attitude. The right of students to

free speech in school is not always absolute. The court upheld the right of
students for the freedom of expression but it does not rule out disciplinary actions
of the school on the conduct of their students. Further, Sec. 7 of the of the
Campus Journalism Act provides that the school cannot suspend or expel a
student solely on the basis of the articles they write EXCEPT when such article
materially disrupts class work of involve substantial disorder or invasion of the
rights of others. Therefore the court ruled that the power of the school to
investigate is an adjunct of its power to suspend or expel. It is a necessary
corollary to the enforcement of rules and regulations and the maintenance of a
safe and orderly educational environment conducive to learning. That power, like
the power to suspend or expel, is an inherent part of the academic freedom of
institutions of higher learning guaranteed by the Constitution. The court held
that Miriam College has the authority to hear and decide the cases filed against
respondent students.1wph

Ayer Productions Pty. Ltd. Vs Capulong, 160 SCRA 861, G.R. NO. L-82380; 29
APR 1988
Posted by Pius Morados on November 13, 2011
(Constitutional Law Right to Free Speech, Public Figure)
FACTS: Respondent Sen. Enrile files a case against private petitioners for the
production and filming of the projected motion picture The Four Day Revolution,
which relates to the non-bloody change of government that took place at EDSA,
for its unlawful intrusion upon the formers right to privacy.
Petitioners contends that the freedom to produce and film includes in the
freedom of speech and expression; and the subject matter of the motion picture
is one of public interest and concern and not on the individual private life of
respondent senator.
ISSUE: WON the projected motion picture is guaranteed under the right to free
speech.
HELD: Yes. The EDSA revolution where private respondent is a major character
is one of public interest. Private respondent is a public figure due to his
participation in the culmination of the change of government. The right of privacy
of the a public figure is necessarily narrower than that of an ordinary citizen.

Gonzales v Katigbak G.R. No. L-69500 July 22, 1985

CJ Fernando

Facts:

Antonio Gonzales, president of Malaya Films, claimed that his film Kapit sa
Patalim, was rated for adults only by a subcommittee of the movie review board
together with the required cuts and scene deletions. He justified that
these requirements were without basis and were restrains on artistic expression.
He adduced that the film is an integral whole and all its portions, including those
to which the Board now offers belated objection, are essential for the integrity of
the film. Viewed as a whole, there is no basis even for the vague speculations
advanced by the Board as basis for its classification.
He appealed to the movie review board but the same affirmed the decion of the
sub committee.
When Gonzales appealed to the supreme court, the board claimed that the
deletions were removed and the requirement to submit the master negative was
taken out but the film was still rated for adults only. The petition was amended to
contest the rating only.

Issue: Was the rating made with grave avuse of discretion (Note I put in those
regarding obscenity for future purposes)

Held: No. Petition dismissed. There was no grave abuse of discretion DUE TO
LACK OF VOTES

Ratio:
Motion pictures are important both as a medium for the communication of Ideas
and the expression of the artistic impulse
Burstyn-importance of motion pictures as an organ of public opinion lessened by
the fact that they are designed to entertain as well as to inform
(No clear dividing line between what affords knowledge and that of pleasure or
else there will be a diminution to a right to self-expression)

Bagatsing- Press freedom may be identified with the liberty to discuss publicly
and truthfully any matter of public concern without censorship or punishment.
This is not to say that such freedom, as is the freedom of speech, absolute. It can
be limited if "there be a 'clear and present danger of a substantive evil that [the
State] has a right to prevent.
Censorship doesnt full cover free speech or there might bean emasculation of
basic rights. However, there must be in exceptional circumstances a sine qua
non for the meaningful exercise of such right without denying the freedom from
liability.
Freedom from censorship is a settled principle in our jurisdiction. Mutuc- board of
review is limited to classification of films to safeguard other constitutional
objections, hence the GP, PG, or R-18 ratings.
That is to abide by the principle that freedom of expression is the rule and
restrictions the exemption. The power to exercise prior restraint is not to be
presumed, rather the presumption is against its validity
The test, to repeat, to determine whether freedom of expression may be limited is
the clear and present danger of an evil of a substantive character that the State
has a right to prevent. Such danger must not only be clear but also present.
There should be no doubt that what is feared may be traced to the expression
complained of. The causal connection must be evident. Also, there must be
reasonable apprehension about its imminence. The time element cannot be
ignored. Nor does it suffice if such danger be only probable.
Where movies are concerned, censorship, especially so if an entire production is
banned, is allowable only under the clearest proof of a clear and present danger
of a substantive evil to public public morals, public health or any other legitimate
public interest.
Roth- "All Ideas having even the slightest redeeming social importance
unorthodox Ideas, controversial Ideas, even Ideas hateful to the prevailing
climate of opinion have the full protection of the guaranties, unless excludable
because they encroach upon the limited area of the First Amendment is the
rejection of obscenity as utterly without redeeming social importance.
Given obscenity as the nemesis of censorship, there is difficulty in determining
what is obsecene.
Roth- The early leading standard of obscenity allowed material to be judged
merely by the effect of an isolated excerpt upon particularly susceptible persons
The test was whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals to

