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ON THE LIMITATIONS OF THE FREEDOM OF EXPRESSION1

Michael Gines Munsayac2

Introduction

The Constitution, Article 3, Section 4 provides: “No law shall be passed abridging the freedom of
speech, of expression, or of the press, or of the right of people peaceably to assemble and petition the
government for redress of grievance.

The Constitution forbids not the abridging of speech, but the abridging of freedom of speech. 3 There
are several reasons why freedom of expression is guaranteed by the Constitution. For some, freedom of
expression is essential for the search of truth. This is the marketplace idea, which posits that the power
of thought can be tested by its acceptability in the competition of the market. Another reason offered is
that free expression is needed for democracy to work properly. The citizen has to be given the
information required for him to be able to perform his civic duty. Still another reason is a very personal
one: freedom of expression promotes individual self-realization and self-determination. 4

The importance of freedom of expression is easily appreciated. Notably, this is the first right that is
always curtailed when a free society falls under a repressive regime. Our Constitution provides that
“sovereignty resides in the people” 5 who manifest it regularly through their suffrages, and more
frequently and generally, by the assertion of their freedom of expression. This sovereignty would be
negated if they were denied the opportunity to participate in the shaping if public affairs though the
arbitrary imposition upon them of the ban on silence. 6

Freedom of expression contains two guarantees: prohibiting prior restraint and a prohibition of
subsequent punishment.

Prior restraint means official government restrictions on the press or other forms of expression in
advance of actual publication or dissemination. Its most blatant form is a system of licensing or
censorship administered by an executive officer. But it also includes other prior restrictions such as a
judicial injunction against publication, license taxes for the privilege of engaging in the business of
advertising, or flat license fees for the privilege of selling religious books.

The mere prohibition of government interference before words are spoken or published would be an
inadequate protection of the freedom of expression if the government could punish without restraint
after publication. The unrestrained threat of subsequent punishment itself would operate as a very
effective prior restraint. Hence, the guarantee of freedom of expression also means a limitation on the

1
Paper submitted in partial fulfillment of the requirement in Statutory Construction Class under Atty. Jim
Lopez. The author would like to acknowledge the insightful lectures of Dean Pacifico A. Agabin in his
Constitutional Law II class, School Year 2007-2008.
2
Student, Law Program, Lyceum of the Philippines University; B.S. Economics, UP (1998), M.B.A., AdMU
(2002), M.A. Economics, DLSU (2006); concurrently Senior Manager, BPI Asset Management & Trust.
3
Miriam Defensor Santiago, Constitutional Law: Text and Cases, Volume 2 Bill of Rights, 2002 Ed. p.
493.
4
Joaquin Bernas, S.J., Constitutional Rights and Social Demands: Notes and Cases, 2004 Ed., p. 284
5
1987 Constitution, Article II, Section 1.
6
Isagani Cruz, Constitutional Law, 2007 Ed., p. 201.

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power of the state to impose subsequent punishment. Thus it is that much of the jurisprudence on
freedom of expression consists of attempts to find standards for allowable subsequent punishment.

Prior Restraint and the Press

A leading case on prior restraint is New York Times v. United States.7 The case arose when the New York
Times started publication of excerpts from a classified Pentagon study entitled “History of U.S. Decision
Making Process on Vietnam Policy.” The Nixon administration claimed that continued publication of the
study would pose a serious threat to national security. In rejecting the government claim the court
made an important pronouncement. “Any system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity. 8 The Government “thus carries a heavy
burden of showing justification for the enforcement of such a restraint.” 9 The Court held that “the
Government had not met that burden.”

An early U.S. decision however was willing to admit an exception to the prohibition of prior restraint. In
Near v. Minnesota,10 U.S. Supreme Court acknowledged in an obiter dictum that the prior restraint
principle was not an unbending rule. It admitted of exception.

“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.” 11 No one would
question but that government might prevent actual obstruction to its recruiting service or
the publication of the sailing dates of transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against incitements to
acts of violence and the overthrow by force of orderly government.”

