G.R. No.

L-48683 November 8, 1941

GERONIMO SANTIAGO, petitioner,

vs.
FAR EASTERN BROADCASTING, respondent.

Sotto & Sotto for petitioner.

Joaquin M. Bondoc for respondent.

OZAETA, J.:

This is an original petition for mandamus. The petitioner prays this court to issue the writ "directed to the respondent, Far Eastern
Broadcasting, commanding it that the petitioner be allowed to broadcast any speech or address without previous censorship." The
allegations of the petitioner are as follows:

1. That the petitioner is of legal age, resident of the City of Manila and campaign manager of the political party Popular Front
Sumulong; the respondent is a public utility corporation engaged in radio broadcasting service, and organized and existing in and
under the laws of the Philippines, having its principal office in the insular Life Building, Manila.

2. That, sometime In September, 1942, the petitioner, as campaign manager of the Popular Front Sumulong, asked the
respondent, through its manager, for the purchase of air time for the broadcast of the Popular Front political speeches at the
Opera House on September 23, 1941. But the said respondent refused and still refuses to allow to broadcast except on condition
that complete manuscript of contemplated speeches should be submitted in advance.

3. That the act of the respondent in refusing to allow the use of its station for broadcasting the speeches except upon prior
submission of complete manuscript of the speeches to be broadcast is discriminatory and constitutes unlawful censorship and a
violation of the freedom of speech guaranteed by our Constitution.

4. That the present the constitutional guarantees are not suspended, the state not being placed under martial law, and,
consequently, the conduct of the respondent is unlawful.

5. That the respondent, in refusing to allow the petitioners to use its station except upon prior cencorship, unlawfully excludes and
deprives the latter from enjoyment and exercise of the right and freedom of speech.

6. That the petitioner has no other plain, speedy or adequate remedy to enforce his right other than this action.

To that petition the respondent answered as follows:

1. That the respondent is a corporation organized and existing according to the laws of the Commonwealth of the Philippines and
in its aforesaid capacity owner and operator of stations, KZRM, KZRF and KZUM by virtue of a specific franchise granted under
Act No. 3180.

2. That with reference to the purchase of air time mentioned in paragraph 2 of the petition, the respondent required the petitioner
to submit a manuscript of contemplated speeches in advance of the broadcast in the exercise of a right granted by existing laws
and regulations and in compliance with its obligation expressly undertaken to safeguard public morality and to broadcast
programs that are educational, entertaining and not prejudicial to public interest.

3. That the act of the respondent mentioned in paragraph 2 hereof is not discriminatory for it is applied to all persons alike, and not
violative of the constitutional provision regarding freedom of speech.

4. That the act of the respondent mentioned in paragraph 2 hereof does not signify unlawful censorship and neither it mean that it
will refuse to furnish the petitioner with air time because the latter merely refused to submit its speeches and never came back.

5. The mandamus should not issue in the above entitled case because the facts alleged in the petition do not warrant the same,
the act of the respondent not constituting an unlawful exclusion of the petitioner from the use and enjoyment of a right to which it
is entitled.

6. The mandamus is not the proper remedy in the instant case.

The case hinges on whether the petitioner has a clear legal right to broadcast any speech over one of the radio stations owned and operated
by the respondent without first submitting the manuscript, and whether there is a corresponding duty devolved by law upon the respondent to
permit the petitioner to do so.

We note at the outset that the respondent did not actually refuse to sell air time to the petitioner. It required the petitioner to submit the script
of the speeches to be broadcasted, and the petitioner refused to do so. So the question narrows down to whether or not the Far Eastern
Broadcasting has the right to require the submission of the script.

Section 2 of Act No. 3180, which is the franchise of the respondent corporation, provides that the broadcasting service shall be open to the
general public subject to the general regulations of the grantee for the allotment of time and the class of communications acceptable for
broadcasting. Commonwealth Act No. 98 created a Radio Board, among the duties of which is "to censor all programs, sustaining programs,
sustaining or sponsored, to be broadcasted or rebroadcasted by all broadcasting stations." Section 2 of said Act Provides that pending the
appointment of the Radio Board by the President, the Secretary of the Interior "shall examine all programs, sustaining or sponsored, of all
broadcasting stations," with the power "to eliminate or cancel from the program such number or parts thereof as in his opinion are neither
moral, educational nor entertaining, and prejudicial to public interest." Section 3 provides that "any license or owner of broadcasting station
who shall broadcast any program or parts thereof not duly approved or otherwise eliminated, by the Secretary of the Interior or the Radio
Board, shall, upon his or its recommendation, as the case may be, forfeit his license."

Pursuant to said Act, the Secretary of the Interior, on November 18, 1936, promulgated Department Order No. 13. Paragraph 4 of said order
requires all broadcasting stations to submit daily to the Secretary of the Interior at least twenty-four hours in advance of the actual
broadcasting hour, two copies of all programs to be broadcasted by the stations. Paragraph 6 provides that "if a program contains any
speeches, ... copies of these or a gist thereof, may be required by the Secretary of the Interior to be submitted together with the program.

The respondent denies that its requirement that the petitioner submit the script of the speeches to be broadcasted was discriminatory,
asserting that "it is applied to all persons alike"; and the petitioner has not adduced any proof of its allegation.

It seems clear from the laws and the regulations hereinbefore adverted to that the respondent had the right to require the petitioner to submit
the manuscript of the speeches which he intended to broadcast. In his memorandum counsel for the respondent sustains, and cites
numerous authorities in support of his contention, that Commonwealth Act No. 98 is valid as a proper exercise by the state of its police
power. However, we are not called upon here to inquire into the constitutionaly and validity of said Act, which directly governs this case,
because the petitioner has not specifically raised that question and the general rule is that the constitutionality of a law will not be considered
unless the point is specially pleaded, insisted upon, and adequately argued. (11 Am. Jur., 774; 16 C. J. S., 220-338.) "The basic principle
which underlies the entire field of legal concepts pertaining to the validity of legislation is that by enactment of legislation, a constitutional
measure is presumed to be created. (11 Am. Jur., Constitutional Law, sec. 128.)

The petitioner argues that the broadcasting of the speeches of the candidates of the Sumulong Popular Front Party in the evening of
September 23, 1941, could not by any means offer any danger to public safety or public morality, and that the respondent was not justified
"to previously censor and approve the complete texts of the speeches of said candidates allowing the same to be broadcasted in its station."
The best proof, the petitioner asserts, that there was not the slightest danger to public peace and order was that the speeches that were
delivered in the Opera House in the evening of September 23, 1941, were heard by the vast audience and published in some newspapers
without causing a single untoward incident. We fail to perceive the cogency of such argument. It does not bolster up the case for the
petitioner. It impliedly admits and correctly, we think that a speech that may endanger public safety may be censored and disapproved
for broadcasting. How could the censor verify the petitioner's claim that the speeches he intended to broadcast offered no danger to public
safely or public morality, if the petitioner refused to submit the manuscript or even the gist thereof? If the petitioner had complied with
respondent's requirement and the respondent had arbitrarily and unreasonably refused to permit said speeches to be broadcasted, he might
have reason to complain.

We find it is not the duty of the respondent as a public service corporation to broadcast speeches without requiring the submission of the
manuscript thereof in advance, but that, on the contrary, the laws and regulations expressly authorize the respondent to make such
requirement. Hence the petition for mandamus must be, as it hereby, is, denied, with cost against the petitioner, So ordered.

Abad Santos, Diaz, Moran and Horilleno, JJ., concur.

G.R. No. L-1739 February 3, 1949

MANUEL LIM and EMILIA QUINTOS DE LIM, petitioner-appellants,

vs.
THE REGISTER OF DEEDS OF RIZAL, oppositor-appellee.
Potenciano Villegas, Jr. for appellants.
Assistant Solicitor General Guillermo E. Torres and Solicitor Antonio A. Torres for appellee.

FERIA, J.:

Manuel Lim and Emilia Quintos de Lim mortgaged on December 2, 1940, four parcels of land
with its improvements thereon, described in the transfer certificate of title No. 21783 of the
office of the Register of Deeds of Rizal, with the Agricultural and Industrial Bank for P10,50000,
payable by installments. The mortgagors had been making partial payments on account of the
mortgage obligation on June 5, 1944, the mortgagors paid in full the balance due to the
mortgagee, and the later executed a deed of cancellation of the mortgage. The deed of
cancellation together no, 21783 were filed with the Register of Deeds for the City of Manila on
October 3, 1944, and upon payment of the corresponding registration fees by the mortgagors,
official receipt No. 0508458 was issued to them. The deed of cancellation was entered in the Day
Book, Volume 9, of the Registry of Deeds on October 3, 1944, 11:05 a.m., according to the
certificate issued by the Register of Deeds of Manila, presented as Annex A in this case, which
reads as follows:

At the instance of Mr. Potenciano Villegas Jr., I, Mariano Villanueva, Register of Deeds
for the City of Manila do hereby certify that in the Day Book, Volume 9 of this Registry,
there appears the following entry, to wit:

Number of 25716
entry

Date of filing October 3, 1944

Hour of filing 11:05 a.m.

Nature of Cancellation
document

Executed by Agricultural and

Industrial Bank

In favor of Manuel Lim

 Date of June 5, 1944
instrument

Presented by A. Francisco

Postal address 401 Cu Unjieng

Contract Value P10,5000

Remarks Pasay

and that the document object of the foregoing entry does not appear among the salvaged
records of this Office.

In witness whereof I have hereunto set my hand and affixed hereto the seal of my Office
this 8th day of May, 1947, in the City of Manila, Philippines.

On February 24, 1947, the Court of First Instance of the Province of Rizal,, City Branch, acting
upon a verified petition of the mortgagors, issued an order requiring the register of deeds of said
provinces to issue a new duplicate of transfer certificate of title No. 21783, in lieu of the owner's
copy which was either burned or lost during the liberation of the City of Manila, in which the
cancellation of the mortgage of the property in favor of the Agricultural and Industrial Bank was
not registered or annotated. In order to facilitate the annotation of the deed of cancellation of said
mortgage, the mortgagors asked and obtained form the R. F. C., successor of the Agricultural and
Industrial Bank, a new deed of cancellation of the mortgage, and said R. F. C. has executed a
new deed of cancellation in favor of the mortgagors with the following annotation: ". . . subject
to such further disposition as the Government may adopt regarding transactions consummated
during the Japanese occupation."

The mortgagors demanded from the register of deeds of Rizal the registration of the deed of
cancellation without the annotation above quoted, but the latter refused to do so, and for that
reason the petitioners filed a petition with the Court of First Instance of Rizal, Rizal City Branch,
to compel the respondent to register the cancellation of the mortgage, but without the annotation
in question, on the following grounds:

(a) That had the annotation of the Deed of Cancellation of mortgage in the petitioner's
certificate of title no. 21783 for ten thousand five hundred pesos (P10,500) by the
Agricultural and Industrial Bank been accomplished in due time by the register of deeds
 of Manila under its primary entry No. 25716, the annotation in the title of the said deed of
cancellation would be not bear any such annotation,, the non- fulfillment of which, your
petitioners should not be blamed; and

(b) That the annotation intended and mentioned in paragraph 8 thereof , which is being
done by the Rehabilitation Finance Corporation and also by energy by every register of
deeds, in accordance with Circular No. 14 of the Department of Justice, is illegal and for
the effect, null and void, because it is not based on any provision of law.

The respondent register of deeds filed an opposition to the petition alleging only as defense:

That the annotation sought to be eliminated in the certificate of title is inserted therein as
a precautionary measure and in compliance with Circular No. 14, series of 1945, of the
Department of Justice.

That the annotation "subject to such disposition as the government may adopt regarding
transactions consumed during the Japanese occupation" is by instruction and direction of
the Secretary of Justice inserted in all cases of registration filed during or after the
Japanese occupation.

That the register of deeds is a subordinate of the Secretary of Justice and has to comply
with Circular No. 14;

That said annotation has to be inserted or written in all certificates issued by the register
of deeds in compliance with said circular until said circular is either revoked and set aside
or altered or amended by competent authority;

That the duty of the register of deeds in this matter is ministerial in nature;

That this requirement contained in Circular No. 14 is made as precautionary measure

based on reasons of public policy for the protection of all concerned and is valid exercise
by the Sate of its power.

The lower court, after considering the petition answer of the respondent and petitioner's reply to
the answer, rendered or issued an order upholding the respondent's contention or defense, and
denying the petition that the respondent be ordered to register the deed of cancellation without
the annotation therein contained.

The petitioner appealed from the order of the lower court, to this Court, and the case is now
before us on appeal.

There in no doubt that the above-quoted annotation in the deed of cancellation of the mortgage
would be an encumbrance on the title or a charge on the property of the petitioners, because it
would make the title to the property subject to ay action which the government may take on the
validity of the payments made with Japanese war notes, so that in case the Government, through
Congress or the Supreme Court of the Philippines declares those payments invalid the property
would have to continued as a security for the payment of the mortgage obligation.

According to section 39 of Act No. 496, as amended every subsequent purchaser of a registered
land under the Torrens System who takes a transfer certificate of title for value in good faith,
shall hold the same free of all incumbrance, except those noted on the certificate and any of the
legal encumbrances enumerated in said section. It is obvious and of judicial notice, that such
incumbrance was not and could not have been noted on the transfer certificate of title No. 21783
nor on the deed of cancellation of the mortgage executed by the Agricultural and Industrial Bank
on June 5, 1944, and filed for registration on October 3, 1944, which were lost or destroyed
during the liberation according to Annex A, above quoted. Therefore, the Secretary of Justice had
no power or authority to order or direct, by Circular No. 14 series of 1945 the respondent register
of deeds to insert such annotation and reciprocally the latter is not bond to comply with such
instruction.

Under section 79 (B) of the Administrative Code the Secretary of Justice is only empowered to
promulgate rules, regulations, orders, circulars and other instructions not contrary to law, to all
offices and dependencies of his department; and compliance with the instruction in question
would be contrary to the Constitution, for it would impair the obligations of contract or deprive a
person of his property without due process of law. It can not be contended that the Secretary of
Justice issued said circular i the exercise of the police power of the State, because Congress has
not delegated such power to the Secretary of Justice. The sovereign police power is exercised by
the State through its legislative branch; and its valid exercise may end are, generally delegated to
towns, municipalities, and cities, and sometimes also to the Chief Executive in case of national
emergency. (Primicias vs. Fugoso, L-1800, promulgated January 27, 1948, 45 Off Gaz., 3280.1)
But it is well settled rule that a legislative power delegated to a body pr person cannot be
delegated by the latter to another.