prurient interest. Some material can legitimately deal with sex and its effects on
susceptible persons. Such a censorship can be considered violative of the
constitution. On the other hand, the substituted standard provides safeguards
adequate to withstand the charge of constitutional infirmity.
Roth- Sex and obscenity are not synonymous. Obscene material is material
which deals with sex in a manner appealing to prurient interest. The portrayal of
sex, e.g., in art, literature and scientific works, is not itself sufficient reason to
deny material the constitutional protection of freedom of speech and press. Sex,
a great and mysterious motive force in human life has indisputably been a
subject of absorbing interest to mankind through the ages; it is one of the vital
problems of human interest and public concern.
In the Philippine context, E.O. 876 applied contemporary Filipino cultural values
as a standard.
Moreover, as far as the question of sex and obscenity are concerned, it cannot
be stressed strongly that the arts and letters "shall be under the patronage of the
State.
Given this constitutional mandate, It will be less than true to its function if any
government office or agency would invade the sphere of autonomy that an artist
enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the
artist to determine what for him is a true representation. It is not to be forgotten
that art and belleslettres deal primarily with imagination, not so much with ideas
in a strict sense. What is seen or perceived by an artist is entitled to respect,
unless there is a showing that the product of his talent rightfully may be
considered obscene.
On the question of obscenity, therefore, such standard set forth in Executive
Order No. 878 is to be construed in such a fashion to avoid any taint of
unconstitutionality. To repeat, what was stated in a recent decision in Trinidadan elementary, a fundamental, and a universal role of construction, applied when
considering constitutional questions, that when a law is susceptible of two
constructions' one of which will maintain and the other destroy it, the courts will
always adopt the former.
There can be no valid objection to the controlling standard.
There was really a grave abuse of discretion when the Board and its perception
of what obscenity is is very restrictive.
But, sadly, THERE WERE NOT ENOUGH VOTES TO MAINTAIN THAT THERE
WAS GRAVE ABUSE OF DISCRETION. The supporting evidence was in the
fact that some scenes were not for young people. They might misunderstand the

scenes. The respondents offered to make it GP if the petitioners would remove

the lesbian and sex scenes. But they refused.
The ruling is to be limited to the concept of obscenity applicable to motion
pictures. It is the consensus of this Court that where television is concerned: a
less liberal approach calls forobservance. This is so because unlike motion
pictures where the patrons have to pay their way, television reaches every home
where there is a set.
It is hardly the concern of the law to deal with the sexual fantasies of the adult
population. It cannot be denied though that the State as parens patriae is called
upon to manifest an attitude of caring for the welfare of the young.

CHAVEZ VS GONZALES
MARCH 30, 2013 ~ VBDIAZ
FRANCISCO CHAVEZ
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of
Justice; and NTC
G.R. No. 168338, February 15, 2008
FACTS: Sometime before 6 June 2005, the radio station dzMM aired the Garci
Tapes where the parties to the conversation discussed rigging the results of the
2004 elections to favor President Arroyo. On 6 June 2005, Presidential
spokesperson Bunye held a press conference in Malacaang Palace, where he
played before the presidential press corps two compact disc recordings of
conversations between a woman and a man. Bunye identified the woman in both
recordings as President Arroyo but claimed that the contents of the second
compact disc had been spliced to make it appear that President Arroyo was
talking to Garcillano.
However, on 9 June 2005, Bunye backtracked and stated that the womans voice
in the compact discs was not President Arroyos after all.3 Meanwhile, other
individuals went public, claiming possession of the genuine copy of the Garci

