Sec 4 - Freedom of Expression 10 - 12 PDF

SAN BEDA COLLEGE OF LAW 2017
MENDIOLA, MANILA
FREEDOM OF EXPRESSION freedom of expression. In Mutuc v.

Comelec, 36 SCRA, the Comelec
Sec. 4. Art. Ill: “No law shall be passed prohibition against the use of taped
abridging the freedom of speech, of jingles in the mobile units used in the
expression or of the press, or the right of campaign was held to be unconstitutional,
the people peaceably to assemble and as it was in the nature of censorship.
petition the government for redress of
grievances.” In Sanidad v. Comelec, 181 SCRA 529,
the Court annulled the Comelec
Scope. Any and all modes of expression prohibition against radio commentators
are embraced in the guaranty. Reinforced or newspaper columnists from
by Sec. 18 (1), Art. III. commenting on the issues involved in the
scheduled plebiscite on the organic law
creating the Cordillera Autonomous
Region as an unconstitutional restraint on
Q: WHAT ARE THE PROPER SUBJECTS freedom of expression.
OF FREEDOM OF EXPRESSION?
In Chavez v. Secretary Gonzalez, G.R. No.
Ans – Any subject matter which is of 168338, February 15, 2008, the Supreme
public concern. Court held that acts of the Secretary of
Justice and the National
Aspects: Telecommunications Commission in
warning television stations against
a) Freedom from censorship or prior playing the “Garci tapes” under pain of
restraint. revocation of their licenses, were content-
based restrictions, and should be
i) There need not be total suppression;
subjected to the “clear and present danger
even restriction of circulation constitutes
test”. They focused only on one subject —
censorship [Grosjean v. American Press
a specific content — the alleged taped
Co., 297 U.S. 233]. In Burgos v. Chief of
conversations between the President and
Staff, supra.,the search, padlocking and
a CQmelec official; they did not merely
sealing of the offices of Metropolitan Mail
provide regulations as to time, place or
and We Forum by military authorities,
manner of the dissemination of speech or
resulting in the discontinuance of
expression. Respondents’ evidence falls
publication of the newspapers, was held
short of satisfying the clear and present
to be prior restraint. See also: Corro v.
danger test.
Using, supra.
But in Gonzales v. Comelec, 27 SCRA 835,
In Eastern Broadcasting v. Dans, 137
the Court upheld the validity of the law
SCRA 647, the arbitrary closure of radio
which prohibited, except during the
station DYRE was held violative of the
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prescribed election period, the making of be allocated equally among the

speeches, announcements or candidates. Osmena v. Comelec does not
commentaries for or against the election violate the principle laid down in
of any party or candidate for public office. Philippine Press Institute v. Comelec,
244 SCRA 272, because in the latter, the
In National Press Club v. Comelec, 207 Supreme Court simply said that Comelec
SCRA 1, the Supreme Court upheld the cannot procure print space without
validity of Sec. 11 (b), RA 6646, which paying just compensation therefor.
prohibited any person making use of the
media to sell or to give free of charge In the same vein, in Telecommunications
print space or air time for campaign or and Broadcast Attorneys of the
other political purposes except to the Philippines v. Comelec, G.R. No. 132922,
Comelec. This was held to be within the April 21, 1998, the Supreme Court ruled
constitutional power of the Comelec to that Sec. 92, B.R 881, is constitutional,
supervise the enjoyment or utilization of even as it provides that air time may be
franchises for the operation of media of procured by the Comelec free of charge,
communication and information, for the the same being an exercise of the plenary
purpose of ensuring equal opportunity, police power of the State to promote the
time and space and the “right to reply”, as general welfare. The Court brushed aside
well as uniform and reasonable rates of the arguments of petitioners, in this wise:
charges for the use of such media facilities.
[a] all broadcasting, whether by radio or
This ruling was re-examined in Osmena v. television, is licensed by the Government,
Comelec, G.R. No. 132231, March 31, and the franchise issued to a broadcast
1998, where the Supreme Court station is always subject to amendment,
reaffirmed the validity of Sec. 11 (b) of R.A. alteration or repeal by Congress when the
6646, as a legitimate exercise of the police common good requires, and there is no
power of the State to regulate media of better measure for the common good than
communication and information for the one for free airtime for the benefit not
purpose of ensuring equal opportunity, only of the candidates but even more of
time and space for political campaigns. the public, particularly the voters, so that
The regulation is unrelated to the they will be informed of the issues in an
suppression of speech, as any restriction election, for after all, it is the right of the
on freedom of expression occasioned viewers and listeners, not of the
thereby is only incidental and no more broadcasters, that is paramount;
than is necessary to achieve the purpose
of promoting equality. Consistent with [b] the Comelec does not take over the
this policy are Secs. 90 and 92, B.P. 881, on operation of radio and television stations,
the right of the Comelec to procure but only the allocation of airtime to the
newspaper space and broadcast time to candidates, to ensure equal opportunity,

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time and the right to reply, as mandated could take back the privilege any time
by the Constitution; and without offense to the Constitution. By
granting an exemption, the State does not
[c] there are substantial distinctions in forever waive the exercise of its sovereign
the characteristics of the broadcast media prerogative.
from those of the print media which
justify the different treatment accorded to DOCTRINE:
each for purposes of free speech, viz: the
physical limitations of the broadcast THE DIOCESE OF BACOLOD VS
spectrum, the uniquely pervasive COMELEC
presence of the broadcast media in the
lives of all Filipinos, and the earlier ruling DOCTRINE OF BENEVOLENT
that the freedom of television and radio NEUTRALITY. With religion looked upon
broadcasting is somewhat lesser than the with benevolence and not hostility,
freedom accorded to the print media. benevolent neutrality allows
accommodation of religion under certain
Adiong v. Comelec, 207 SCRA 712, the circumstances. Accommodations are
Comelec’s resolution prohibiting the government policies that take religion
posting of decals and stickers in mobile specifically into account not to promote
units like cars and other moving vehicles the government’s favored form of religion,
was declared unconstitutional for but to allow individuals and groups to
infringement of freedom of expression. exercise their religion without hindrance.
Furthermore, the restriction was so broad Their purpose or effect therefore is to
as to include even the citizen’s privately remove a burden on, or facilitate the
owned vehicles, equivalent to deprivation exercise of, a person’s or institution’s
of property without due process of law. religion.
Besides, the constitutional objective of
giving the rich and poor candidates’ equal As Justice Brennan explained, the
opportunity to inform the electorate is “government may take religion into
not violated by the posting of decals and account . . . to exempt, when possible,
stickers on cars and other vehicles. from generally applicable governmental
regulation individuals whose religious
In Tolentino v. Secretary of Finance, beliefs and practices would otherwise
supra.,(Resolution on the Motion for thereby be infringed, or to create without
Reconsideration, October 30,1995), on state involvement an atmosphere in
the contention that R.A. 7716 which voluntary religious exercise may
discriminates against the press because it
flourish.”
removed the exemption still granted to
others, the Court declared that since the LEMON TEST. A regulation is
law granted the press a privilege, the law constitutional when:
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1. It has a secular legislative purpose; Speech that promotes dialogue on public

2. It neither advances nor inhibits affairs, or airs out grievances and political
religion; and discontent, should thus be protected and
3. It does not foster an excessive encouraged.
entanglement with religion.
Borrowing the words of Justice Brandeis,
"it is hazardous to discourage thought,
hope and imagination; that fear breeds
There are several theories and schools repression; that repression breeds hate;
of thought that strengthen the need to that hate menaces stable government;
protect the basic right to freedom of that the path of safety lies in the
expression. opportunity to discuss freely supposed
grievances and proposed remedies."
First, this relates to the right of the
people to participate in public affairs, In this jurisdiction, this court held that
including the right to criticize "[t]he interest of society and the
government actions. maintenance of good government demand
a full discussion of public affairs." This
Proponents of the political theory on court has, thus, adopted the principle that
"deliberative democracy" submit that "debate on public issues should be
"substantial, open, [and] ethical dialogue uninhibited, robust, and wide open . . .
is a critical, and indeed defining, feature [including even] unpleasantly sharp
of a good polity."This theory may be attacks on government and public
considered broad, but it definitely officials."
"includes [a] collective decision making
with the participation of all who will be Second, free speech should be
affected by the decision." It anchors on encouraged under the concept of a
the principle that the cornerstone of market place of ideas. This theory was
every democracy is that sovereignty articulated by Justice Holmes in that
resides in the people. To ensure order in "the ultimate good desired is better
running the state’s affairs, sovereign reached by the free trade in ideas:"
powers were delegated and individuals
would be elected or nominated in key When men have realized that time has
government positions to represent the upset many fighting faiths, they may come
people. On this note, the theory on to believe even more than they believe
deliberative democracy may evolve to the the very foundations of their own conduct
right of the people to make government that the ultimate good desired is better
accountable. Necessarily, this includes the reached by free trade in ideas - that the
right of the people to criticize acts made best test of truth is the power of the
pursuant to governmental functions. thought to get itself accepted in the
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competition of the market, and that truth happiness and to his full and complete
is the only ground upon which their fulfillment. Thru these freedoms the
wishes safely can be carried out. citizens can participate not merely in the
periodic establishment of the government
The way it works, the exposure to the through their suffrage but also in the
ideas of others allows one to "consider, administration of public affairs as well as
test, and develop their own conclusions." in the discipline of abusive public officers.
A free, open, and dynamic market place of The citizen is accorded these rights so
ideas is constantly shaping new ones. This that he can appeal to the appropriate
promotes both stability and change where governmental officers or agencies for
recurring points may crystallize and weak redress and protection as well as for the
ones may develop. Of course, free speech imposition of the lawful sanctions on
is more than the right to approve existing erring public officers and employees.
political beliefs and economic (Emphasis supplied)
arrangements as it includes, "[t]o
paraphrase Justice Holmes, [the] freedom Fourth, expression is a marker for
for the thought that we hate, no less than group identity. For one, "voluntary
for the thought that agrees with us." In associations perform an important
fact, free speech may "best serve its high democratic role in providing forums
purpose when it induces a condition of for the development of civil skills, for
unrest, creates dissatisfaction with deliberation, and for the formation of
conditions as they are, or even stirs identity and community spirit, and are
people to anger." It is in this context that largely immune from any
we should guard against any curtailment governmental interference."
of the people’s right to participate in the
free trade of ideas. They also "provide a buffer between
individuals and the state - a free space for
Third, free speech involves self- the development of individual
expression that enhances human personality, distinct group identity, and
dignity. This right is "a means of dissident ideas - and a potential source of
assuring individual self-fulfillment," opposition to the state." Free speech must
among others. In Philippine Blooming be protected as the vehicle to find those
Mills Employees Organization v. who have similar and shared values and
Philippine Blooming Mills Co., Inc, this ideals, to join together and forward
court discussed as follows: common goals.
The rights of free expression, free Fifth, the Bill of Rights, free speech
assembly and petition, are not only civil included, is supposed to "protect
rights but also political rights essential to individuals and minorities against
man's enjoyment of his life, to his majoritarian abuses perpetrated
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through [the] framework [of legislatures to [make or] change laws, . . .

democratic governance." distribute literature alerting other
citizens of their concerns[,]" and conduct
Federalist framers led by James Madison peaceful rallies and other similar acts.
were concerned about two potentially Free speech must, thus, be protected as a
vulnerable groups: "the citizenry at large - peaceful means of achieving one’s goal,
majorities - who might be tyrannized or considering the possibility that repression
plundered by despotic federal officials" of nonviolent dissent may spill over to
and the minorities who may be oppressed violent means just to drive a point.
by "dominant factions of the electorate
[that] capture [the] government for their
own selfish ends." According to Madison,
"[i]t is of great importance in a republic THE DIOCESE OF BACOLOD,
not only to guard the society against the REPRESENTED BY THE MOST REV.
oppression of its rulers, but to guard one BISHOP VICENTE M. NAVARRA and THE
part of the society against the injustice of BISHOP HIMSELF IN HIS PERSONAL
the other part." We should strive to CAPACITY, Petitioners, vs. COMELEC
ensure that free speech is protected AND THE ELECTION OFFICER OF
especially in light of any potential BACOLOD CITY, ATTY. MAVIL V.
oppression against those who find MAJARUCON, Respondents.
themselves in the fringes on public issues.
TOPIC: Right to expression, right to
Lastly, free speech must be protected political speech, right to property
under the safety valve theory. This
provides that "nonviolent FACTS: On February 21, 2013,
manifestations of dissent reduce the petitioners posted two (2) tarpaulins
likelihood of violence[.]" within a private compound housing the
San Sebastian Cathedral of Bacolod. Each
"A dam about to burst . . . resulting in the tarpaulin was approximately six feet (6′)
‘banking up of a menacing flood of sullen by ten feet (10′) in size. They were posted
anger behind the walls of restriction’" has on the front walls of the cathedral within
been used to describe the effect of public view. The first tarpaulin contains
repressing nonviolent outlets. In order to the message “IBASURA RH Law” referring
avoid this situation and prevent people to the Reproductive Health Law of 2012
from resorting to violence, there is a need or Republic Act No. 10354. The second
for peaceful methods in making tarpaulin is the subject of the present case.
passionate dissent. This includes "free This tarpaulin contains the heading
expression and political participation" in “Conscience Vote” and lists candidates as
that they can "vote for candidates who either “(Anti-RH) Team Buhay” with a
share their views, petition their check mark, or “(Pro-RH) Team Patay”
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with an “X” mark. The electoral 5. Whether the order for removal of
candidates were classified according to the tarpaulin is a content-based or
their vote on the adoption of Republic Act content-neutral regulation.
No. 10354, otherwise known as the RH 6. Whether or not there was violation
Law. Those who voted for the passing of of petitioners’ right to property.
the law were classified by petitioners as 7. Whether or not the tarpaulin and
comprising “Team Patay,” while those its message are considered
who voted against it form “Team Buhay.” religious speech.
Respondents conceded that the

tarpaulin was neither sponsored nor paid
for by any candidate. Petitioners also HELD:
conceded that the tarpaulin contains
names of candidates for the 2013 FIRST ISSUE: No.
elections, but not of politicians who
helped in the passage of the RH Law but The Court ruled that the present
were not candidates for that election. case does not call for the exercise of
prudence or modesty. There is no political
ISSUES: question. It can be acted upon by this
court through the expanded jurisdiction
1. Whether or not the size limitation granted to this court through Article VIII,
and its reasonableness of the Section 1 of the Constitution..
tarpaulin is a political question,
hence not within the ambit of the The concept of a political
Supreme Court’s power of review. question never precludes judicial review
2. Whether or not the petitioners when the act of a constitutional organ
violated the principle of infringes upon a fundamental individual
exhaustion of administrative or collective right. Even assuming
remedies as the case was not arguendo that the COMELEC did have the
brought first before the COMELEC discretion to choose the manner of
En Banc or any if its divisions. regulation of the tarpaulin in question, it
3. Whether or not COMELEC may cannot do so by abridging the
regulate expressions made by fundamental right to expression.
private citizens.
4. Whether or not the assailed notice Also the Court said that in our
and letter for the removal of the jurisdiction, the determination of whether
tarpaulin violated petitioners’ an issue involves a truly political and non-
fundamental right to freedom of justiciable question lies in the answer to
expression. the question of whether there are
constitutionally imposed limits on powers
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or functions conferred upon political Petitioners’ exercise of their right

bodies. If there are, then our courts are to speech, given the message and their
duty-bound to examine whether the medium, had understandable relevance
branch or instrumentality of the especially during the elections.
government properly acted within such COMELEC’s letter threatening the filing of
limits. the election offense against petitioners is
already an actionable infringement of this
A political question will not be right. The impending threat of criminal
considered justiciable if there are no litigation is enough to curtail petitioners’
constitutionally imposed limits on powers speech.
or functions conferred upon political
bodies. Hence, the existence of In the context of this case,
constitutionally imposed limits justifies exhaustion of their administrative
subjecting the official actions of the body remedies as COMELEC suggested in their
to the scrutiny and review of this court. pleadings prolongs the violation of their
freedom of speech.
In this case, the Bill of Rights
gives the utmost deference to the right to
free speech. Any instance that this right
may be abridged demands judicial THIRD ISSUE: No.
scrutiny. It does not fall squarely into any
doubt that a political question brings. Respondents cite the Constitution,
laws, and jurisprudence to support their
position that they had the power to
regulate the tarpaulin. However, the
SECOND ISSUE: No. Court held that all of these provisions
pertain to candidates and political parties.
The Court held that the argument on Petitioners are not candidates. Neither do
exhaustion of administrative remedies is they belong to any political party.
not proper in this case. COMELEC does not have the authority to
regulate the enjoyment of the preferred
Despite the alleged non- right to freedom of expression exercised
exhaustion of administrative remedies, it by a non-candidate in this case.
is clear that the controversy is already
ripe for adjudication. Ripeness is the
“prerequisite that something had by then
been accomplished or performed by FOURTH ISSUE: Yes.
either branch or in this case, organ of
government before a court may come into
the picture.”
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The Court held that every citizen’s FIFTH ISSUE: Content-based regulation.
expression with political consequences
enjoys a high degree of protection. Content-based restraint or
censorship refers to restrictions “based
Moreover, the respondent’s on the subject matter of the utterance or
argument that the tarpaulin is election speech.” In contrast, content-neutral
propaganda, being petitioners’ way of regulation includes controls merely on
endorsing candidates who voted against the incidents of the speech such as time,
the RH Law and rejecting those who voted place, or manner of the speech.
for it, holds no water.
The Court held that the
The Court held that while the regulation involved at bar is content-
tarpaulin may influence the success or based. The tarpaulin content is not easily
failure of the named candidates and divorced from the size of its medium.
political parties, this does not necessarily
mean it is election propaganda. The Content-based regulation bears a
tarpaulin was not paid for or posted “in heavy presumption of invalidity, and this
return for consideration” by any court has used the clear and present
candidate, political party, or party-list danger rule as measure.
group.
Under this rule, “the evil
By interpreting the law, it is clear consequences sought to be prevented
that personal opinions are not included, must be substantive, ‘extremely serious
while sponsored messages are covered. and the degree of imminence extremely
high.’” “Only when the challenged act has
The content of the tarpaulin is a overcome the clear and present danger
political speech rule will it pass constitutional muster,
with the government having the burden
Political speech refers to speech “both of overcoming the presumed
intended and received as a contribution unconstitutionality.”
to public deliberation about some issue,”
“fostering informed and civic minded Even with the clear and present
deliberation.” On the other hand, danger test, respondents failed to justify
commercial speech has been defined as the regulation. There is no compelling and
speech that does “no more than propose a substantial state interest endangered by
commercial transaction.” The expression the posting of the tarpaulin as to justify
resulting from the content of the tarpaulin curtailment of the right of freedom of
is, however, definitely political speech. expression. There is no reason for the
state to minimize the right of non-
candidate petitioners to post the
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tarpaulin in their private property. The not binding upon this court. The position
size of the tarpaulin does not affect of the Catholic religion in the Philippines
anyone else’s constitutional rights. as regards the RH Law does not suffice to
qualify the posting by one of its members
of a tarpaulin as religious speech solely on
such basis. The enumeration of
SIXTH ISSUE: Yes. candidates on the face of the tarpaulin
precludes any doubt as to its nature as
The Court held that even though speech with political consequences and
the tarpaulin is readily seen by the public, not religious speech.
the tarpaulin remains the private
property of petitioners. Their right to use
their property is likewise protected by the
Constitution. NACHURA:
Criticism of official conduct. The leading

Any regulation, therefore, which
case of U.S. v. Bustos, 37 Phil 731, is
operates as an effective confiscation of
authority for the rule that the individual is
private property or constitutes an given the widest latitude in criticism of
arbitrary or unreasonable infringement of
official conduct. The Supreme Court
property rights is void, because it is compared criticism to a “scalpel that
repugnant to the constitutional relieves the abscesses of officialdom”.
guaranties of due process and equal
protection of the laws. However, consider the following: In
People v. Alarcon, 69 Phil 265, it was
The Court in Adiong case held held that newspaper publications tending
that a restriction that regulates where to impede, obstruct, embarrass or
decals and stickers should be posted is “so influence the courts in administering
broad that it encompasses even the justice in a pending suit or proceeding
citizen’s private property.” Consequently, constitutes criminal contempt which is
it violates Article III, Section 1 of the summarily punishable by the courts.
Constitution which provides that no
person shall be deprived of his property In In Re: Atty. Emiliano P. Jurado, Jr., the
without due process of law. Court said that a publication that tends to
impede, embarrass or obstruct the court
and constitutes a clear and present
danger to the administration of justice is
SEVENTH ISSUE: No. not protected by the guarantee of press
freedom and is punishable by contempt. It
The Court held that the church is not necessary to show that the
doctrines relied upon by petitioners are publication actually obstructs the
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administration of justice; it is enough that political activities can be so construed or

it tends to do so. extended as to permit any such liberties
to a member of the bar”..
In In Re: Sotto, 46 O.G. 2570, a senator
was punished for contempt for having In Nestle Philippines v. Sanchez, 154
attacked a decision of the Supreme Court SCRA 542, required to show cause why
which he called incompetent and narrow- they should not be punished for contempt,
minded, and announcing that he would the workers involved in a labor dispute
file a bill for its reorganization. In In Re: who had mounted a 24-hour picket along
Column of Ramon Tulfo, Tulfo’s Padre Faura, pitched tents thereon,
“Sangkatutak na Bobo” column (on the SC blocked traffic, and maintained a
decision in Valmonte v. de Villa, supra.) continuous harangue pleading their case,
was held contumacious. Freedom of the extended apologies to the court and
press is subordinate to the decision, desisted, promising they would not take
authority, integrity and independence of similar action again.
the judiciary and the proper
administration of justice. While there is In In Re Emil Jurado, Ex Rel: PLDT, 243
no law to restrain or punish the freest SCRA 299, the Court said that Jurado is
expression of disapprobation of what is being called to account as a journalist
done in or by the courts, free expression who has misused and abused press
must not be used as a vehicle to satisfy freedom to put the judiciary in clear and
one’s irrational obsession to demean, present danger of disrepute and of public
ridicule, degrade and even destroy the odium and opprobrium, to the detriment
courts and their members. In In Re: of the administration of justice. That he is
Laureta, supra.,a lawyer was held in a member of the Bar has nothing to do
contempt and suspended from the with the imposition of these sanctions,
practice of law for writing individual although it may aggravate liability.
letters to the members of the SC division
that decided a case against his client, In Estrada and Pwersa ng Masang
arrogantly questioning their decision and Pilipino v. Evardone, G.R. No. 159751,
threatening an expose if the same was not December 6, 2007, where petitioners
reconsidered in his favor. imputed contumacious statements to
respondent for referring to rumors that
In Zaldivar v. Sandiganbayan, 170 SCRA Chief Justice Panganiban has intentions of
1, a member of the Bar who imputed running for the Senate, the Supreme Court
charges of improper influence, corruption found as sufficient and acceptable the
and other misdeeds to members of the defense of respondent that he had no
Supreme Court, was suspended from the intention to undermine the integrity of
practice of law, as “neither the right of the Court, and that nothing in his
free speech nor the right to engage in statements insinuate or suggest that the