But even if the annotation in question were not an incumbrance, and the Secretary of Justice had
power to issue the aforesaid Circular No. 14, such annotation would have no longer any effect
and, therefore, the insertion thereof in documents relating to transactions consummated during
the Japanese occupation would not serve any purpose in view of the ruling laid down by this
Supreme Court in the case of Haw Pia vs. China Banking Corporation, L-544, 45 Off. Gaz.,
[Supp. to No. 9], 2292, Hongkong and Shanghai Banking Corporation vs. Perez Samanillo, G. R.
No. L-13453, in which it was held during the occupation of obligations contracted before the war
to the creditor of his legal representative, and accepted by the latter are valid and release the said
obligations. Philippine Congress having not enacted any act on the matter, the ruling of this
Court in the cases aforementioned is the disposition adopted by our government regarding
transactions consummated during the Japanese occupation, to which said annotation refers.

The fact that the new deed of cancellation executed by the Rehabilitation Finance Corporation,
which is not a party in this case, contains also such annotations, can not be a bar to the rendering
of this decision for the following reasons: First, because the annotation was not and could not
have been inserted in the deed of cancellation executed on June 5, 1944, by its predecessor in
interest, the Agricultural and Industrial Bank, and filed with the respondent on October 3, 1944
(Annex A); and the respondent appellant could and would have registered the cancellation
without annotation, had it not been the Circular No. 14, because he alleges, as the only ground
for his refusal to do so, the existence of said circular and not the annotation in the new deed of
cancellation. Secondly, because it is to be presumed that such annotation, which is identical to
that contained in Circular No. 14 of the Department of Justice, was only inserted in the new deed
of cancellation inn conformity with said circular, for the mortgagee is a government banking
Institution. And lastly, because although the Rehabilitation Finance Corporation is not a party,
and therefore it can not legally be bound by the judgment in this case, that said Rehabilitation
Finance Corporation can not suffer and therefore can not claim against anybody, any damage
because of the omission of said annotation in the deed of cancellation of the mortgage, for the
reason already set forth in the preceding paragraph.

Therefore, the order oft he lower court is reversed and the respondent register of deeds is ordered
to register the deed of cancellation of the mortgage without the annotation under consideration.
So ordered.

Pablo, Perfecto, Briones, and Reyes, JJ., concur.

Paras, J., concurs in the result.

PRIMICIAS VS. FUGOSO [80 PHIL 71; L-1800; 27 JAN 1948]

Sunday, February 08, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: An action was instituted by the petitioner for the refusal of the respondent to issue a permit
to them to hold a public meeting in Plaza Miranda for redress of grievances to the government. The
reason alleged by the respondent in his defense for refusing the permit is, "that there is a reasonable
ground to believe, basing upon previous utterances and upon the fact that passions, specially on the
part of the losing groups, remains bitter and high, that similar speeches will be delivered tending to
undermine the faith and confidence of the people in their government, and in the duly constituted
authorities, which might threaten breaches of the peace and a disruption of public order." Giving
emphasis as well to the delegated police power to local government. Stating as well Revised
Ordinances of 1927 prohibiting as an offense against public peace, and penalizes as a misdemeanor,
"any act, in any public place, meeting, or procession, tending to disturb the peace or excite a riot; or
collect with other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any
congregation engaged in any lawful assembly." Included herein is Sec. 1119, Free use of Public Place.1

Issue: Whether or Not the freedom of speech was violated.

Held: Yes. Dealing with the ordinance, specifically, Sec. 1119, said section provides for two
constructions: (1) the Mayor of the City of Manila is vested with unregulated discretion to grant or
refuse, to grant permit for the holding of a lawful assembly or meeting, parade, or procession in the
streets and other public places of the City of Manila; (2) The right of the Mayor is subject to
reasonable discretion to determine or specify the streets or public places to be used with the view to
prevent confusion by overlapping, to secure convenient use of the streets and public places by others,
and to provide adequate and proper policing to minimize the risk of disorder. The court favored the
second construction. First construction tantamount to authorizing the Mayor to prohibit the use of the
streets. Under our democratic system of government no such unlimited power may be validly granted
to any officer of the government, except perhaps in cases of national emergency.

The Mayors first defense is untenable. Fear of serious injury cannot alone justify suppression of free
speech and assembly. It is the function of speech to free men from the bondage of irrational fears. To
justify suppression of free speech there must be reasonable ground to fear that serious evil will result
if free speech is practiced. There must be reasonable ground to believe that the danger apprehended
is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one
. The fact that speech is likely to result in some violence or in destruction of property is not enough to
justify its suppression. There must be the probability of serious injury to the state.
G.R. No. L-32717 November 26, 1970

AMELITO R. MUTUC, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

Amelito R. Mutuc in his own behalf.

Romulo C. Felizmena for respondent.

FERNANDO, J.:

The invocation of his right to free speech by petitioner Amelito Mutuc, then a candidate
for delegate to the Constitutional Convention, in this special civil action for prohibition to
assail the validity of a ruling of respondent Commission on Elections enjoining the use
of a taped jingle for campaign purposes, was not in vain. Nor could it be considering the
conceded absence of any express power granted to respondent by the Constitutional
Convention Act to so require and the bar to any such implication arising from any
provision found therein, if deference be paid to the principle that a statute is to be
construed consistently with the fundamental law, which accords the utmost priority to
freedom of expression, much more so when utilized for electoral purposes. On
November 3, 1970, the very same day the case was orally argued, five days after its
filing, with the election barely a week away, we issued a minute resolution granting the
writ of prohibition prayed for. This opinion is intended to explain more fully our decision.

In this special civil action for prohibition filed on October 29, 1970, petitioner, after
setting forth his being a resident of Arayat, Pampanga, and his candidacy for the
position of delegate to the Constitutional Convention, alleged that respondent
Commission on Elections, by a telegram sent to him five days previously, informed him
that his certificate of candidacy was given due course but prohibited him from using
jingles in his mobile units equipped with sound systems and loud speakers, an order
which, according to him, is "violative of [his] constitutional right ... to freedom of speech."
1
There being no plain, speedy and adequate remedy, according to petitioner, he would seek a writ of
prohibition, at the same time praying for a preliminary injunction. On the very next day, this Court adopted
a resolution requiring respondent Commission on Elections to file an answer not later than November 2,
1970, at the same time setting the case for hearing for Tuesday November 3, 1970. No preliminary
injunction was issued. There was no denial in the answer filed by respondent on November 2, 1970, of
the factual allegations set forth in the petition, but the justification for the prohibition was premised on a
provision of the Constitutional Convention Act, 2which made it unlawful for candidates "to purchase,
produce, request or distribute sample ballots, or electoral propaganda gadgets such as pens, lighters,
fans (of whatever nature), flashlights, athletic goods or materials, wallets, bandanas, shirts, hats,
matches, cigarettes, and the like, whether of domestic or foreign origin." 3It was its contention that the
jingle proposed to be used by petitioner is the recorded or taped voice of a singer and therefore a tangible
propaganda material, under the above statute subject to confiscation. It prayed that the petition be denied
for lack of merit. The case was argued, on November 3, 1970, with petitioner appearing in his behalf and
Attorney Romulo C. Felizmena arguing in behalf of respondent.

This Court, after deliberation and taking into account the need for urgency, the election being barely a
week away, issued on the afternoon of the same day, a minute resolution granting the writ of prohibition,
setting forth the absence of statutory authority on the part of respondent to impose such a ban in the light
of the doctrine of ejusdem generis as well as the principle that the construction placed on the statute by
respondent Commission on Elections would raise serious doubts about its validity, considering the
infringement of the right of free speech of petitioner. Its concluding portion was worded thus: "Accordingly,
as prayed for, respondent Commission on Elections is permanently restrained and prohibited from
enforcing or implementing or demanding compliance with its aforesaid order banning the use of political
jingles by candidates. This resolution is immediately executory." 4

1. As made clear in our resolution of November 3, 1970, the question before us was one of power.
Respondent Commission on Elections was called upon to justify such a prohibition imposed on petitioner.
To repeat, no such authority was granted by the Constitutional Convention Act. It did contend, however,
that one of its provisions referred to above makes unlawful the distribution of electoral propaganda
gadgets, mention being made of pens, lighters, fans, flashlights, athletic goods or materials, wallets,
bandanas, shirts, hats, matches, and cigarettes, and concluding with the words "and the like." 5 For
respondent Commission, the last three words sufficed to justify such an order. We view the matter
differently. What was done cannot merit our approval under the well-known principle of ejusdem generis,
the general words following any enumeration being applicable only to things of the same kind or class as
those specifically referred to. 6 It is quite apparent that what was contemplated in the Act was the
distribution of gadgets of the kind referred to as a means of inducement to obtain a favorable vote for the
candidate responsible for its distribution.

The more serious objection, however, to the ruling of respondent Commission was its failure to manifest
fealty to a cardinal principle of construction that a statute should be interpreted to assure its being in
consonance with, rather than repugnant to, any constitutional command or prescription. 7 Thus, certain
Administrative Code provisions were given a "construction which should be more in harmony with the
tenets of the fundamental law." 8 The desirability of removing in that fashion the taint of constitutional
infirmity from legislative enactments has always commended itself. The judiciary may even strain the
ordinary meaning of words to avert any collision between what a statute provides and what the
Constitution requires. The objective is to reach an interpretation rendering it free from constitutional
defects. To paraphrase Justice Cardozo, if at all possible, the conclusion reached must avoid not only that
it is unconstitutional, but also grave doubts upon that score. 9

2. Petitioner's submission of his side of the controversy, then, has in its favor obeisance to such a cardinal
precept. The view advanced by him that if the above provision of the Constitutional Convention Act were
to lend itself to the view that the use of the taped jingle could be prohibited, then the challenge of
unconstitutionality would be difficult to meet. For, in unequivocal language, the Constitution prohibits an
abridgment of free speech or a free press. It has been our constant holding that this preferred freedom
calls all the more for the utmost respect when what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage. What respondent Commission did, in effect, was
to impose censorship on petitioner, an evil against which this constitutional right is directed. Nor could
respondent Commission justify its action by the assertion that petitioner, if he would not resort to taped
jingle, would be free, either by himself or through others, to use his mobile loudspeakers. Precisely, the
constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but not
perpetuating what is uttered by him through tape or other mechanical contrivances. If this Court were to
sustain respondent Commission, then the effect would hardly be distinguishable from a previous restraint.
That cannot be validly done. It would negate indirectly what the Constitution in express terms assures. 10

3. Nor is this all. The concept of the Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest functionary, is a
postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded
to that which occupies the topmost rung in the legal hierarchy. The three departments of government in
the discharge of the functions with which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must
ever be on guard lest the restrictions on its authority, whether substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying
the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is
decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of
the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the
Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates.
Thereby there is a recognition of its being the supreme law.

To be more specific, the competence entrusted to respondent Commission was aptly summed up by the
present Chief Justice thus: "Lastly, as the branch of the executive department although independent of
the President to which the Constitution has given the 'exclusive charge' of the 'enforcement and
administration of all laws relative to the conduct of elections,' the power of decision of the Commission is
limited to purely 'administrative questions.'" 11 It has been the constant holding of this Court, as it could not
have been otherwise, that respondent Commission cannot exercise any authority in conflict with or
outside of the law, and there is no higher law than the Constitution. 12 Our decisions which liberally
construe its powers are precisely inspired by the thought that only thus may its responsibility under the
Constitution to insure free, orderly and honest elections be adequately fulfilled. 13 There could be no
justification then for lending approval to any ruling or order issuing from respondent Commission, the
effect of which would be to nullify so vital a constitutional right as free speech. Petitioner's case, as was
obvious from the time of its filing, stood on solid footing.

WHEREFORE, as set forth in our resolution of November 3, 1970, respondent Commission is

permanently restrained and prohibited from enforcing or implementing or demanding compliance with its
aforesaid order banning the use of political taped jingles. Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Barredo and Villamor, JJ., concur.

Dizon and Makasiar, JJ., are on leave.

 36 SCRA 228 Statutory Construction Ejusdem Generis

Political Law Bill of Rights Freedom of Expression

Amelito Mutuc was a candidate for delegate to the Constitutional Convention (1970). His
candidacy was given due course by the Commission on Elections (COMELEC) but he was
prohibited from playing his campaign jingle on his mobile units because that was an apparent
violation of COMELECs ban (via a COMELEC resolution) to purchase, produce, request or
distribute sample ballots, or electoral propaganda gadgets such as pens, lighters, fans (of
whatever nature), flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches,
cigarettes, and the like, whether of domestic or foreign origin. It was COMELECs contention
that the jingle proposed to be used by Mutuc is a recorded or taped voice of a singer and
therefore a tangible propaganda material (falling under and the likes category), and under the
above COMELEC rule, the same is subject to confiscation.

ISSUE:

1. Whether or not COMELECs contention is correct.

2. Whether or not the COMELEC ban is valid.

HELD:

1. No. By virtue of Ejusdem Generis, general words following any enumeration must be of the
same class as those specifically referred to. COMELEC contended that the ban makes unlawful
the distribution of electoral propaganda gadgets, mention being made of pens, lighters, fans,
flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, and cigarettes,
and concluding with the words and the like. For COMELEC, the last three words sufficed to
justify such an order. The Supreme Court did not agree. It is quite apparent that what was
contemplated in the said law violated by Mutuc was the distribution of gadgets of the kind
referred to as a means of inducement to obtain a favorable vote for the candidate responsible for
its distribution. It does not include campaign jingles for they are not gadgets as contemplated by
the law.

2. No. This is a curtailment of Freedom of Expression. The Constitution prohibits the abridgment
of the freedom of speech.

G.R. No. 133486 January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.
PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary,
exit polls properly conducted and publicized can be vital tools in eliminating the evils of
election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec
so as to minimize or suppress the incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission
on Elections (Comelec) en banc Resolution No. 98-14191 dated April 21, 1998. In the said
Resolution, the poll body

RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other
groups, its agents or representatives from conducting such exit survey and to authorize
the Honorable Chairman to issue the same.

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source
that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV
coverage of the elections . . . and to make [an] exit survey of the . . . vote during the elections for
national officials particularly for President and Vice President, results of which shall be
[broadcast] immediately."2 The electoral body believed that such project might conflict with the
official Comelec count, as well as the unofficial quick count of the National Movement for Free
Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to
undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were
actually conducted and reported by media without any difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave
abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of
a restraining order enjoining the petitioner or any [other group], its agents or representatives
from conducting exit polls during the . . . May 11 elections."3
In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up
additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a
reconsideration of the assailed Comelec Resolution.

The Court's Ruling

The Petition5 is meritorious.