Tapes. Respondent Gonzalez ordered the NBI to investigate media organizations

which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the
Anti-Wiretapping Law.
On 11 June 2005, the NTC issued a press release warning radio and television
stations that airing the Garci Tapes is a cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to them. On 14 June
2005, NTC officers met with officers of the broadcasters group KBP, to dispel
fears of censorship. The NTC and KBP issued a joint press statement expressing
commitment to press freedom
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this
petition to nullify the acts, issuances, and orders of the NTC and respondent
Gonzalez (respondents) on the following grounds: (1) respondents conduct
violated freedom of expression and the right of the people to information on
matters of public concern under Section 7, Article III of the Constitution, and (2)
the NTC acted ultra vires when it warned radio and television stations against
airing the Garci Tapes.
ISSUE: The principal issue for resolution is whether the NTC warning embodied
in the press release of 11 June 2005 constitutes an impermissible prior restraint
on freedom of expression.
1. Standing to File Petition
Petitioner has standing to file this petition. When the issue involves freedom of
expression, as in the present case, any citizen has the right to bring suit to
question the constitutionality of a government action in violation of freedom of
expression, whether or not the government action is directed at such citizen.
Freedom of expression, being fundamental to the preservation of a free, open
and democratic society, is of transcendental importance that must be defended
by every patriotic citizen at the earliest opportunity.
2. Overview of Freedom of Expression, Prior Restraint and Subsequent
Punishment

Freedom of expression is the foundation of a free, open and democratic society.

Freedom of expression is an indispensable condition8 to the exercise of almost
all other civil and political rights. Freedom of expression allows citizens to expose
and check abuses of public officials. Freedom of expression allows citizens to
make informed choices of candidates for public office.
Section 4, Article III of the Constitution prohibits the enactment of any law
curtailing freedom of expression:
No law shall be passed abridging the freedom of speech, of expression, or the
press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
Thus, the rule is that expression is not subject to any prior restraint or censorship
because the Constitution commands that freedom of expression shall not be
abridged. Over time, however, courts have carved out narrow and well defined
exceptions to this rule out of necessity.
The exceptions, when expression may be subject to prior restraint, apply in this
jurisdiction to only four categories of expression, namely:
pornography,
false or misleading advertisement,
advocacy of imminent lawless action, and
danger to national security.
All other expression is not subject to prior restraint.
Expression not subject to prior restraint is protected expression or high-value
expression. Any content-based prior restraint on protected expression is
unconstitutional without exception. A protected expression means what it says
it is absolutely protected from censorship. Thus, there can be no prior restraint on
public debates on the amendment or repeal of existing laws, on the ratification of
treaties, on the imposition of new tax measures, or on proposed amendments to

the Constitution.
If the prior restraint is not aimed at the message or idea of the expression, it is
content-neutral even if it burdens expression. A content-neutral restraint is a
restraint which regulates the time, place or manner of the expression in public
places without any restraint on the content of the expression. Courts will subject
content-neutral restraints to intermediate scrutiny. An example of a contentneutral restraint is a permit specifying the date, time and route of a rally passing
through busy public streets. A content-neutral prior restraint on protected
expression which does not touch on the content of the expression enjoys the
presumption of validity and is thus enforceable subject to appeal to the courts.
Expression that may be subject to prior restraint is unprotected expression or
low-value expression. By definition, prior restraint on unprotected expression is
content-based since the restraint is imposed because of the content itself. In this
jurisdiction, there are currently only four categories of unprotected expression
that may be subject to prior restraint. This Court recognized false or misleading
advertisement as unprotected expression only in October 2007.
Only unprotected expression may be subject to prior restraint. However, any
such prior restraint on unprotected expression must hurdle a high barrier. First,
such prior restraint is presumed unconstitutional. Second, the government bears
a heavy burden of proving the constitutionality of the prior restraint.
Prior restraint is a more severe restriction on freedom of expression than
subsequent punishment. Although subsequent punishment also deters
expression, still the ideas are disseminated to the public. Prior restraint prevents
even the dissemination of ideas to the public.
While there can be no prior restraint on protected expression, such expression
may be subject to subsequent punishment,27 either civilly or criminally. Similarly,
if the unprotected expression does not warrant prior restraint, the same
expression may still be subject to subsequent punishment, civilly or criminally.

Libel falls under this class of unprotected expression.