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Court was susceptible to influence. US vs. Bustos

Nothing in his statements can be
considered as a malicious attack on the Q: Does freedom of expression in
proceedings of the Court as to cast doubt general cover criticisms?
on its integrity. His remarks about the A: Yes. Right to criticize is comparable to
Chief Justice were mere speculations and scalpel (a surgical instrument used to
personal observations based on a expose illness). Freedom of expression
precedent not derogatory or exposes abuses/social ills perpetrated by
contumacious enough to warrant sanction public officers. It is a necessary
from the Court. consequence of a democratic institution.
Right of students to free speech in school Meron text na naputol di ko mabasa!!!!!

premises not absolute. This right must
always be applied in light of the special Necessary consequences of republican
characteristics of the school environment. institution
While the Campus Journalism Act
provides that a student shall not be Q: What is Assembly & Petition: (US
expelled or suspended solely on the basis vs.Bustos)
of articles he or she has written, the same Right on the part of the citizens to meet
should not infringe on the school’s right peaceably in respect to public affairs etc.
to discipline its students. Thus, this
section of the Campus Journalism Act
should be read to mean that the school DOCTRINE:
cannot suspend or expel a student solely
United States vs. Bustos [G.R. No. L-
on the basis of the articles he or she has
written, except when such article 12592, March 8, 1918]
materially disrupts class work or involves
FREEDOM OF SPEECH INCLUDES THE
substantial disorder or invasion of rights
FREEDOM TO COMMENT ON OFFICIAL
of others [Miriam College Foundation v.
CONDUCT. The interest of society and the
Court of Appeals, G.R. No. 127930,
maintenance of good government demand
December 15, 2000],
a full discussion of public affairs.
Complete liberty to comment on the
conduct of public men is a scalpel in the
Q: Criticisms on official conduct, does case of free speech. The sharp incision of
the truth matter? its probe relieves the abscesses of
officialdom. Men in public life may suffer
ANS – No. it suffices if he believes it to be under a hostile and an unjust accusation;
true. The administration of the law is a the wound can be assuaged with the balm
matter of vital public concern. of a clear conscience. A public officer must

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not be too thin-skinned with reference to know of any official dereliction on the
comment upon his official acts. Only thus part of a magistrate or the wrongful act of
can the intelligence and dignity of the any public officer to bring the facts to the
individual be exalted. Of course, criticism notice of those whose duty it is to inquire
does not authorize defamation. into and punish them. In the words of Mr.
Justice Gayner, who contributed so largely
Nevertheless, as the individual is less than to the law of libel. "The people are not
the State, so must expected criticism be obliged to speak of the conduct of their
born for the common good. Rising officials in whispers or with bated breath
superior to any official, or set of officials, in a free government, but only in a
to the Chief Executive, to the Legislature, despotism." (Howarth vs. Barlow [1906],
to the Judiciary — to any or all the 113 App. Div., N. Y., 510.)
agencies of Government — public opinion
should be the constant source of liberty THE RIGHT TO ASSEMBLE IS
and democracy. (See the well considered COMPLEMENT TO THE FREE SPEECH.
cases of Wason vs. Walter, 4 L.R. 4 Q. B., The right to assemble and petition is the
73; Seymour vs. Butterworth, 3 F. & F., necessary consequence of republican
372; The Queen vs. Sir R. Garden, 5 Q. B. D. institutions and the complement of the
right of free speech. Assembly means a
The guaranties of a free speech and a free right on the part of citizens to meet
press include the right to criticize judicial peaceably for consultation in respect to
conduct. The administration of the law is public affairs. Petition means that any
a matter of vital public concern. Whether person or group of persons can apply,
the law is wisely or badly enforced is, without fear of penalty, to the appropriate
therefore, a fit subject for proper branch or office of the government for a
comment. If the people cannot criticize a redress of grievances. The persons
justice of the peace or a judge the same as assembling and petitioning must, of
any other public officer, public opinion course, assume responsibility for the
will be effectively muzzled. Attempted charges made.
terrorization of public opinion on the part
of the judiciary would be tyranny of the PRIVILEGED COMMUNICATION. Public
basest sort. The sword of Damocles in the policy, the welfare of society, and the
hands of a judge does not hang suspended orderly administration of government
over the individual who dares to assert have demanded protection for public
his prerogative as a citizen and to stand opinion. The inevitable and incontestable
up bravely before any official. On the result has been the development and
contrary, it is a duty which every one adoption of the doctrine of privilege.
owes to society or to the State to assist in
the investigation of any alleged "The doctrine of privileged
misconduct. It is further the duty of all communications rests upon public policy,
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MENDIOLA, MANILA
'which looks to the free and unfettered not necessary. All persons have an
administration of justice, though, as an interest in the pure and efficient
incidental result, it may in some instances administration of justice and of public
afford an immunity to the evil-disposed affairs. The duty under which a party is
and malignant slanderer.'" (Abbott vs. privileged is sufficient if it is social or
National Bank of Commerce, Tacoma moral in its nature and this person in
[1899], 175 U. S., 409, 411.) Privilege is good faith believes he is acting in
classified as either absolute or qualified. pursuance thereof although in fact he is
With the first, we are not concerned. As to mistaken. The privilege is not defeated by
qualified privilege, it is as the words the mere fact that the communication is
suggest a prima facie privilege which may made in intemperate terms. A further
be lost by proof of malice. The rule is thus element of the law of privilege concerns
stated by Lord Campbell, C. J. "A the person to whom the complaint should
communication made bona fide upon any be made. The rule is that if a party applies
subject-matter in which the party to the wrong person through some
communicating has an interest, or in natural and honest mistake as to the
reference to which he has a duty, is respective functions of various officials
privileged, if made to a person having a such unintentional error will not take the
corresponding interest or duty, although case out of the privilege.
it contained criminatory matter which
without this privilege would be
slanderous and actionable." (Harrison vs.
Bush, 5 E. & B., 344; 1 Jur. [N.S.], 846; 25 L. THE UNITED STATES vs FELIPE
J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.) BUSTOS, ET AL.
G.R. No. L-12592, March 8, 1918.
A pertinent illustration of the application
of qualified privilege is a complaint made Facts: In the latter part of 1915,
in good faith and without malice in regard numerous citizens of the Province of
to the character or conduct of a public Pampanga assembled, and prepared and
official when addressed to an officer or a signed a petition to the Executive
board having some interest or duty in the Secretary charging Roman Punsalan,
matter. Even when the statements are justice of the peace of Macabebe and
found to be false, if there is probable Masantol, Pampanga, with malfeasance in
cause for belief in their truthfulness and office and asking for his removal.
the charge is made in good faith, the
mantle of privilege may still cover the The Executive Secretary referred the
mistake of the individual. But the papers to the judge of first instance for
statements must be made under an the 7th Judicial District requesting
honest sense of duty; a self-seeking investigation, proper action, and report.
motive is destructive. Personal injury is The justice of the peace was notified and

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MENDIOLA, MANILA
denied the charges. The judge of first petition the Government for a redress of
instance, having established guilt, grievances."
recommended to the Governor-General
that the respondent be removed from his The Philippine Bill, the Act of Congress of
position as justice of the peace and it is July 1, 1902, and the Jones Law, the Act of
ordered that the proceedings had in this Congress of August 29, 1916, in the
case be transmitted to the Executive nature of organic acts for the Philippines,
Secretary.Later the justice of the peace continued this guaranty. The words
filled a motion for a new trial; the judge of quoted are not unfamiliar to students of
first instance granted the motion, Constitutional Law, for they are the
documents were introduced asserting counterpart of the first amendment to the
that the justice of the peace was the Constitution of the United States, which
victim of prosecution, and that charges the American people demanded before
were made for personal reasons. He was giving their approval to the Constitution.
then acquitted.
These paragraphs found in the Philippine
Thereafter, in 1916, a criminal action for Bill of Rights are not threadbare verbiage.
libel against the defendants who earlier The language carries with it all the
initiated the petition for the judge’s applicable jurisprudence of great English
removal was instituted. The CFI of and American Constitutional cases. And
Pampanga found the defendants guilty. what are these principles? Volumes would
inadequately answer. But included are the
Issue: Whether or not the defendants are following:
guilty of a libel of Roman Punsalan, justice
of the peace of Macabebe and Masantol, The interest of society and the
Province of Pampanga. maintenance of good government
demand a full discussion of public
Held: No.The Constitution of the United affairs. Complete liberty to comment on
States and the State constitutions the conduct of public men is a scalpel in
guarantee the right of freedom of speech the case of free speech. The sharp
and press and the right of assembly and incision of its probe relieves the
petition. We are therefore, not surprised abscesses of officialdom. Men in public
to find President McKinley in that Magna life may suffer under a hostile and an
Charta of Philippine Liberty, the unjust accusation; the wound can be
Instruction to the Second Philippine assuaged with the balm of a clear
Commission, of April 7, 1900, laying down conscience. A public officer must not be
the inviolable rule "That no law shall be too thin-skinned with reference to
passed abridging the freedom of speech comment upon his official acts. Only
or of the press or of the rights of the thus can the intelligence and dignity of
people to peaceably assemble and the individual be exalted. Of course,
Page | 15
MENDIOLA, MANILA
criticism does not authorized

defamation. Nevertheless, as the In the words of Mr. Justice Gayner, who
individual is less than the State, so must contributed so largely to the law of libel.
expected criticism be born for the common "The people are not obliged to speak of
good . Rising superior to any official, or the conduct of their officials in whispers
set of officials, to the Chief Executive, to or with bated breath in a free
the Legislature, to the Judiciary - to any government, but only in a despotism."
or all the agencies of Government -
PUBLIC OPINION should be the constant The RIGHT TO ASSEMBLE AND PETITION
source of liberty and democracy. is the necessary consequence of
republican institutions and the
The guaranties of a free speech and a complement of the right of free speech.
free press include the right to criticize ASSEMBLY means a right on the part of
judicial conduct . The administration of citizens to meet peaceably for
the law is a matter of vital public consultation in respect to public affairs.
concern. Whether the law is wisely or PETITION means that any person or
badly enforced is, therefore, a fit subject group of persons can apply , without
for proper comment. If the people fear of penalty, to the appropriate
cannot criticize a justice of the peace or branch or office of the government for a
a judge the same as any other public redress of grievances. The persons
officer, public opinion will be effectively assembling and petitioning must, of
muzzled . Attempted terrorization of course, assume responsibility for the
public opinion on the part of the judiciary charges made.
would be tyranny of the basest sort. The
sword of Damocles in the hands of a judge (1)Public policy,
does not hang suspended over the (2)the welfare of society, and
individual who dares to assert his (3)the orderly administration of
prerogative as a citizen and to stand up government have demanded protection
bravely before any official. for public opinion.
On the contrary, it is a DUTY which The inevitable and incontestable result

every one owes to society or to the State has been the development and adoption
to assist in the investigation of any of the DOCTRINE OF PRIVILEGE.
alleged misconduct. It is further the
duty of all know of any official "The DOCTRINE OF PRIVILEGED
dereliction on the part of a magistrate COMMUNICATIONS rests upon public
or the wrongful act of any public officer policy, 'which looks to the free and
to bring the facts to the notice of those unfettered administration of justice,
whose duty it is to inquire into and though, as an incidental result, it may
punish them. in some instances afford an immunity to
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MENDIOLA, MANILA
the evil-disposed and malignant is privileged is sufficient if it is social or

slanderer.'" moral in its nature and this person in
good faith believe he is acting in
Privilege is classified as either pursuance thereof although in fact he is
ABSOLUTE or QUALIFIED. With the first, mistaken. The privilege is not defeated
we are not concerned. As to qualified by the mere fact that the
privilege, it is as the words suggest a communication is made in intemperate
prima facie privilege which may be lost terms. A further element of the law of
by proof of malice. privilege concerns the person to whom the
complaint should be made. The rule is that
The rule is thus stated by Lord Campbell, if a party applies to the wrong person
C. J. "A communication made bona fide through some natural and honest mistake
upon any subject-matter in which the as to the respective functions of various
party communicating has an interest, officials such unintentional error will not
or in reference to which he has a duty, is take the case out of the privilege.
privileged, if made to a person having a
corresponding interest or duty, In the usual case MALICE can be
although it contained incriminatory presumed from defamatory words .
matter which without this privilege PRIVILEGE destroys that PRESUMPTION.
would be slanderous and actionable." The onus of proving malice then lies on the
plaintiff. The plaintiff must bring home to
A pertinent illustration of the application the defendant the existence of malice as
of qualified privilege is a complaint made the true motive of his conduct. Falsehood
in good faith and without malice in and the absence of probable cause will
regard to the character or conduct of a amount to proof of malice. A privileged
public official when addressed to an communication should not be subjected
officer or a board having some interest or to microscopic examination to discover
duty in the matter. Even when the grounds of malice or falsity. Such
statements are found to be false, if there excessive scrutiny would defeat the
is probable cause for belief in their protection which the law throws over
truthfulness and the charge is made in privileged communications. The ultimate
good faith, the mantle of privilege may test is that of bona fides.
still cover the mistake of the individual.
But the statements must be made under Having ascertained the attitude which
an honest sense of duty; a self-seeking should be assumed relative to the basic
motive is destructive. Personal injury is rights of freedom of speech and press and
not necessary. All persons have an of assembly and petition, having
interest in the pure and efficient emphasized the point that our Libel Law
administration of justice and of public as a statute must be construed with
affairs. The DUTY under which a party reference to the guaranties of our Organic
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MENDIOLA, MANILA
Law, and having sketched the doctrine of of their seriousness. No undue publicity
privilege, we are in a position to test the was given to the petition. The manner of
facts of this case with these principles. commenting on the conduct of the
justice of the peace was proper. And
It is true that the particular words set out finally the charges and the petition
in the information, if said of a private were submitted through reputable
person, might well be considered libelous attorneys to the proper functionary, the
per se. The charges might also under Executive Secretary.
certain conceivable conditions convict
one of a libel of a government official. As a The present facts are further essentially
general rule words imputing to a judge different from those established in other
or a justice of the peace dishonesty or cases in which private individuals have
corruption or incapacity or misconduct been convicted of libels of public officials.
touching him in his office are actionable. Malice, traduction, falsehood , calumny,
But as suggested in the beginning we do against the man and not the officer ,
not have present a simple case of direct have been the causes
and vicious accusations published in the of the verdict of guilty.
press, but of charges predicated on
affidavits made to the proper official We find the defendants and appellants
and thus qualifiedly privileged. Express entitled to the protection of the rules
malice has not been proved by the concerning qualified privilege, growing
prosecution . Further, although the out of constitutional guaranties in our bill
charges are probably not true as to the of rights. Instead of punishing citizens for
justice of the peace, they were believed an honest endeavor to improve the public
to be true by the petitioners. Good faith service, we should rather commend them
surrounded their action. Probable for their good citizenship. The defendants
cause for them to think that and appellants are acquitted.
malfeasance or misfeasance in office
existed is apparent. The ends and the
motives of these citizens - to secure the
removal from office of a person thought
DOCTRINE
to be venal - were justifiable.
People vs. Alarcon [G.R. No. 46551,
In no way did they abuse the privilege. December 12, 1939]
These respectable citizens did not
eagerly seize on a frivolous matter but CRITICISMS OF JUDGMENT OF COURTS
on instances which not only seemed to ARE PROTECTED BY THE FREEDOM OF
them of a grave character, but which SPEECH, BUT CRITICISMS ON MATTERS
were sufficient in an investigation by a STILL PENDING WITH THE COURT
judge of first instance to convince him CONSTITUTTES CONTEMPT. The rule
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MENDIOLA, MANILA
suggested, which has its origin at common be resolved in his favor, and he must be
law, is involved in some doubt under acquitted.
modern English law and in the United
States, "the weight of authority, however,
is clearly to the effect that comment upon PEOPLE CS ALARCON
concluded cases is unrestricted under our GR 46551, Dec. 12, 1939
constitutional guaranty of the liberty of
the press." (Annotations, 68 L. R. A., 255.) FACTS: As an aftermath of the decision
Other considerations argue against our rendered by the Court of first Instance of
adoption of the suggested holding. As Pampanga in criminal case No. 5733, The
stated, the rule imported into this People of the Philippines vs. Salvador
jurisdiction is that "newspaper Alarcon, et al., convicting the accused
publications tending to impede, obstruct, therein — except one — of the crime of
embarrass, or influence the courts in robbery committed in band, a
administering justice in a pending suit or denunciatory letter, signed by Luis M.
proceeding constitute criminal contempt Taruc, was addressed to His Excellency, the
which is summarily punishable by the President of the Philippines.
courts; that the rule is otherwise after the
case is ended." (In re Lozano and Quevedo, A copy of said letter found its way to the
supra; In re Abistado, supra.) In at least herein respondent, Federico Mañgahas
two instances, this Court has exercised who, as columnist of the Tribune, a
the power to punish for contempt "on the newspaper of general circulation in the
preservative and on the vindicative Philippines, quoted the letter in an article
principle" (Villa vicencio vs. Lukban, 39 published by him in the issue of that
Phil., 778), "on the corrective and not on paper of September 23, 1937.
the retaliatory idea of punishment". In re
Lozano and Quevedo, supra.) Contempt of The objectionable portion, written in
court is in the nature of a criminal offense Spanish, is inserted in the following
(Lee Yick Hon vs. Collector of Customs, 41 petition of the provincial fiscal of
Phil., 548), and in considering the Pampanga, filed with the Court of First
probable effects of the article alleged to Instance of that province on September
be contemptuous, every fair and 29, 1937. On the same date, the lower
reasonable inference consistent with the court ordered the respondent to appear
theory of defendant's innocence will be and show cause. The respondent
indulged (State v. New Mexican Printing appeared and filed an answer, alleging
Co., 25 N. M., 102, 177 p. 751), and where that the publication of the letter in
a reasonable doubt in fact or in law exists question is in line with the constitutional
as to the guilt of one of constructive guarantee of freedom
contempt for interfering with the due of the press.
administration of justice the doubt must
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MENDIOLA, MANILA
ISSUE: motion to reconsider its order

Whether the publication of the letter in confiscating the bond of the accused
question is within the purview of therein was subsequently filed may be
constitutional guarantee of freedom of the admitted; but, the important
press, hence the accused cannot be held consideration is that it was then without
guilty in contempt of court? power to reopen or modify the decision
which it had rendered upon the merits of
HELD: the case, and could not have been
influenced by the questioned publication.
1. YES. The elements of contempt by
newspaper publications are well defined If it be contended, however, that the
by the cases adjudicated in this as in other publication of the questioned letter
jurisdictions. Newspaper publications constitutes contempt of the Court of
tending to impede, obstruct, embarrass, Appeals where the appeal in the criminal
or influence the courts in administering case was then pending, as was the theory of
justice in a pending suit or proceeding the provincial fiscal below which was
constitutes criminal contempt which is accepted by the lower court, we take the
summarily punish able by the courts. view that in the interrelation of the
The rule is otherwise after the cause is different courts forming our integrated
ended. It must, however, clearly appear judicial system, one court is not an
that such publications do impede, agent or representative of another and
interfere with, and embarrass the may not, for this reason, punish
administration of justice before the contempts in vindication of the
author of the publications should be authority and de corum which are not
held for contempt. What is thus sought its own .
to be shielded against the influence of
newspaper comments is the all- The appeal transfers the proceedings to the
important duty of the court to appellate court, and this last court be
administer justice in the decision of a comes thereby charged with the authority
pending case. There is no pending case to to deal with contempts committed after the
speak of when and once the court has come perfection of the appeal. The Solicitor-
upon a decision and has lost control either General, in his brief, suggests that "even if
to reconsider or amend it. That, we believe, there had been nothing more pending
is the case at bar, for here we have a before the trial court, this still had
concession that the letter complained of jurisdiction to punish the accused for
was published after the Court of First contempt, for the reason that the
Instance of Pampanga had decided the publication scandalized the court. The
aforesaid criminal case for robbery in band, rule suggested, which has its origin at
and after that decision had been appealed common law, is involved in some doubt
to the Court of Appeals. The fact that a under modern English law and in the
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MENDIOLA, MANILA
United States, "the weight of authority, In an old U.S. case, it was observed that
however, is clearly to the effect that movies, compared to other media of
comment upon concluded cases is expression, have a greater capacity for
unrestricted under our constitutional evil and must, therefore, be subjected to a
guaranty of the liberty of the press." greater degree of regulation. But the
Other considerations argue against our power of the Board of Review for Motion
adoption of the suggested holding. Pictures and Television (BRMPT) [now
the Movie and Television Review and
As stated, the rule imported into this Classification Board (MTR'CB)] can be
jurisdiction is that "newspaper exercised only for purposes of
publications tending to impede, obstruct, “classification”, not censorship.
embarrass, or influence the courts in
administering justice in a pending suit or In Gonzales v. Katigbak, 137 SCRA 717,
proceeding constitute criminal contempt where the petitioner questioned the
which is summarily punishable by the classification of the movie as “For Adults
courts; that the rule is otherwise after the Only”, the petition was dismissed because
case is ended. In at least two instances, the Board did not commit grave abuse of
this Court has exercised the power to discretion.
punish for contempt "on the
preservative and on the vindicative In Lagunzad v. Sotto Vda.de Gonzales,
principle, on the corrective and not on 92 SCRA 476, the Court granted the
the retaliatory idea of punishment". petition to restrain the public exhibition
Contempt of court is in the nature of a of the movie “Moises Padilla Story”,
criminal offense , and in considering the because it contained fictionalized
probable effects of the article alleged to be embellishments.
contemptuous, every fair and reasonable
In Ayer Productions v. Judge Capulong,
inference consistent with the theory of
160 SCRA 861, the tribunal upheld the
defendant's innocence will be indulged, and
primacy of freedom of expression over
where a reasonable doubt in fact or in law
Enrile’s “right to privacy”, because Enrile
exists as to the guilt of one of constructive
was a “public figure”, and a public figure’s
contempt for interfering with the due
right to privacy is narrower than that of
administration of justice the doubt must be
an ordinary citizen. Besides, the movie “A
resolved in his favor, and he must be
Dangerous Life” would not have been
acquitted.
historically faithful without including
therein the participation of Enrile in the
NACHURA: EDS A Revolution. Thus, the intrusion into
Enrile’s right to privacy is not
Movie Censorship. unreasonable.