Motion pictures do not receive the same preferential treatment accorded to the press in the matter of
prior restraint. In our country, it is legitimate for our executive agency to review a movie before public
exhibition.12 The Philippine Supreme Court, in Iglesia ni Kristo v. Court of Appeals said:13

“To be sure, legal scholars in the United States are still debating the proposition whether or
not courts alone are competent to decide whether speech is constitutionally protected. The
issue involves highly arguable policy by our legislators.”

Related to movie censorship is the prohibition of television coverage of judicial trials. The issue came to
a head in Secretary of Justice v. Sandiganbayan 14 which involved a petition to allow live television
coverage of the trial of former President Estrada. The Court said:

7
Cited in People v. Nazario, 165 SCRA 186, 195-196 (1988).
8
Citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
9
Citing Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)
10
238 U.S. 697, 716 (1931), as cited in Bernas, pp. 285-290.
11
Ibid, citing Schenck v. United States, 249 U.S. 47 (1919)
12
Cf. Freedman v. Maryland, 380 U.S. 51 (1965). The American doctrine holds that only courts can stop
the showing of the film.
13
G.R. No. 119673, July 26, 1996.
14
A.M. No. 01-4-03-SC, June 29, 2001.

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“Experience has established the prejudicial effect of television on witnesses, Witnesses
might be frightened, play to the camera, or become nervous. They are subject to
extraordinary out-of-court influences which might affect their testimony. Also, telecasting
not only increases the trial judges’ responsibility to avoid actual prejudice to the
defendant, it may as well affect his own performance. Judges are human being also and
are subject to the same psychological reactions as laymen. For the defendant, telecasting
is a form of mental harassment and subjects him to excessive public exposure and
distracts him from the effective presentation of his defense.”

The television camera is a powerful weapon which “intentionally or inadvertently can


destroy an accused and his case in the eyes of the public.”

Media and Privacy

The case of Ayer Productions v. Capulong15 was the occasion for an examination of motion pictures as a
vehicle not just for entertainment but also for information. The case involved the production of “ The
Four Days of Revolution,” a movie account of the bloodless coup that toppled the Marcos regime. Juan
Ponce Enrile, a principal actor in the historic event, sought to enjoin the use of his name or of any of his
family. Against Enrile’s claim was the producer’s assertion of freedom of expression. The Court had to
balance Enrile’s claim to the right of privacy against the producer’s freedom of expression and
concluded that:

“A limited intrusion into a person’s privacy has long been regarded as permissible where that
person is a public figure and the information sought to be elicited from him or to be published
about him constitute matters of public character. The interest sought to be protected by the
right to privacy is the right to be free from “unwarranted publicity, from the wrongful
publicizing of the private affairs and activities of an individual which are outside the realm of
legitimate public concern.”16

Limitations on the Freedom of Expression

If prior restraints were all that the constitutional guarantee prohibited and government could impose
subsequent punishment without restraint, freedom of expression could be a “mockery and a
delusion.”17 Hence, freedom of expression also means that there are limits to the power of government
to impose rules or regulations curtailing freedom of speech and of the press. The right of free speech
and press is not absolute. He who abuses it may be held liable. 18

The search for standards for government curtailment of speech presupposes the premise that freedom
of speech is not absolute. In the oft quoted expression of Justice Holmes:

15
160 SCRA 861 (1988).
16
Ibid, citing “The Constitutional Foundations of Privacy,” in Irene Cortes, Emerging Trends in Law, pp. 1-
70. The lecture of Dean Cortes (later Associate Justice of the Supreme Court) was originally delivered in
1970.
17
Bernas, p 31.
18
Santiago, p 588.

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“the constitutional guarantee obviously was not intended to give immunity for every possible
use of language.”19

For testing the validity of laws which impinge upon freedom of expression, various tests have been
evolved.