Procedural Issues:

Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998
election has already been held and done with. Allegedly, there is no longer any actual
controversy before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11,
1998 election, its implications on the people's fundamental freedom of expression transcend the
past election. The holding of periodic elections is a basic feature of our democratic government.
By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue
now will only postpone a task that could well crop up again in future elections.6

In any event, in Salonga v. Cruz Pao, the Court had occasion to reiterate that it "also has the
duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules.
It has the symbolic function of educating bench and bar on the extent of protection given by
constitutional guarantees."7 Since the fundamental freedoms of speech and of the press are being
invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise
protect the holding of exit polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure
to exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over
to prevent a miscarriage of justice,8 when the issue involves the principle of social justice or the
protection of labor,9 when the decision or resolution sought to be set aside is a nullity,10 or when
the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy
available.11

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only
twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only
on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time or the May 11, 1998 elections. Moreover,
not only is time of the essence; the Petition involves transcendental constitutional issues. Direct
resort to this Court through a special civil action for certiorari is therefore justified.

Main Issue:

Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups of

individuals for the purpose of determining the probable result of an election by confidentially
asking randomly selected voters whom they have voted for, immediately after they have
officially cast their ballots. The results of the survey are announced to the public, usually through
the mass media, to give an advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit polls had not been resorted to
until the recent May 11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of

the mass media, committed to report balanced election-related data, including "the exclusive
results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting their results are valid
exercises of the freedoms of speech and of the press. It submits that, in precipitately and
unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused
its discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution,
it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its
constitutional and statutory powers to promote a clean, honest, orderly and credible May 11,
1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It
contends that "the conduct of exit surveys might unduly confuse and influence the voters," and
that the surveys were designed "to condition the minds of people and cause confusion as to who
are the winners and the [losers] in the election," which in turn may result in "violence and
anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle
to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots,"
in violation of Section 2, Article V of the Constitution;12 and relevant provisions of the Omnibus
Election Code.13 It submits that the constitutionally protected freedoms invoked by petitioner
"are not immune to regulation by the State in the legitimate exercise of its police power," such as
in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear
and present danger of destroying the credibility and integrity of the electoral process,"
considering that they are not supervised by any government agency and can in general be
manipulated easily. He insists that these polls would sow confusion among the voters and would
undermine the official tabulation of votes conducted by the Commission, as well as the quick
count undertaken by the Namfrel.

Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be
more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our jurisprudence on the freedoms of speech
and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a

'preferred' right and, therefore, stands on a higher level than substantive economic or other
liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate
that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom."14

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or
of the press.15 In the landmark case Gonzales v. Comelec,16 this Court enunciated that at the very
least, free speech and a free press consist of the liberty to discuss publicly and truthfully any
matter of public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the

truth, of securing participation by the people in social and political decision-making, and of
maintaining the balance between stability and change.17 It represents a profound commitment to
the principle that debates on public issues should be uninhibited, robust, and wide open.18 It
means more than the right to approve existing political beliefs or economic arrangements, to lend
support to official measures, or to take refuge in the existing climate of opinion on any of public
consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes,19 we stress that the
freedom encompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms
of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all
times and under all circumstances.20 They are not immune to regulation by the State in the
exercise of its police power.21 While the liberty to think is absolute, the power to express such
thought in words and deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining
the validity of restrictions to such freedoms, as follows:

These are the "clear and present danger" rule and the "dangerous tendency" rule. The
first, as interpreted in a number of cases, means that the evil consequence of the comment
or utterance must be "extremely serious and the degree of imminence extremely high"
before the utterance can be punished. The danger to be guarded against is the "substantive
evil" sought to be prevented. . . .23

The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if
the words uttered create a dangerous tendency which the state has a right to prevent, then
such words are punishable. It is not necessary that some definite or immediate acts of
force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated
in general terms. Nor is it necessary that the language used be reasonably calculated to
incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural
tendency and probable effect of the utterance be to bring about the substantive evil which
the legislative body seeks to prevent.24

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its
earlier decisions in Primicias v. Fugoso25 and American Bible Society v. City of Manila;26 as well
as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v.
Comelec30 and, more recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for
the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "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. It is a question of proximity and degree."32

A limitation on the freedom of expression may be justified only by a danger of such substantive
character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the
danger must not only be clear but also present. "Present" refers to the time element; the danger
must not only be probable but very likely to be inevitable.33 The evil sought to be avoided must
be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.34

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction
is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity.35 And it is respondent's burden to overthrow such
presumption. Any act that restrains speech should be greeted with furrowed brows,36 so it has
been said.
To justify a restriction, the promotion of a substantial government interest must be clearly
shown.37 Thus:

A government regulation is sufficiently justified if it is within the constitutional power of

the government, if it furthers an important or substantial government interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest.38

Hence, even though the government's purposes are legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties, when the end can be more
narrowly achieved.39

The freedoms of speech and of the press should all the more be upheld when what is sought to be
curtailed is the dissemination of information meant. to add meaning to the equally vital right of
suffrage.40 We cannot support any ruling or order "the effect of which would be to nullify so vital
a constitutional right as free speech."41 When faced with borderline situations in which the
freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked
against actions allegedly made to assure clean and free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate
should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain
them, the freedom to speak and the right to know are unduly curtailed.42

True, the government has a stake in protecting the fundamental right to vote by providing voting
places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to
preserve the sanctity and the integrity of the electoral process. However, in order to justify a
restriction of the people's freedoms of speech and of the press, the state's responsibility of
ensuring orderly voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important research data
which may be used to study influencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit
poll data not only for election-day projections, but also for long-term research.43

Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to
its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While
admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an
exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise
thereof creates a clear and present danger to the community or it has a dangerous tendency." It
then contends that "an exit poll has the tendency to sow confusion considering the randomness of
selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that
the results of such exit poll may not be in harmony with the official count made by the Comelec .
. . is ever present. In other words, the exit poll has a clear and present danger of destroying the
credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature of a
survey, the interviewees or participants are selected at random, so that the results will as much as
possible be representative or reflective of the general sentiment or view of the community or
group polled. Second, the survey result is not meant to replace or be at par with the official
Comelec count. It consists merely of the opinion of the polling group as to who the electorate in
general has probably voted for, based on the limited data gathered from polled individuals.
Finally, not at stake here are the credibility and the integrity of the elections, which are exercises
that are separate and independent from the exit polls. The holding and the reporting of the results
of exit polls cannot undermine those of the elections, since the former is only part of the latter. If
at all, the outcome of one can only be indicative of the other.

The Comelec's concern with the possible noncommunicative effect of exit polls disorder and
confusion in the voting centers does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution is too broad, since its application is without qualification as to whether the
polling is disruptive or not.44 Concededly, the Omnibus Election Code prohibits disruptive
behavior around the voting centers.45 There is no showing, however, that exit polls or the means
to interview voters cause chaos in voting centers. Neither has any evidence been presented
proving that the presence of exit poll reporters near an election precinct tends to create disorder
or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for
any purpose. The valuable information and ideas that could be derived from them, based on the
voters' answer to the survey questions will forever remain unknown and unexplored. Unless the
ban is restrained, candidates, researchers, social scientists and the electorate in general would be
deprived of studies on the impact of current events and of election-day and other factors on
voters' choices.1wphi1.nt

In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the purposes of
which was to prevent the broadcasting of early returns, was unconstitutional because such
purpose was impermissible, and the statute was neither narrowly tailored to advance a state
interest nor the least restrictive alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify speech regulation. Just as
curtailing election-day broadcasts and newspaper editorials for the reason that they might
indirectly affect the voters' choices is impermissible, so is impermissible, so is regulating speech
via an exit poll restriction.47
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open
any alternative channel of communication to gather the type of information obtained through exit
polling. On the other hand, there are other valid and reasonable ways and means to achieve the
Comelec end of avoiding or minimizing disorder and confusion that may be brought about by
exit surveys.

For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept at a
reasonable distance from the voting center. They may be required to explain to voters that the
latter may refuse interviewed, and that the interview is not part of the official balloting process.
The pollsters may further be required to wear distinctive clothing that would show they are not
election officials.48 Additionally, they may be required to undertake an information campaign on
the nature of the exercise and the results to be obtained therefrom. These measures, together with
a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election.

For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities
are randomly selected in each province; (2) residences to be polled in such communities are also
chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on
their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results
are released to the public only on the day after the elections.49 These precautions, together with
the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without
consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and
the electorate. Quite the contrary, instead of disrupting elections, exit polls properly
conducted and publicized can be vital tools for the holding of honest, orderly, peaceful and
credible elections; and for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots
cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting distinguishing marks thereon so as to
be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden
is the association of voters with their respective votes, for the purpose of assuring that the votes
have been cast in accordance with the instructions of a third party. This result cannot, however,
be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom
they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also
choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of
exit polls, without transgressing the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the
Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued
by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-
Santiago and De Leon, Jr., JJ., concur.
Kapunan, J., see dissenting opinion.
Vitug, J., please see separate opinion.
Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug.
Pardo, J., took no part.

National Press Club vs Comelec

G.R. No. 102653, March 05, 1992

Facts: It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646
invades and violates the constitutional guarantees comprising freedom of expression.
Petitioners maintain that the prohibition imposed by Section 11 (b) amounts to censorship,
because it selects and singles out for suppression and repression with criminal sanctions, only
publications of a particular content, namely, media-based election or political propaganda during
the election period of 1992. It is asserted that the prohibition is in derogation of medias role,
function and duty to provide adequate channels of public information and public opinion relevant
to election issues.

Further, petitioners contend that Section 11 (b) abridges the freedom of speech of candidates, and
that the suppression of media-based campaign or political propaganda except those appearing
in the Comelec space of the newspapers and on Comelec time of radio and television broadcasts,
would bring about a substantial reduction in the quantity or volume of information concerning
candidates and issues in the election thereby curtailing and limiting the right of voters to
information and opinion.
The statutory text that petitioners ask to strike down as unconstitutional is that of Section 11 (b)
of Republic Act No. 6646, known as the Electoral Reforms Law of 1987:

Sec. 11. Prohibited Forms of Election Propaganda. In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

881. 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 Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate for any elective
public office shall take a leave of absence from his work as such during the
campaign period.

Issue: Whether Section 11 of Republic Act No. 6646 is valid/constitutional

Held: Yes.

It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of
speech, freedom of expression and freedom of the press (Article III [4], Constitution) has to be
taken in conjunction with Article IX(C)(4) which may be seen to be a special provision
applicable during a specific limited period i.e., during the election period. It is difficult to
overemphasize the special importance of the rights of freedom of speech and freedom of the
press in a democratic polity, in particular when they relate to the purity and integrity of
the electoral process itself, the process by which the people identify those who shall have
governance over them. Thus, it is frequently said that these rights are accorded a preferred status
in our constitutional hierarchy. Withal, the rights of free speech and free press are not
unlimited rights for they are not the only important and relevant values even in the most
democratic of polities. In our own society, equality of opportunity to proffer oneself for public
office, without regard to the level of financial resources that one may have at ones disposal, is
clearly an important value. One of the basic state policies given constitutional rank by Article II,
Section 26 of the Constitution is the egalitarian demand that the State shall guarantee equal
access to opportunities for public service and prohibit political dynasties as may be defined by
law.

The essential question is whether or not the assailed legislative or administrative provisions
constitute a permissible exercise of the power of supervision or regulation of the operations of
communication and information enterprises during an election period, or whether such act has
gone beyond permissible supervision or regulation of media operations so as to constitute
unconstitutional repression of freedom of speech and freedom of the press. The Court considers
that Section 11 (b) has not gone outside the permissible bounds of supervision or regulation
of media operations during election periods.
Section 11 (b) does, of course, limit the right of free speech and of access to mass media of
the candidates themselves. The limitation, however, bears a clear and reasonable
connection with the constitutional objective set out in Article IX(C)(4) and Article II (26) of
the Constitution. For it is precisely in the unlimited purchase of print space and radio and
television time that the resources of the financially affluent candidates are likely to make a
crucial difference. Here lies the core problem of equalization of the situations of the candidates
with deep pockets and the candidates with shallow or empty pockets that Article IX(C)(4) of the
Constitution and Section 11 (b) seek to address. That the statutory mechanism which Section 11
(b) brings into operation is designed and may be expected to bring about or promote equal
opportunity, and equal time and space, for political candidates to inform all and sundry about
themselves, cannot be gainsaid.

(In relation to PRIOR RESTRAINT, the concept is found in the Dissenting Opinion of
Justice Cruz)

But the most important objection to Section 11(b) is that it constitutes prior restraint on the
dissemination of ideas. In a word, it is censorship. It is that officious functionary of the
repressive government who tells the citizen that he may speak only if allowed to do so, and
no more and no less than what he is permitted to say on pain of punishment should he be
so rash as to disobey. In his Appeal for the Liberty of Unlicensed Printing, Milton deplored
the impossibility of finding a man base enough to accept the office of censor and at the same
time good enough to perform its duties. Yet a pretender to that meddler is in our midst today,
smugly brandishing the threat of this miserable law.

One could perhaps concede some permissible instances of censorship, as where private mail is
screened during wartime to prevent deliberate or unwitting disclosure of sensitive or classified
matters that might prejudice the national security or where, to take a famous example, a person is
prohibited from shouting Fire! in a crowded theater. But these exceptions merely make and
bolster the rule that there should be no prior restraint upon a persons right to express his ideas on
any subject of public interest. The rule applies whether the censorship be in the form of outright
prohibition, as in the cases before us, or in more subtle forms like the imposition of a tax upon
periodicals exceeding a prescribed maximum number of copies per issue or allowing the
circulation of books only if they are judged to be fit for minors, thus reducing the reading tastes
of adults to the level of juvenile morality.

I remind the Court of the doctrine announced in Bantam Books v. Sullivan that any system of
prior restraints of expression comes to this Court bearing a heavy presumption against its
validity. That presumption has not been refuted in the cases sub judice. On the contrary, the
challenged provision appears quite clearly to be invalid on its face because of its undisguised
attempt at censorship. The feeble effort to justify it in the name of social justice and clean
elections cannot prevail over the self-evident fact that what we have here is an illegal intent to
suppress free speech by denying access to the mass media as the most convenient instruments for
the molding of public opinion. And it does not matter that the use of these facilities may involve
financial transactions, for the element of the commercial does not remove them from the
protection of the Constitution.
G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers
on "mobile" places, public or private, and limit their location or publication to the authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus
Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not
more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length. Provided, That decals and
stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda.