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MENDIOLA, MANILA
In Iglesia ni Cristo v. Court of Appeals, 2000, the Supreme Court declared that
259 SCRA 529, even as the Supreme there is no law prohibiting the holding
Court upheld the authority of the Board of and the reporting of exit polls. An exit poll
Review for Motion Pictures and is a species of electoral survey conducted
Television (BRMPT) to review the by qualified individuals or group of
petitioner’s television program, it held individuals for the purpose of
that the Board acted with grave abuse of determining the probable result of an
discretion when it gave an “X-rating” to election by confidentially asking
the TV program on the ground of “attacks randomly selected voters whom they
against another religion”. Such a have voted for immediately after they
classification can be justified only if there have officially cast their ballots. The
is a showing that the television program results of the survey are announced to the
would create a clear and present danger public, usually through the mass media, to
of an evil which the State has the right to give an advance overview of how, in the
prevent. The same rule was applied in opinion of the polling individuals or
Viva Productions v. Court of Appeals organizations, the electorate voted. The
and Hubert Webb, G.R. No. 123881, freedom of speech and of the press should
March 13,1997, where the Supreme all the more be upheld when what is
Court invalidated the orders issued by the sought to be curtailed is the
lower courts restraining the public dissemination of information meant to
exhibition of the movie, “The Jessica add meaning to the equally vital right of
Alfaro Story”. suffrage.
In Movie and Television Review and In Social Weather Stations v. Comelec,

Classification Board (MTRCB) v. ABS- G.R. No. 147571, May 5, 2001, Sec. 5.4 of
CBN Broadcasting Corporation, G.R. No. RA 9006 which provides that “surveys
155282, January 17, 2005, the Court affecting national candidates shall not be
upheld MTRCB’s power of revidw over published 15 days before an election and
the TV program “The Inside Story”, citing surveys affecting local candidates shall
Sec.7 of PD 1986 which exempts only not be published 7 days before an
television programs imprinted or election”, was held to be an
exhibited by the Philippine Government unconstitutional abridgment of freedom
and/or its departments and agencies, and of expression for laying a prior restraint
newsreels. “The Inside Story”, a public on the freedom. While in National Press
affairs program described as a variety of Club v. Comelec, supra.,the Court
news treatment, cannot be considered a sustained the ban on media political
newsreel. advertisements, the same was made on
the premise that the grant of power to the
In ABS-CBN Broadcasting Corporation v. Comelec (to regulate the enjoyment or
Comelec, G.R. No. 133486, January 28, utilization of franchises for the operation

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MENDIOLA, MANILA
of media of communications) is limited to the prevention of last- minute pressure on

ensuring “equal opportunity, time, space voters, the creation of bandwagon effect,
and the right to reply”. “junking” of weak or losing candidates,
and resort to the form of election cheating
In the same case, the Supreme Court said known as “dagdag-bawas”. These cannot
that the test for the validity of Sec. 5.4, be attained at the sacrifice of the
RA9006, is the O’Brien Test [U.S. v. fundamental right of expression, when
O’Brien, 391 US 365], where the US such aim can be more narrowly pursued
Supreme Court held that a government by punishing unlawful acts rather than
regulation is valid if speech, just because of the apprehension
that speech creates the danger of such evil
[1] it is within the constitutional power of acts.
government;
Thus, the section is invalid because
[2] it furthers an important or substantial
governmental interest; [1] it imposes a prior restraint on
freedom of expression;
[3] the governmental interest is unrelated
to the suppression of free expression; and [2] it is a direct and total suppression of a
category of expression even though such
[4] the incidental restriction on the suppression is only for a limited period;
freedom is no greater than is essential to and
the furtherance of that interest.
[3] the governmental interest sought to
By prohibiting the publication of election be promoted can be achieved by means
survey results because of the possibility other than the suppression of freedom of
that such publications might undermine expression.
the integrity of the election, it actually
suppresses a whole class of expression, In one concurring opinion in the same
while allowing the expression of opinion case, the offending section is deemed an
concerning the same subject matter by invalid exercise of the police power,
news columnists, radio and TV inasmuch as the means used to regulate
commentators, armchair theorists, and free expression are not reasonably
other opinion makers. In effect, it shows necessary for the accomplishment of the
bias for a particular subject matter by purpose, and worse, it is unduly
preferring personal opinion to statistical oppressive upon survey organizations
results. It constitutes a total suppression which have been singled out for
of a category of speech and is not made suppression on the mere apprehension
less so because it is only for a limited that their survey results will lead to
period. The section also fails to meet misinformation, junking or contrived
criterion 4 of the test. The section aims at
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MENDIOLA, MANILA
bandwagon effect. DOCTRINE
In another concurring opinion, the section Ayer Productions PTY Ltd. vs. Capulong
is stigmatized because of the Overbreadth [G.R. No. L-82380, April 29, 1988]
Doctrine, which prohibits government
from achieving its purpose by “means that FREEDOM OF SPEECH AND OF
sweep unnecessarily broadly, reaching EXPRESSION INCLUDES THE FREEDOM
constitutionally protected as well as TO FILM AND PRODUCE MOTION
unprotected activity”. The essence of PICTURES FOR PUBLIC SCREENING.
“overbreadth” is that the government has Considering first petitioners' claim to
gone too far; its legitimate interest can be freedom of speech and of expression, the
satisfied without reaching so broadly into Court would once more stress that this
the area of “protected freedom”. freedom includes the freedom to film and
produce motion pictures and to exhibit
In Chavez v. Commission on Elections, such motion pictures in theaters or to
437 SCRA 415, where the issue of diffuse them through television. In our
constitutionality for being overbroad was day and age, motion pictures are a
raised against the Comelec resolution universally utilized vehicle of
requiring the removal of all communication and medium of
advertisements showing the image or expression. Along with the press, radio
mentioning the name of a person who and television, motion pictures constitute
subsequently became a candidate, the a principal medium of mass
Supreme Court said that a statute or communication for information,
regulation is void for overbreadth when it education and entertainment. In Gonzales
offends the constitutional principle that a v. Katigbak, former Chief Justice Fernando,
government purpose to control or speaking for the Court, explained:
prevent activities constitutionally subject
to State regulation may not be achieved "Motion pictures are important both as a
by means that seep unnecessarily broadly medium for the communication of ideas
and thereby invade the area of protected and the expression of the artistic impulse.
freedoms. The challenged resolution is Their effects on the perception by our
limited in its operation as to time and people of issues and public officials or
scope. It only disallows the continued public figures as well as the prevailing
display of the advertisements after a cultural traits is considerable. Nor as
person has filed a certificate of candidacy pointed out in Burstyn v. Wilson (343 US
and before the start of the campaign 495 [1942]) is the "importance of motion
period. There is no blanket prohibition of pictures as an organ of public opinion
the use of advertisements. Thus, the lessened by the fact that they are
resolution is not constitutionally infirm. designed to entertain as well as to inform'
(Ibid, 501). There is no clear dividing line

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MENDIOLA, MANILA
between what involves knowledge and ORDINARY INDIVIDUALS. The counter-

what affords pleasure. If such a balancing claim of private respondent is
distinction were sustained, there is a to a right of privacy. It was demonstrated
diminution of the basic right to free sometime ago by the then Dean Irene R.
expression. Cortes that our law, constitutional and
statutory, does include a right of privacy.
FREEDOM OF EXPRESSION IS It is left to case law, however, to mark out
AVAILABLE TO FOREIGN OWNED the precise scope and content of this right
MOTION PICTURE COMPANIES, AND IS in differing types of particular situations.
NOT DISQUALIFIED ONLY BECAUSE The right of privacy or "the right to be let
THE MOTION PICTURE IS A alone," like the right of free expression, is
COMMERCIAL ACTIVITY. This freedom not an absolute right.
is available in our country both to locally
owned and to foreign-owned motion A limited intrusion into a person's privacy
picture companies. Furthermore, the has long been regarded as permissible
circumstance that the production of where that person is a public figure and
motion picture films is a commercial the information sought to be elicited from
activity expected to yield monetary profit, him or to be published about him
is not a disqualification for availing of constitute matters of a public character.
freedom of speech and of expression. In Succinctly put, the right of privacy cannot
our community as in many other be invoked to resist publication and
countries, media facilities are owned dissemination of matters of public
either by the government or the private interest. The interest sought to be
sector but the private sector-owned protected by the right of privacy is the
media facilities commonly require to be right to be free from "unwarranted
sustained by being devoted in whole or in publicity, from the wrongful publicizing of
part to revenue producing activities. the private affairs and activities of an
individual which are outside the realm of
Indeed, commercial media constitute the legitimate public concern."
bulk of such facilities available in our
country and hence to exclude The subject matter of "The Four Day
commercially owned and operated media Revolution" relates to the non-bloody
from the exercise of constitutionally change of government that took place at
protected freedom of speech and of Epifanio de los Santos Avenue in February
expression can only result in the drastic 1986, and the train of events which led up
contraction of such constitutional to that denouement. Clearly, such subject
liberties in our country. matter is one of public interest and
concern. Indeed, it is, petitioners' argue,
THE RIGHT TO PRIVACY OF PUBLIC of international interest. The subject thus
FIGURES IS NARROWER COMPARED TO relates to a highly critical stage in the
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MENDIOLA, MANILA
history of this country and as such, must PUBLIC FIGURE, DEFINITION. At all
be regarded as having passed into the relevant times, during which the
public domain and as an appropriate momentous events, clearly of public
subject for speech and expression and concern, that petitioners propose to film
coverage by any form of mass media. The were taking place, private respondent
subject matter, as set out in the synopsis was what Profs. Prosser and Keeton have
provided by the petitioners and quoted referred to as a "public figure:"
above, does not relate to the individual
life and certainly not to the private life of "A public figure has been defined as a
private respondent Ponce Enrile. person who, by his accomplishments,
fame, or mode of living, or by adopting a
Unlike in Lagunzad, which concerned the profession or calling which gives the
life story of Moises Padilla necessarily public a legitimate interest in his doings,
including at least his immediate family, his affairs, and his character, has become
what we have here is not a film biography, a 'public personage.' He is, in other words,
more or less fictionalized, of private a celebrity. Obviously to be included in
respondent Ponce Enrile. "The Four Day this category are those who have
Revolution" is not principally about, nor is achieved some degree of reputation by
it focused upon, the man Juan Ponce appearing before the public, as in the case
Enrile; but it is compelled, if it is to be of an actor, a professional baseball player,
historical, to refer to the role played by a pugilist, or any other entertainer. The
Juan Ponce Enrile in the precipitating and list is, however, broader than this. It
the constituent events of the change of includes public officers, famous inventors
government in February 1986. The extent and explorers, war heroes and even
of the intrusion upon the life of private ordinary soldiers, an infant prodigy, and
respondent Juan Ponce Enrile that would no less a personage than the Grand
be entailed by the production and Exalted Ruler of a lodge. It includes, in
exhibition of "The Four Day Revolution" short, anyone who has arrived at a
would, therefore, be limited in character. position where public attention is focused
The extent of that intrusion, as this Court upon him as a person.
understands the synopsis of the proposed
film, may be generally described as such Such public figures were held to have lost,
intrusion as is reasonably necessary to to some extent at least, their right of
keep that film a truthful historical account. privacy. Three reasons were given, more
Private respondent does not claim that or less indiscrimately, in the decisions"
petitioners threatened to depict in "The that they had sought publicity and
Four Day Revolution" any part of the consented to it, and so could not complain
private life of private respondent or that when they received it; that their
of any member of his family. personalities and their affairs had already
become public, and could no longer be
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MENDIOLA, MANILA
regarded as their own private business; The privilege of enlightening the public
and that the press had a privilege, under was not, however, limited to the
the Constitution, to inform the public dissemination of news in the sense of
about those who have become legitimate current events. It extended also to
matters of public interest. On one or information or education, or even
another of these grounds, and sometimes entertainment and amusement, by books,
all, it was held that there was no liability articles, pictures, films and broadcasts
when they were given additional publicity, concerning interesting phases of human
as to matters legitimately within the activity in general, as well as the
scope of the public interest they had reproduction of the public scene in
aroused. newsreels and travelogues. In
determining where to draw the line, the
The privilege of giving publicity to news, courts were invited to exercise a species
and other matters of public interest, was of censorship over what the public may be
held to arise out of the desire and the permitted to read; and they were
right of the public to know what is going understandably liberal in allowing the
on in the world, and the freedom of the benefit of the doubt."
press and other agencies of information
to tell it. 'News' includes all events and
items of information which are out of the
ordinary humdrum routine, and which AYER PRODUCTIONS PTY Ltd. vs.
have 'that indefinable quality of CAPULONG
information which arouses public GR 82380, April, 29, 1988, FELICIANO, J.
attention.' To a very great extent the
press, with its experience or instinct as to FACTS: The petitioner informed private
what its readers will want, has succeeded respondent Juan Ponce Enrile about the
in making its own definition of news, as a projected motion picture entitled "The
glance at any morning newspaper will Four Day Revolution" enclosing a
sufficiently indicate. It includes homicide synopsis of it, the full text of which is set
and other crimes, arrests and police raids, out below: The Four Day Revolution is a
suicides, marriages and divorces, six hour mini-series about People
accidents, a death from the use of Power—a unique event in modern history
narcotics, a woman with a rare disease, that-made possible the Peaceful
the birth of a child to a twelve year old revolution in the Philippines in 1986.
girl, the reappearance of one supposed to Faced with the task of dramatizing these
have been murdered years ago, and remarkable events, screenwriter David
undoubtedly many other similar matters Williamson and history Prof Al McCoy
of genuine, if more or less deplorable, have chosen a "docu-drama" style and
popular appeal. created [four] fictitious characters to
trace the revolution from the death of

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MENDIOLA, MANILA
Senator Aquino, to the Feb revolution and television, motion pictures constitute a
the fleeing of Marcos from the country. principal medium of mass communication
for information, education and
Private respondent Enrile replied that "he entertainment. Motion pictures are
would not and will not approve of the use, important both as a medium for the
appropriation, reproduction and/or communication of ideas and the
exhibition of his name, or picture, or that expression of the artistic impulse. Their
of any member of his family in any cinema effects on the perception by our people of
or television production, film or other issues and public officials or public
medium for advertising or commercial figures as well as the prevailing cultural
exploitation". Petitioners acceded to this traits is considerable. Importance of
demand and the name of private motion pictures as an organ of public
respondent Enrile was deleted from the opinion lessened by the fact that they
movie script. On 23 February 1988, are designed to entertain as well as to
private respondent filed a Complaint with inform. There is no clear dividing line
application for Temporary Restraining between what involves knowledge and
Order and Wilt of Pretion with the what affords pleasure. If such a
Regional Trial Court of Makati seeking to distinction were sustained, there is a
enjoin petitioners from producing the diminution of the basic right to free
movie "The Four Day Revolution". The expression."
complaint alleged that petitioners'
production of the mini-series without This freedom is available in our country
private respondent's consent and over his both to locally-owned and to foreign-
objection, constitutes an obvious violation owned
of his right of privacy. motion picture companies. Furthermore,
the circumstance that the production of
ISSUE: Whether or not petitioners’ right motion picture films is a commercial
to freedom of expression outweigh activity expected to yield monetary
private respondent Enrile’s right to profit, is not a disqualification for
privacy? availing of freedom of speech and of
expression.
HELD: YES. The freedom of speech
includes the freedom to film and The counter-balancing claim of private
produce motion pictures and to exhibit respondent is to a right of privacy. The
such motion pictures in theaters or to right of privacy or "the right to be let
diffuse them through television. In our alone," like the right of free expression, is
day and age, motion pictures are a not an absolute right. A limited intrusion
universally utilized vehicle of into a person's privacy has long been
communication and medium of regarded as permissible where that
expression. Along with the press, radio and person is a public figure and the
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MENDIOLA, MANILA
information sought to be elicited from "Neither do we agree with petitioner's

him or to be published about him submission that the Licensing Agreement
constitute of apublic character. is null and void for lack of, or for having
Succinctly put, THE RIGHT OF PRIVACY an illegal cause or consideration, while it
cannot be invoked resist publication is true that petitioner had purchased the
and dissemination of MATTERS OF rights to the book entitled 'The Moises
PUBLIC INTEREST. The interest sought Padilla Story,' that did not dispense with
to be protected by the right of privacy is the need for prior consent and authority
the right to be free from unwarranted from the deceased heirs to portray
publicity, from the wrongful publicizing publicly episodes in said deceased's life
of the private affairs and activities of an and in that of his mother and the
individual which are outside the realm members of his family. As held in Schuyler
of legitimate public concern. Lagunzad v. v. Curtis, ([1895], 147 NY 434, 42 NE, 31
Vda. de Gonzales, on which private LRA 286. 49 Am St Rep 671), 'a privilege
respondent relies heavily, recognized a may be given the surviving relatives of a
right to privacy in a context which included deceased person to protect his memory, but
a claim to freedom of speech and of the privilege exists for the benefit of the
expression. Lagunzad involved a suit for living, to protect their feelings and to
enforcement of a licensing agreement prevent a violation of their own rights in
between a motion picture producer as the character and memory of the
licensee and the widow and family of the deceased.'
late Moises Padilla as licensors. This
agreement gave the licensee the right to Petitioner's averment that private
produce a motion picture portraying the respondent did not have any property
life of Moises Padilla, a mayoralty right over the life of Moises Padilla since
candidate of the Nacionalista Party for the the latter was a public figure, is neither
Municipality of Magallon, Negros well taken. Being a public figure ipso facto
Occidental during the November 1951 does not automatically destroy in toto a
elections and for whose murder, person's right to privacy. The right to
Governor Rafael Lacson, a member of the invade a person's privacy to disseminate
Liberal Party then in power and public information does not extend to a
his men were tried and convicted. In fictional or novelized representation of a
affirming the judgment of the lower court person, no matter how public a figure he
enforcing the licensing agreement against or she may be (Garner v. Triangle
the licensee who had produced the motion Publications, DCNY, 97 F. Supp., 564, 549
picture and exhibited it but refused to pay [1951]). In the case at bar, while it is true
the stipulated royalties, the Court, through that petitioner exerted efforts to present a
Mme. Justice Melencio-Herrera, said: true-to-life story of Moises Padilla,
petitioner admits that he included a little
romance in the film because without it, it
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MENDIOLA, MANILA
would be a drab story of torture and interplay of interests observable in a given

brutality." situation or type of situation'
In Lagunzad, the Court had need, as we In the case at bar, the interests observable
have in the instant case, to deal with are the right to privacy asserted by
contraposed claims to freedom of respondent and the right of freedom of
speech and of expression and to expression invoked by petitioner. Taking
privacy. Lagunzad the licensee in effect into account the interplay of those interests,
claimed, in the name of freedom of we hold that under the particular
speech and expression, a right to circumstances presented and
produce a motion picture biography at considering the obligations assumed in the
least partly "fictionalized" of Moises Licensing Agreement entered into by
Padilla without the consent of and petitioner, the validity of such agreement
without paying pre-agreed royalties to will have to be upheld particularly because
the widow and family of Padilla. In the limits of freedom of expression are
rejecting the licensee's claim, the Court reached when expression touches upon
said: matters of essentially private concern .
Lastly, neither do we find merit in Whether the "BALANCING OF