The Dangerous Tendency Doctrine

In Bayan v. Ermita,20 the Supreme Court outlawed the so-called Calibrated Pre-emptive Response Policy
adopted by the administration against public rallies, saying that “it has no place in our legal firmament
and must be struck down as a darkness that shrouds freedom. The Calibrated Pre-emptive Response
Policy, insofar as it would purport to differ from or be in lieu of maximum tolerance, is null and void and
respondents are enjoined to refrain from using it and to strictly observe the requirements of maximum
tolerance.”

This test was the test consistently applied during the American regime. The accepted rule was that
speech may be curtailed or punished when it “creates a dangerous tendency which the state has the
right to prevent.”21 The remark complained of in the case, made by a lowly municipal secretary in the
course of a conversation at a casual meeting with another person, was:

“The Filipinos like myself must use bolos for cutting off Governor General Wood’s head for
having recommended a bad thing for the Filipinos, for has killed our independence.”

The accused was sentenced to jail.

All it requires for speech to be punishable is that there be a rational connection between the speech and
the evil apprehended. In other words, under this rule, the constitutionality of a statute curtailing the
freedom of expression is determined in the same manner that the constitutionality of any statute is
determined, namely by answering the question whether the statute is “reasonable.” Right now, this is a
highly unacceptable criterion, chosen obviously to discourage attacks against the American
Administration.22

The Clear and Present Danger Rule

The “dangerous tendency” rule yielded to the “clear and present danger” test, a standard which serves
to emphasize the importance of speech to a free society without sacrificing other freedoms essential to
a democracy.23 This is the most libertarian of all the tests and as declared by the U.S. Supreme Court in
the case of Schenck v. United States:24

“The question in every case is whether the words used in such circumstances and are of
such a nature to create a clear and present danger that will bring about the substantive
evils that a State has a right to prevent.” If they do, the speaker shall be punished;
19
Trohwerk v. United States, 249 U.S. 204, 206 (1919), cited in Bernas, p 31.
20
G.R. No. 769838, April 25, 2006.
21
People v. Perez, 45 Phil. 599 (1923).
22
Cruz, p. 221.
23
Bernas, p. 31.
24
249 U.S. 47, 52 (1919), as cited in Cruz, pp. 213-214.

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otherwise, not. “It is a question of proximity and degree. The character of every act
depends upon the circumstances in which it is done.”

Thus, the most stringent protection of free speech would not protect a man in falsely shouting “Fire,
fire” in a crowded auditorium and causing a panic. By contrast, the same word shouted with the same
note of alarm but is a less flammable setting, say in the middle of UP Sunken Garden, would create no
clear and present danger and therefore no liability.

The “clear and present” danger rule has been applied in the following cases: 25

 Criminal prosecutions for opposition to war


 Statutes penalizing the advocacy of the overthrow of the government by force or violence
 Attacks of courts or judges
 Picketing
 Regulation of prison inmates’ access to newspapers, periodical, etc.
 Incitement to crime
 Breach of the peace or disorderly conduct
 Requirement of education officials that public school students should salute the flag.

By contrast, the “clear and present danger” rule has been held not to be applicable in the following
cases:26

 Antitrust actions
 Obscenity
 Libel
 Statutes regulating conduct of labor union affairs
 Statutes governing the use of school property for non-school purposes.
 Demonstrations in an inappropriate place, such as a courthouse.

In later years, this doctrine has been superseded by its own offspring, the “weighting-of-interest”
standard also known as the “balance-of-interest” test.

Balancing of Interest Test

Since the “clear and present danger” test is a “question of proximity and degree” and since not all evils
easily lend themselves to measurement in terms of proximity and degree, the test cannot always be
conveniently applied to all types of encroachment on freedom of expression. For this reason, the
balancing of interest test came into being.27

The test rests on the theory that it is the Court’s function in cases before it, when it finds public interests
served by legislation on the one hand and guaranteed freedoms affected by it on the other, to balance

25
Santiago, pp. 589-590. Dr. Santiago cited the cases of Schenk v. United States, 249 US 47; Dennis v.
United States, 249 US 494; Thornbill v. Alabama, 310 US 88; Musser v. Utah, 333 US 95; Terminiello v.
Chicago, 337 US 1; West Virginia State Board of Education v. Barnette. 319 US 624.
26
Ibid, p. 590. Dr. Santiago cited the following cases: Associated Press v. United States, 326 US 1;
Beauharnais v. Illinois, 343 US 250; American Communication Association v. Lands, 339 US 382; and
Cox v. Louisiana, 379 US 559.
27
Bernas, p. 32.