However, if the expression cannot be subject to the lesser restriction of
subsequent punishment, logically it cannot also be subject to the more severe
restriction of prior restraint. Thus, since profane language or hate speech
against a religious minority is not subject to subsequent punishment in this
jurisdiction, such expression cannot be subject to prior restraint.
If the unprotected expression warrants prior restraint, necessarily the same
expression is subject to subsequent punishment. There must be a law punishing
criminally the unprotected expression before prior restraint on such expression
can be justified.
The prevailing test in this jurisdiction to determine the constitutionality of
government action imposing prior restraint on three categories of unprotected
expression pornography,31 advocacy of imminent lawless action, and danger
to national security is the clear and present dangertest.32 The expression
restrained must present a clear and present danger of bringing about a
substantive evil that the State has a right and duty to prevent, and such danger
must be grave and imminent.
Prior restraint on unprotected expression takes many forms it may be a law,
administrative regulation, or impermissible pressures like threats of revoking
licenses or withholding of benefits.34 The impermissible pressures need not be
embodied in a government agency regulation, but may emanate from policies,
advisories or conduct of officials of government agencies.
3. Government Action in the Present Case
The government action in the present case is a warning by the NTC that the
airing or broadcasting of the Garci Tapes by radio and television stations is a
cause for the suspension, revocation and/or cancellation of the licenses or
authorizations issued to radio and television stations. The NTC warning,
embodied in a press release, relies on two grounds. First, the airing of the Garci
Tapes is a continuing violation of the Anti-Wiretapping Law and the conditions of
the Provisional Authority and/or Certificate of Authority issued to radio and TV

stations. Second, the Garci Tapes have not been authenticated, and subsequent
investigation may establish that the tapes contain false information or willful
misrepresentation.
The NTC does not claim that the public airing of the Garci Tapes constitutes
unprotected expression that may be subject to prior restraint. The NTC does not
specify what substantive evil the State seeks to prevent in imposing prior
restraint on the airing of the Garci Tapes. The NTC does not claim that the public
airing of the Garci Tapes constitutes a clear and present danger of a substantive
evil, of grave and imminent character, that the State has a right and duty to
prevent.
The NTC did not conduct any hearing in reaching its conclusion that the airing of
the Garci Tapes constitutes a continuing violation of the Anti-Wiretapping Law.
There is also the issue of whether a wireless cellular phone conversation is
covered by the Anti-Wiretapping Law.
Clearly, the NTC has no factual or legal basis in claiming that the airing of the
Garci Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and
television stations were not even given an opportunity to be heard by the NTC.
The NTC did not observe basic due process as mandated in Ang Tibay v. Court
of Industrial Relations.
The NTC concedes that the Garci Tapes have not been authenticated as
accurate or truthful. The NTC also concedes that only after a prosecution or
appropriate investigation can it be established that the Garci Tapes constitute
false information and/or willful misrepresentation. Clearly, the NTC admits that it
does not even know if the Garci Tapes contain false information or willful
misrepresentation.
4. Nature of Prior Restraint in the Present Case
The NTC action restraining the airing of the Garci Tapes is a content-based prior

restraint because it is directed at the message of the Garci Tapes. The NTCs
claim that the Garci Tapes might contain false information and/or willful
misrepresentation, and thus should not be publicly aired, is an admission that
the restraint is content-based.
5. Nature of Expression in the Present Case
The public airing of the Garci Tapes is a protected expression because it does
not fall under any of the four existing categories of unprotected expression
recognized in this jurisdiction. The airing of the Garci Tapes is essentially a
political expression because it exposes that a presidential candidate had
allegedly improper conversations with a COMELEC Commissioner right after the
close of voting in the last presidential elections.
Obviously, the content of the Garci Tapes affects gravely the sanctity of the
ballot. Public discussion on the sanctity of the ballot is indisputably a protected
expression that cannot be subject to prior restraint. In any event, public
discussion on all political issues should always remain uninhibited, robust and
wide open.
The rule, which recognizes no exception, is that there can be no content-based
prior restraint on protected expression. On this ground alone, the NTC press
release is unconstitutional. Of course, if the courts determine that the subject
matter of a wiretapping, illegal or not, endangers the security of the State, the
public airing of the tape becomes unprotected expression that may be subject to
prior restraint. However, there is no claim here by respondents that the subject
matter of the Garci Tapes involves national security and publicly airing the tapes
would endanger the security of the State.
The airing of the Garci Tapes does not violate the right to privacy because the
content of the Garci Tapes is a matter of important public concern. The
Constitution guarantees the peoples right to information on matters of public
concern. The remedy of any person aggrieved by the public airing of the Garci

Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the
commission of the crime. Subsequent punishment, absent a lawful defense, is
the remedy available in case of violation of the Anti-Wiretapping Law.
While there can be no prior restraint on protected expression, there can be
subsequent punishment for protected expression under libel, tort or other laws. In
the present case, the NTC action seeks prior restraint on the airing of the Garci
Tapes, not punishment of personnel of radio and television stations for actual
violation of the Anti-Wiretapping Law.
6. Only the Courts May Impose Content-Based Prior Restraint
The NTC has no power to impose content-based prior restraint on expression.
The charter of the NTC does not vest NTC with any content-based censorship
power over radio and television stations.
In the present case, the airing of the Garci Tapes is a protected expression that
can never be subject to prior restraint. However, even assuming for the sake of
argument that the airing of the Garci Tapes constitutes unprotected expression,
only the courts have the power to adjudicate on the factual and legal issue of
whether the airing of the Garci Tapes presents a clear and present danger of
bringing about a substantive evil that the State has a right and duty to prevent, so
as to justify the prior restraint.
Any order imposing prior restraint on unprotected expression requires prior
adjudication by the courts on whether the prior restraint is constitutional. This is a
necessary consequence from the presumption of invalidity of any prior restraint
on unprotected expression.
7. Government Failed to Overcome Presumption of Invalidity
Respondents did not invoke any compelling State interest to impose prior
restraint on the public airing of the Garci Tapes. The respondents claim that they
merely fairly warned radio and television stations to observe the Anti-

Wiretapping Law and pertinent NTC circulars on program standards.

Respondents have not explained how and why the observance by radio and
television stations of the Anti-Wiretapping Law and pertinent NTC circulars
constitutes a compelling State interest justifying prior restraint on the public airing
of the Garci Tapes.
Violation of the Anti-Wiretapping Law, like the violation of any criminal statute,
can always be subject to criminal prosecution after the violation is committed.
Respondents have not explained how the violation of the Anti-Wiretapping Law,
or of the pertinent NTC circulars, can incite imminent lawless behavior or
endanger the security of the State.
8. The NTC Warning is a Classic Form of Prior Restraint
The NTC press release threatening to suspend or cancel the airwave permits of
radio and television stations constitutes impermissible pressure amounting to
prior restraint on protected expression. Whether the threat is made in an order,
regulation, advisory or press release, the chilling effect is the same: the threat
freezes radio and television stations into deafening silence. Radio and television
stations that have invested substantial sums in capital equipment and market
development suddenly face suspension or cancellation of their permits. The NTC
threat is thus real and potent.
9. Conclusion
In sum, the NTC press release constitutes an unconstitutional prior restraint on
protected expression. There can be no content-based prior restraint on protected
expression. This rule has no exception.

New York Times Co. v. Sullivan

New York Times Co. v. Sullivan, 376 U.S. 254 (1964),[1] was a United States
Supreme Court case that established the actual malice standard, which has to be
met before press reports about public officials can be considered to
be defamation and libel;[2] and hence allowed free reporting of the civil

rights campaigns in the southern United States. It is one of the key decisions
supporting thefreedom of the press. The actual malice standard requires that the
plaintiff in a defamation or libel case prove that the publisher of the statement in
question knew that the statement was false or acted in reckless disregard of its
truth or falsity. Because of the extremely high burden of proof on the plaintiff, and
the difficulty of proving the defendant's knowledge and intentions, such cases
when they involve public figuresrarely prevail.
Before this decision, there were nearly US $300 million in libel actions
outstanding against news organizations from the Southern states, and it had
caused many publications to exercise great caution when reporting on civil rights,
for fear that they might be held accountable for libel.[citation needed] After The New
York Times prevailed in this case, news organizations were free to report the
widespread disorder and civil rights infringements. The Times maintained that the
case against it was brought to intimidate news organizations and prevent them
from reporting illegal actions of public employees in the South as they attempted
to continue to support segregation.
Contents
[hide]