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or
private, mobile or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign
headquarters of the candidate or political party, organization or coalition, or at the candidate's own residential house or
one of his residential houses, if he has more than one: Provided, that such posters or election propaganda shall not
exceed two (2) feet by three (3) feet in size. (Emphasis supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda
which provides:

Lawful election propaganda. Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and
one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet,
except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or
rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not
 be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two
hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due
notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard:
Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout
the nation for at least twice within one week after the authorization has been granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. In addition to the forms of election propaganda prohibited under Section
85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit
any election propaganda in any place, whether private, or public, except in the common poster areas and/or billboards
provided in the immediately preceding section, at the candidate's own residence, or at the campaign headquarters of
the candidate or political party: Provided, That such posters or election propaganda shall in no case exceed two (2) feet
by three (3) feet in area: Provided, Further, That at the site of and on the occasion of a public meeting or rally,
streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be displayed five (5) days
before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or
rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it
prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is
violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with
the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and
irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to
inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992
(the date of the petition) he has not received any notice from any of the Election Registrars in the entire country as to the location of the
supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or
private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

First the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III).
There is no public interest substantial enough to warrant the kind of restriction involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights
provision on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom.
(Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])

This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every
other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Pao, 134 SCRA 438 [1985]) It is difficult to imagine how the other
provisions of the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is
denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S.
254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132
SCRA 316 [1984]) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest
essential if our elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote
fundamental public interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests individual
freedom on one hand and substantial public interests on the other is made even more difficult in election campaign cases because the
Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections.
We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the
conduct and manner of elections, to wit:

Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or
information, all grants special privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal
rates therefore, for public information campaigns and forms among candidates in connection with the object of holding
free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on Elections (G.R.
No. 102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of
election campaign activities and indefensible repression committed in the name of free and honest elections. In the National Press Club,
case, the Court had occasion to reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of
campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too
short, it becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may
prove to be a hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act
instantly on knee-jerk impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a
candidate may have lapsed and irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are
invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of
freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free
and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.

There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous
that regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded
opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is
too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's
opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable
nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National Press Club, we find the
regulation in the present case of a different category. The promotion of a substantial Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an
important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US
789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government
interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free
speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the
evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends
and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual
presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the
indispensable democratic freedom secured by the first Amendment . . . That priority gives these liberties a sanctity and
a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines
what standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not
doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the
evil to be curbed, which in other context might support legislation against attack on due process grounds, will not
 suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and
persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the
greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US
516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The
regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with
him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression
becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to
rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not
correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of
support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property.

Second the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent
activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade
the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial,
that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more
narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving
the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution
of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was
unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct.
146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints
upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of
fundamental personal rights and liberties is asserted, "the courts should be astute to examine the effect of the
challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well
support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of
rights so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296,
84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the
protection of society," but pointed out that in each case "the power to regulate must be so exercised as not, in attaining
a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches
in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction
as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is
a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section
1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and
the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use,
and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391,
41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's
acquisitions without control or diminution save by the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley
245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate
needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting
of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech
and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation
of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must
be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each
householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no
 purpose but that forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of
Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of
justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place,
whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his
own crudely prepared personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the
absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room
or bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388;
79 L. Ed. 446 [1935), "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is
susceptible of transfer."

Third the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their
candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not
impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing
freedom of expression, any financial considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under
section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all
the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth
and political power for the common good." (Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent
of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial
resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without
the means to spread out the same number of decals and stickers is not as important as the right of the owner to freely express his choice
and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike
down this right and enjoin it is impermissible encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas
designated by the COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act
whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That
is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal
hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no
choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be
transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of
applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is
decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate
branches in the course of adjudication is a logical. corollary of this basic principle that the Constitution is paramount. It
overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the
supreme law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the
right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we
limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra)
The big number of candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half
or even two-thirds of the candidates running for Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or
reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is
espousing ideas. Our review of the validity of the challenged regulation includes its effects in today's particular circumstances. We are
constrained to rule against the COMELEC prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections
providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof"
is DECLARED NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J., concur.

Feliciano and Bellosillo, JJ., are on leave.

Adiong vs. Comelec, G.R. NO. 103956; 31 MAR 1992; 207

SCRA 713
Posted by Pius Morados on November 13, 2011

(Constitutional Law Right to Free Press)

FACTS: Public respondent promulgated a resolution prohibiting the posting of decals and
stickers on mobile places, public or private, and limit their location or publication to the
authorized posting areas that COMELEC fixes. Petitioner senatorial candidate assails said
resolution insofar as it prohibits the posting of decals and stickers in mobile places like cars and
other moving vehicles, wherein it is his last medium to inform the electorate that he is a
senatorial candidate, due to the ban on radio, tv and print political advertisements.

ISSUE: WON a resolution prohibiting posting of decals and stickers is constitutional.

HELD: No. The prohibition on posting of decals and stickers on mobileplaces whether public
or private except in the authorized areas designated by the COMELEC becomes censorship
which is unconstitutional. There is no public interest substantial enough to warrant the
prohibition.

249 U.S. 47

Schenck v. United States ()

Argued: January 9, 10, 1919

Decided: March 3, 1919

Affirmed.
 Syllabus

Opinion, Holmes

Syllabus

Evidence held sufficient to connect the defendants with the mailing of printed circulars in
pursuance of a conspiracy to obstruct the recruiting and enlistment service, contrary to the
Espionage Act of June 15, 1917. P 49. [p48]

Incriminating document seized under a search warrant directed against a Socialist headquarters,
held admissible in evidence, consistently with the Fourth and Fifth Amendment, in a criminal
prosecution against the general secretary of a Socialist party, who had charge of the office. P. 50.

Words which, ordinarily and in many places, would be within the freedom of speech protected by
the First Amendment may become subject to prohibition when of such a nature and used in such
circumstances a to create a clear and present danger that they will bring about the substantive
evils which Congress has a right to prevent. The character of every act depends upon the
circumstances in which it is done. P. 51.

A conspiracy to circulate among men called and accepted for military service under the Selective
Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the
intent to effect that result, and followed by the sending of such circulars, is within the power of
Congress to punish, and is punishable under the Espionage Act, 4, although unsuccessful. P. 52.

The word "recruiting," as used in the Espionage Act, 3, means the gaining of fresh supplies of
men for the military forces, as well by draft a otherwise. P. 52

The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not
affect the prosecution of offenses under the former. P. 53.

Affirmed.

The case is stated in the opinion.

TOP

Opinion

HOLMES, J., Opinion of the Court

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act
of June 15, 1917, c. 30, 3, 40 Stat. 217, 219, by causing and attempting [p49] to cause
insubordination, &c., in the military and naval forces of the United States, and to obstruct the
recruiting and enlistment service of the United States, when the United States was at war with
the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated
to men who had been called and accepted for military service under the Act of May 18, 1917, a
document set forth and alleged to be calculated to cause such insubordination and obstruction.
The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the
document set forth. The second count alleges a conspiracy to commit an offence against the
United States, to-wit, to use the mails for the transmission of matter declared to be nonmailable
by Title XII, 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an
averment of the same overt acts. The third count charges an unlawful use of the mails for the
transmission of the same matter and otherwise as above. The defendants were found guilty on all
the counts. They set up the First Amendment to the Constitution forbidding Congress to make
any law abridging the freedom of speech, or of the press, and bringing the case here on that
ground have argued some other points also of which we must dispose.

It is argued that the evidence, if admissible, was not sufficient to prove that the defendant
Schenck was concerned in sending the documents. According to the testimony, Schenck said he
was general secretary of the Socialist party, and had charge of the Socialist headquarters from
which the documents were sent. He identified a book found there as the minutes of the Executive
Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets
should be printed on the other side of one of them in use, to be mailed to men who had passed
exemption boards, and for distribution. Schenck personally attended to the printing. On [p50]
August 20, the general secretary's report said "Obtained new leaflets from printer and started
work addressing envelopes" &c., and there was a resolve that Comrade Schenck be allowed $125
for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand
printed. There were files of the circular in question in the inner office which he said were printed
on the other side of the one sided circular, and were there for distribution. Other copies were
proved to have been sent through the mails to drafted men. Without going into confirmatory
details that were proved, no reasonable man could doubt that the defendant Schenck was largely
instrumental in sending the circulars about. As to the defendant Baer, there was evidence that she
was a member of the Executive Board, and that the minutes of its transactions were hers. The
argument as to the sufficiency of the evidence that the defendants conspired to send the
documents only impairs the seriousness of the real defence.

It is objected that the documentary evidence was not admissible because obtained upon a search
warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U.S. 585;
Weeks v. United States, 232 U.S. 383, 395, 396. The search warrant did not issue against the
defendant, but against the Socialist headquarters at 1326 Arch Street, and it would seem that the
documents technically were not even in the defendants' possession. See Johnson v. United States,
228 U.S. 457. Notwithstanding some protest in argument, the notion that evidence even directly
proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth
Amendment is plainly unsound. Holt v. United States, 218 U.S. 245, 252, 253.

The document in question, upon its first printed side, recited the first section of the Thirteenth
Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a
conscript is little better than a [p51] convict. In impassioned language, it intimated that
conscription was despotism in its worst form, and a monstrous wrong against humanity in the
interest of Wall Street's chosen few. It said "Do not submit to intimidation," but in form, at least,
confined itself to peaceful measures such as a petition for the repeal of the act. The other and
later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that
anyone violated the Constitution when he refused to recognize "your right to assert your
opposition to the draft," and went on

If you do not assert and support your rights, you are helping to deny or disparage rights which it
is the solemn duty of all citizens and residents of the United States to retain.

It described the arguments on the other side as coming from cunning politicians and a mercenary
capitalist press, and even silent consent to the conscription law as helping to support an infamous
conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people
of other lands, and added that words could not express the condemnation such cold-blooded
ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and
uphold the rights of the people of this country." Of course, the document would not have been
sent unless it had been intended to have some effect, and we do not see what effect it could be
expected to have upon persons subject to the draft except to influence them to obstruct the
carrying of it out. The defendants do not deny that the jury might find against them on this point.

But it is said, suppose that that was the tendency of this circular, it is protected by the First
Amendment to the Constitution. Two of the strongest expressions are said to be quoted
respectively from well known public men. It well may be that the prohibition of laws abridging
the freedom of speech is not confined to previous restraints, although to prevent them may have
been the [p52] main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. We
admit that, in many places and in ordinary times, the defendants, in saying all that was said in the
circular, would have been within their constitutional rights. But the character of every act
depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206.
The most stringent protection of free speech would not protect a man in falsely shouting fire in a
theatre and causing a panic. It does not even protect a man from an injunction against uttering
words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418,
439. 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. It is a question of proximity and degree.
When a nation is at war, many things that might be said in time of peace are such a hindrance to
its effort that their utterance will not be endured so long as men fight, and that no Court could
regard them as protected by any constitutional right. It seems to be admitted that, if an actual
obstruction of the recruiting service were proved, liability for words that produced that effect
might be enforced. The statute of 1917, in 4, punishes conspiracies to obstruct, as well as actual
obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it
is done are the same, we perceive no ground for saying that success alone warrants making the
act a crime. Goldman v. United States, 245 U.S. 474, 477. Indeed, that case might be said to
dispose of the present contention if the precedent covers all media concludendi. But, as the right
to free speech was not referred to specially, we have thought fit to add a few words.
It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of
1917. The [p53] words are "obstruct the recruiting or enlistment service," and it might be
suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually
having been accomplished by getting volunteers, the word is apt to call up that method only in
our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It
is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of
1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not
affect the present indictment, and would not even if the former act had been repealed. Rev.Stats.,
13.

Judgments affirmed.

Schenck v. United States

Brief Fact Summary. The distribution of leaflets using impassioned language claiming that the
draft was a violation of the Thirteenth Amendment of the United States Constitution
(Constitution) and encouraging people to assert your opposition to the draft was held not to be
protected speech.

Synopsis of Rule of Law. The character of every act depends on the circumstances in which it is
done. The question in every case is whether the words 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 protect.

Facts. This case is based on a three count indictment. The first charge was a conspiracy to violate
the Espionage Act of 1917. The second alleges a conspiracy to commit an offense against the
United States. The third count alleges an unlawful use of the mails for the transmission of
unlawful matter. The document in question claims that the draft is a violation of the Thirteenth
Amendment of the Constitution and encourages people to assert your opposition to the draft.
The Defendants, Schenck and other publishers of the leaflets (Defendants), were found guilty on
all of the counts.

Issue. Whether the words used in the leaflets 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 protect?
Held. Yes. Judgment of the lower court affirmed. In many places and in ordinary times, the
Defendants in saying all that was said in the leaflets would have been within their constitutional
rights. However, the character of every act depends on the circumstances in which it is done. The
question in every case is whether the words 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 protect. When a nation is at war, many things that might be said in a time
of peace are such a hindrance to its effort that their utterance will not be endured so long as men
fight and that no Court could regard them as protected by any constitutional right. Therefore, the
words used in the leaflets 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 protect.

Discussion. This case gave birth to the clear and present danger test.

337 U.S. 1 (69 S.Ct. 894, 93 L.Ed. 1131)

TERMINIELLO v. CITY OF CHICAGO.

No. 272.

Argued: Feb. 1, 1949.

Decided: May 16, 1949.

opinion, DOUGLAS [HTML]

dissent, FRANKFURTER [HTML]

dissent, JACKSON [HTML]

See 337 U.S. 934, 69 S.Ct. 1490.

Mr. Albert W. Dilling, of Chicago, Ill., for petitioner.

Mr. L. Louis Karton, of Chicago, Ill., for respondent.

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Mr. Justice DOUGLAS delivered the opinion of the Court.

Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance
of Chicago 1 and fined. The case grew out of an address he delivered in an auditorium in Chicago
under the auspices of the Christian Veterans of America. The meeting commanded considerable
public attention. The auditorium was filled to capacity with over eight hundred persons present.
Others were turned away. Outside of the auditorium a crowd o about one thousand persons
gathered to protest against the meeting. A cordon of policemen was assigned to the meeting to
maintain order; but they were not able to prevent several disturbances. The crowd outside was
angry and turbulent.

Petitioner in his speech condemned the conduct of the crowd outside and vigorously, if not
viciously, criticized various political and racial groups whose activities he denounced as inimical
to the nation's welfare.