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one against the other and to arrive at a judgment, where the greater weight shall be placed. If on
balance it appears that the public interest served by restrictive legislation is of such a character that it
outweighs the interest served by freedom, then the Court will find the legislation valid. 28

The balancing of interest test has been particularly useful in the analysis of laws which impose a degree
of restriction on speech for the sake of purifying and equalizing the electoral process. 29

This test has not found favor with many libertarians. The flaw in this method is that it, in effect, allows
the courts to decide that this freedom may not be so enforced unless they believe it is reasonable to do
so.30

Other Limitations of the Freedom of Speech and Press

Dr. Santiago enumerated other limitations in the freedom of speech and the press. These limitations
are in addition to the three doctrines previously discussed.

 Right of privacy. Government may properly act in many situations to prohibit intrusion into the
privacy of the home of unwelcome views and ideas which cannot be totally banned from the
public dialogue.31 Thus, a statute that authorizes a household to require his name be removed
from the mailing list of a mailer of pandering advertisements does not violate this right. 32

 Reasonable bounds of newsgathering. The press is not immune from restriction or regulations.
The press does not have a constitutional right of special access to information or places not
available to the general public. 33 In a case involving Jacqueline Kennedy Onassis, a U.S. court
held that although the late First Lady was a public figure, a photographer’s actions went far
beyond reasonable bounds for news gathering, and the photographer was enjoined from any
further harassment of her.34

 Business regulations apply to press. With respect to statutory regulations, the press stands on
the same ground as ordinary persons. A newspaper is liable for libel, contempt of court, and
payment of business taxes; he is also subject to antitrust and labor laws.

 Advocacy rule. The advocacy rule states that the constitutional guarantee of free speech and
free press do not permit a state to forbid or prescribe advocacy of the use of force or of law
violation, except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action. 35 Under the advocacy rule, when the
advocacy of conduct prescribed by law falls short of incitement, and there is nothing to indicate
that the advocacy will be immediately acted on, free speech cannot be denied. 36

28
Gonzales v. COMELEC, 27 SCRA 835 (1969).
29
Social Weather Stations v. COMELEC, G.R. No. 147571, May 5, 2000; ABS-CBN Broadcasting
Corporation v. COMELEC, G.R. No. 133486, January 28, 2000; National Press Club v. COMELEC, 207
SCRA 1 (1992).
30
Cruz, p. 223.
31
Santiago, p. 588, citing Cohen v. California, 403 US 15.
32
Ibid, citing Rowan v. US Post Office Department, 397 US 728.
33
Ibid. citing Bell v. Procunier, 417 US 817.
34
Ibid, citing Galella v. Onassis 487 F2d 986.
35
Ibid, citing Communist Party of Indiana v. Whitcomb, 414 US 441.
36
Ibid, citing Kingsley International Pictures Corp. v. Regents of University of New York, 360 US 684.