petitioner's contention that the Licensing INTERESTS TEST" or the "CLEAR AND
Agreement infringes on the constitutional PRESENT DANGER TEST" be applied in
right of freedom of speech and of the respect of the instant Petitions, the Court
press, in that, as a citizen and as a believes that a different conclusion must
newspaperman, he had the right to here be reached: The production and
express his thoughts in film on the public filming by petitioners of the projected
life of Moises Padilla without prior motion picture "The Four Day Revolution"
restraint. The right of freedom of does not, in the circumstances of this case,
expression, indeed, occupies a preferred constitute an unlawful intrusion upon
position in the 'hierarchy of civil liberties' private respondent's "right of privacy."
The prevailing doctrine is that the CLEAR 1. It may be observed at the outset that
AND PRESENT DANGER RULE is such a what is involved in the instant case is a
limitation. Another criterion for prior and direct restraint on the part of
permissible limitation on freedom of the respondent Judge upon the exercise
speech and of the press, which includes of speech and of expression by
such vehicles of the mass media as radio, petitioners. The respondent Judge has
television and the movies, is the restrained petitioners from filming and
'BALANCING-OF-INTERESTS TEST ' . The producing the entire proposed motion
principle 'requires a court to take picture. It is important to note that in
conscious and detailed consideration of the Lagunzad, there was no prior restrain of
Page | 30
MENDIOLA, MANILA
any kind imposed upon the movie thus relates to a highly critical stage in
producer who in fact completed and the history of this country and as such,
exhibited the film biography of Moises must be regarded as having passed into
Padilla. Because of the preferred the public domain and as an
character of the constitutional rights of appropriate subject for speech and
freedom of speech and of expression, a expression and coverage by any form of
weighty presumption of invalidity vitiates mass media. The subject matter, as set
measures of prior restraint upon the out in the synopsis provided by the
exercise of such freedoms. The invalidity petitioners and quoted above, does not
of a measure of prior restraint does not, of relate to the individual life and
course, mean that no subsequent liability CERTAINLY NOT TO THE PRIVATE LIFE
may lawfully be imposed upon a person OF PRIVATE RESPONDENT PONCE
claiming to exercise such constitutional ENRILE . Unlike in Lagunzad, which
freedoms. The respondent Judge should concerned the life story of Moises
have stayed his hand, instead of issuing Padilla necessarily including at least his
an ex-parte Temporary Restraining immediate family, what we have here is
Order one day after filing of a complaint not a film biography, more or less
by the private respondent and issuing a fictionalized, of private respondent
Preliminary Injunction twenty (20) Ponce Enrile. "The Four Day Revolution"
days later; for the projected motion is not principally about, nor is it focused
picture was as yet uncompleted and upon, the man Juan Ponce Enrile; but it is
hence NOT exhibited to any audience . compelled, if it is to be historical, to refer
to the role played by Juan Ponce Enrile in
Neither private respondent nor the the precipitating and the constituent
respondent trial Judge knew what the events of the change of government in
completed film would precisely look like. February 1986.
There was, in other words, NO "CLEAR
AND PRESENT DANGER" of any violation 3. The extent of the intrusion upon the life
of any right to privacy that private of private respondent Juan Ponce Enrile
respondent could lawfully assert. that would be entailed by the production
and exhibition of "The Four Day
2. The subject matter of "The Four Day Revolution" would, therefore, be LIMITED
Revolution" relates to the non-bloody IN CHARACTER . The extent of that
change of government that took place at intrusion, as this Court understands the
Epifanio de los Santos Avenue in February synopsis of the proposed film, may be
1986, and the train of events which led up generally described as such intrusion as
to that denouement. Clearly, such subject is reasonably necessary to keep that
matter is one of public interest and film a truthful historical account.
concern. Indeed, it is, petitioners' argue, Private respondent does not claim that
of international interest. The subject petitioners threatened to depict in "The
Page | 31
MENDIOLA, MANILA
Four Day Revolution" any part of the and consented to it, and so could not
private life of private respondent or complain when they received it; that their
that of any member of his family. personalities and their affairs had already
become public, and could no longer be
4. At all relevant times, during which the regarded as their own private business;
momentous events, clearly of public and that the press had a privilege, under
concern, that petitioners propose to film the Constitution, to inform the public
were taking place, private respondent about those who have become legitimate
was what Profs. Prosser and Keeton have matters of public interest. On one or
referred to as a "public figure:" another of these grounds, and sometimes
all, it was held that there was no liability
"A PUBLIC FIGURE has been defined as a when they were given additional publicity,
person who, by his accomplishments, as to matters legitimately within the
fame, or mode of living, or by adopting scope of the public interest they had
a profession or calling which gives the aroused.
public a legitimate interest in his doings,
his affairs, and his character, has The privilege of giving publicity to news,
become a 'public personage.' He is, in and other matters of public interest,
other words, a celebrity. Obviously to be was held to arise out of the desire and
included in this category are those who the right of the public to know what is
have achieved some degree of reputation going on in the world, and the freedom
by appearing before the public, as in the of the press and other agencies of
case of an actor, a professional baseball information to tell it. 'NEWS' includes
player, a pugilist, or any other entertainer. all events and items of information
The list is, however, broader than this. It which are out of the ordinary humdrum
includes public officers, famous routine, and which have 'that indefinable
inventors and explorers, war heroes quality of information which arouses
and even ordinary soldiers, an infant public attention.' To a very great extent
prodigy, and no less a personage than the press, with its experience or instinct as
the Grand Exalted Ruler of a lodge. It to what its readers will want, has
includes, in short, anyone who has succeeded in making its own definition of
arrived at a position where public news, as a glance at any morning
attention is focused upon him as a newspaper will sufficiently indicate. It
person. includes homicide and other crimes,
arrests and police raides, suicides,
Such public figures were held to have marriages and divorces, accidents, a death
lost, to some extent at least, their right from the use of narcotics, a woman with a
of privacy. Three reasons were given, rare disease, the birth of a child to a
more or less indiscrimately, in the twelve year old girl, the reappearance of
decisions" that they had sought publicity one supposed to have been murdered
Page | 32
MENDIOLA, MANILA
years ago, and undoubtedly many other further, be no presentation of the

similar matters of genuine, if more or less private life of the unwilling private
deplorable, popular appeal. respondent and certainly no revelation
of intimate or embarrassing personal
Private respondent is a "public figure" facts. The proposed motion picture
precisely because, inter alia, of his should not enter into what Mme. Justice
participation as a principal actor in the Melencio-Herrera in Lagunzad referred
culminating events of the change of to as "matters of essentially private
government in February 1986. Because concern." To the extent that "The Four
his participation therein was major in Day Revolution" limits itself in
character, a film reenactment of the portraying the participation of private
peaceful revolution that fails to make respondent in the EDSA Revolution to
reference to the role played by private those events which are directly and
respondent would be grossly reasonably related to the public facts of
unhistorical. The right of privacy of a the EDSA Revolution, the intrusion into
"public figure" is necessarily private respondent's privacy cannot be
NARROWER than that of an ordinary regarded as unreasonable and
citizen. Private respondent has not actionable. Such portrayal may be
retired into the seclusion of simple carried out even without a license from
private citizenship. He continues to be a private respondent.
"public figure." After a successful
political campaign during which his
participation in the EDSA Revolution
was directly or indirectly referred to in
DOCTRINE
the press, radio and television, he sits in
a very public place, the Senate of the Borjal vs. Court of Appeals [G.R. No.
Philippines. 126466, January 14, 1999]
5. The line of equilibrium in the specific PRIVILEGED COMMUNICATIONS

context of the instant case between the WHICH ARE CONSIDERED IMPLICIT IN
constitutional freedom of speech and of FREEDOM OF THE PRESS. A privileged
expression and the right of privacy, may communication may be either absolutely
be marked out in terms of a requirement privileged or qualifiedly privileged.
that the proposed motion picture must be Absolutely privileged communications are
fairly truthful and historical in its those which are not actionable even if the
presentation of events. There must, in author has acted in bad faith. An example
other words, be no knowing or reckless is found in Sec. 11, Art. VI, of the 1987
disregard of truth in depicting the Constitution which exempts a member of
participation of private respondent in Congress from liability for any speech or
the EDSA Revolution. There must,
Page | 33
MENDIOLA, MANILA
debate in the Congress or in any

Committee thereof. The concept of privileged
communications is implicit in the freedom
Upon the other hand, qualifiedly of the press. As held in Elizalde v.
privileged communications containing Gutierrez and reiterated in Santos v.
defamatory imputations are not Court of Appeals — To be more specific,
actionable unless found to have been no culpability could be imputed to
made without good intention or petitioners for the alleged offending
justifiable motive. To this genre belong publication without doing violence to the
"private communications" and "fair and concept of privileged communications
true report without any comments or implicit in the freedom of the press. As
remarks." was so well put by Justice Malcolm in
Bustos: 'Public policy, the welfare of
Indisputably, petitioner Borjal's society, and the orderly administration of
questioned writings are not within the government have demanded protection of
exceptions of Art. 354 of The Revised public opinion. The inevitable and
Penal Code for, as correctly observed by incontestable result has been the
the appellate court, they are neither development and adoption of the doctrine
private communications nor fair and true of privilege.'
report without any comments or remarks.
However this does not necessarily mean The doctrine formulated in these two (2)
that they are not privileged. To be sure, cases resonates the rule that privileged
the enumeration under Art. 354 is not an communications must, sui generis, be
exclusive list of qualifiedly privileged protective of public opinion. This closely
communications since fair commentaries adheres to the democratic theory of free
on matters of public interest are likewise speech as essential to collective self
privileged. The rule on privileged determination and eschews the strictly
communications had its genesis not in the libertarian view that it is protective solely
nation's penal code but in the Bill of of self-expression which, in the words of
Rights of the Constitution guaranteeing Yale Sterling Professor Owen Fiss, makes
freedom of speech and of the press. As its appeal to the individualistic ethos that
early as 1918, in United States v. Cañete, so dominates our popular and political
this Court ruled that publications which culture. It is therefore clear that the
are privileged for reasons of public policy restrictive interpretation vested by the
are protected by the constitutional Court of Appeals on the penal provision
guaranty of freedom of speech. This exempting from liability only private
constitutional right cannot be abolished communications and fair and true report
by the mere failure of the legislature to without comments or remarks defeats,
give it express recognition in the statute rather than promotes, the objective of the
punishing libels. rule on privileged communications, sadly
Page | 34
MENDIOLA, MANILA
contriving as it does, to suppress the public figure, for he could be, as long as he
healthy efflorescence of public debate and was involved in a public issue. If a matter
opinion as shining linchpins of truly is a subject of public or general interest, it
democratic societies. cannot suddenly become less so merely
because a private individual is involved or
To reiterate, fair commentaries on because in some sense the individual did
matters of public interest are privileged not voluntarily choose to become
and constitute a valid defense in an action involved. The public's primary interest is
for libel or slander. The doctrine of fair in the event; the public focus is on the
comment means that while in general conduct of the participant and the content,
every discreditable imputation publicly effect and significance of the conduct, not
made is deemed false, because every man the participant's prior anonymity or
is presumed innocent until his guilt is notoriety.
judicially proved, and every false
imputation is deemed malicious, TRUTH IS IRRELEVANT IN LIBEL CASES.
nevertheless, when the discreditable The U.S. Supreme Court speaking through
imputation is directed against a public Mr. Justice William J. Brennan Jr. ruled
person in his public capacity, it is not against Sullivan holding that honest
necessarily actionable. In order that such criticisms on the conduct of public
discreditable imputation to a public officials and public figures are insulated
official may be actionable, it must either from libel judgments. The guarantees of
be a false allegation of fact or a comment freedom of speech and press prohibit a
based on a false supposition. If the public official or public figure from
comment is an expression of opinion, recovering damages for a defamatory
based on established facts, then it is falsehood relating to his official conduct
immaterial that the opinion happens to be unless he proves that the statement was
mistaken, as long as it might reasonably made with actual malice, i.e., with
be inferred from the facts. knowledge that it was false or with
reckless disregard of whether it was false
THE RIGHT TO PRIVACY OF A PERSON or not.
WHO IS NOT A PUBLIC FIGURE MAY
LIKEWISE BE RESTRICTED IF HE IS The raison d'etre for the New York Times
INVOLVED IN A PUBLIC ISSUE. But even doctrine was that to require critics of
assuming ex-gratia argumenti that private official conduct to guarantee the truth of
respondent, despite the position he all their factual assertions on pain of libel
occupied in the FNCLT, would not qualify judgments would lead to self-censorship,
as a public figure, it does not necessarily since would-be critics would be deterred
follow that he could not validly be the from voicing out their criticisms even if
subject of a public comment even if he such were believed to be true, or were in
was not a public official or at least a fact true, because of doubt whether it
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MENDIOLA, MANILA
could be proved or because of fear of the defamation of a public official or public

expense of having to prove it. figure may not be imposed in the absence
of proof of "actual malice" on the part of
Even assuming that the contents of the the person making the libelous statement.
articles are false, mere error, inaccuracy At any rate, it may be salutary for private
or even falsity alone does not prove actual respondent to ponder upon the advice of
malice. Errors or misstatements are Mr. Justice Malcolm expressed in U .S. v.
inevitable in any scheme of truly free Bustos, 48 that "the interest of society and
expression and debate. Consistent with the maintenance of good government
good faith and reasonable care, the press demand a full discussion of public affairs.
should not be held to account, to a point Complete liberty to comment on the
of suppression, for honest mistakes or conduct of public men is a scalpel in the
imperfections in the choice of language. case of free speech. The sharp incision of
There must be some room for its probe relieves the abscesses of
misstatement of fact as well as for officialdom.
misjudgment. Only by giving them much
leeway and tolerance can they Men in public life may suffer under a
courageously and effectively function as hostile and unjust accusation; the wound
critical agencies in our democracy. In may be assuaged by the balm of a clear
Bulletin Publishing Corp. v. Noel we held conscience. A public official must not be
— too thin-skinned with reference to
comments upon his official acts." We must
A newspaper especially one national in however take this opportunity to likewise
reach and coverage, should be free to remind media practitioners of the high
report on events and developments in ethical standards attached to and
which the public has a legitimate interest demanded by their noble profession. The
with minimum fear of being hauled to danger of an unbridled irrational exercise
court by one group or another on criminal of the right of free speech and press, that
or civil charges for libel, so long as the is, in utter contempt of the rights of
newspaper respects and keeps within the others and in willful disregard of the
standards of morality and civility cumbrous responsibilities inherent in it,
prevailing within the general community. is the eventual self-destruction of the
To avoid the self-censorship that would right and the regression of human society
necessarily accompany strict liability for into a veritable Hobbesian state of nature
erroneous statements, rules governing where life is short, nasty and brutish.
liability for injury to reputation are Therefore, to recognize that there can be
required to allow an adequate margin of no absolute "unrestraint" in speech is to
error by protecting some inaccuracies. It truly comprehend the quintessence of
is for the same reason that the New York freedom in the marketplace of social
Times doctrine requires that liability for thought and action, genuine freedom
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MENDIOLA, MANILA
being that which is limned by the freedom The articles dealt with the alleged
of others. If there is freedom of the press, anomalous activities of an "organizer of a
ought there not also be freedom from the conference " without naming or
press? It is in this sense that self- identifying private respondent. Neither did
regulation as distinguished from self- it refer to the FNCLT as the conference
censorship becomes the ideal mean for, as therein mentioned.
Mr. Justice Frankfurter has warned,
"[W]ithout lively sense of responsibility, a Thereafter, private respondent filed a
free press may readily become a powerful complaint with the National Press Club
instrument of injustice." (NPC) against petitioner Borjal for
unethical conduct. He accused petitioner
Lest we be misconstrued, this is not to Borjal of using his column as a form of
diminish nor constrict that space in which leverage to obtain contracts for his public
expression freely flourishes and operates. relations firm, AA Borjal Associates. In
For we have always strongly maintained, turn, petitioner Borjal published a
as we do now, that freedom of expression rejoinder to the challenge of private
is man's birthright — constitutionally respondent not only to protect his name
protected and guaranteed, and that it has and honor but also to refute the claim that
become the singular role of the press to he was using his column for character
act as its "defensor fidei" in a democratic assassination. 7 Apparently not satisfied
society such as ours. But it is also worth with his complaint with the NPC, private
keeping in mind that the press is the respondent filed a criminal case for libel
servant, not the master, of the citizenry, against petitioners Borjal and Soliven,
and its freedom does not carry with it an among others.
unrestricted hunting license to prey on
the ordinary citizen. ISSUE: Whether the disputed articles
constitute privileged communications as
to exempt the author from liability.
BORJAL VS. COURT OF APPEALS
GR 126466, Jan. 14, 1999, BELLOSILLO, HELD: YES. In order to maintain a libel
J. suit, it is essential that the victim be
identifiable although it is not necessary
FACTS: Petitioners Arturo Borjal and that he be named. It is also not
Maximo Soliven are among the sufficient that the offended party
incorporators of Philippines Today, Inc. recognized himself as the person
(PTI), now PhilSTAR Daily, Inc., owner of attacked or defamed, but it must be
The Philippine Star. Between May and shown that at least a third person
July 1989 a series of articles written by could identify him as the object of the
petitioner Borjal was published on libelous publication.
different dates in his column Jaywalker.

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MENDIOLA, MANILA
Regrettably, these requisites have not organizers and that he was only a part
been complied with in the case at bar. The of the organization, thus - Significantly,
questioned articles written by Borjal do private respondent himself entertained
not identify private respondent doubt that he was the person spoken of
Wenceslao as the organizer of the in Borjal's columns. The former even
conference. The first of the Jaywalker called up columnist Borjal to inquire if he
articles which appeared in the 31 May (Wenceslao) was the one referred to in
1989 issue of The Philippine Star the subject articles. His letter to the editor
yielded nothing to indicate that private published in the 4 June 1989 issue of The
respondent was the person referred to Philippine Star even showed private
therein. Surely, as observed by respondent Wenceslao's uncertainty –
petitioners, there were millions of
"heroes" of the EDSA Revolution and Identification is grossly inadequate
anyone of them could be "self- when even the alleged offended party is
proclaimed" or an "organizer of himself unsure that he was the object of
seminars and conferences." As a matter the verbal attack. It is well to note that
of fact, in his June 1989 column petitioner the revelation of the identity of the person
Borjal wrote about the "so-called First alluded to came not from petitioner Borjal
National Conference on Land but from private respondent himself
Transportation whose principal when he supplied the information
organizers are not specified" . Neither did through his 4 June 1989 letter to the
the disclose the identity of the conference editor. Had private respondent not
organizer since these contained only an revealed that he was the "organizer" of
enumeration of names where private the FNCLT referred to in the Borjal
respondent Francisco Wenceslao was articles, the public would have remained
described as Executive Director and in blissful ignorance of his identity. It is
Spokesman and not as a conference therefore clear that on the element of
organizer. The printout and tentative identifiability alone the case falls.
program of the conference were devoid of
any indication of Wenceslao as organizer. We now proceed to resolve the other
The printout which contained an article issues and pass upon the pertinent
entitled "Who Organized the NCLT?" did findings of the courts a quo on wether the
not even mention private respondent's disputed articles constitute privileged
name, while the tentative program only communications as to exempt the author
denominated private respondent as "Vice from liability. Art. 354. Requirement for
Chairman and Executive Director," and publicity. – Every defamatory imputation
not as organizer. is presumed to be malicious, even if it be
true, if no good intention and justifiable
No less than private respondent himself motive for making it is shown, except in
admitted that the FNCLT had several the following cases:
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MENDIOLA, MANILA
the appellate court, they are neither

1) A private communication made by any private communications nor fair and
person to another in the performance of true report without any comments or
any legal, moral or social duty; and, remarks. However this does not
necessarily mean that they are not
2) A fair and true report, made in good privileged. To be sure, the enumeration
faith, without any comments or remarks, under Art. 354 is not an exclusive list of
of any qualifiedly privileged communications
judicial, legislative or other official since FAIR COMMENTARIES ON
proceedings which are not of confidential MATTERS OF PUBLIC INTEREST are
nature, or of any statement, report or likewise privileged. The rule on
speech delivered in said proceedings, or privileged communications had its
of any other act performed by public genesis not in the nation's penal code
officers in the exercise of their functions. but in the Bill of Rights of the
Constitution guaranteeing freedom of
A PRIVILEGED COMMUNICATION may be speech and of the press . Art. III, Sec. 4,
either absolutely privileged or provides: No law shall be passed
qualifiedly privileged. ABSOLUTELY abridging the freedom of speech, of
PRIVILEGED COMMUNICATIONS are expression, or of the press, or the right of
those which are not actionable even if the people to peaceably assemble and
the author has acted in bad faith. An petition the government for redress of
example is found in Sec. 11, Art. VI, of grievances. In the case of U.S vs. Bustos,
the 1987 Constitution which exempts a this Court ruled that publications which
member of Congress from liability for are privileged for reasons of public
any speech or debate in the Congress or policy are protected by the
in any Committee thereof. Upon the constitutional guaranty of freedom of
other hand, QUALIFIEDLY PRIVILEGED speech. This constitutional right cannot
COMMUNICATIONS containing be abolished by the mere failure of the
defamatory imputations are not legislature to give it express recognition
actionable unless found to have been in the statute punishing libels.
made without good intention or
justifiable motive. To this genre belong The concept of privileged
"private communications" and "fair and communications is implicit in the
true report without any comments or freedom of the press . To be more
remarks." specific, no culpability could be imputed
to petitioners for the alleged offending
Indisputably, petitioner Borjal's publication without doing violence to
questioned writings are not within the the concept of privileged
exceptions of Art. 354 of The Revised communications implicit in the freedom
Penal Code for, as correctly observed by
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MENDIOLA, MANILA
of the press. As was so well put by Justice

Malcolm in Bustos: There is no denying that the questioned
articles dealt with matters of public
'Public policy, the welfare of society, and interest. In his testimony, private
the orderly administration of government respondent spelled out the objectives of
have demanded protection of public the conference thus - x x x x The principal
opinion. The inevitable and incontestable conference objective is to come up with a
result has been the development and draft of an Omnibus Bill that will embody
adoption of the doctrine of privilege.' a long term land transportation policy for
presentation to Congress in its next
The doctrine formulated in these two regular session in July. Since last January,
(2) cases resonates the rule that the National Conference on Land
privileged communications must, sui Transportation (NCLT), the conference
generis, be protective of public opinion. secretariat, has been enlisting support
from all sectors to ensure the success of
To reiterate, FAIR COMMENTARIES ON the project.25 [TSN, 29 July 1991, p. 15.]
MATTERS OF PUBLIC INTEREST are Private respondent likewise testified that
privileged and constitute a valid the FNCLT was raising funds through
defense in an action for libel or slander. solicitation from the public -
The doctrine of fair comment means
that while in general every The declared objective of the conference,
discreditable imputation publicly made the composition of its members and
is deemed false, because every man is participants, and the manner by which
presumed innocent until his guilt is it was intended to be funded no doubt
judicially proved, and every false lend to its activities as being genuinely
imputation is deemed malicious, imbued with PUBLIC INTEREST. An
nevertheless, when the discreditable organization such as the FNCLT aiming to
imputation is directed against a PUBLIC reinvent and reshape the transportation
PERSON IN HIS PUBLIC CAPACITY, it is laws of the country and seeking to source
not necessarily actionable. In order that its funds for the project from the public at
such discreditable imputation to a large cannot dissociate itself from the
public official may be actionable, it public character of its mission. As such, it
must either be a false allegation of fact cannot but invite close scrutiny by the
or a comment based on a false media obliged to inform the public of the
supposition. If the comment is an legitimacy of the purpose of the activity
expression of opinion, based on and of the qualifications and integrity of
established facts, then it is immaterial the personalities behind it.
that the opinion happens to be mistaken,
as long as it might reasonably be
inferred from the facts.
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MENDIOLA, MANILA
Reyes vs. Bagatsing permit. The Constitution is quite explicit:

"No law shall be passed abridging the
Q: What are the rights covered by freedom of speech, or of the press, or the
Section 4? right of the people peaceably to assemble
A: Speech, Expression, Press, Assembly and petition the Government for redress
and Petition of grievances." Free speech, like free press,
may be identified with the liberty to
Q: What is the essence of Section 4? discuss publicly and truthfully any matter
A: Important in democratic polity. Full of public concern without censorship or
disclosure of public affairs and discussion. punishment. There is to be then no
previous restraint on the communication
Q: Why are they contained in just 1 of views or subsequent liability whether
section if important? in libel suits, prosecution for sedition, or
A: It was not by accident or coincidence action for damages, or contempt
that the rights to freedom of speech and proceedings unless there be a "clear and
of the press were coupled in a single present danger of a substantive evil that
guarantee with the rights of the people [the State] has a right to prevent."
peaceably to assemble and to petition the
government for redress of grievances. All Freedom of assembly connotes the right
these rights, while not identical, are of the people to meet peaceably for
inseparable. (Justice Rutledge) consultation and discussion of matters of
public concern. It is entitled to be
Q: Does freedom of expression cover accorded the utmost deference and
any and all matters? respect. It is not to be limited, much less
A: No. Only matters of public concern. denied, except on a showing, as is the case
Liberty to discuss publicly matters that with freedom of expression, of a clear and
touch the heart of existing orders. Private present danger of a substantive evil that
matters not covered. the state has a right to prevent. Even prior
to the 1935 Constitution, Justice Malcolm
had occasion to stress that it is a
necessary consequence of our republican
institutions and complements the right of
DOCTRINE
free speech. To paraphrase the opinion of
REYES VS BAGATSING Justice Rutledge, speaking for the
majority of the American Supreme Court
CLEAR AND PRESENT DANGER RULE. It in Thomas v. Collins, it was not by
is thus clear that the Court is called upon accident or coincidence that the rights to
to protect the exercise of the cognate freedom of speech and of the press were
rights to free speech and peaceful coupled in a single guarantee with the
assembly, arising from the denial of a rights of the people peaceably to
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MENDIOLA, MANILA
assemble and to petition the government context of violence. It must always be

for redress of grievances. All these rights, remembered that this right likewise
while not identical, are inseparable. provides for a safety valve, allowing
parties the opportunity to give vent to
In every case, therefore, where there is a their views, even if contrary to the
limitation placed on the exercise of this prevailing climate of opinion. For if the
right, the judiciary is called upon to peaceful means of communication cannot
examine the effects of the challenged be availed of, resort to non-peaceful
governmental actuation. The sole means may be the only alternative. Nor is
justification for a limitation on the this the sole reason for the expression of
exercise of this right, so fundamental to dissent. It means more than just the right
the maintenance of democratic to be heard of the person who feels
institutions, is the danger, of a character aggrieved or who is dissatisfied with
both grave and imminent, of a serious evil things as they are. Its value may lie in the
to public safety, public morals, public fact that there may be something worth
health, or any other legitimate public hearing from the dissenter. That is to
interest. Nowhere is the rationale that ensure a true ferment of ideas. There are,
underlies the freedom of expression and of course, well-defined limits. What is
peaceable assembly better expressed than guaranteed is peaceable assembly. One
in this excerpt from an opinion of Justice may not advocate disorder in the name of
Frankfurter: "It must never be forgotten, protest, much less preach rebellion under
however, that the Bill of Rights was the the cloak of dissent.
child of the Enlightenment. Back of the
guaranty of free speech lay faith in the The Constitution frowns on disorder or
power of an appeal to reason by all the tumult attending a rally or assembly.
peaceful means for gaining access to Resort to force is ruled out and outbreaks
the mind. It was in order to avert force of violence to be avoided. The utmost
and explosions due to restrictions upon calm though is not required. As pointed
rational modes of communication that out in an early Philippine case, penned in
the guaranty of free speech was given a 1907 to be precise, United States v.
generous scope. But utterance in a Apurado: "It is rather to be expected
context of violence can lose its that more or less disorder will mark the
significance as an appeal to reason and public assembly of the people to protest
become part of an instrument of force. against grievances whether real or
Such utterance was not meant to be imaginary, because on such occasions
sheltered by the Constitution." feeling is always wrought to a high
pitch of excitement, and the greater the
What was rightfully stressed is the grievance and the more intense the
abandonment of reason, the utterance, feeling, the less perfect, as a rule, will be
whether verbal or printed, being in a the disciplinary control of the leaders
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MENDIOLA, MANILA
over their irresponsible followers." It excerpt was quoted with approval in

bears repeating that for the constitutional Primicias v. Fugoso. Primicias made
right to be invoked, riotous conduct, explicit what was implicit in Municipality
injury to property, and acts of vandalism of Cavite v. Rojas, a 1915 decision, where
must be avoided. To give free rein to one's this Court categorically affirmed that
destructive urges is to call for plazas or parks and streets are outside
condemnation. It is to make a mockery of the commerce of man and thus nullified a
the high estate occupied by intellectual contract that leased Plaza Soledad of
liberty in our scheme of values. plaintiff-municipality.
USE OF PUBLIC PLACES CAN ONLY BE

REGULATED, BUT NOT ABRIDGED.
There can be no legal objection, absent REYES vs.BAGATSING
the existence of a clear and present GR 65366, Nov. 9, 1983, Fernando, J.
danger of a substantive evil, on the choice
of Luneta as the place where the peace FACTS: Petitioner, retired Justice JB L.
rally would start. The Philippines is Reyes, on behalf of the Anti- Bases
committed to the view expressed in the Coalition sought a permit from the City of
plurality opinion, of 1939 vintage, of Manila to hold a peaceful march and rally
Justice Roberts in Hague v. CIO: on October 26, 1983 from 2:00 to 5:00 in
"Whenever the title of streets and parks the afternoon, starting from the Luneta, a
may rest, they have immemorially been public park, to the gates of the United
held in trust for the use of the public and, States Embassy, hardly two blocks away.
time out of mind, have been used for Once there, and in an open space of public
purposes of assembly, communicating property, a short program would be held.
thoughts between citizens, and discussing
public questions. Such use of the streets The filing of this suit for mandamus with
and public places has, from ancient times, alternative prayer for writ of preliminary
been a part of the privileges, immunities, mandatory injunction on October 20,
rights, and liberties of citizens. The 1983 was due to the fact that as of that
privilege of a citizen of the United States date, petitioner had not been informed of
to use the streets and parks for any action taken on his request on behalf
communication of views on national of the organization to hold a rally. It
questions may be regulated in the interest turned out that on October 19, such
of all; it is not absolute, but relative, and permit was denied. Petitioner was
must be exercised in subordination to the unaware of such a fact as the denial was
general comfort and convenience, and in sent by ordinary mail. The reason for
consonance with peace and good order; refusing a permit was due to police
but it must not, in the guise of regulation, intelligence reports which strongly
be abridged or denied." The above militate against the advisability of issuing

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MENDIOLA, MANILA
such permit at this time and at the place denied, except on a showing, as is the
applied for." To be more specific, case with freedom of expression, of a
reference was made to persistent clear and present danger of a
intelligence reports affirm[ing] the plans substantive evil that the state has a
of subversive/criminal elements to right to prevent. Even prior to the 1935
infiltrate and/or disrupt any assembly or Constitution, Justice Malcolm had occasion
congregations where a large number of to stress that it is a necessary consequence
people is expected to attend." of our republican institutions and
complements the right of free speech. To
ISSUE: Whether or not there was a denial paraphrase the opinion of Justice
of freedom of expression arising from the Rutledge, speaking for the majority of the
denial of the permit? American Supreme Court in Thomas v.
Collins, it was not by accident or
HELD: coincidence that the rights to freedom of
speech and of the press were coupled in a
1. Yes. The Constitution is quite explicit: single guarantee with the rights of the
"No law shall be passed abridging the people peaceably to assemble and to
freedom of speech, or of the press, or the petition the government for redress of
right of the people peaceably to assemble grievances. All these rights, while not
and petition the Government for redress identical, are inseparable. In every case,
of grievances." Free speech, like free therefore, where there is a limitation
press, may be identified with the liberty placed on the exercise of this right, the
to discuss publicly and truthfully any judiciary is called upon to examine the
matter of public concern without effects of the challenged governmental
censorship or punishment. There is to be actuation. The sole justification for a
then no previous restraint on the limitation on the exercise of this right,
communication of views or subsequent so fundamental to the maintenance of
liability whether in libel suits, prosecution democratic institutions, is the danger,
for sedition, or action for damages, or of a character both grave and imminent,
contempt proceedings unless there be a of a serious evil to public safety, public
"clear and present danger of a morals, public health, or any other
substantive evil that [the State] has a legitimate public interest .
right to prevent."
2. Nowhere is the rationale that underlies
Freedom of assembly connotes the right the freedom of expression and peaceable
of the people to meet peaceably for assembly better expressed than in this
consultation and discussion of matters of excerpt from an opinion of Justice
public concern. It is entitled to be Frankfurter: "It must never be forgotten,
accorded the utmost deference and however, that the Bill of Rights was the
respect. It is not to be limited, much less child of the Enlightenment. Back of the
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MENDIOLA, MANILA
guaranty of free speech lay faith in the Resort to force is ruled out and
power of an appeal to reason by all the outbreaks of violence to be avoided.
peaceful means for gaining access to the
mind. It was in order to avert force and The utmost calm though is not required.
explosions due to restrictions upon rational As pointed out in an early Philippine case,
modes of communication that the guaranty penned in 1907 to be precise, United
of free speech was given a generous scope. States v. Apurado: "It is rather to be
But utterance in a context of violence can expected that more or less disorder will
lose its significance as an appeal to reason mark the public assembly of the people to
and become part of an instrument of force. protest against grievances whether real or
Such utterance was not meant to be imaginary, because on such occasions
sheltered by the Constitution." What was feeling is always wrought to a high pitch of
rightfully stressed is the abandonment of excitement, and the greater the grievance
reason, the utterance, whether verbal or and the more intense the feeling, the less
printed, being in a context of violence. It perfect, as a rule, will be the disciplinary
must always be remembered that this control of the leaders over their
right likewise provides for a safety valve, irresponsible followers." It bears
allowing parties the opportunity to give repeating that for the constitutional
vent to their views, even if contrary to the right to be invoked, riotous conduct,
prevailing climate of opinion. injury to property, and acts of
vandalism must be avoided. To give free
For if the peaceful means of rein to one's destructive urges is to call
communication cannot be availed of, for condemnation. It is to make a mockery
resort to non-peaceful means may be the of the high estate occupied by intellectual
only alternative. Nor is this the sole liberty in our scheme of values.
reason for the expression of dissent. It
means more than just the right to be 3. There can be no legal objection,
heard of the person who feels aggrieved absent the existence of a clear and
or who is dissatisfied with things as they present danger of a substantive evil, on
are. Its value may lie in the fact that the choice of Luneta as the place where
there may be something worth hearing the peace rally would start. The
from the dissenter. That is to ensure a Philippines is committed to the view
true ferment of ideas. There are, of expressed in the plurality opinion, of
course, well-defined limits. What is 1939 vintage, of Justice Roberts in Hague
guaranteed is peaceable assembly. One v. CIO: "Whenever the title of streets and
may not advocate disorder in the name parks may rest, they have
of protest, much less preach rebellion immemorially been held in trust for the
under the cloak of dissent. The use of the public and, time out of mind,
Constitution frowns on disorder or have been used for purposes of
tumult attending a rally or assembly. assembly, communicating thoughts
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MENDIOLA, MANILA
between citizens, and discussing public lurking doubt on the matter. In holding
questions. Such use of the streets and that the then Mayor Fugoso of the City of
public places has, from ancient times, Manila should grant a permit for a public
been a part of the privileges, meeting at Plaza Miranda in Quiapo, this
immunities, rights, and liberties of Court categorically declared: "Our
citizens. conclusion finds support in the decision in
the case of Willis Cox vs. State of New
The privilege of a citizen of the United Hampshire, 312 U.S., 569.
States to use the streets and parks for
communication of views on national In that case, the statute of New
questions may be regulated in the interest Hampshire P. L. chap. 145, section 2,
of all; it is not absolute, but relative, and providing that `no parade or procession
must be exercised in subordination to the upon any ground abutting thereon, shall
general comfort and convenience, and in be permitted unless a special license
consonance with peace and good order; therefor shall first be obtained from the
but it must not, in the guise of regulation, selectmen of the town or from licensing
be abridged or denied." The above committee,' was construed by the
excerpt was quoted with approval in Supreme Court of New Hampshire as not
Primicias v. Fugoso. Primicias made conferring upon the licensing board
explicit what was implicit in Municipality unfettered discretion to refuse to grant
of Cavite the license, and held valid. And the
v. Rojas, a 1915 decision, where this Supreme Court of the United States, in its
Court categorically affirmed that plazas or decision (1941) penned by Chief Justice
parks and streets are outside the Hughes affirming the judgment of the
commerce of man and thus nullified a State Supreme Court, held that `a statute
contract that leased Plaza Soledad of requiring persons using the public
plaintiff-municipality. Reference was streets for a parade or procession to
made to such plaza "being a promenade procure a special license therefore from
for public use," which certainly is not the the local authorities is not an
only purpose that it could serve. To unconstitutional abridgment of them
repeat, there can be no valid reason why a rights of assembly or of freedom of
permit should not be granted for the speech and press, where, as the statute
proposed march and rally starting from a is construed by the state courts, the
public park that is the Luneta. licensing authorities are strictly limited,
in the issuance of licenses, to a
4. Neither can there be any valid consideration of the time, place, and
objection to the use of the streets to the manner of the parade or procession,
gates of the US Embassy, hardly two with a view to conserving the public
blocks away at the Roxas Boulevard. convenience and of affording an
Primicias v. Fugoso has resolved any opportunity to provide proper policing,
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MENDIOLA, MANILA
and are not invested with arbitrary petition based on the resolution
discretion to issue or refuse license, . . .'" adopted at the closing session of the
Anti-Bases Coalition. The Philippines is a
Nor should the point made by Chief signatory of the Vienna Convention on
Justice Hughes in a subsequent portion of Diplomatic Relations and binding on the
the opinion be ignored. "Civil liberties, as Philippines. The second paragraph of its
guaranteed by the Constitution, imply Article 22 reads: "2. The receiving State is
the existence of an organized society under a special duty to take appropriate
maintaining public order without which steps to protect the premises of the mission
liberty itself would be lost in the against any intrusion or damage and to
excesses of unrestricted abuses. The prevent any disturbance of the peace of the
authority of a municipality to impose mission or impairment of its dignity." The
regulations in order to assure the safety Constitution "adopts the generally
and convenience of the people in the use accepted principles of international law as
of public highways has never been part of the law of the land, " To the extent
regarded as inconsistent with civil that the Vienna Convention is a
liberties but rather as one of the means restatement of the generally accepted
of safeguarding the good order upon principles of international law, it should
which they ultimately depend. The be a part of the law of the land.
control of travel on the streets of cities is
the most familiar illustration of this That being the case, if there were a
recognition of social need. Where a clear and present danger of any
restriction of the use of highways in that intrusion or damage, or disturbance of
relation is desired to promote the public the peace of the mission, or impairment
convenience in the interest of all, it cannot of its dignity, there would be a
be disregarded by the attempted exercise justification for the denial of the permit
of some civil right which in other insofar as the terminal point would be
circumstances would be entitled to the Embassy. Moreover, respondent
protection." Mayor relied on Ordinance No. 7295 of
the City of Manila prohibiting the
5. There is a novel aspect to this case. If holding or staging of rallies or
the rally were confined to Luneta, no demonstrations within a radius of five
question, as noted, would have arisen. So, hundred (500) feet from any foreign
too, if the march would end at another mission or chancery; and for other
park. As previously mentioned though, purposes. Unless the ordinance is
there would be a short program upon nullified, or declared ultra vires, its
reaching the public space between the invocation as a defense is
two gates of the United States Embassy understandable but not decisive, in view
at Roxas Boulevard. That would be of the primacy accorded the
followed by the handing over of a constitutional rights of free speech and
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MENDIOLA, MANILA
peaceable assembly. Even if shown then delicate responsibility of assuring respect

to be applicable, that question still for and deference to such preferred rights.
confronts this Court. No verbal formula, no sanctifying phrase
can, of course, dispense with what has
By way of a summary. The applicants been so felicitiously termed by Justice
for a permit to hold an assembly should Holmes "as the sovereign prerogative of
inform the licensing authority of judgment."
(1)the date,
(2)the PUBLIC PLACE where and Nonetheless, the presumption must be to
(3)the time when it will take place. incline the weight of the scales of justice
on the side of such rights, enjoying as they
If it were a PRIVATE PLACE, only the do
consent of the owner or the one entitled precedence and primacy. Clearly then, to
to its legal possession is required. Such the extent that there may be
application should be filed well ahead inconsistencies between this resolution
in time to enable the public official and that of Navarro v. Villegas, that
concerned to appraise whether there case is pro tanto modified. So it was
may be valid objections to the grant of made clear in the original resolution of
the permit or to its grant but at another October 25, 1983.
public place. It is an indispensable
condition to such refusal or Respondent Mayor posed the issue of the
modification that the clear and present applicability of Ordinance No. 7295 of the
danger test be the standard for the City of Manila prohibiting the holding or
decision reached . If he is of the view staging of rallies or demonstrations
that there is such an imminent and within a radius of five hundred (500) feet
grave danger of a substantive evil, the from any foreign mission or chancery;
applicants must be heard on the matter. and for other purposes. It is to be
admitted that it finds support in the
Thereafter, his decision, whether previously quoted Article 22 of the Vienna
favorable or adverse, must be Convention on Diplomatic Relations. There
transmitted to them at the earliest was no showing, however, that the
opportunity. Thus if so minded, they can distance between the chancery and the
have recourse to the proper judicial embassy gate is less than 500 feet. Even
authority. Free speech and peaceable if it could be shown that such a
assembly, along with the other condition is satisfied, it does not follow
intellectual freedoms, are highly ranked that respondent Mayor could legally act
in our scheme of constitutional values. It the way he did. The validity of his denial
cannot be too strongly stressed that on of the permit sought could still be
the judiciary, - even more so than on the challenged. It could be argued that a
other departments - rests the grave and case of unconstitutional application of
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MENDIOLA, MANILA
such ordinance to the exercise of the ultimately, the question is to be decided

right of peaceable assembly presents by the "judgment of the aggregate sense
itself. As in this case there was no proof of the community reached by it."
that the distance is less than 500 feet,
the need to pass on that issue was Yet Kottinger, in its effort to arrive at a
obviated. Should it come, then the "conclusive" definition, succeeded merely
qualification and observation of Justices in generalizing a problem that has grown
Makasiar and Plana certainly cannot be increasingly complex over the years.
summarily brushed aside. The high Precisely, the question is: When does a
estate accorded the rights to free publication have a corrupting tendency,
speech and peaceable assembly or when can it be said to be offensive to
demands nothing less. human sensibilities? And obviously, it is
to beg the question to say that a piece of
literature has a corrupting influence
because it is obscene, and vice-versa.
DOCTRINE
Apparently, Kottinger was aware of its
Pita vs. Court of Appeals [G.R. No. own uncertainty because in the same
80806, October 5, 1989] breath, it would leave the final say to a
hypothetical "community standard" —
OBSCENITY. The Court states at the whatever that is — and that the question
outset that it is not the first time that it is must supposedly be judged from case to
being asked to pronounce what "obscene" case. In a much later decision, Gonzalez v.
means or what makes for an obscene or Kalaw Katigbak, the Court, following
pornographic literature. Early on, in trends in the United States, adopted the
People vs. Kottinger, the Court laid down test: "Whether to the average person,
the test, in determining the existence of applying contemporary standards, the
obscenity, as follows: "whether the dominant theme of the material taken as a
tendency of the matter charged as whole appeals to prurient interest."
obscene, is to deprave or corrupt those Kalaw-Katigbak represented a marked
whose minds are open to such immoral departure from Kottinger in the sense
influences and into whose hands a that it measured obscenity in terms of the
publication or other article charged as "dominant theme" of the work rather
being obscene may fall." "Another test," so than isolated passages, which were
Kottinger further declares, "is that which central to Kottinger (although both cases
shocks the ordinary and common sense of are agreed that "contemporary
men as an indecency." Kottinger hastened community standards" are the final
to say, however, that "[w]hether a picture arbiters of what is "obscene"). Kalaw-
is obscene or indecent must depend upon Katigbak undertook moreover to make
the circumstances of the case," and that the determination of obscenity essentially
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MENDIOLA, MANILA
a judicial question and as a consequence, "There must be objective and convincing,

to temper the wide discretion Kottinger not subjective or conjectural, proof of the
had given unto law enforcers. existence of such clear and present
danger." "It is essential for the validity
The latest word, however, is Miller v. of . . . previous restraint or censorship
California, which expressly abandoned that the . . . authority does not rely solely
Massachusettes, and established "basic on his own appraisal of what the public
guidelines," to wit: " welfare, peace or safety may require." "To
justify such a limitation, there must be
(a) whether 'the average person, applying proof of such weight and sufficiency to
contemporary standards' would find the satisfy the clear and present danger test."
work, taken as a whole, appeals to the
prurient interest . . .;
(b) whether the work depicts or describes, NACHURA:
in a patently offensive way, sexual
conduct specifically defined by the Freedom from subsequent punishment.
applicable state law; and Without this assurance, the individual
(c) whether the work, taken as a whole, would hesitate to speak for fear that he
lacks serious literary, artistic, political, or might be held to account for his speech, or
scientific that he might be provoking the vengeance
value." of the officials he may have criticized.
However, this freedom is not absolute,
and may be properly regulated in the
IMMORAL LITERATURE COMES interest of the public. Accordingly, the
WITHIN THE AMBIT OF FREE State may validly impose penal and/or
EXPRESSION, BUT NOT ITS administrative sanctions, such as in the
PROTECTION. Undoubtedly, "immoral" following:
lore or literature comes within the ambit
of free expression, although not its Libel. A public and malicious imputation
protection. In free expression cases, this of a crime, or of a vice or defect, real or
Court has consistently been on the side of imaginary, or any act, omission, condition,
the exercise of the right, barring a "clear status, or circumstance tending to cause
and present danger" that would warrant the dishonor, discredit, or contempt of a
State interference and action. But, so we natural or juridical person, or to blacken
asserted in Reyes v. Bagatsing, "the the memory of one who is dead [Art. 353,
burden to show the existence of grave and Revised Penal Code], Oral defamation is
imminent danger that would justify called slander [Art. 358, Revised Penal
adverse action . . . lies on the . . . Code].
authorit[ies]."
Every defamatory imputation is

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MENDIOLA, MANILA
presumed to be malicious [Alonzo v.