The trial court charged that 'breach of the peace' consists of any 'misbehavior which violates the
public peace and decorum'; and that the 'misbehavior may constitute a breach of the peace if it
stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a
disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing
alarm.' Petitioner did not take exception to that instruction. But he maintained at all times that the
ordinance as applied to his conduct violated his right of free speech under the Federal
Constitution, U.S.Const. Amend. 1. The judgment of conviction was affirmed by the Illinois
Appellate Court, 332 Ill.App. 17, 74 N.E.2d 45, and by the Illinois Supreme Court. 396 Ill. 41,
71 N.E.2d 2, 400 Ill. 23, 79 N.E.2d 39. The case is here on a petition for certiorari which we
granted because of the importance of the question presented.

The argument here has been focused on the issue of whether the content of petitioner's speech
was composed of derisive, fighting words, which carried it outside the scope of the constitutional
guarantees. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031;
Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352.
We do not reach that question, for there is a preliminary question that is dispositive of the case.

As we have noted, the statutory words 'breach of the peace' were defined in instructions to the
jury to include speech which 'stirs the public to anger, invites dispute, brings about a condition or
unrest, or creates a disturbance. * * *' That construction of the ordinance is a ruling on a question
of state law that is as binding on us as though the precise words had been written into the
ordinance. See Hebert v. Louisiana, 272 U.S. 312, 317, 47 S.Ct. 103, 104, 71 L.Ed. 270, 48
A.L.R. 1102; Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840.

The vitality of civil and political institutions in our society depends on free discussion. As Chief
Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed.
278, it is only through free debate and free exchange of ideas that government remains
responsive to the will of the people and peaceful change is effected. The right to speak freely and
to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us
apart from totalitarian regimes.

Accordingly a function of free speech under our system of government is to invite dispute. It
may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often
provocative and challenging. It may strike at prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though
not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571572, 62 S.Ct. at page
769, 86 L.Ed. 1031, is nevertheless protected against censorship or punishment, unless shown
likely to roduce a clear and present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262, 62 S.Ct. 190,
193, 86 L.Ed. 192, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 1253,
91 L.Ed. 1546. There is no room under our Constitution for a more restrictive view. For the
alternative would lead to standardization of ideas either by legislatures, courts, or dominant
political or community groups.

The ordinance as construed by the trial court seriously invaded this province. It permitted
conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought
about a condition of unrest. A conviction resting on any of those grounds may not stand.

The fact that petitioner took no exception to the instruction is immaterial. No exception to the
instructions was taken in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73
A.L.R. 1484. But a judgment of conviction based on a general verdict under a state statute was
set aside in that case, because one part of the statute was unconstitutional. The statute had been
challenged as unconstitutional and the instruction was framed in its language. The Court held
that the attack on the statute as a whole was equally an attack on each of its individual parts.
Since the verdict was a general one and did not specify the ground upon which it rested, it could
not be sustained. For one part of the statute was unconstitutional and it could not be determined
that the defendant was not convicted under that part.

The principle of that case controls this one. As we have said, the gloss which Illinois placed on
the ordinance gives it a meaning and application which are conclusive on us. We need not
consider whether as construed it is defective in its entirety. As construed and applied it at least
contains parts that are unconstitutional. The verdict was a general one; and we do not know on
this record but what it may rest on the invalid clauses.

The statute as construed in the charge to the jury was passed on by the Illinois courts and
sustained by them over the objection that as so read it violated the Fourteenth Amendment. The
fact that the parties did not dispute its construction makes the adjudication no less ripe for our
review, as the Stromberg decision indicates. We can only take the statute as the state courts read
it. From our point of view it is immaterial whether the state law question as to its meaning was
controverted or accepted. The pinch of the statute is in its application. It is that question which
the petitioner has brought here. To say therefore that the question on this phase of the case is
whether the trial judge gave a wrong charge is wholly to misconceive the issue.

But it is said that throughout the appellate proceedings the Illinois courts assumed that the only
conduct punishable and punished under the ordinance was conduct constituting 'fighting words.'
That emphasizes, however, the importance of the rule of the Stromberg case. Petitioner was not
convicted under a statute so narrowly construed. For all anyone knows he was convicted under
the parts of the ordinance (as construed) which, for example, make it an offense merely to invite
dispute or to bring about a condition of unrest. We cannot avoid that issue by saying that all
Illinois did was to measure petitioner's conduct, not the ordinance, against the Constitution.
Petitioner raised both points that his speech was protected by the consTitution; that the inclusion
of his speech within the ordinance was a violation of the Constitution. We would, therefore,
strain at technicalities to conclude that the constitutionality of the ordinance as construed and
applied to petitioner was not before the Illinois courts. The record makes clear that petitioner at
all times challenged the constitutionality of the ordinance as construed and applied to him.

Reversed.

Mr. Chief Justice VINSON, dissen ing.

I dissent. The Court today reverses the Supreme Court of Illinois because it discovers in the
record one sentence in the trial court's instructions which permitted the jury to convict on an
unconstitutional basis. The offending sentence had heretofore gone completely undetected. It
apparently was not even noticed, much less excepted to, by the petitioner's counsel at the trial.
No objection was made to it in the two Illinois appellate tribunals which reviewed the case. Nor
was it mentioned in the petition for certiorari or the briefs in this Court. In short, the offending
sentence in the charge to the jury was no part of the case until this Court's independent research
ferreted it out of a lengthy and somewhat confused record. I think it too plain for argument that a
reversal on such a basis does not accord with any principle governing review of state court
decisions heretofore announced by this Court. Certainly, Stromberg v. California, 1931, 283 U.S.
359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484, as Mr. Justice FRANKFURTER
demonstrates, offers no precedent for today's action.

It will not do to say that, because the Illinois appellate courts affirmed the petitioner's conviction
in the face of a constitutional attack, they necessarily must have approved the interpretation of
the Chicago ordinance contained in the unnoticed instruction. The fact is that the Illinois courts
construed the ordinance as punishing only the use of 'fighting words.' Their opinions plainly
show that they affirmed because they thought that the petitioner's speech had been found by the
jury to come within that category. 1 Their action was not, and cannot here be taken to be, an
approval of the ordinance 'as construed' by the instruction because the record clearly shows that
the case was treated on appeal, both by counsel and by the courts, as if no such instruction
existed. This Court can reverse the conviction because of the instruction only if we are to say that
every time a state court affirms a conviction it necessarily must approve of every unnoticed and
unobjected to error which we may discover in the record. If such is the doctrine of this case, I
feel compelled to register my emphatic dissent.

The instruction informed the jury that they could return a verdict of guilty if they found that the
petitioner's speech was one which 'stirs the public to anger, invites public dispute, brings about a
condition of unrest, or creates a disturbance.' If the petitioner's counsel, who carefully made other
constitutional objections throughout the proceedings below, had brought any issue here as to the
constitutional validity of that instruction I would agree with the Court's decision. But the record
gives me no basis on which to believe that the Illinois courts would not also have so decided if
that issue had been presented to them.

The Court, as I understand it, does not reach the issue which the parties argued herewhether a
properly instructed jury could constitutionally have found from the conflicting evidence in the
record that, under the circumstances, the words in the petitioner's speech were 'fighting words' to
those inside the hall who heard them. Certainly, the Court does not decide whether the violent
opposition of those outside the hall, who did not hear the speech, could constitutionally warrant
the conviction of the petitioner in order to keep the streets from becoming ideological
battlegrounds. Since neither of these constitutional issues is decided by the Court, I think that it
is not within my province to indicate any opinion concerning them. See Rescue Army v.
Municipal Court, 1947, 331 U.S. 549, 568, 67 S.Ct. 1409, 1419, 91 L.Ed. 1666.

TOP

Mr. Justice FRANKFURTER, dissenting.

For the first time in the course of the 130 years i which State prosecutions have come here for
review, this Court is today reversing a sentence imposed by a State court on a ground that was
urged neither here nor below and that was explicitly disclaimed on behalf of the petitioner at the
bar of this Court.

The impropriety of that part of the charge which is now made the basis of reversal was not raised
at the trial nor before the Appellate Court of Illinois. The fact that counsel for Terminiello wholly
ignored it is emphasized by the objections that he did make in relation to other instructions given
and not given. On appeal to the Supreme Court of Illinois, counsel still failed to claim as error
that which this Court on its own motion now finds violative of the Constitution. It was not
mentioned by the Illinois Supreme Court in its careful opinion disposing of other claims and it
was not included in the elaborate petition for rehearing in that court. Thus an objection, not
raised by counsel in the Illinois courts, not made the basis of the petition for certiorari herenot
included in the 'questions presented,' nor in the 'reasons relied on for the allowance of the writ'
and explicitly disavowed at the bar of this Court, is used to upset a conviction which has been
sustained by three courts of Illinois.

Reliance on Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484,
for what is done today is wholly misplaced. Neither expressly nor by implication has that
decision any bearing upon the issue which the Court's opinion in this case raises, namely,
whether it is open for this Court to reverse the highest court of a State on a point which was not
brought before that court, did not enter into the judgment rendered by that court, and at no stage
of the proceedings in this Court was invoked as error by the State court whose reversal is here
sought. The Stromberg case presented precisely the opposite situation. In that case the claim
which here prevailed was a ground of unconstitutionality urged before the California court; upon
its rejection by that court it was made the basis of appeal to this Court; it was here urged as the
decisive ground for the reversal of the California judgment.

The Stromberg case dealt with a statute which proscribed conduct in a threefold way. The
information upon which a verdict of guilty was secured was couched in the threefold terms of the
statute, and in that form submitted to the jury. A general verdict followed. It was urged
throughout the proceedings, and finally at the bar of this Court, that one of the proscriptions of
the statute was invalid under the Fourteenth Amendment. That view was sustained. All that the
case holds is that where the validity of a statute is successfully assailed as to one of three clauses
of a statute and all three clauses were submitted to the jury, the general verdict has an infirmity
because it cannot be assumed that the jury convicted on the valid portions of the statute and not
on the invalid. There was no question in that case of searching the record for an alleged error that
at no time was urged against the State judgment brought here for review.

In the Stromberg case an error that was properly urged was sustained. In this case a claim that
was not urged but was disavowed is transmuted into a claim denied.

Only the uninformed will deride as a merely technical point objection to what the Court is doing
in this case. The matter touches the very basis of this Court's authority in reviewing the
judgments of State courts. We have no authority to meddle with such a judgment unless some
claim under the Constitution or the laws of the United States has been made before the State
court whose judgment we are reviewing and unless the claim has been denied by that court. 1
How could there have been a denial of a federal claim by the Illinois courts, i.e., that the trial
judge offended the Constitution of the United States in what he told the jury, when no such claim
was made? The relation of the United States and the courts of the United States to the States and
the courts of the States is a very delicate matter. It is too delicate to permit silence when a
judgment of a State court is reversed in disregard of the duty of this Court to leave untouched an
adjudication of a State unless that adjudication is based upon a claim of a federal right which the
State has had an opportunity to meet and to recognize. If such a federal claim was neither before
the State court nor presented to this Court, this Court unwarrantably strays from its province in
looking through the record to find some federal claim that might have been brought to the
attention of the State court and, if so, brought, fronted, and that might have been, but was not,
urged here. This is a court of review, not a tribunal unbounded by rules. We do not sit like a kadi
under a tree dispensing justice according to considerations of individual expediency.

Freedom of speech undoubtedly means freedom to express views that challenge deep-seated,
sacred beliefs and to utter sentiments that may provoke resentment. But those indulging in such
stuff as that to which this proceeding gave rise are hardly so deserving as to lead this Court to
single them out as beneficiaries of the first departure from the restrictions that bind this Court in
reviewing judgments of State courts. Especially odd is it to bestow such favor not for the sake of
life or liberty, but to save a small amount of property$100, the amount of the fine imposed
upon the petitioner in a proceeding which is civil, not criminal, under the laws of Illinois, and
thus subject only to limited review. City of Chicago v. Terminiello, 400 Ill. 23, 29, 79 N.E.2d 39,
43. This Court has recognized that fines of this nature are not within provisions of the
Constitution governing federal criminal prosecutions. See Hepner v. United States, 213 U.S. 103,
29 S.Ct. 474, 53 L.Ed. 720, 27 L.R.A.,N.S., 739, 16 Ann.Cas. 960.

The importance of freedom of speech of course cannot be measured by dollars and cents. A great
principle may be at stake, as in the Case of the Ship Money, though the issue arise over the
payment of a few shillings' tax. Were the Court to sustain the claim urged throughout these
proceedings, in Illinois and here, namely, that a law is unconstitutional when it forbids
Terminiello's harangue in the circumstances of its utterance, it would be immaterial that only
$100 is involved. But to inject an error into the record in order to avoid the issue on which the
case was brought herefor certainly relief from the payment of a fine of $100 could not alone
have induced this Court to excogitate a defect in the judgment which counsel thoughtfully
rejected and which three State courts did not considerhardly raises the objection to the dignity
of such a principle. If the Court refrained from taking phrases out of their environment and
finding in them a self-generated objection, it could not be deemed to have approved of them even
abstract propositions.

On the merits of the issue reached by the Court I share Mr. Justice JACKSON'S views. For I
assume that the Court does not mean to reject, except merely for purposes of this case, the basic
principle that guides scrutiny of a charge on appeal. I assume, that is, that a charge is not to be
deemed a bit of abstraction in a non-existing world; the function which a charge serves is to give
practical guidance to a jury in passing on the case that was unfolded before itthe particular
circumstances in their particular setting.

Mr. Justice JACKSON and Mr. Justice BURTON join this dissent.

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Mr. Justice JACKSON, dissenting.

The Court reverses this conviction by reiterating generalized approbations of freedom of speech
with which, in the abstract, no one will disagree. Doubts as to their applicability are lulled by
avoidance of more than passing reference to the circumstances of Terminiello's speech and
judging it as if he had spoken to persons as dispassionate as empty benches, or like a modern
Demosthenes practicing his Philippics on a lonely seashore.

But the local court that tried Terminiello was not indulging in theory. It was dealing with a riot
and with a speech that provoked a hostile mob and incited a friendly one, and threatened
violence between the two. When the trial judge instructed the jury that it might find Terminiello
guilty of inducing a breach of the peace if his behavior stirred the public to anger, invited
dispute, brought about unrest, created a disturbance or molested peace and quiet by arousing
alarm, he was not speaking of these as harmless or abstract conditions. He was addressing his
words to the concrete behavior and specific consequences disclosed by the evidence. He was
saying to the jury, in effect, that if this particular speech added fuel to the situation already so
inflamed as to threaten to get beyond police control, it could be punished as inducing a breach of
peace. When the light of the evidence not recited by the Court is thrown upon the Court's
opinion, it discloses that underneath a little issue of Terminiello and his hundred-dollar fine lurk
some of the most far-reaching constitutional questions that can confront a people who value both
liberty and order. This Court seems to regard these as enemies of each other and to be of the view
that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of
speech so rigid as to tolerate no concession to society's need for public order.
An old proverb warns us to take heed lest we 'walk into a well from looking at the stars.' To show
why I think the Court is in some danger of doing just that, I must bring these deliberations down
to earth by a long recital of facts.