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The advocacy rule has been applied to the following cases:

o Criminal prosecutions for opposition to a war or to the military, generally 37


o Cases involving advocacy of the overthrow of the government by force and violence. 38

Conversely, the advocacy rule has not been applied in certain cases. In these specific situations,
advocacy of unlawful acts or of the forceful overthrow of the government has been held not
protected by the free speech and press guarantee. The court did not find it necessary to
consider whether the advocacy was directed to inciting or producing imminent lawless action
and was likely to incite or produce such action. Such cases include:

o Where the issue was an applicant’s admission to the bar 39


o Advocacy of unlawful acts by an officer in the armed forces 40
o Deportation of an alien.41

Commercial Speech: Least Protected Speech

Commercial speech simply means communication whose sole purpose is to propose a commercial
transaction. It is also protected speech, but it has not been accorded the same level of protection as
that given to what is called “core” speech such as political speech. 42 Central Hudson Gas v. Public Service
Commission43 set down the requirements for the protection of commercial speech:

1. The speech must not be false or misleading or propose an illegal activity


2. The governmental interest sought to be served by the regulation must be substantial
3. The regulation must directly advance the government interest
4. The regulation must not be overbroad.

In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Secretary Duque 44,
the Supreme Court unanimously declared null and void certain provisions of the Department of Health’s
Revised Implementing Rules and Regulations of the Milk Code, which call for an absolute ban on the
promotion and advertisement of breast milk substitutes. The Court declared that the advertising and
promotion of breast milk substitutes properly falls within the ambit of the term commercial speech, a
separate category of speech which is not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless entitled to protection. Chief Justice
Puno said:

“The absolute ban on advertising is unduly restrictive and is more than necessary to further
the avowed governmental interest of promoting the health of infants and young children. It
ought to be self-evident that the advertisement of such products which are strictly

37
Ibid, citing Bashellar v. Maryland, 397 US 564.
38
Ibid, citing Communist Party of Indiana v. Whitcomb, 414 US 441.
39
Ibid., citing Kingsley v. State Bar of California, 366 US 36.
40
Ibid., citing Parker v. Levy, 417 US 733.
41
Ibid., citing Harisiades v. Shaugnessy, 342 US 580.
42
Bernas, p. 33.
43
447 US 557 (1980).
44
G.R. No. 173034, October 9, 2007.

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informative cuts deep free speech. The laudable concern of the respondent for the promotion
of the health of infants and young children cannot justify the absolute overarching ban.”

Based on the above cases, it is obvious that commercial speech is protected as long as it is factual and
not contrary to public order and public morals.

Unprotected Speech

Both historically and doctrinally, freedom of expression has never been understood as an absolute right.
There are, in fact, some forms of speech not protected by the Constitution. This is notwithstanding that
the language of the guaranty, unlike some of the provisions in the Bill of Rights, in unqualified. Like all
rights, it is subject to the police power of the state and may be properly regulated in the interest of the
public. It has been held that freedom of expression does not cover ideas offensive to public order or
decency or the reputation of persons. Thus, lewd, words, obscenities, seditious words, and slanderous
words cannot be considered “a step to truth” and therefore will not enjoy immunity from prohibition and
punishment.45

Two types of unprotected speech have received considerable attention from the courts: libel and
obscenity. They are “no essential part of any exposition of ideas, and are of such slight social value as a
step to truth that may be derived from them is clearly outweighed by the social interests in order and
morality.” Thus, in dealing with them there is no call for the application of the clear and present danger
rule or the dangerous tendency rule or the balancing of interest test because they are essentially
methods of competing legitimate values. But there still remains the complicated task of discovering the
norms for determining what speech is libelous or what speech is obscene. 46

Libel

Libel is defined in Article 353 of the Revised Penal Code as a public and malicious imputation of a crime or
of a vice or a defect, real or imaginary, or any act, omission, condition, status, circumstance tending to
cause dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of the
dead.

There is libel when the imputation is public and malicious. Publicity means “making the defamatory
matter, after it has been written, known to someone other the person to whom it has been written,” It is
malicious “when the author of the imputation is prompted by ill-will or spite and speaks not in response
to duty but merely to injure the reputation of the person who claims to have been defamed.” However, a
defamatory speech is protected if it is made in good faith or any subject matter in which the
communicator has an interest, or concerning any matter which he has a duty. For instance, reporting a
defamatory matter to a superior is not libelous. 47

The general rule is that libel is presumed to be malicious even if it be true. The author of a libelous
statement therefore would have the burden of proving that it is not malicious. When, however, the

45
Cruz, p. 213, citing Thornhill v. Alabama, 310 US 88.
46
Bernas, p. 33, citing Central Hudson Gas v. Public Service Commission, 447 US 557, 572 (1980).
47
Luis Reyes, Jr., The Revised Penal Code, Volume II, 2006 Ed., pp.939-981.