February 1, 1995], but this presumption Obscenity. There is no perfect definition
of malice does not exist in the following of “obscenity”, but the latest word is that
instances: (1) A private communication of Miller v. California, which established
made by any person to another in the basic guidelines, to wit:
performance of any legal, moral or social
duty; and (2) A fair and true report, made (1) whether the average person, applying
in good faith, without any comments or contemporary standards, would find that
remarks, of any judicial, legislative or the work, taken as a whole, appeals to the
other official proceedings which are not of prurient interest;
a confidential nature, or of any statement,
(2) whether the work depicts or describes,
report or speech delivered in said
in a patently offensive way, sexual
proceedings, or of any act performed by
conduct specifically defined by the
public officers in the exercise of their
applicable state law; and
functions [Art. 353, Revised Penal Code],
(3) whether the work, taken as a whole,
In Baguio Midland Courier v. Court of
lacks serious literary, artistic, political or
Appeals, G.R. No. 107566, November 25,
scientific value. No one will be subject to
2004, it was reiterated that the public has
prosecution for the sale or exposure of
the right to be informed on the mental,
obscene materials- unless these materials
moral, and physical fitness of candidates
depict or describe patently offensive
for public office. However, the rule applies
“hard core” sexual conduct. What remains
only to fair comment on matters of public
clear is that obscenity is an issue proper
interest, fair comment being that which is
for judicial determination and should be
true, or if false, expresses the real opinion
treated on a case-to-case basis, and on the
of the author based upon reasonable
judge’s sound discretion [Fernando v.
degree of care and on reasonable grounds.
The principle does not grant an absolute
December 6, 2006].
license to authors or writers to destroy
the persons of candidates for public office In U.S. v. Kottinger, 45 Phil 352, the
by exposing the latter to public contempt Supreme Court acquitted the accused who
or ridicule by providing the general public was charged of having offered for sale
with publications tainted with express or pictures of half-clad members of non-
actual malice. In the latter case, the Christian tribes, holding that he had only
remedy of the person allegedly libelled is presented them in their native attire.
to show proof that an article was written
with the author’s knowledge that it was In People v. Go Pin, the accused was
false, or with reckless disregard of convicted for exhibiting nude paintings
whether it was false or not. and pictures, notwithstanding his claim
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MENDIOLA, MANILA
that he had done so in the interest of art. apply the “visible tendency” rule rather
The Supreme Court, noting that he had than the “clear and present danger” rule
charged admission fees to the exhibition, in disciplinary and contempt charges, the
held that his purpose was commercial, Supreme Court said that it did not purport
not merely artistic. In Pita v. Court of to announce a new doctrine of “visible
Appeals, supra.,the Supreme Court tendency”; it was merely paraphrasing
declared that the determination of what is Sec. 3 (d), Rule 71, Rules of Court. Under
obscene is a judicial function. either the “clear and present danger rule”
or the “balancing of interest” test, the
statements of Gonzalez transcended the
Tests of valid governmental limits of free speech. The “substantive evil”
interference. consists not only of the obstruction of a
free and fair hearing of a particular case
a) Clear and Present Danger Rule: but also the broader evil of the
Whether the words are used in such degradation of the judicial system of a
circumstances and of such a nature as to country and the destruction of the
create a clear and present danger that standards of professional conduct
they will bring about the substantive evils required from members of the bar and
that the State has the right to prevent officers of the court.
[Schenck v. U.S., 249 U.S. 97]. “The
substantive evil must be extremely serious In Iglesia ni Cristo v. Court of Appeals,
and the degree of imminence extremely supra., the Court held that the “X-rating”
high before utterances can be punished”. would have been justified only if there
was a clear and present danger of an evil
The rule is that the danger created must which the State has the right to prevent.
not only be clear and present but also In Viva Productions v. Court of Appeals
traceable to the ideas expressed. In and Hubert Webb, G.R. No. 123881, March
Gonzales v. Comelec, 27 SCRA 835, the 13, 1997, the Supreme Court held that
Court said that the term “clear” seems to action of RTC Paranaque and RTC Makati
point to a causal connection with the in restraining the exhibition of the movie,
danger of the substantive evil arising “The Jessica Alfaro Story”, violated the
from the utterance questioned; while petitioner’s right to free expression. The
“present” refers to the time element, Court noted that the lower court
identified with imminent and immediate specifically failed to lay down any factual
danger. The danger must not only be basis constituting a clear and present
probable, but very likely inevitable. danger that would justify prior restraint.
In Zaldivar v. Sandiganbayan, supra.,on iAs applied to assembly and petition, the
the argument of Tanodbayan Raul M. Supreme Court declared in J.B.L. Reyes v.
Gonzalez that it was error for the Court to Bagatsing, 125 SCRA 553, that the denial

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MENDIOLA, MANILA
of a permit (to hold a public rally) was observable in a given situation. See also
invalid as there was no showing of the Ayer Productions v. Capulong, supra.
probability of a clear and present danger
of an evil that might arise as a result of
the meeting. The burden of proving such PITA VS. COURT OF APPEALS
eventuality rests on the Mayor. GR 80806, Oct. 5, 1989
b) Dangerous Tendency Rule. As Facts: On December 1 and 3, 1983,

explained in Cabansag v. Fernandez, 102 pursuing an Anti-Smut Campaign initiated
Phil 152, if the words uttered create a by the Mayor of the City of Manila, Ramon
dangerous tendency of an evil which the D. Bagatsing, elements of the Special Anti-
State has the right to prevent, then such Narcotics Group, Auxiliary Services
words are punishable. It is sufficient if the Bureau, Western Police District, INP of the
natural tendency and the probable effect Metropolitan Police Force of Manila,
of the utterance were to bring about the seized and confiscated from dealers,
substantive evil that the legislative body distributors, newsstand owners and
seeks to prevent. See: People v. Perez, 45 peddlers along Manila sidewalks,
Phil 599. magazines, publications and other
reading materials believed to be obscene,
c) Balancing of Interests Test. “When pornographic and indecent and later
particular conduct is regulated in the burned the seized materials in public at
interest of public order, and the the University belt along C.M. Recto
regulation results in an indirect, Avenue, Manila, in the presence of Mayor
conditional, or partial abridgment of Bagatsing and several officers and
speech, the duty of the courts is to members of various student
determine which of the two conflicting organizations. Among the publications
interests demands the greater protection seized, and later burned, was “Pinoy
under the particular circumstances Playboy” magazines published and co-
presented” [American Communications edited by Leo Pita.
Association v. Douds, 339 U.S. 282]. In
Zaldivar v. Sandiganbayan, supra.,the On 7 December 1983, Pita filed a case for
Supreme Court said that the “clear and injunction with prayer for issuance of the
present danger rule” is not the only test writ of preliminary injunction seeking to
which has been recognized and applied by enjoin and or restrain Bagatsing, Cabrera
the courts. Another criterion for and their agents from confiscating his
permissible limitation on freedoms of magazines or from otherwise preventing
speech and of the press is the “balancing the sale or circulation thereof claiming
of interests test”, which requires a court that the magazine is a decent, artistic and
to take conscious and detailed educational magazine which is not per se
consideration of the interplay of interests obscene, and that the publication is

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MENDIOLA, MANILA
protected by the Constitutional tendency of the matter charged as

guarantees of freedom of speech and of obscene , is to deprave or corrupt those
the press. whose minds are open to such immoral
influences and into whose hands a
Issue: Whether the Mayor can order the publication or other article charged as
seizure of “obscene” materials as a result being obscene may fall." "ANOTHER
of an anti-smut campaign. TEST," so Kottinger further declares, "is
that which shocks the ordinary and
Held: NO. We cannot quarrel with the common sense of men as an indecency."
basic postulate suggested by appellant Kottinger hastened to say, however, that
that seizure of allegedly obscene "[w]hether a picture is obscene or
publications or materials deserves close indecent must depend upon the
scrutiny because of the constitutional circumstances of the case," and that
guarantee protecting the right to ultimately, the question is to be decided
express oneself in print (Sec. 9, Art. IV), by the "judgment of the aggregate sense
and the protection afforded by the of the community reached by it."
constitution against unreasonable
searches and seizure (Sec. 3, Art. IV). It About three decades later, this Court
must be equally conceded, however, that promulgated People v. Go Pin, 10 a
freedom of the press is not without prosecution under Article 201 of the
restraint, as the state has the right to Revised Penal Code. Go Pin was also even
protect society from pornographic hazier:
literature that is offensive to public
morals, Also well settled is the rule that . . . We agree with counsel for appellant in
the right against unreasonable part. If such pictures, sculptures and
searches and seizures recognizes paintings are shown in art exhibits and
certain exceptions, as when there is art galleries for the cause of art, to be
consent to the search or seizure, or viewed and appreciated by people
search is an incident to an arrest, or is interested in art, there would be no
conducted in a vehicle or movable offense committed. However, the pictures
structure here in question were used not exactly for
art's sake but rather for commercial
The Court states at the outset that it is not purposes. In other words, the supposed
the first time that it is being asked to artistic qualities of said pictures were
pronounce what "OBSCENE" means or being commercialized so that the cause of
what makes for an obscene or art was of secondary or minor importance.
pornographic literature. Early on, in Gain and profit would appear to have
People vs. Kottinger, the Court laid down been the main, if not the exclusive
THE TEST, in determining the existence consideration in their exhibition; and it
of obscenity, as follows : "whether the would not be surprising if the persons
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MENDIOLA, MANILA
who went to see those pictures and paid the nude, or the human body exhibited
entrance fees for the privilege of doing so, in sheer nakedness, as models in
were not exactly artists and persons tableaux vivants. But an actual
interested in art and who generally go to exhibition of the sexual act, preceded by
art exhibitions and galleries to satisfy and acts of lasciviousness, can have no
improve their artistic tastes, but rather redeeming feature. In it, there is no room
people desirous of satisfying their morbid for art. One can see nothing in it but clear
curiosity and taste, and lust, and for love and unmitigated obscenity, indecency,
for excitement, including the youth who and an offense to public morals, inspiring
because of their immaturity are not in a and causing as it does, nothing but lust
position to resist and shield themselves and lewdness, and exerting a corrupting
from the ill and perverting effects of these influence specially on the youth of the
pictures. land. . . .
As the Court declared, the issue is a In a much later decision, Gonzalez v.

complicated one, in which the fine lines Kalaw Katigbak, the Court, following
have neither been drawn nor divided. It is trends in the United States, adopted the
easier said than done to say, indeed, that test : "Whether to the average person,
if "the pictures here in question were applying contemporary standards, the
used not exactly for art's sake but dominant theme of the material taken
rather for commercial purposes," the as a whole appeals to prurient interest."
pictures are not entitled to any Kalaw- Katigbak represented a marked
constitutional protection. departure from Kottinger in the sense
that it measured obscenity in terms of
It was People v. Padan y Alova, 13 the "DOMINANT THEME" of the work
however, that introduced to Philippine rather than isolated passages, which
jurisprudence the "redeeming" element were central to Kottinger (although
that should accompany the work, to save it both cases are agreed that
from a valid prosecution. We quote: . . . We "contemporary community standards"
have had occasion to consider offenses like are the final arbiters of what is
the exhibition of still or moving pictures of "obscene"). Kalaw-Katigbak undertook
women in the nude, which we have moreover to make the determination of
condemned for obscenity and as offensive obscenity essentially a judicial question
to morals. and as a consequence, to temper the wide
discretion Kottinger had given unto law
In those cases, one might yet claim that enforcers.
there was involved the element of art;
that connoisseurs of the same, and The lack of uniformity in American
painters and sculptors might find jurisprudence as to what constitutes
inspiration in the showing of pictures in "obscenity" has been attributed to the
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MENDIOLA, MANILA
reluctance of the courts to recognize the But neither should we say that
constitutional dimension of the problem. "obscenity" is a bare (no pun intended)
Apparently, the courts have assumed that matter of opinion. As we said earlier, it is
"obscenity" is not included in the guaranty the divergent perceptions of men and
of free speech, an assumption that, as we women that have probably compounded
averred, has allowed a climate of opinions the problem rather than resolved it.
among magistrates predicated upon
arbitrary, if vague theories of what is What the Court is impressing, plainly and
acceptable to society. And "[t]here is little simply, is that the question is not, and has
likelihood," says Tribe, "that this not been, an easy one to answer, as it is far
development has reached a state of rest, or from being a settled matter. We share
that it will ever do so until the Court Tribe's disappointment over the
recognizes that obscene speech is speech discouraging trend in American decisional
nonetheless, although it is subject ---- as in law on obscenity as well as his pessimism
all speech ---- to regulation in the interests on whether or not an "acceptable" solution
of [society as a whole] ---- but not in the is in sight.
interest of a uniform vision of how human
sexuality should be regarded and In the final analysis perhaps, the task
portrayed." that confronts us is less heroic than
rushing to a "perfect" definition of
In the case at bar, there is no challenge "obscenity", if that is possible, as
on the right of the State, in the evolving standards for proper police
legitimate exercise of police power, to conduct faced with the problem, which,
suppress smut ---- provided it is smut . after all, is the plaint specifically raised
For obvious reasons, smut is not smut in the petition.
simply because one insists it is smut. So
is it equally evident that individual However, this much we have to say.
tastes develop, adapt to wide-ranging Undoubtedly, "immoral" lore or
influences, and keep in step with the literature comes within the ambit of
rapid advance of civilization. What free expression, although not its
shocked our forebears, say, five decades protection. In free expression cases, this
ago, is not necessarily repulsive to the Court has consistently been on the side
present generation. James Joyce and of the exercise of the right, barring a
D.H. Lawrence were censored in the "clear and present danger" that would
thirties yet their works are considered warrant State interference and action .
important literature today. 29 Goya's But, so we asserted in Reyes v .
La Maja desnuda was once banned from Bagatsing, "the burden to show the
public exhibition but now adorns the existence of grave and imminent danger
world's most prestigious museums. that would justify adverse action . . . lies
on the . . . authorit[ies]."
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MENDIOLA, MANILA
(2) authorizing them to carry out a search

"There must be objective and and seizure, by way of a search warrant.
convincing, not subjective or
conjectural, proof of the existence of The Court of Appeals has no "quarrel
such clear and present danger." "It is that . . . freedom of the press is not without
essential for the validity of . . . previous restraint, as the state has the right to
restraint or censorship that the . . . protect society from pornographic
authority does not rely solely on his own literature that is offensive to public
appraisal of what the public welfare, morals." 36 Neither do we. But it brings us
peace or safety may require." back to square one: were the "literature" so
confiscated "pornographic"? That "we have
"To justify such a limitation, there must laws punishing the author, publisher and
be proof of such weight and sufficiency to sellers of obscence publications (Sec. 1, Art.
satisfy the clear and present danger test." 201, Revised Penal Code, as amended by
As we so strongly stressed in Bagatsing, a P.D. No. 960 and P.D. No. 969)," is also fine,
case involving the delivery of a political but the question, again, is: Has the
speech, the presumption is that the petitioner been found guilty under the
speech may validly be said. The burden statute? The fact that the former
is on the State to demonstrate the respondent Mayor's act was sanctioned
existence of a danger, a danger that by "police power" is no license to seize
must not only be (1) clear but also, (2) property in disregard of due process.
present, to justify State action to stop
the speech. Meanwhile, the Government Hence, we make this resume.
must allow it (the speech). It has no choice.
However, if it acts notwithstanding that 1. The authorities must apply for the
(absence of evidence of a clear and issuance of a search warrant from a
present danger), it must come to terms judge, if in their opinion, an obscenity
with, and be held accountable for, DUE rap is in order;
PROCESS. 2. The authorities must convince the
court that the materials sought to be
The Court is not convinced that the seized are "obscene", and pose a clear
private respondents have shown the and present danger of an evil
required proof to justify a ban and to substantive enough to warrant State
warrant confiscation of the literature interference and action;
for which mandatory injunction had been 3. The judge must determine whether or
sought below. First of all, they were not not the same are indeed "obscene:" the
possessed of a lawful court order: question is to be resolved on a case-to-
case basis and on His Honor's sound
(1) finding the said materials to be discretion. (a matter of judicial
pornography, and determination)
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MENDIOLA, MANILA
4. If, in the opinion of the court, [2] if it furthers an important or

probable cause exists, it may issue the substantial governmental interest;
search warrant prayed for; [3] if the governmental interest is
5. The proper suit is then brought in the unrelated to the suppression of free
court under Article 201 of the Revised expression; and [4] if the incidental
Penal Code; restriction on alleged First Amendment
6. Any conviction is subject to appeal. freedoms [of speech, expression and
The appellate court may assess whether press] is no greater than is essential to the
or not the properties seized are indeed furtherance of that interest.
"obscene"
This is so far the most influential test for
These do not foreclose, however, distinguishing content-based from
defenses under the Constitution or content-neutral regulations and is said to
applicable statutes, or remedies against have "become canonical in the review of
abuse of official power under the Civil such laws." It is noteworthy that the
Code or the Revised Penal code. O'Brien test has been applied by this
Court in at least two cases.
NOTE: In other words, the determination
of what is “obscene” is a judicial function. SOCIAL WEATHER STATIONS, INC. V.
COMMISSION ON ELECTIONS
G.R. No.147571; May 5, 2001
DOCTRINE Facts: Petitioners brought this action for

prohibition to enjoin the Commission on
Social Weather Stations, Inc. vs. Elections from enforcing §5.4 of RA.
COMELEC [G.R. No. 147571, May 5, No.9006 (Fair Election Act). Petitioner
2001] SWS states that it wishes to conduct an
election survey throughout the period of
O’BRIEN TEST IN DETERMINING VALID the elections both at the national and
GOVERNMENTAL REGULATION OF local levels and release to the media the
FREE SPEECH. What test should then be results of such survey as well as publish
employed to determine the constitutional them directly. Petitioner Kamahalan
validity of §5.4? The United States Publishing Corporation, on the other hand,
Supreme Court, through Chief Justice states that it intends to publish election
Warren, held in United States v. O'Brien: survey results up to the last day of the
[A] government regulation is sufficiently elections on May 14,2001.
justified
Petitioners claimed that said provision,
[1] if it is within the constitutional power which prohibited the publication of
of the Government; surveys affecting national candidates
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MENDIOLA, MANILA
fifteen days before an election, and restraint.’There is thus a reversal of the

surveys affecting local candidates seven normal presumption of validity that
days before an election. Respondent inheres in every legislation.
Commission on Elections justifies the
restrictions in §5.4 of R.A. No. 9006 as Nor may it be argued that because of Art.
necessary to prevent the manipulation IX-C, §4 of the Constitution, which gives
and corruption of the electoral process by the COMELEC supervisory power to
unscrupulous and erroneous surveys just regulate the enjoyment or utilization of
before the election. franchise for the operation of media of
communication, no presumption of
Issue: Whether or not §5.4 of R.A. No. invalidity attaches to a measure like §5.4.
9006 constitutes an unconstitutional For as we have pointed out in
abridgment of freedom of speech, sustaining the ban on media political
expression, and the press. advertisements, the grant of power to
the COMELEC under Art. IX-C, §4 is
Held: YES. The Supreme Court in its limited to ensuring “equal opportunity,
majority opinion concluded that the time, space, and the right to reply” as
disputed provision constitutes an well as uniform and reasonable rates of
unconstitutional abridgment of the charges for the use of such media
freedom of speech, expression and the facilities for “public information
press. To be sure, §5.4 lays a prior campaigns and forums among
restraint on freedom of speech, candidates.”
expression, and the press by prohibiting
the publication of election survey results This Court stated:
affecting candidates within the prescribed
periods of fifteen (15) days immediately The technical effect of Article IX (C) (4) of
preceding a national election and seven the Constitution may be seen to be that no
(7) days before a local election. presumption of invalidity arises in respect
of exercises of supervisory or regulatory
Because of the preferred status of the authority on the part of the Comelec for the
constitutional rights of speech, purpose of securing equal opportunity
expression, and the press, such a among candidates for political office,
measure is vitiated by a weighty although such supervision or regulation
presumption of invalidity. Indeed, “any may result in some limitation of the rights
system of prior restraints of expression of free speech and free press. MR. JUSTICE
comes to this Court bearing a heavy KAPUNAN dissents. He rejects as
presumption against its constitutional inappropriate the test of clear and present
validity. . . . “. The Government ‘thus danger for determining the validity of §5.4.
carries a heavy burden of showing
justification for the enforcement of such
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MENDIOLA, MANILA
Indeed, as has been pointed out in Indeed, it is a mere restriction, not an