Terminiello, advertised as a Catholic Priest, but revealed at the trial to be under suspension by his
Bishop, was brought to Chicago from Birmingham, Alabama, to address a gathering that
assembled in response to a call signed by Gerald L. K. Smith, which, among other things, said:

'* * * The same people who hate Father Coughlin hate Father Terminiello. They have persecuted
him, hounded him, threatened him, but he has remained unaffected by their anti-Christian
campaign against him. You will hear all sorts of reports concerning Father Terminiello. But
remember that he is a Priest in good standing and a fearless lover of Christ and America.'

The jury may have considered that this call attempted to capitalize the hatreds this man had
stirred and foreshadowed, if it did not intend to invite, the kind of demonstration that followed.

Terminiello's own testimony shows the conditions under which he spoke. So far as material it
follows:

'* * * We got there (the meeting place) approximately fifteen or twenty minutes past eight. The
car stopped at the front entrance. There was a crowd of three or four hundred congregated there
shouting and cursing and picketing. * * *

'When we got there the pickets were not marching; th y were body to body and covered the
sidewalk completely, some on the steps so that we had to form a flying wedge to get through.
Police escorted us to the building, and I noticed four or five others there.

'They called us 'God damned Fascists, Nazis, ought to hang the so and sos.' When I entered the
building I heard the howls of the people outside. * * * There were four or five plain clothes
officers standing at the entrance to the stage and three or four at the entrance to the back door.

'The officers threatened that if they broke the door again they would arrest them and every time
they opened the door a little to look out something was thrown at the officers, including ice-picks
and rocks.

'A number of times the door was broken, was partly broken through. There were doors open this
way and they partly opened and the officers looked out two or three times and each time ice-
picks, stones and bottles were thrown at the police at the door. I took my place on the stage,
before this I was about ten or fifteen minutes in the body of the hall.

'I saw a number of windows broken by stones or missiles. I saw the back door being forced open,
pushed open.

'The front door was broken partly open after the doors were closed. There were about seven
people seated on the stage. Smith opened the meeting with prayer, the Pledge of Allegiance to
the Flag and singing of America. There were other speakers who spoke before me and before I
spoke I heard things happening in the hall and coming from the outside.

'I saw rocks being thrown through windows and that continued throughout at least the first half
of the meeting, probably longer, and again attempts were made to force the front door, rather the
front door was forced partly. The howling continued on the outside, cursing could be heard
audibly in the hall at times. Police were rushing in and out of the front door protecting the front
door, and there was a general commotion, all kinds of noises and violenceall from the outside.

'Between the time the first speaker spoke and I spoke, stones and bricks were thrown in all the
time. I started to speak about 35 or 40 minutes after the meeting started, a little later than nine
o'clock. * * *'

The court below, in addition to this recital, heard other evidence, that the crowd reached an
estimated number of 1,500. Picket lines obstructed and interfered with access to the building.
The crowd constituted 'a surging, howling mob hurling epithets at those who would enter and
tried to tear their clothes off.' One young woman's coat was torn off and she had to be assisted
into the meeting by policemen. Those inside the hall could hear the loud noises and hear those on
the outside yell, 'Fascists, Hitlers!' and curse words like 'damn Fascists.' Bricks were thrown
through the windowpanes before and during the speaking. About 28 windows were broken. The
street was black with people on both sides for at least a block either way; bottles, stink bombs
and brickbats were thrown. Police were unable to control the mob, which kept breaking the
windows at the meeting hall, drowning out the speaker's voice at times and breaking in through
the back door of the auditorium. About 17 of the group outside were arrested by the police.

Knowing of this environment, Terminiello made a long speech, from the stenographic record of
which I omit relatively innocuous passages and add emphasis of what seems especially
provocative:

'Father Terminiello: Now, I am going to whisper my greetings to you, Fellow Christians. I will
interpret it. I said, 'Fellow Christians,' and I suppose there are some of the scum got in by
mistake, so I want to tell a story about the scum:

'* * * And nothing I could say tonight could begin to express the contempt I have for the slimy
scum that got in by mistake.

'* * * The subject I want to talk to you tonight about is the attempt that is going on right outside
this hall tonight, the attempt that is going on to destroy America by revolution. * * *

' y friends, it is no longer true that it can't happen here. It is happening here, and it only depends
upon you, good people, who are here tonight, depends upon all of us together, as Mr. Smith said.
The tide is changing, and if you and I turn and run from that tide, we will all be drowned in this
tidal wave of Communism which is going over the world.

'* * * I am not going to talk to you about the menace of Communism, which is already
accomplished, in Russia, where from eight to fifteen million people were murdered in cold blood
by their own countrymen, and millions more through Eastern Europe at the close of the war are
being murdered by these murderous Russians, hurt, being raped and sent into slavery. That is
what they want for you, that howling mob outside.

'I know I was told one time that my winter quarters were ready for me in Siberia. I was told that.
Now, I am talking about the fifty-seven varieties that we have in America, and we have fifty-
seven varieties of pinks and reds and pastel shades in this country; and all of it can be traced
back to the twelve years we spent under the New Deal, because that was the build-up for what is
going on in the world today.

'Now, Russia promised us we would ga (sic) back to the official newspaper of Russia. Primarily
it was back about 1929. They quoted the words of George E. Dimitroff, who at that time was the
Executive Secretary of the Communist International. I only quote you this one passage. I could
quote thousands of paragraphs for you. Let me quote you: 'You worldwide nature of our program
is not mere talk, but an all embracing blood-soaked reality.' That is what they want for us, a
blood-soaked reality but it was promised to us by the crystal gazers in Washington; and you
know what I mean by the 'crystal gazers,' I presume.

'First of all, we had Queen Eleanor. Mr. Smith said, 'Queen Eleanor is now one of the world's
communists. She is one who said thisimagine, coming from the spouse of the former President
of the United States for twelve long yearsthis is what she said: 'The war is but a step in the
revolution. The war is but one step in the revolution, and we know who started the war.'

'Then we have Henry Adolph Wallace, the sixty million job magician. You know we only need
fifty-four million jobs in America and everybody would be working. He wants sixty million jobs,
because some of the bureaucrats want two jobs apiece. Here he is, what he says about revolution:
'We are in for a profound revolution. Those of us who realize the inevitableness of the revolution,
and are anxious that it be gradual and bloodless instead of somewhat bloody. Of course, if
necessary, we will have it more bloody.' 'And then Chief Justice Stone had this to say: 'A way has
been found for the effective suppression of speeches and press and religion, despite
constitutional guarantee,'from the Chief Justice, from the Chief Justice of the United States.

'Now, my friends, they are planning another ruse; and if it ever happens to this cou-try (sic), God
help America. They are going to try to put into Mr. Edgar Hoover's position a man by the name
of George Swarzwald. I think even those who were uneducated on so-called sedition charges,
that the majority of the individuals in this department, that Christ-like men and women who
realize today what is going on in this country, men who are in this audience today, who want to
know the names of those people, before they are outside, they want to know the names if any.
Did you hear any tonight that you recognize? Most of them probably are imported. They are
imported from Russia, certainly. If you know the names, please send them to me immediately. *
**

'* * * Didn't you ever read the Morgenthau plan for the starvation of little babies and pregnant
women in Germany? Whatever could a child that is born have to do with Hitler or anyone else at
the beginning of the war? Why should every child in Germany today not live to be more than
two or three months of age? Because M rgenthau wants it that way, and so did F.D.R. * * * You
will know who is behind it when I tell you the story of a doctor in Akron, Ohio. He boasted to a
friend of mine within the last few days, while he was in the service of this country as a doctor, he
and others of his kind made it a practicenow, this was not only one manmade it a practice to
amputate the limbs of every German they came in contact with whenever they could get away
with it; so, that they could never carry a gun. Imagine men of that caliber, sworn to serve this
beautiful country of ours, why should we tolerate them?

'My friends, this moment someone reminded me of the plan to sterilize them. The nurses, they
tell me are going to inject diseases in them, syphilis and other diseases in every one that came
there all of one race, all non-Christians.

'Now, we are going to get the threats of the people of Argentine, the people of Spain. We have
now declared, according to our officials, to have declared Franco to have taken the place of
Hitler. Franco was the savior of what was left of Europe.

'Now, let me say, I am going to talk aboutI almost said, about the Jews. Of course, I would not
want to say that. However, I am going to talk about some Jews. I hope thatI am a Christian
minister. We must take a Christian attitude. I don't want you to go from this hall with hatred in
your heart for any person, for no person. * * *

'Now, this danger which we facelet us call them Zionist Jews if you will, let's call them
atheistic, communistic Jewish or Zionist Jews, then let us not fear to condemn them. You
remember the Apostles when they went into the upper room after the death of the Master, they
went in there, after locking the doors; they closed the windows. (At this time there was a very
loud noise as if something was being thrown into the building.)

'Don't be disturbed. That happened by the way, while Mr. Gerald Smith was saying 'Our Father
who art in heaven;' (just then a rock went through the window.) Do you wonder they were
persecuted in other countries in the world? 'You know I have always made a study of the
psychology, sociology of mob reaction. It is exemplified out there. Remember there has to be a
leader to that mob. He is not out there. He is probably across the street, looking out the window.
There must be certain things, money, other things, in order to have successful mob action; there
must be rhythm. There must be some to beat a cadence. Those mobs are chanting; that is the
caveman's chant. They were trained to do it. They were trained this afternoon. They are being
led; there will be violence.

'That is why I say to you, men, don't you do it. Walk out of here dignified. The police will protect
you. Put the women on the inside, where there will be no hurt to them. Just walk; don't stop and
argue. * * * They want to picket our meetings. They don't want us to picket their meetings. It is
the same kind of tolerance, if we said there was a bedbug in bed, 'We don't care for you,' or if we
looked under the bed and found a snake and said, 'I am going to be tolerant and leave the snake
there.' We will not be tolerant of that mob out there. We are not going to be tolerant any longer.

'We are strong enough. We are not going to be tolerant of their smears any longer. We are going
to stand up and dare them to smear us.
'So, my friends, since we spent much time tonight trying to quiet the howling mob, I am going to
bring my thoughts to a conclusion, and the conclusion is this. We must all be like the Apostles
before the coming of the Holy Ghost. We must not lock ourselves in an upper room for fear of
the Jews. I speak of the Communistic Zionistic Jew, and those are not American Jews. We don't
want them here; we want them to go back where they came from.

'Mr. Smith: I would like to ask that Miss Purcell would please go back to the front of the building
and contact the police officer in charge of the detail. We are going to adjourn this meeting i and
when Miss Purcell comes back and reports to me that the one in charge of the detail believes it is
safe for us to go out on the street. I am sure it is. Sit still. We are not going to have anybody
move. If there are any chiselers that want to go, we are going to take up an offering for Father
Terminiello.

'There was further discussion to stimulate this offering which was not reported.)'

Such was the speech. Evidence showed that it stirred the audience not only to cheer and applaud
but to expressions of immediate anger, unrest and alarm. One called the speaker a 'God damned
liar' and was taken out by the police. Another said that 'Jews, niggers and Catholics would have
to be gotten rid of.' One response was, 'Yes, the Jews are all killers, murderers. If we don't kill
them first, they will kill us.' The anti-Jewish stories elicited exclamations of 'Oh!' and 'Isn't that
terrible!' and shouts of 'Yes, send the Jews back to Russia,' 'Kill the Jews,' 'Dirty kikes,' and much
more of ugly tenor. This is the specific and concrete kind of anger, unrest and alarm, coupled
with that of the mob outside, that the trial court charged the jury might find to be a breach of
peace induced by Terminiello. It is difficult to believe that this Court is speaking of the same
occasion, but it is the only one involved in this litigation.

Terminiello, of course, disclaims being a fascist. Doubtless many of the indoor audience were not
consciously such. His speech, however, followed, with fidelity that is more than coincidental, the
pattern of European fascist leaders.

The street mob, on the other hand, included some who deny being communists, but Terminiello
testified and offered to prove that the demonstration was communist-organized and communist-
led. He offered literature of left-wing organizations calling members to meet and 'mobilize' for
instruction as pickets and exhorting followers: 'All out to fight Fascist Smith.'

As this case declares a nation-wide rule that disables local and state authorities from punishing
conduct which produces conflicts of this kind, it is unrealistic not to take account of the nature,
methods and objectives of the forces involved. This was not an isolated, spontaneous and
unintended collision of political, racial or ideological adversaries. It was a local manifestation of
a world-wide and standing conflict between two organized groups of revolutionary fanatics, each
of which has imported to this country the strong-arm technique developed in the struggle by
which their kind has devastated Europe. Increasingly, American cities have to cope with it. One
faction organizes a mass meeting, the other organizes pickets to harass it; each organizes squads
to counteract the other's pickets; parade is met with counterparade. Each of these mass
demonstrations has the potentiality, and more than a few the purpose, of disorder and violence.
This technique appeals not to reason but to fears and mob spirit; each is a show of force designed
to bully adversaries and to overawe the indifferent. We need not resort to speculation as to the
purposes for which these tactics are calculated nor as to their consequences. Recent European
history demonstrates both.

Hitler summed up the strategy of the mass demonstration as used by both fascism and
communism: 'We should not work in secret conventicles but in mighty mass demonstrations, and
it is not by dagger and poison or pistol that the road can be cleared for the movement but by the
conquest of the streets. We must teach the Marxists that the future master of the streets is
National Socialism, just as it will some day be the master of the state.' (Emphasis supplied.) 1
Nazi Conspiracy & Aggression (GPO, 1946) 204, 2 id. 140, Docs. 2760PS, 404PS, from
'Mein Kampf.' First laughed at as an extravagant figure of speech, the battle for the streets
became a tragic reality when an organized Sturmabterlung began to give practical effect to its
slogan that 'possession of the streets is the key to power in he state.' Ibid., also Doc. 2168PS.

The present obstacle to mastery of the streets by either radical or reactionary mob movements is
not the opposing minority. It is the authority of local governments which represent the free
choice of democratic and law-abiding elements, of all shades of opinion but who, whatever their
differences, submit them to free elections which register the results of their free discussion. The
fascist and communist groups, on the contrary, resort to these terror tactics to confuse, bully and
discredit those freely chosen governments. Violent and noisy shows of strength discourage
participation of moderates in discussions so fraught with violence and real discussion dries up
and disappears. And people lose faith in the democratic process when they see public authority
flouted and impotent and begin to think the time has come when they must choose sides in a
false and terrible dilemma such as was posed as being at hand by the call for the Terminiello
meeting: 'Christian Nationalism or World CommunismWhich?'