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object of vilification is a public official, there is no presumption of malice. The rule on defamation of
public officials was set in the landmark case of New York Times v. Sullivan48 which said:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official
from recovering damages for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with ‘actual malice’, that is, with knowledge that it was
false with reckless disregard of whether it was false or not.”

Philippine jurisprudence accepted the New York Times rule in Borjal v. Court of Appeals49 and Jalandoni v.
Drilon.50 The official acts, and now even the private life of a public servant are legitimate subjects of
public comment. The people have a right to scrutinize and commend or condemn the conduct of their
chosen representative in the government. And as long as their comments are made in good faith and
with justifiable ends, they are insulated from prosecution or damage suits for defamation even if such
views are found to be inaccurate or erroneous. The court even applied the rule to a defamatory
imputation against a lowly barangay official in the case of Vasquez v. Court of Appeals.51

These observations are applicable not only to the public officer but also to the public figure. The
importance to the state and to society of such discussion is so vast, and the advantages derived are so
great, that they more than counterbalance the inconvenience of private persons whose conduct may be
involved.52

Obscenity

As to obscenity, the problem is also of trying to determine what materials are obscene. It is axiomatic
that obscenity is not constitutionally protected because it offends public decency and morals. 53 Statutes
do not define what is obscene. The definition that has gained acceptance comes from Miller v. California54
which set down the guidelines for the trier of facts in obscenity cases. Miller laid down the tests of
obscenity as follows:

1. Whether the average person, applying contemporary standards would find that the work, taken
as a whole, appeals to the prurient interest
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable law
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This was substantially followed by our Court for movies in Gonzales v. Katigbak,55 but the Court noted
that stricter rules could be followed for television since children have easier access to television. In
determining whether the material “goes substantially beyond customary limit of candor and affronts
contemporary standards of decency,” the Courts should not apply a national standard but the standard

48
376 US 254 (1964), as citec by Bernas, p. 373-375.
49
G.R. No. 126466, January 14, 1999.
50
G.R. No. 115239-40, March 2, 2000.
51
G.R. No. 118971, September 15, 1999.
52
Cruz, pp. 224-225, citing New York Times Co. v. Sullivan, 376 US 254.
53
Cruz, p. 232.
54
37 L.Ed. 2d 419 (1973), cited in Bernas, pp. 389 – 395.
55
137 SCARA 717, July 22, 1985.

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of the community in which the material is being tested. Further, the determination of its meaning should
be done on a case-to-case basis.56

The arrival of the Internet has begun to spawn a new class of cases on obscenity. Reno v. American Civil
Liberties Union57 passed upon the constitutionality of two provisions of the Communications Decency Act
of 1996 (CDA) which sought to protect minors from harmful material on the Internet. The law was
declared unconstitutional largely because of the broad and vague sweep of the content based on
prohibition tended to ban material not suitable for minors but to which adults have a right of access. The
Court acknowledged the right of the state to take measures protective of minors, but affirmed that it
cannot be done to the detriment of those who have a right to certain kinds of material.

Epilogue

It was stressed at the outset that freedom of expression is available only insofar as it exercised for the
discussion of matters affecting the public interest. Purely private matters do not come within the
guaranty. Nevertheless, freedom of expression is not absolute notwithstanding that the language of the
guaranty, unlike some of the provisions in the Bill of Rights, is unqualified. Like all rights, it is subject to
the police power of the State and may be properly regulated in the interest of the public.

56
Pita v. Court of Appeals, 178 SCRA 362 (1989).
57
No. 96-511, Decided June 26, 1997, cited in Bernas, 441-443.

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