Osmeña v. COMELEC, this test was absolute prohibition, on the publication of
originally formulated for the criminal law election surveys. It is limited in duration;
and only later appropriated for free it applies only during the period when the
speech cases. Hence, while it may be useful voters are presumably contemplating
for determining the validity of laws dealing whom they should elect and when they
with inciting to sedition or incendiary are most susceptible to such unwarranted
speech, it may not be adequate for such persuasion. These surveys may be
regulations as the one in question. For such published thereafter. (Pages 17-18)
a test is
concerned with questions of the gravity The dissent does not, however, show
and imminence of the danger as basis for why, on balance, these considerations
curtailing free speech, which is not the case should outweigh the value of freedom of
of §5.4 and similar regulations. expression. Instead, reliance is placed
on Art. IX-C, §4. As already stated, the
Instead, MR. JUSTICE KAPUNAN purports purpose of Art. IX-C, §4 is to “ensure
to engage in a form of balancing by equal opportunity, time, and space and
“weighing and balancing the the right of reply, including reasonable,
circumstances to determine whether equal rates therefor for public
public interest [in free, orderly, honest, information campaigns and forums
peaceful and credible elections] is among candidates.” Hence the validity
served by the regulation of the free of the ban on media advertising. It is
enjoyment of the rights”. After noteworthy that R.A. No. 9006, §14 has
canvassing the reasons for the prohibition, lifted the ban and now allows candidates
i.e., to prevent last-minute pressure on to advertise their candidacies in print and
voters, the creation of bandwagon effect broadcast media.
to favor candidates, misinformation, the
“junking” of weak and “losing” candidates Indeed, to sustain the ban on the
by their parties, and the form of election publication of survey results would
cheating called “dagdag-bawas” and sanction the censorship of all speaking by
invoking the State’s power to supervise candidates in an election on the ground
media of information during the election that the usual bombasts and hyperbolic
period (pages 11-16), the dissenting claims made during the campaigns can
opinion simply concludes: confuse voters and thus debase the
electoral process.
Viewed in the light of the legitimate and
significant objectives of Section 5.4, it may In sum, the dissent has engaged only in
be seen that its limiting impact on the a balancing at the margin. This form of
rights of free speech and of the press is ad hoc balancing predictably results in
not unduly repressive or unreasonable. sustaining the challenged legislation
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MENDIOLA, MANILA
and leaves freedom of speech, law furthers an important or

expression, and the press with little substantial governmental interest, it
protection. For anyone who can bring a should be invalidated if such
plausible justification forward can easily governmental interest is "not unrelated
show a rational connection between the to the suppression of free expression."
statute and a legitimate governmental Moreover, even if the purpose is
purpose. In contrast, the balancing of unrelated to the suppression of free
interest undertaken by then Justice Castro speech, the law should nevertheless be
in Gonzales v. COMELEC,[7] from which invalidated if the restriction on freedom
the dissent in this case takes its cue, was a of expression is greater than is
strong one resulting in his conclusion that necessary to achieve the governmental
§50-B of R.A. No. 4880, which limited the purpose in question.
period of election campaign and partisan
political activity, was an unconstitutional Our inquiry should accordingly focus on
abridgment of freedom of expression. these two considerations as applied to
§5.4. To summarize then, we hold that
The O’Brian Test §5.4 is invalid because According to the
The United States Supreme Court, Court, Section 5.4 was invalid because of
through Chief Justice Warren, held in three reasons:
United States v. O'Brien: "[A] government
regulation is sufficiently justified ( 1) it imposed a prior restraint on the
[1] if it is within the constitutional freedom of expression ,
power of the Government; (2) it was a direct and total suppression
[2] if it furthers an important or of a category of expression even though
substantial governmental interest; such suppression was only for a limited
[3] if the governmental interest is period , and
unrelated to the suppression of free (3) the governmental interest sought to
expression; and [4] if the incidental be promoted could be achieved by
restriction on alleged First Amendment means other than the suppression of
freedoms [of speech, expression and freedom of expression. The petition for
press] is no greater than is essential to prohibition was granted.
the furtherance of that interest."
First. Sec. 5.4 fails to meet criterion of
This is so far the most influential test for the O’Brien test because the causal
distinguishing content-based from content- connection of expression to the asserted
neutral regulations and is said to have governmental interest makes such
"become canonical in the review of such interest “not unrelated to the
laws." It is noteworthy that the O'Brien suppression of free expression.” By
test has been applied by this Court in at prohibiting the publication of election
least two cases. Under this test, even if a survey results because of the possibility
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MENDIOLA, MANILA
that such publication might undermine there justification for the prior restraint
the integrity of the election, §5.4 which §5.4 lays on protected speech. In
actually suppresses a whole class of Near v. Minnesota,[13] it was held:
expression, while allowing the
expression of opinion concerning the The protection even as to previous
same subject matter by NEWSPAPER restraint is not absolutely unlimited. But
COLUMNISTS, RADIO AND TV the limitation has been recognized only in
COMMENTATORS, ARMCHAIR exceptional cases. . . . No one would
THEORISTS, AND OTHER OPINION question but that a government might
MAKERS. In effect, §5.4 shows a BIAS for prevent actual obstruction to its
a particular subject matter, if not recruiting service or the publication of the
viewpoint, by preferring PERSONAL sailing dates of transports or the number
OPINION to STATISTICAL RESULTS. and location of troops. On similar grounds,
the primary requirements of decency may
The constitutional guarantee of freedom be enforced against obscene publications.
of expression means that “the The security of the community life may be
government has no power to restrict protected against incitements to acts of
expression because of its message, its violence and the overthrow by force of
ideas, its subject matter, or its content.” orderly government . . . .
The inhibition of speech should be upheld
only if the expression falls within one of Thus, contrary to the claim of the Solicitor
the few unprotected categories dealt with General, the prohibition imposed by §5.4
in Chaplinsky v. New Hampshire, thus: cannot be justified on the ground that it
There are certain well-defined and is only for a limited period and is only
narrowly limited classes of speech, the incidental. The prohibition may be for a
prevention and punishment of which have limited time, but the curtailment of the
never been thought to raise any right of expression is direct, absolute,
Constitutional problem. These include the and substantial. It constitutes a total
lewd and obscene, the profane, the suppression of a category of speech and is
libelous, and the insulting or ‘fighting’ not made less so because it is only for a
words ¾ those which by their very period of fifteen (15) days immediately
utterance inflict injury or tend to incite an before a national election and seven (7)
immediate breach of the peace. days immediately before a local election.
Such utterances are no essential part of This sufficiently distinguishes §5.4 from R.A.
any exposition of ideas, and are of such No. 6646, §11(b), which this Court found to
slight social value as a step to truth that be valid in National Press Club v.
any benefit that may be derived from COMELEC and Osmeña v. COMELEC] For
them is clearly outweighed by the social the ban imposed by R.A. No. 6646,
interest in order and morality. Nor is §11(b) is not only authorized by a
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MENDIOLA, MANILA
specific constitutional provision, but it and hearing. This is surely a less

also provided an alternative so that, as restrictive means than the prohibition
this Court pointed out in Osmeña, there contained in §5.4. Pursuant to this power
was actually no ban but only a of the COMELEC, it can confiscate bogus
substitution of media advertisements by survey results calculated to mislead
the COMELEC space and COMELEC hour. voters. Candidates can have their own
surveys conducted. No right of reply can
Second. Even if the governmental be invoked by others. No principle of
interest sought to be promoted is equality is involved. It is a free market to
unrelated to the suppression of speech which each candidate brings his ideas. As
and the resulting restriction of free for the purpose of the law to prevent
expression is only incidental, §5.4 bandwagon effects, it is doubtful whether
nonetheless fails to meet criterion of the the Government can deal with this natural
O’Brien test, namely, that the restriction enough tendency of some voters. Some
be not greater than is necessary to voters want to be identified with the
further the governmental interest. “winners.” Some are susceptible to the
herd mentality.
As already stated, §5.4 aims at the
prevention of last-minute pressure on Can these be legitimately prohibited by
voters, the creation of bandwagon effect, suppressing the publication of survey
“junking” of weak or “losing” candidates, results which are a form of expression? It
and resort to the form of election cheating has been held that “[mere] legislative
called “dagdagbawas.” Praiseworthy as preferences or beliefs respecting matters
these aims of the regulation might be, of public convenience may well support
they cannot be attained at the sacrifice regulation directed at other personal
of the fundamental right of expression, activities, but be insufficient to justify
when such aim can be more narrowly such as diminishes the exercise of rights
pursued by punishing unlawful acts, so vital to the maintenance of democratic
rather than speech because of institutions.”
apprehension that such speech creates
the danger of such evils. Because of the preferred status of the
constitutional rights of speech,
Thus, under the Administrative Code of expression, and the press, such a
1987,[17] the COMELEC is given the measure is vitiated by a weighty
power: presumption of invalidity . Indeed, "any
system of prior restraints of expression
To stop any illegal activity, or comes to this Court bearing a heavy
confiscate, tear down, and stop any presumption against its constitutional
unlawful, libelous, misleading or false validity. . . . The Government 'thus carries
election propaganda, after due notice a heavy burden of showing justification
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MENDIOLA, MANILA
for the enforcement of such restraint.'" as will not prejudice the public welfare, as
There is thus a reversal of the normal held in De la Cruz v. Court of Appeals,
presumption of validity that inheres in G.R. Nos. 126183 & 129221, March 25,
every legislation. 1999.
Nor may it be argued that because of In this case, the Supreme Court said that
Art. IX-C, §4 of the Constitution, which by staging their mass protest on regular
gives the COMELEC supervisory power school days, abandoning their classes and
to regulate the enjoyment or utilization refusing to go back even after they were
of franchise for the operation of media ordered to do so, the teachers committed
of communication, no presumption of acts prejudicial to the best interests of the
invalidity attaches to a measure like service.
§5.4. For as we have pointed out in
sustaining the ban on media political a) If the assembly is to be held in a public
advertisements, the grant of power to place, a permit for the use of such place,
the COMELEC under Art. IX-C, §4 is and not for the assembly itself, may be
limited to ensuring "equal opportunity, validly required. But the power of local
time, space, and the right to reply" as officials in this regard is merely one of
well as uniform and reasonable rates of regulation, not prohibition [Primicias v.
charges for the use of such media Fugoso, 80 Phil 71; Reyes v. Bagatsing,
facilities for "public information supra.].
campaigns and forums among
i) Thus, in B.P. 880 [Public Assembly Act
candidates."
of 1985], a permit to hold a public
assembly shall not be necessary where
NOTE: The power to regulate, does not the meeting is to be held in a private place,
include the power to prohibit. in the campus of a government-owned or
-operated educational institution, or in a
freedom park. Where a permit is required,
the written application shall be filed with
the mayor’s office at least 5 days before
the scheduled meeting and shall be acted
ASSEMBLY AND PETITION upon within two days, otherwise the
permit shall be deemed granted. Denial of
Assembly and Petition. The right to the permit may be justified only upon
assemble is not subject to prior restraint. clear and convincing evidence that the
It may not be conditioned upon the prior public assembly will create a clear and
issuance of a permit or authorization present danger to public order, safety,
from government authorities. However, convenience, morals or health. Action on
the right must be exercised in such a way the application shall be communicated

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MENDIOLA, MANILA
within 24 hours to the applicant, who may Universal Declaration of Human Rights.
appeal the same to the appropriate court.
Decision must be reached within 24 hours. (3) The law is not overbroad. It regulates
The law permits law enforcement the exercise of the right to peaceful
agencies to detail a contingent under a assembly and petition only to the extent
responsible officer at least 100 meters needed to avoid a clear and present
away from the assembly in case it danger of the substantive evils Congress
becomes necessary to maintain order. See has the right to prevent.
Ruiz v. Gordon, 126 SCRA 233.
(4) There is no prior restraint, since the
Bayan v. Ermita, G.R. No. 169838, April content of the speech is not relevant to
23, 2006, upheld the constitutionality of the regulation. It does not curtail or
B.P. 880. The Court said that it is not an unduly restrict freedoms; it merely
absolute ban on public assemblies but a regulates the use of public places as to the
restriction that simply regulates the time, time, place and manner of assemblies. (5)
place and manner of the assemblies. The delegation to the Mayors of the
power to issue rally “permits" is valid
(1) In Osmena v. Comelec, the Court because it is subject to the
referred to it as a “content- neutral” constitutionally sound “clear and present
regulation of the time, place and manner danger” standard.
of holding public assemblies. The
reference to “lawful cause” does not make In Subayco v. Sandiganbayan, 260 SCRA
it “content-based”, because assemblies 798, regarding the Escalante massacre,
really have to be for lawful causes; the Court bewailed the use of bullets to
otherwise, they would not be “peaceable” break up the assembly of people
and entitled to protection. Neither are the petitioning for redress of grievances. In
words “opinion”, “protesting” and this case, the Court declared: “It is rather
“influencing” in the definition of public to be expected that more or less disorder
assembly “content-based", since they can will mark the public assembly of the
refer to any subject. Maximum tolerance people to protest against grievances
is for the protection and benefit of all whether real or imaginary, because on
rallyists and is independent of the content such occasions feelings are always
of the expressions in the rally. brought to a high pitch of excitement, and
the greater the grievance and the more
(2) The permit can only be denied on the intense the feeling, the less perfect, as a
ground of clear and present danger” to rule, will be the disciplinary control of the
public order, public safety, public leaders over their irresponsible followers.
convenience, public morals or public But if the prosecution were permitted to
health. This is a a recognized exception to seize upon every instance of such
the exercise of the right even under the disorderly conduct by individual

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members of a crowd as an excuse to may be, as the appellate court urged, that
characterize the assembly as a seditious the freedom of expression and assembly
and tumultuous uprising against the and the right to petition the government
authorities, then the right to assemble for redress of grievances stand on a level
and petition the government for redress higher than economic and other liberties.
of grievances would become a delusion However, the appellate court’s position is
and a snare, and the attempt to exercise it contrary to what Sec. 4, Art. Ill
on the most righteous occasions and in (Constitution), in relation to Sec. 5 of
the most peaceable manner would expose Civil Service Commission Resolution No.
all those who took part therein to the 021315, provides. Thus, any suggestion
severest and most unmerited punishment. that these rights include the right on the
part of government personnel to strike
However, in Bangalisan v. Court of ought to be, as it has been, thrashed.
Appeals, G.R. No. 124678, July 23, 1997,
the suspension/dismissai of the public As applied to student rallies and
school teachers, who staged a strike to demonstrations, in Malabanan v.
dramatize their grievances, was held valid. Ramento, 129 SCRA 359, the Supreme
They were not being penalized for their Court emphasized that the students did
exercise of the right to peaceful assembly not shed their constitutional rights to free
and petition, but because of their speech at the schoolhouse gate, and
successive, unauthorized and unilateral permitted the students to re-enroll and
absences which produced adverse effects finish their studies. In Villarv. TIP, 135
upon their students. This rule is SCRA 706, while the Court upheld the
reiterated in Jacinto v. Court of Appeals, academic freedom of institutions of
G.R. No. 124540, November 14, 1997; in higher learning, which includes the right
De la Cruz v. Court of Appeals, G.R. Nos. to set academic standards to determine
126183 & 129221, March 25, 1999 and under what circumstances failing grades
in Acosta v. Court of Appeals, G.R. No. suffice for the expulsion of students, it
132088, June 28 2000. was held that this right cannot be utilized
to discriminate against those who
Likewise, in GSIS v. Kapisanan ng mga exercise their constitutional rights to
Manggagawa sa GSIS, G.R. No. 170132, peaceful assembly and free speech. In Non
December 6, 2006, the Court reiterated v. Dames, 185 SCRA 523, the Supreme
the principle that employees in the public Court abandoned its earlier ruling in
service may not engage in strikes or in Alcuaz v. PSBA, 165 SCRA 7, (that
concerted and unauthorized stoppage of enrolment of a student is a semester-to-
work; that the right of government semester contract and the school may not
employees to organize is limited to the be compelled to renew the contract),
formation of unions or associations, upholding the primacy of freedom of
without including the right to strike. It expression, because the students do not

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MENDIOLA, MANILA
shed their constitutionally protected which is the power to prescribe

rights at the school gate. regulations, to promote the health, morals,
peace, education, good order or safety,
and general welfare of the people. This
sovereign police power is exercised by
Q: What is public assembly under BP the government through its legislative
880? branch by the enactment of laws
Q: May a public assembly be held in a regulating those and other constitutional
private place?? and civil rights, and it may be delegated to
ANS - Regulation NOT prohibition: political subdivisions, such as towns,
Primicias vs. Fugoso CLEAR, IMMINENT, municipalities and cities by authorizing
SERIOUS EVIL/ DANGER their legislative bodies called municipal
and city councils to enact ordinances for
BP880- exceptions: private place, the purpose.
freedom park, educational institution
THE RIGHT TO REGULATE THE USE OF
STREETS AND OTHER PUBLIC PLACES
DOCTRINE: DOES NOT INCLUDE THE OUTRIGHT
PROHIBITION OF THEIR USE. Under the
Primicias vs. Fugoso [G.R. No. L-1800, above delegated power, the Municipal
January 27, 1948] Board of the City of Manila, enacted
sections 844 and 1119. Section 844 of the
THE RIGHT TO PEACEABLY ASSEMBLE. Revised Ordinances of 1927 prohibits as
The right to freedom of speech, and to an offense against public peace, and
peacefully assemble and petition the section 1262 of the same Revised
government for redress of grievances, are Ordinance penalizes asa misdemeanor,
fundamental personal rights of the people "any act, in any public place, meeting, or
recognized and guaranteed by the procession, tending to disturb the peace
constitutions of democratic countries. But or excite a riot; or collect with other
it is a settled principle growing out of the persons in a body or crowd for any
nature of well-ordered civil societies that unlawful purpose; or disturb or disquiet
the exercise of those rights is not absolute any congregation engaged in any lawful
for it may be so regulated that it shall not assembly." And section 1119 provides the
be injurious to the equal enjoyment of following:
others having equal rights, nor injurious
to the rights of the community or society. "SEC. 1119. Free for use of public. —
The streets and public places of the city
The power to regulate the exercise of shall be kept free and clear for the use of
such and other constitutional rights is the public, and the sidewalks and
termed the sovereign "police power," crossings for the pedestrians, and the
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MENDIOLA, MANILA
same shall only be used or occupied for that the Mayor of the City of Manila is
other purposes as provided by ordinance vested with unregulated discretion to
or regulation: Provided, That the holding grant or refuse to grant permit for the
of athletic games, sports, or exercises holding of a lawful assembly or meeting,
during the celebration of national parade, or procession in the streets and
holidays in any streets or public places of other public places of the City of Manila;
the city and on the patron saint day of any and the other is that the applicant has the
district in question, may be permitted by right to a permit which shall be granted
means of a permit issued by the Mayor, by the Mayor, subject only to the latter's
who shall determine the streets or public reasonable discretion to determine or
places, or portions thereof, where such specify the streets or public places to be
athletic games, sports, or exercises may used for the purpose, with a view to
be held: prevent confusion by overlapping, to
secure convenient use of the streets and
And provided, further, That the holding of public places by others, and to provide
any parade or procession in any streets or adequate and proper policing to minimize
public places is prohibited unless a permit the risk of disorder.
therefore is first secured from the Mayor,
who shall, on every such occasion, After a mature deliberation, we have
determine or specify the streets or public arrived at the conclusion that we must
places for the formation, route, and adopt the second construction, that is,
dismissal of such parade or procession: construe the provisions of the said
ordinance to mean that it does not confer
And provided, finally, That all applications upon the Mayor the power to refuse to
to hold a parade or procession shall be grant the permit, but only the discretion,
submitted to the Mayor not less than in issuing the permit, to determine or
twenty-four hours prior to the holding of specify the streets or public places where
such parade or procession." the parade or procession may pass or the
meeting may be held.
As there is no express and separate
provision in the Revised Ordinance of the Our conclusion finds support in the
City regulating the holding of public decision in the case of Willis Cox vs. State
meeting or assembly at any street or of New Hampshire, 312 U. S., 569. In that
public places, the provisions of said case, the statute of New Hampshire P. L.
section 1119 regarding the holding of any chap. 145, section 2, providing that "no
parade or procession in any street or parade or procession upon any ground
public places may be applied by analogy abutting thereon, shall be permitted
to meeting and assembly in any street or unless a special license therefore shall
public places. Said provision is first be obtained from the selectmen of
susceptible of two constructions: one is the town or from licensing committee,"
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MENDIOLA, MANILA
was construed by the Supreme Court of empowered only to regulate the use of
New Hampshire as not conferring upon streets, parks, and other public places,
the licensing board unfettered discretion and the word "regulate," as used in
to refuse to grant the license, and held section 2444 of the Revised
valid. Administrative Code, means and includes
the power to control, to govern, and to
And the Supreme Court of the United restrain, but can not be construed as
States, in its decision (1941) penned by synonymous with "suppress" or
Chief Justice Hughes affirming the "prohibit" (Kwong Sing vs. City of Manila,
judgment of the State Supreme Court, 41 Phil., 103), the Municipal Board can
held that "a statute requiring persons not grant the Mayor a power which it
using the public streets for a parade or does not have.
procession to procure a special license
therefore from the local authorities is not Besides, as the powers and duties of the
an unconstitutional abridgment of the Mayor as the Chief Executive of the City
rights of assembly or of freedom of are executive, and one of them is "to
speech and press, where, as the statute is comply with and enforce and give the
construed by the state courts, the necessary orders for the faithful
licensing authorities are strictly limited, performance and execution of the laws
in the issuance of licenses, to a and ordinances" (section 2434 [b] of the
consideration of the time, place, and Revised Administrative Code), the
manner of the parade or procession, with legislative police power of the Municipal
a view to conserving the public Board to enact ordinances regulating
convenience and of affording an reasonably the exercise of the
opportunity to provide proper policing, fundamental personal right of the citizens
and are not invested with arbitrary in the streets and other public places, can
discretion to issue or refuse license, . . ." not be delegated to the Mayor or any
other officer by conferring upon him
We cannot adopt the other alternative unregulated discretion or without laying
construction or construe the ordinance down rules to guide and control his action
under consideration as conferring upon by which its impartial execution can be
the Mayor power to grant or refuse to secured or partiality and oppression
grant the permit, which would be prevented.
tantamount to authorizing him to prohibit
the use of the streets and other public
places for holding of meetings, parades or TO REGULATE THE FREEDOM TO
processions, because such a construction ASSEMBLE, THERE MUST CLEAR AND
would make the ordinance invalid and PRESENT DANGER OF AN EVIL WHICH
void or violative of the constitutional THE STATE HAS A RIGHT TO PREVENT.
limitations. As the Municipal Board is The reason alleged by the respondent in
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MENDIOLA, MANILA
his defense for refusing the permit is, "Fear of serious injury cannot alone
"that there is a reasonable ground to justify suppression of free speech and
believe, basing upon previous utterances assembly. Men feared witches and burned
and upon the fact that passions, specially women. It is the function of speech to free
on the part of the losing groups, remains men from the bondage of irrational fears.
bitter and high, that similar speeches will To justify suppression of free speech
be delivered tending to undermine the there must be reasonable ground to fear
faith and confidence of the people in their that serious evil will result if free speech
government, and in the duly constituted is practiced. There must be reasonable
authorities, which might threaten ground to believe that the danger
breaches of the peace and a disruption of apprehended is imminent. There must be
public order." reasonable ground to believe that the evil
to be prevented is a serious one . . .
As the request of the petition was for a
permit "to hold a peaceful public "Those who won our independence by
meeting," and there is no denial of that revolution were not cowards. They did
fact or any doubt that it was to be a lawful not fear political change. They did not
assemblage, the reason given for the exalt order at the cost of liberty. . . .
refusal of the permit cannot be given any
consideration. As stated in the portion of "Moreover, even imminent danger cannot
the decision in Hague vs. Committee on justify resort to prohibition of these
Industrial Organization, supra, "It does functions essential effective democracy,
not make comfort and convenience in the unless the evil apprehended is relatively
use of streets or parks the standard of serious. Prohibition of free speech and
official action. It enables the Director of assembly is a measure so stringent that it
Safety to refuse the permit on his mere would be inappropriate as the means for
opinion that such refusal will prevent averting a relatively trivial harm to a
riots, disturbances or disorderly society. . . . The fact that speech is likely to
assemblage. It can thus, as the record result in some violence or in destruction
discloses, be made the instrument of of property is not enough to justify its
arbitrary suppression of free expression suppression. There must be the
of views on national affairs, for the probability of serious injury to the state.
prohibition of all speaking will Among freemen, the deterrents ordinarily
undoubtedly 'prevent' such eventualities." to be applied to prevent crimes are
To this we may add the following, which education and punishment for violations
we make our own, said by Mr. Justice of the law, not abridgment of the rights of
Brandeis in his concurring opinion in free speech and assembly." Whitney vs.
Whitney vs. California, 71 U. S. (Law. California, U. S. Sup. Ct. Rep., 71 Law., ed.,
ed.), 1105-1107: pp. 1106-1107.)