1 Background of the case

2 The court's decision
o 2.1 Actual malice
3 International comparisons
4 50th anniversary
5 Later developments
6 See also
7 Notes
8 Further reading
9 External links
Background of the case[edit]
On March 29, 1960, The New York Times carried a full-page advertisement titled
"Heed Their Rising Voices",[3][4] which solicited funds to defend Martin Luther
King, Jr. against an Alabama perjury indictment. The advertisement described
actions against civil rights protesters, some of them inaccurately, some of which
involved the police force of Montgomery, Alabama. Discrepancies were generally
minor.[citation needed] Referring to the Alabama State Police, the advertisement
stated: "They have arrested [King] seven times..."[5] However, at that point he had
been arrested four times.[5] Although Negro students staged a demonstration on
the State Capitol steps, they sang the National Anthem and not My Country, 'Tis

of Thee.[5] Although the Montgomery Public Safety commissioner, L. B. Sullivan,

was not named in the advertisement, the inaccurate criticism of actions by the
police was considered defamatory to Sullivan as well, due to his duty to
supervise the police department.[5]
Alabama law denied a public officer recovery of punitive damages in a libel action
concerning their official conduct unless they first made a written demand for a
public retraction and the defendant failed or refused to comply, so Sullivan sent
such a request.[1] TheTimes did not publish a retraction in response to the
demand. Instead it wrote a letter[citation needed] stating, among other things, that "we
... are somewhat puzzled as to how you think the statements in any way reflect
on you," and "you might, if you desire, let us know in what respect you claim that
the statements in the advertisement reflect on you".[1] Sullivan did not respond
but instead filed a libel suit a few days later. He also sued four black ministers
mentioned in the ad, specifically Ralph Abernathy, S.S. Seay, Sr., Fred
Shuttlesworth, and Joseph Lowery. Sullivan won $500,000 in an Alabama court
judgment.[6]
The Times did subsequently publish a retraction of the advertisement upon the
demand of Governor John Patterson of Alabama, who alleged the publication
charged him with "grave misconduct and ... improper actions and omissions as
Governor of Alabama and ex officio chairman of the State Board of Education of
Alabama."[1] When asked to explain why there had been a retraction for the
Governor but not for Sullivan, the Secretary of the Times testified: "We did that
because we didn't want anything that was published by theTimes to be a
reflection on the State of Alabama and the Governor was, as far as we could see,
the embodiment of the State of Alabama and the proper representative of the
state and, furthermore, we had by that time learned more of the actual facts
which the ad purported to recite and, finally, the ad did refer to the action of the
state authorities and the Board of Education presumably of which the Governor is
the ex officio chairman....". However, the Secretary also testified he did not think
that "any of the language in there referred to Mr. Sullivan."[1]
The court's decision[edit]
The Court ruled for The Times, 90.[6] The rule of law applied by the Alabama
courts was found constitutionally deficient for failure to provide safeguards for
freedom of speech and of the press, as required by the First and Fourteenth
Amendment. The decision further held that even with the proper safeguards, the
evidence presented in this case was insufficient to support a judgment for
Sullivan. In sum the court ruled that "the First Amendment protects the
publication of all statements, even false ones, about the conduct of public
officials except when statements are made with actual malice (with knowledge
that they are false or in reckless disregard of their truth or falsity)."[7]

Actual malice[edit]
The Court held that a public official suing for defamation must prove that the
statement in question was made with actual malice. In this context, the phrase
refers to knowledge or reckless lack of investigation, rather than its ordinary
meaning of malicious intent. In his concurring opinion, Justice Black explained
that "'[m]alice,' even as defined by the Court, is an elusive, abstract concept, hard
to prove and hard to disprove. The requirement that malice be proved provides at
best an evanescent protection for the right critically to discuss public affairs and
certainly does not measure up to the sturdy safeguard embodied in the First
Amendment."
The term "malice" was not newly invented for the case; it came from existing libel
law. In many jurisdictions, including Alabama (where the case arose), proof of
"actual malice" (actual knowledge of falsity, or reckless disregard for the truth)
was required in order for punitive damages to be awarded, or for other increased
penalties. Since a writer's malicious intent is hard to prove, proof that the writer
knowingly published a falsehood was generally accepted as proof of malice,
under the assumption that only a person with ill intent would knowingly publish
something false. In Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95 (1930),
similarly, the court said: "The plaintiff alleges that this criticism of him and of his
work was not fair and was not honest; it was published with actual malice, ill will
and spite. If he establishes this allegation, he has made out a cause of action. No
comment or criticism, otherwise libelous, is fair or just comment on a matter of
public interest if it be made through actual ill will and malice." (p. 106)
In New York Times Co. v. Sullivan, the Supreme Court adopted the term "actual
malice," giving it constitutional significance.