This drive by totalitarian groups to undermine the prestige and effectiveness of local democratic
governments is advanced whenever either of them can win from this Court a ruling which
paralyzes the power of these officials. This is such a case. The group of which Terminiello is a
part claims that his behavior, because it involved a speech, is above the reach of local authorities.
If the mild action those authorities have taken is forbidden, it is plain that hereafter there is
nothing effective left that they can do. If they can do nothing as to him, they are equally
powerless as to rival totalitarian groups. Terminiello's victory today certainly fulfills the most
extravagant hopes of both right and left totalitarian groups, who want nothing so much as to
paralyze and discredit the only democratic authority and can curb them in their battle for the
streets.

I am unable to see the the local authorities have transgressed the Federal Constitution. Illinois
imposed no prior censorship or suppression upon Terminiello. On the contrary, its sufferance and
protection was all that enabled him to speak. It does not appear that the motive in punishing him
is to silence the ideology he expressed as offensive to the State's policy or as untrue, or has any
purpose of controlling his thought or its peaceful communication to others. There is no claim that
the proceedings against Terminiello are designed to discriminate against him or the faction he
represents or the ideas that he bespeaks. There is no indication that the charge against him is a
mere pretext to give the semblance of legality to a covert effort to silence him or to prevent his
followers or the public from hearing any truth that is in him.
A trial court and jury has found only that in the context of violence and disorder in which it was
made, this speech was a provocation to immediate breach of the peace and therefore cannot
claim constitutional immunity from punishment. Under the Constitution as it has been
understood and applied, at least until most recently, the State was within its powers in taking this
action.

Rioting is a substantive evil, which I take it no one will deny that the State and the City have the
right and the duty to prevent and punish. Where an offense is induced by speech, the Court has
laid down and often reiterated a test of the power of the authorities to deal with the speaking as
also an offense. '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 (or the State or City) has a right to prevent.' (Emphasis
supplied.) Mr. Justice Holmes in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63
L.Ed. 470. No one ventures to contend that the State on the basis of this test, for whatever it may
be worth, was not justified in punishing Terminiello. In this case the evidence pro es beyond
dispute that danger of rioting and violence in response to the speech was clear, present and
immediate. If this Court has not silently abandoned this long standing test and substituted for the
purposes of this case an unexpressed but more stringent test, the action of the State would have
to be sustained.

Only recently this Court held that a state could punish as a breach of the peace use of epithets
such as 'damned racketeer' and 'damned fascists,' addressed to only one person, an official,
because likely to provoke the average person to retaliation. But these are mild in comparison to
the epithets 'slimy scum,' 'snakes,' 'bedbugs,' and the like, which Terminiello hurled at an already
inflamed mob of his adversaries. Mr. Justice Murphy, writing for a unanimous Court in
Chaplinsky v. New Hampshire, 315 U.S. 568, 571572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, said:

'There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' wordsthose
which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It
has been well observed that such utterances are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal
abuse is not in any proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no question under that instrument.'
Cantwell v. Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R.
1352.'

In the latter case Mr. Justice Roberts for a unanimous Court also said:

'The offense known as breach of the peace embraces a great variety of conduct destroying or
menacing public order and tranquility. It includes not only violent acts but acts and words likely
to produce violence in others. No one would have the hardihood to suggest that the principle of
freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to
exhort others to physical attack upon those belonging to another sect. When clear and present
danger of riot, disorder, interference with traffic upon the public streets, or other immediate
threat to public safety, peace, or other, appears, the power of the State to prevent or punish is
obvious.' 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213, 128 A.L.R. 1352.

How this present decision, denying state power to punish civilly one who precipitated a public
riot involving hundreds of fanatic fighters in a most violent melee, can be squared with those
unanimous statements of law, is incomprehensible to me. And the Court recently cited these two
statements as indicating that 'The essential rights of the First Amendment in some instances are
subject to the elemental need for order without which the guarantees of civil rights to others
would be a mockery.' United Public Workers v. Mitchell, 330 U.S. 75, 95, 67 S.Ct. 556, 567, 91
L.Ed. 754.

However, these wholesome principles are abandoned today and in their place is substituted a
dogma of absolute freedom for irresponsible and provocative utterance which almost completely
sterilizes the power of local authorities to keep the peace as against this kind of tactics.

Before giving the First and Fourteenth Amendments to the Constitution this effect, we should
recall that our application of the First Amendment to Illinois rests entirely on authority which
this Court has voted to itself. The relevant parts of the First Amendment, with emphasis supplied,
reads: 'Congress shall make no law * * * abridging the freedom of speech.' This restrains no
authority except Congress. Read as literally as some would do, it restrains Congress i terms so
absolute that no legislation would be valid if it touched free speech, no matter how obscene,
treasonable, defamatory, inciting or provoking. If it seems strange that no express qualifications
were inserted in the Amendment, the answer may be that limitations were thought to be implicit
in the definition of 'freedom of speech' as then understood. Or it may have been thought
unnecessary to delegate to Congress any power over abuses of free speech. The Federal
Government was then a new and experimental authority, remote from the people, and it was
supposed to deal with a limited class of national problems. Inasmuch as any breaches of peace
from abuse of free speech traditionally were punishable by state governments, it was needless to
reserve that power in a provision drafted to exclude only Congress from such a field of law-
making.

The Fourteenth Amendment forbade states to deny the citizen 'due process of law.' But its terms
gave no notice to the people that its adoption would strip their local governments of power to
deal with such problems of local peace and order as we have here. Nor was it hinted by this
Court for over half a century that the Amendment might have any such effect. In 1922, with
concurrence of the most liberty-alert Justices of all timesHolmes and Brandeisthis Court
declared flatly that the Constitution does not limit the power of the state over free speech.
Prudential Insurance Co. v. Cheek, 259 U.S. 530, 543, 42 S.Ct. 516, 522, 66 L.Ed. 1044, 27
A.L.R. 27. In later years the Court shifted this dogma and decreed that the Constitution does this
very thing and that state power is bound by the same limitation as Congress. Gitlow v. New
York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. I have no quarrel with this history. See West
Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147
A.L.R. 674. I recite the method by which the right to limit the state has been derived only from
this Court's own assumption of the power, with never a submission of legislation or amendment
into which the people could write any qualification to prevent abuse of this liberty, as bearing
upon the restraint I consider as becoming in exercise of self-given and unappealable power.

It is significant that provisions adopted by the people with awareness that they applied to their
own states have universally contained qualifying terms. The Constitution of Illinois is
representative of the provisions put in nearly all state constitutions and reads (Art. II, 4): 'Every
person may freely speak, write and publish on all subjects, being responsible for the abuse of that
liberty.' (Emphasis added.) That is what I think is meant by the cryptic phrase 'freedom of
speech,' as used in the Federal Compact, and that is the rule I think we should apply to the states.

This absence from the Constitution of any expressed power to deal with abuse of freedom of
speech has enabled the Court to soar aloof from any consideration of the abuses which create
problems for the states and to indulge in denials of local authority, some of which seem to me
improvident in the light of functions which local governments must be relied on to perform for
our free society. Quite apart from any other merits or defects, recent decisions have almost
completely immunized this battle for the streets from any form of control.

Streets and parks maintained by the public cannot legally be denied to groups 'for the
communication of ideas.' Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Jamison v.
Texas, 318 U.S. 413, 63 S.Ct. 669, 671, 87 L.Ed. 869. Cities may not protect their streets from
activities which the law has always regarded subject to control, as nuisances. Lovell v. Griffin,
303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84
L.Ed. 155. Cities may not protect the streets or even homes of their inhabitants from the
aggressions of organized bands operating in large numbers. Douglas . Jeannette, 319 U.S. 157,
63 S.Ct. 877, 87 L.Ed. 1324. As in this case, the facts are set forth fully only in the dissent, 319
U.S. at page 166, 63 S.Ct. at page 882. See also Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862,
87 L.Ed. 1313. Neither a private party nor a public authority can invoke otherwise valid state
laws against trespass to exclude from their property groups bent on disseminating propaganda.
Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Tucker v. Texas, 326 U.S. 517, 66
S.Ct. 274, 90 L.Ed. 274. Picketing is largely immunized from control on the ground that it is free
speech, Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and police may not
regulate sound trucks and loud-speakers, Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92
L.Ed. 1574, though the Court finds them an evil that may be prohibited altogether. Kovacs v.
Cooper, 336 U.S. 77, 69 S.Ct. 448. And one-third of the Court has gone further and declared that
a position 'that the state may prevent any conduct which induces people to violate the law, or any
advocacy of unlawful activity, cannot be squared with the First Amendment. * * *' and it is only
we who can decide when the limit is passed. Musser v. Utah, 333 U.S. 95, 102, 68 S.Ct. 397,
400, 92 L.Ed. 562. Whatever the merits of any one of these decisions in isolation, and there were
sound reasons for some of them, it cannot be denied that their cumulative effect has been a sharp
handicap on municipal control of the streets and a dramatic encouragement of those who would
use them in a battle of ideologies.

I do not think we should carry this handicap further, as we do today, but should adhere to the
principles heretofore announced to safeguard our liberties against abuse as well as against
invasion. It should not be necessary to recall these elementary principles, but it has been a long
time since some of them were even mentioned in this Court's writing on the subject and results
indicate they may have been overlooked.

I begin with the oft-forgotten principle which this case demonstrates, that freedom of speech
exists only under law and not independently of it. What would Terminiello's theoretical freedom
of speech have amounted to had he not been given active aid by the officers of the law? He could
reach the hall only with this help, could talk only because they restrained the mob, and could
make his getaway only under their protection. We would do well to recall the words of Chief
Justice Hughes in Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049,
133 A.L.R. 1396: 'Civil liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would be lost in the
excesses of unrestrained abuses. * * *'

This case demonstrates also that this Court's service to free speech is essentially negative and can
consist only of reviewing actions by local magistrates. But if free speech is to be a practical
reality, affirmative and immediate protection is required; and it can come only from nonjudicial
sources. It depends on local police, maintained by law-abiding taxpayers, and who, regardless of
their own feelings, risk themselves to maintain supremacy of law. Terminiello's theoretical right
to speak free from interference would have no reality if Chicago should withdraw its officers to
some other section of the city, or if the men assigned to the task should look the other way when
the crowd threatens Terminiello. Can society by expected to keep these men at Terminiello's
service if it has nothing to say of his behavior which may force them into dangerous action?

No one will disagree that the fundamental, permanent and overriding policy of police and courts
should be to permit and encourage utmost freedom of utterance. It is the legal right of any
American citizen to advocate peaceful adoption of fascism or communism, socialism or
capitalism. He may go far in expressing sentiments whether pro- emitic or anti-semitic, pro-
negro or anti-negro, pro-Catholic or anti-Catholic. He is legally free to argue for some anti-
American system of government to supersede by constitutional methods the one we have. It is
our philosophy that the course of government should be controlled by a consensus of the
governed. This process of reaching intelligent popular decisions requires free discussion. Hence
we should tolerate no law or custom of censorship or suppression.

But we must bear in mind also that no serious outbreak of mob violence, race rioting, lynching or
public disorder is likely to get going without help of some speech-making to some mass of
people. A street may be filled with men and women and the crowd still not be a mob. Unity of
purpose, passion and hatred, which merges the many minds of a crowd into the mindlessness of a
mob, almost invariably is supplied by speeches. It is naive, or worse, to teach that oratory with
this object or effect is a service to liberty. No mob has ever protected any liberty, even its own,
but if not put down it always winds up in an orgy of lawlessness which respects no liberties.

In considering abuse of freedom by provocative utterances it is necessary to observe that the law
is more tolerant of discussion than are most individuals or communities. Law is so indifferent to
subjects of talk that I think of none that it should close to discussion. Religious, social and
political topics that in other times or countries have not been open to lawful debate may be freely
discussed here.
Because a subject is legally arguable, however, does not mean that public sentiment will be
patient of its advocacy at all times and in all manners. So it happens that, while peaceful
advocacy of communism or fascism is tolerated by the law, both of these doctrines arouse
passionate reactions. A great number of people do not agree that introduction to America of
communism or fascism is even debatable. Hence many speeches, such as that of Terminiello,
may be legally permissible but may nevertheless in some surrounding, be a menace to peace and
order. When conditions show the speaker that this is the case, as it did here, there certainly comes
a point beyond which he cannot indulge in provocations to violence without being answerable to
society.

Determination of such an issue involves a heavy responsibility. Courts must beware lest they
become mere organs of popular intolerance. Not every show of opposition can justify treating a
speech as a breach of peace. Neither speakers nor courts are obliged always and in all
circumstances to yield to prevailing opinion and feeling. As a people grow in capacity for
civilization and liberty their tolerance will grow, and they will endure, if not welcome, discussion
even on topics as to which they are committed. They regard convictions as tentative and know
that time and events will make their own terms with theories, by whomever and by whatever
majorities they are held, and many will be proved wrong. But on our way to this idealistic state
of tolerance the police have to deal with men as they are. The crowd mind is never tolerant of
any idea which does not conform to its herd opinion. It does not want a tolerant effort at meeting
of minds. It does not know the futility of trying to mob an idea. Released from the sense of
personal responsibility that would restrain even the worst individuals in it if alone and brave with
the courage of numbers, both radical and reactionary mobs endanger liberty as well as order. The
authorities must control them and they are entitled to place some checks upon those whose
behavior or speech calls such mobs into being. When the right of society to freedom from
probable violence should prevail over the right of an individual to defy opposing opinion,
presents a problem that always tests wisdom and often calls for immediate and vigorous action to
preserve public order and safety.

I do not think that the Constitution of the United States denies to the states and t e municipalities
power to solve that problem in the light of local conditions, at least so long as danger to public
order is not invoked in bad faith, as a cover for censorship or suppression. The preamble declares
domestic tranquility as well as liberty to be an object in founding a Federal Government and I do
not think the Forefathers were naive in believing both can be fostered by the law.

Certain practical reasons reinforce the legal view that cities and states sould be sustained in the
power to keep their streets from becoming the battleground for these hostile ideologies to the
destruction and detriment of public order. There is no other power that can do it. Theirs are the
only police that are on the spot. The Federal Government has no police force. The Federal
Bureau of Investigation is, and should remain, not a police but an investigative service. To date
the only federal agency for preserving and restoring order when local authority fails has been the
Army. And when the military steps in, the court takes a less liberal view of the rights of the
individual and sustains most arbitrary exercises of military power. See Korematsu v. United
States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194. Every failure of local authority to deal with riot
problems results in a demand for the establishment of a federal police or intervention by federal
authority. In my opinion, locally established and controlled police can never develop into the
menace to general civil liberties that is inherent in a federal police.

The ways in which mob violence may be worked up are subtle and various. Rarely will a speaker
directly urge a crowd to lay hands on a victim or class of victims. An effective and safer way is
to incite mob action while pretending to deplore it, after the classic example of Antony, and this
was not lost on Terminiello. And whether one may be the cause of mob violence by his own
personification or advocacy of ideas which a crowd already fears and hates, is not solved merely
by going through a transcript of the speech to pick out 'fighting words.' The most insulting words
can be neutralized if the speaker will smile when he says them, but a belligerent personality and
an aggressive manner may kindle a fight without use of words that in cold type shock us. True
judgment will be aided by observation of the individual defendant, as was possible for this jury
and trial court but impossible for us.

There are many appeals these days to liberty, often by those who are working for an opportunity
to taunt democracy with its stupidity in furnishing them the weapons to destroy it as did
Goebbels when he said: 'When democracy granted democratic methods for us in times of
opposition, this (Nazi seizure of power) was bound to happen in a democratic system. However,
we National Socialists never asserted that we represented a democratic point of view, but we
have declared openly that we used democratic methods only in order to gain the power and that,
after assuming the power, we would deny to our adversaries without any consideration the means
which were granted to us in times of (our) opposition.' 1 Nazi Conspiracy & Aggression (GPO
1946) 202, Docs. 2500PS, 2412PS.

Invocation of constitutional liberties as part of the strategy for overthrowing them presents a
dilemma to a free people which may not be soluble by constitutional logic alone.

But I would not be understood as suggesting that the United States can or should meet this
dilemma by suppression of free, open and public speaking on the part of any group or ideology.
Suppression has never been a successful permanent policy; any surface serenity that it creates is
a false security, while conspiratorial forces go underground. My confidence in American
institutions and in the sound sense of the American people is such that if with a stroke of the pen
I could silence every fascist and communist speaker, I would not do it. For I agree with Woodrow
Wilson, who said:

'I have always been among those who b lieved that the greatest freedom of speech was the
greatest safety, because if a man is a fool, the best thing to do is to encourage him to advertise the
fact by speaking. It cannot be so easily discovered if you allow him to remain silent and look
wise, but if you let him speak, the secret is out and the world knows that he is a fool. So it is by
the exposure of folly that it is defeated; not by the seclusion of folly, and in this free air of free
speech men get into that sort of communication with one another which constitutes the basis of
all common achievement.' Address at the Institute of France, Paris, May 10, 1919. 2 Selected
Literary and Political Papers and Addresses of Woodrow Wilson (1926) 333.

But if we maintain a general policy of free speaking, we must recognize that its inevitable
consequence will be sporadic local outbreaks of violence, for it is the nature of men to be
intolerant of attacks upon institutions, personalities and ideas for which they really care. In the
long run, maintenance of free speech will be more endangered if the population can have no
protection from the abuses which lead to violence. No liberty is made more secure by holding
that its abuses are inseparable from its enjoyment. We must not forget that it is the free
democratic communities that ask us to trust them to maintain peace with liberty and that the
factions engaged in this battle are not interested permanently in either. What would it matter to
Terminiello if the police batter up some communists or, on the other hand, if the communists
batter up some policemen? Either result makes grist for his mill; either would help promote
hysteria and the demand for strong-arm methods in dealing with his adversaries. And what, on
the other hand, have the communist agitators to lose from a battle with the police?

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all
restraints from these crowds and that all local attempts to maintain order are impairments of the
liberty of the citizen. The choice is not between order and liberty. It is between liberty with order
and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic
with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

I would affirm the conviction.

Mr. Justice BURTON joins in this opinion.

CC | Transformed by Public.Resource.Org

'All persons who shall make, aid, countenance, or assist in making any improper noise, riot,
disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits
of the city * * * shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall
be severally fined not less than one dollar nor more than two hundred dollars for each offense.'
1(1), ch. 193, Rev.Code 1939, City of Chicago.

The opinions are reported at 332 Ill.App. 17, 74 N.E.2d 45, and at 400 Ill. 23, 79 N.E.2d 39. See,
particularly, 332 Ill.App. at pages 23 and 38, 74 N.E.2d at pages 48 and 54; 400 Ill. at page 33,
79 N.E.2d at page 45.

'Our power of review in this case is limited not only to the question whether a right guaranteed
by the Federal Constitution was denied (Murdock v. City of Memphis, 20 Wall. 590, 22 L.Ed.
429; Haire v. Rice, 204 U.S. 291, 301, 27 S.Ct. 281, 51 L.Ed. 490), but to the particular claims
duly made below, and denied (Seaboard Air Line Ry. v. Duvall, 225 U.S. 477, 485, 488, 32 S.Ct.
790, 56 L.Ed. 1171). We lack here the power occasionally exercised on review of judgments of
lower federal courts to correct in criminal cases vital errors, although the objection was not taken
in the trial court. Wiborg v. United States, 163 U.S. 632, 658, 660, 16 S.Ct. 1127, 1197, 41 L.Ed.
289; Clyatt v. United States, 197 U.S. 207, 221, 222, 25 S.Ct. 429, 49 L.Ed. 726. This is a writ of
error to a state court. Because we may not inquire into the errors now alleged I concur in
affirming the judgment of the state court.' Concurring opinion of Mr. Justice Brandeis joined by
Mr. Justice Holmes in Whitney v. California, 274 U.S. 357, 380, 47 S.Ct. 641, 650, 71 L.Ed.
1095.

TERMINIELLO v. CHICAGOFacts of the Case

8 Father Arthur Terminiello, in an auditorium in $hicago, deli%ered a %itriolic speech in #hich he critici9ed
%arious political and racial groups and %iciously condemned the protesting cro#d that had gathered outside the
auditorium. Policemen assigned to the e%ent #ere unable to pre%ent se%eral disturbances by the :angry and
turbulent: cro#d. The police arrested Terminiello for :breach of the peace.: 3e #as then tried and con%icted for his
central role in inciting a riot.
Questio
8 5id the $hicago ordinance %iolate Terminiello;s right of free e1pression guaranteed by the First mendment2
Conclusion
in a to decision, the $ourt held that the :breach of the peace: ordinance unconstitutionally
infringed upon the freedom of speech. 4oting that :?t@he %itality of ci%il and political
institutions in our society depends on free discussion,: the $ourt held that speech could be
restricted only in the e%ent that it #as :likely to produce a clear and present danger of a
serious substanti%e e%il that rises far abo%e public incon%enience, annoyance, or unrest.:
Austice 5ouglas #rote that :a function of free speech under our system is to in%ite dispute.
t may indeed best ser%e its high purpose #hen it induces a condition of unrest, creates
dissatisfaction #ith conditions as they are, or e%en stirs people to anger

Feiner v. New York, 340 U.S. 315 (1951)

21-06-2012, 17:53

Sergey Tokarev

2155

0 Comments

Irving Feiner was an undergraduate student at Syracuse University in l949. As a member of the
Young Progressive Party, he had participated in the Partys decision to invite John Rogge, a past
Assistant Attorney General of the United States and a member of the American Progressive
Party, to give a speech to be held in public school about what he, and the Progressives, thought
was the unfair conviction of several young blacks in a New Jersey courtroom. The mayor was
enraged about this invitation, as was the chapter of the Syracuse American Legion, and the
mayor orchestrated a denial of the permit for Rogge to speak in the school auditorium.
Feiner, and his associates from the Progressives, arranged to have Rogge speak in a private hotel
in Syracuse. To publicize this new venue and to advertise some of the themes they expected
Rogge to emphasize, Feiner held a street corner rally in downtown Syracuse. Standing on a box
and using a microphone, Feiner condemned the Mayor, the local political system, and the
American Legion. Quoting from the subsequent trial court record (and Feiner disputed some of
these contentions), the judge found that specifically Feiner said: Mayor Costello is a
champagne- sipping bum; he does not speak for the Negro people. . . The 15th Ward is run by
corrupt politicians, and there are horse rooms [betting parlors] operating there.. . . President
Truman is a bum.. . . Mayor ODwyer [of Syracus] is a Nazi Gestapo.. . . The Negroes dont have
equal rights; they should rise up in arms and fight for their rights. A crowd of approximately
seventy-five to eighty (the police estimate accepted by the trial judge; twenty-five to thirty were
estimated by the defense) gathered on the street corner to hear Feiners comments. Some in the
crowd voiced approval; other objected, some vociferously. Passersby on the sidewalk might also
have had their paths partially blocked by the crowd. The police alleged that one spectator (never
a witness during trial however) shouted to them: If you dont get that son of a bitch off, I will
go over and get him off there myself. The police judged that the situation was becoming
dangerous and asked Feiner to stop speaking. When he ignored them, they asked him to step
down from the box and informed him that he was under arrest for disorderly conduct.

Feiners arrest was upheld in the local court, and he was sentenced to thirty days in jail. The case
was appealed (unsuccessfully for Feiner) to two New York courts and finally to the U.S.
Supreme Court. The Court in a six to three decision in 1951 also upheld the trial courts decision
reasoning that police should have discretion to decide when a local rally was becoming a danger
to the community. The Court stressed that Feiner was not arrested for the political content of his
speech but for the effects his words were having on the crowd, and the Court thought that the
police could legitimately conclude that a disturbance or breach of the peace was imminent. The
dissenting justices, in addition to calling into question the factual record the trial judge had
sustained, also questioned the premise of the majority Supreme Court decision. Specifically, they
thought that the police, rather than ask Feiner to stop speaking in the face of a potentially hostile
audience, should have asked-insisted that the crowd move aside and allow pedestrians to pass
and should have informed any one in the crowd threatening the speaker that this kind of threat
was unacceptable, and that if a threat was serious, it could lead to the spectators arrest. In the
dissenters view, the majority deferred too much to both the police and trial judge version of the
events, but even if the view of the police and judge was accepted for the sake of the argument,
Feiners right to speak nonetheless should have been upheld by the majority. The decision, the
dissenters maintained, gave the police too much discretion to decide when a speakers words
were likely to lead to a breach of the peace and did not make the dissenters sufficiently
responsible for those in a crowd threatening a speaker.
Feiner had been expelled from Syracuse shortly after the trial courts decision but was free on
bail pending the final resolution of the case. After the Supreme Courts decision was announced,
Feiner served his thirty days in jail.

The Feiner case has become known as the case that supported what has been called the
hecklers veto. The police could legitimately concludehere by the crowds demeanor in
general, by the get the son-of-abitch comment in particularthat continued speech would
result in a breach of peace.

And so the legal history ends, but the question that remains is whatever happened to Irving
Feiner, what happened to this idealistic student arrested because the courts decided to defer to
local police assessments of the consequences of his words. Several years ago, with the help of
my students, we tracked Irving Feiner to his home outside of New York City. It was wonderful to
learn that he had had a relatively successful business career, ultimately was reaccepted into
Syracuse and earned his college degree, and now stands as a kind of icon for doing the right
thing. He has spoken at several law schools about the case and is an annual speaker in my
undergraduate class at Rutgers. Still the fighter for principled issues, two pieces of Irving
Feiners take on Feiner are important to include in this entry. First, he notes that his take up
arms comments were referring to what he had experienced in post-war France, when thousands
of citizens walked down the Champs-Elysee arm in arm to insist on greater social justice.
Second, he thinks the recollection of calling Truman a bum was incorrect. Noting that he
knows his own rhetorical style, he now invariably tells his audience that he would never have
used the word bum but instead would have said something more colorful, something that
included a reference to Trumans relationship to his mother!

Feiner v. New York

ief Fact Summary. The Petitioner, Feiner (Petitioner), was convicted of disorderly conduct for
refusing to stop giving a speech on a public sidewalk once the crowd started to get a little rowdy.

Synopsis of Rule of Law. When there is clear and present danger of a riot, then the police may
restrict speech.

Facts. The Petitioner was addressing a group of 75 persons gathered on the sidewalk. The
original purpose of the speech was to invite listeners to attend a meeting, but he also made
derogatory marks towards some political officials. Later, a neighbor complained to the police and
2 units were dispatched to the scene. At that time people were spilling into the street and
disrupting traffic. One officer asked the Petitioner to stop talking, but he refused several times
and was eventually arrested.

Issue. Was the disruption of the speech to prevent a riot constitutional?

Held. Yes. The conviction should not be reversed because there was great potential for a riot and
the Petitioner defied the police request.

Dissent. The facts do not show that a riot was imminent. This is just a convenient way for police
to censor unpopular viewpoints.

Discussion. A person does not have the right to free speech when it will result in a riot. The
Petitioner intended to incite the public with his words. Therefore, the police had a legitimate
interest in maintaining the peace and order of the community that outweighed the Petitioners
freedom of speech.
G.R. No. L-31687 February 26, 1970

NAVARRO, petitioner,
vs.
CITY MAYOR ANTONIO J. VILLEGAS, respondent.

RESOLUTION

GENTLEMEN:

Quoted hereunder, for your information, is a resolution of this Court of even date:

"In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after considering the pleadings and arguments of the parties, issued the
following Resolution:

Without prejudice to a more extended opinion and taking into account the following considerations:

That respondent Mayor has not denied nor absolutely refused the permit sought by petitioner;

That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor possesses reasonable discretion to determine or specify the streets or
public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to
minimize the risks of disorder and maintain public safety and order;

That respondent Mayor has expressly stated his willingness to grant permits for peaceful assemblies at Plaza Miranda during Saturdays,
Sundays and holidays when they would not cause unnecessarily great disruption of the normal activities of the community and has further
offered Sunken Gardens as an alternative to Plaza Miranda as the site of the demonstration sought to be held this afternoon;

That experiences in connection with present assemblies and demonstrations do not warrant the Court's disbelieving respondent Mayor's
appraisal that a public rally at Plaza Miranda, as compared to one at the Sunken Gardens as he suggested, poses a clearer and more
imminent danger of public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such assemblies, and
petitioner has manifested that it has no means of preventing such disorders;

That, consequently, every time that such assemblies are announced, the community is placed in such a state of fear and tension that offices
are closed early and employees dismissed, storefronts boarded up, classes suspended, and transportation disrupted, to the general
detriment of the public:

That civil rights and liberties can exist and be preserved only in an order society;

The petitioner has failed to show a clear specific legal duty on the part of respondent Mayor to grant their application for permit
unconditionally;

The Court resolved to DENY the writ prayed for and to dismiss the petition.