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MENDIOLA, MANILA
shall only be done if a Mayor’s permit is

PRIMICIAS V. FUGOSO secured…
G.R. No L1800, January 27,1948,Feria, J.
The Mayor’s reason for refusing the permit
FACTS: Primicias, via petition for was his reasonable ground to believe,
mandamus, sought to compel Fugoso to based on previous utterances and the fact
issue a permit for the holding of a public that passions on the part of the losing
meeting at Plaza Miranda to petition the groups remains bitter and high, that
government for redress of grievances. The similar speeches will be delivered tending
Philippine legislature has delegated the to undermine the faith and confidence of
exercise of the police power to the the people in their government, and in the
Municipal Board of the City of Manila, the duly constituted authorities, which might
legislative body of the City. It has been threaten breaches of the peace and a
granted the following legislative powers, disruption of public order. However,
to wit: "to provide for the prohibition and petitioner’s request was for a permit "to
suppression of riots, affrays, disturbances, hold a peaceful public meeting."
and disorderly assemblies, to regulate the
use of streets, avenues ... parks, ISSUE: Was the Mayor’s refusal to grant
cemeteries and other public places." Thus, the permit to peaceably assemble
the Municipal Board enacted sections 844 violative of the Constitution?
and 1119 of the Revised Ordinances of
1927, which prohibit, as an offense HELD: YES. The rights of freedom of
against public peace, and penalize as a speech and to peacefully assemble and
misdemeanor, "any act, in any public petition the government for redress of
place, meeting, or procession, tending to grievances are fundamental personal
disturb the peace or excite a riot; or rights of the people recognized and
collect with other persons in a body or guaranteed by the Constitution. The
crowd for any unlawful purpose; or exercise of those rights is not absolute;
disturb or disquiet any congregation it may be regulated so that it shall
engaged in any lawful assembly." SEC. injure the equal enjoyment of others
1119 states that the streets and public having equal rights, or the rights of the
places of the city shall be kept free and community or society. The power to
clear for the use of the public, and the regulate the exercise of such rights is the
sidewalks and crossings for the "police power"--- the power to prescribe
pedestrians, and the same shall only be regulations, to promote the health, morals,
used or occupied for other purposes as peace, education, good order or safety,
provided by ordinance or regulation… and general welfare of the people---
Provided that the holding of any parade or exercised by the legislative branch by the
procession in any street or public places enactment of laws regulating those rights,
and it may be delegated to political
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MENDIOLA, MANILA
subdivisions, such as towns, ARE STRICTLY LIMITED , in the issuance

municipalities, and cities authorizing their of licenses, to consider the time, place,
legislative bodies, called municipal and and manner of the parade and
city councils to enact ordinances for the procession, with a view to conserving
purpose. the public convenience and of affording
an opportunity to provide proper
SEC. 1119 is susceptible to two policing . Otherwise, it would be
constructions: tantamount to authorizing the Mayor to
prohibit the use of the streets and other
( 1) That the Mayor has unregulated public places for holding of meetings.
discretion to grant or refuse to grant
permit for the holding of a lawful The Municipal Board is empowered only
assembly ; to regulate the use of streets, parks, and
-or- the other public places. "REGULATE"
includes the power to control, govern,
(2) That the applicant has the right to a and restrain, but not suppress or
permit, which shall be granted by the prohibit. The legislative police power of
Mayor, subject only to the latter's the Municipal Board to enact ordinances
reasonable discretion to determine or regulating reasonably the exercise of the
specify the streets or public places to be fundamental personal rights of the citizens
used for the purpose, to secure in the streets and other public places
convenient use of the streets and public cannot be delegated to the Mayor by
places by others, and to provide conferring upon him unregulated
adequate and proper policing to discretion or without laying down rules
minimize the risk of disorder. to guide and
control his action by which its impartial
The Court adopted the second execution can be secured or partiality and
construction; the ordinance only oppression prevented .
confers upon the Mayor the discretion,
in issuing the permit, to determine or “An ordinance in that case subjects to
specify the streets or public places the unrestrained will of a single public
where the meeting may be held. It does officer the power to determine the
not confer upon him unfettered rights of parties under it, when there
discretion to refuse to grant the license. was nothing in the ordinance to guide
A statute requiring persons using the or control his action. His action or non-
public streets to procure a special action may proceed from enmity or
license therefore from the local prejudice, from partisan zeal or animosity,
authorities is not an unconstitutional from favoritism and other improper
abridgement of the rights of assembly, influences and motives easy of
WHERE THE LICENSING AUTHORITIES concealment.”
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The power of municipalities to regulate

An ordinance which clothes a single the use of public streets is conceded.
individual with such power is void. In The privilege of a citizen to use the
the exercise of police power, the streets may be regulated in the interest
council may, in its discretion, regulate of all; it is not absolute. The authority of
the exercise of such rights in a a municipality to impose regulations in
reasonable manner, but cannot order to assure the safety and
suppress them, directly or indirectly, convenience of the people in the use of
by attempting to commit the power of public highways is consistent with civil
doing so to the mayor or any other liberties, a means of safeguarding the
officer. The discretion with which the good order upon which they ultimately
council is vested is a legal discretion, to depend. Where a restriction of the use of
be exercised within the limits of the law, highways is designed to promote the
and not discretion to transcend it or to public convenience in the interest of all, it
confer upon any city officer and cannot be disregarded by the attempted
arbitrary authority, making him in its exercise of some civil right which in other
exercise a petty tyrant. circumstances would be entitled to
protection. As regulation of the use of the
"It is only when political, religious, streets for parades and processions is a
social, or other demonstrations create traditional exercise of control by local
public disturbances, or operate as a government, the question is whether that
nuisance, or create or manifestly control is exerted so as not to deny or
threaten some tangible public or unwarrantedly abridge the right of
private mischief that the law assembly and the opportunities for the
interferes." communication of thought and the
discussion of public questions
"Ordinances to be valid must be immemorially associated with resort to
reasonable; they must not be oppressive; public places.
they must be fair and impartial; they
must not be so framed as to allow their The Court, citing a U.S. case, held: “A
enforcement to rest on official municipal ordinance requiring the
discretion” obtaining of a permit for a public
assembly in or upon the public streets,
“Where the granting of the permit is left highways, public parks, or public
to the unregulated discretion of a small buildings of the city and authorizing the
body of city eldermen, the ordinance director of public safety, for the purpose
cannot be other than partial and of preventing riots, disturbances, or
discriminating in its practical disorderly assemblage, to refuse to
operation.” (The Court cited a U.S. case) issue a permit (and not merely to
regulate) when after investigation of all
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MENDIOLA, MANILA
the facts and circumstances pertinent to other body or authority, except police
the application, he believes it to be regulation which are conferred upon the
proper to refuse to issue a permit, is not legislative body of a municipal corporation.
a valid exercise of the police power. The police power to regulate the use of
streets and other public places has been
Streets and parks have immemorially conferred by the Legislature upon the
been held in trust for the use of the Municipal Board of the City. The
public and have been used for purposes Legislature has not conferred upon the
of assembly, communicating thoughts Mayor the same power.
between citizens, and discussing public
questions. Such use of the streets and Besides, a grant of unregulated and
public places has been a part of the unlimited power to grant or refuse a
privileges, immunities, rights, and permit for the use of streets and other
liberties of citizens. The privilege of a public places for processions, parades, or
citizen to use the streets and parks for meetings, would be null and void. Under
communication of views on national our democratic system of government, no
questions may be regulated in the such unlimited power may be validly
interest of all; it is not absolute, but granted to any officer of the government,
relative, and must be exercised in except perhaps in cases of national
subordination to the general comfort emergency.
and convenience, and in consonance
with peace and good order; BUT IT "FEAR OF SERIOUS INJURY cannot
MUST NOT, IN THE GUISE OF alone justify suppression of free
REGULATION, BE ABRIDGED OR DENIED. speech and assembly. It is the function
of speech to free men from the bondage of
If the Ordinance “does not make irrational fears. To justify suppression of
comfort or convenience in the use of free speech, there must be reasonable
streets or parks the standard of official ground to fear that serious evil will
action,” instead, it enables a single result if free speech is practiced; that
official to refuse a permit on his MERE the danger apprehended is imminent
OPINION that such refusal will prevent and the evil to be prevented is a serious
'riots, disturbances or disorderly one.” Imminent danger can justify
assemblage, IT IS VOID. It can be an prohibition ONLY IF the evil apprehended
instrument of arbitrary suppression of is relatively serious. That speech is
free expression of views on national likely to result in some violence or in
affairs. destruction of property is not enough to
justify its suppression. There must be the
Moreover, the power conferred upon the probability of serious injury to the state.
Legislature to make laws cannot be
delegated by that department to any
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Q: Is the right to assembly & petition On a more specific level, there is

available to schools persuasive force to this formulation in the
ANS - Malabanan vs. Ramento – yes. Fortas opinion: "The principal use to
Students do not shed their constitutional which the schools are dedicated is to
rights at the schoolgate. accommodate students during prescribed
hours for the purpose of certain types of
Right to A&P – concerted right activities. Among those activities is
Q: Can it be exercised by only 1 personal intercommunication among the
person? students. This is not only an inevitable
ANS - No – collective right. part of the process of attending school; it
is also an important part of the
educational process. A student's rights,
therefore, do not embrace merely the
DOCTRINE: classroom hours. When he is in the
cafeteria, or on the playing field, or on the
Malabanan vs. Ramento [G.R. No. campus during the authorized hours, he
62270, May 21, 1984] may express his opinions, even on
controversial subjects like the conflict in
THE STUDENTS’ RIGHT TO PEACEABLY Vietnam, if he does so without 'materially
ASSEMBLE AND FREE SPEECH WERE and substantially interfering with the
NOT SHED AT THE SCHOOL HOUSE requirements of appropriate discipline in
GATE. Petitioners invoke their rights to the operation of the school' and without
peaceable assembly and free speech. They colliding with the rights of others. . . . But
are entitled to do so. They enjoy like the conduct by the student, in class or out of it,
rest of the citizens the freedom to express which for any reason — whether it stems
their views and communicate their from time, place, or type of behavior —
thoughts to those disposed to listen in materially disrupts classwork or involves
gatherings such as was held in this case. substantial disorder or invasion of the
They do not, to borrow from the opinion rights of others is, of course, not
of Justice Fortas in Tinker v. Des Moines immunized by the constitutional
Community School District, "shed their guarantee of freedom of speech."
constitutional rights to freedom of speech
or expression at the schoolhouse gate." Objection is made by private respondents
While, therefore, the authority of to the tenor of the speeches by the
educational institutions over the conduct student leaders. That there would be a
of students must be recognized, it cannot vigorous presentation of views opposed
go so far as to be violative of to the proposed merger of the Institute of
constitutional safeguards. Animal Science with the Institute of
Agriculture was to be expected. There
was no concealment of the fact that they
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MENDIOLA, MANILA
were against such a move as it confronted assembly and free speech are guaranteed
them with a serious problem ("isang students of educational institutions.
malaking suliranin.") They believed that Necessarily, their exercise to discuss
such a merger would result in the matters affecting their welfare or
increase in tuition fees, an additional involving public interest is not to be
headache for their parents ("isa na naman subjected to previous restraint or
sakit sa ulo ng ating mga magulang."). If in subsequent punishment unless there be a
the course of such demonstration, with an showing of a clear and present danger to
enthusiastic audience goading them on, a substantive evil that the state has a right
utterances, extremely critical, at times to prevent. As a corollary, the utmost
even vitriolic, were let loose, that is quite leeway and scope is accorded the content
understandable. Student leaders are of the placards displayed or utterances
hardly the timid, diffident types. They are made. The peaceable character of an
likely to be assertive and dogmatic. assembly could be lost, however, by an
advocacy of disorder under the name of
They would be ineffective if during a rally dissent, whatever grievances that may be
they speak in the guarded and judicious aired being susceptible to correction
language of the academe. At any rate, through the ways of the law. If the
even a sympathetic audience is not assembly is to be held in school premises,
disposed to accord full credence to their permit must be sought from its school
fiery exhortations. They take into account authorities, who are devoid of the power
the excitement of the occasion, the to deny such request arbitrarily or
propensity of speakers to exaggerate, the unreasonably. In granting such permit,
exuberance of youth. They may give the there may be conditions as to the time
speakers the benefit of their applause, but and place of the assembly to avoid
with the activity taking place in the school disruption of classes or stoppage of work
premises and during the daytime, no clear of the non-academic personnel. Even if,
and present danger of public disorder is however, there be violations of its terms,
discernible. This is without prejudice to the penalty incurred should not be
the taking of disciplinary action for disproportionate to the offense.
conduct, which, to borrow from Tinker,
"materially disrupts classwork or involves
substantial disorder or invasion of the
rights of others." MALABANAN vs. RAMENTO
G.R. No. L-62270; May 21, 1984,
It would be most appropriate then, as was Fernando, J.
done in the case of Reyes v. Bagatsing, for
this Court to lay down the principles for Facts: Petitioners were students of
the guidance of school authorities and Gregorio Araneta University, granted by
students alike. The rights to peaceable the school authorities to hold a meeting,
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MENDIOLA, MANILA
however they must comply with some rights of freedom of peaceable assembly
terms and conditions. Instead of following and free speech?
the terms and conditions, the students
continued their march to the Life Science 2. Whether or not the suspension meted
building, outside the area stated in the out by the school authorities are not
permit. Classes were disturbed due to the violative of due process?
noise. It was outside the area covered by
their permit. They continued their Held:
demonstration, giving utterance to 1. NO. As is quite clear from the opinion
language severely critical of the University in Reyes v. Bagatsing, the invocation of
authorities and using megaphones in the the right to freedom of peaceable
process. There was, as a result, disturbance assembly carries with it the implication
of the classes being held. Also, the non- that the right to free speech has likewise
academic employee, within hearing been disregarded. Both are embraced in
distance, stopped their work because of the the concept of freedom of expression,
noise created. Then on September 9, 1982, which is identified with the liberty to
they were informed through a discuss publicly and truthfully, any matter
memorandum that they were under of public interest without censorship or
preventive suspension for their failure to punishment and which "is not to be
explain the holding of an illegal assembly limited, much less denied, except on a
in front of the Life Science Building. The showing . . . of a clear and present
validity thereof was challenged by danger of a substantive evil that the
petitioners both before the CFI of Rizal state has a right to prevent." In the
and before the Ministry of Education, above case, a permit was sought to hold a
Culture and Sports. peaceful march and rally from the Luneta
public park to the gates of the United
Respondent, Ramento, as director of the States Embassy, hardly two blocks away,
National Capital Region, found petitioners where in an open space of public property,
guilty of the charge of holding an illegal a short program would be held,
assembly which was characterized by the Necessarily then, the question of the use
violation of the permit granted resulting of a public park and of the streets
in the disturbance of classes and oral leading to the United States Embassy
defamation. The penalty was suspension was before this Court. We held that
for one academic year. streets and parks have immemorially
been held in trust for the use of the
public and have been used for purposes
Issues: of assembly to communicate thoughts
1. Whether or not the decision of between citizens and to discuss public
responded violates the constitutional issues.

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MENDIOLA, MANILA
The situation here is different. The freedom to express their views and
assembly was to be held NOT in a public communicate their thoughts to those
place but in private premises , property disposed to listen in gatherings such as
of respondent University. There is in the was held in this case. They do not, shed
Reyes opinion as part of the summary this their constitutional rights to freedom of
relevant excerpt: "The applicants for a speech or expression at the schoolhouse
permit to hold an assembly should gate. While, therefore, the authority of
inform the licensing authority of the educational institutions over the
date, the public place where and the conduct of students must be recognized,
time when it will take place. If it were a it cannot go so far as to be violative of
private place, only the consent of the constitutional safeguards. On a more
owner or the one entitled to its legal specific level, there is persuasive force to
possession is required." this formulation in the Fortas opinion:
The principal use to which the schools
Petitioners did seek such consent. It was are dedicated is to accommodate
granted. According to the petition: "On students during prescribed hours for
August 27, 1982, by virtue of a permit the purpose of certain types of activities.
granted to them by the school Among those activities is personal
administration, the Supreme Student intercommunication among the
Council where your petitioners are among students. This is not only an inevitable
the officers, held a General Assembly at part of the process of attending school;
the VMAS basketball court of the it is also an important part of the
respondent University." educational process. A student's rights,
therefore, do not embrace merely the
There was an express admission in the classroom hours. When he is in the
Comment of private respondent cafeteria, or on the playing field, or on the
University as to a permit having been campus during the authorized hours, he
granted for petitioners to hold a student may express his opinions, even on
assembly. The specific question to be controversial subjects like the conflict in
resolved then is whether on the facts as Vietnam, if he does so without
disclosed resulting in the disciplinary 'materially and substantially
action and the penalty imposed, there interfering with the requirements of
was an infringement of the right to appropriate discipline in the operation
peaceable assembly and its cognate of the school' and without colliding with
right of free speech. the rights of others.
Petitioners invoke their rights to . . . But conduct by the student, in class

peaceable assembly and free speech. They or out of it, which for any reason -
were entitled to do so. They enjoy the said whether it stems from time, place, or
right like the rest of the citizens the type of behavior - materially disrupts
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MENDIOLA, MANILA
classwork or involves substantial question is presented. Such being the

disorder or invasion of the rights of case, especially so where a decision on a
others is, of course, not immunized by question of law is imperatively called
the constitutional guarantee of freedom for, and time being of the essence, this
of speech." Court has invariably viewed the issue as
ripe for adjudication. What cannot be
Objection is made by private respondents too sufficiently stressed is that the
to the tenor of the speeches by the constitutional rights to peaceable
student leaders. If in the course of such assembly and free speech are invoked by
demonstration, with an enthusiastic petitioners.
audience goading them on, utterances,
extremely critical, at times even vitriolic, Moreover, there was, and very likely
were let loose, that is quite there will continue to be in the future,
understandable. Student leaders are militancy and assertiveness of students
hardly the timid, diffident types. They are on issues that they consider of great
likely to be assertive and dogmatic. They importance, whether concerning their
would be ineffective if during a rally they welfare or the general public. That they
speak in the guarded and judicious have a right to do as citizens entitled to
language of the academe. At any rate, all the protection in the Bill of Rights.
even a sympathetic audience is not
disposed to accord full credence to their It would be most appropriate then, as was
fiery exhortations. They take into account done in the case of Reyes v. Bagatsing, for
the excitement of the occasion, the this Court to lay down the principles for
propensity of speakers to exaggerate, the the guidance of school authorities and
exuberance of youth. They may give the students alike. The rights to peaceable
speakers the benefit of their applause, assembly and free speech are
but with the activity taking place in the guaranteed to students of educational
school premises and during the daytime, institutions. Necessarily, their exercise
no clear and present danger of public to discuss matters affecting their
disorder is discernible. This is without welfare or involving public interest is
prejudice to the taking of disciplinary not to be subjected to previous restraint
action for conduct, which "materially or subsequent punishment unless there
disrupts classwork or involves be a showing of a clear and present
substantial disorder or invasion of the danger to a substantive evil that the
rights of others." state has a right to present. As a
corollary, the utmost leeway and scope is
One last matter. The objection was accorded the content of the placards
raised that petitioners failed to exhaust displayed or utterances made.
administrative remedies, That is true,
but hardly decisive. Here, a purely legal
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MENDIOLA, MANILA
The peaceable character of an assembly recognized, the rule of reason, the

could be lost, however, by an advocacy dictate of fairness calls for a much
of disorder under the name of dissent, lesser penalty. If the consent of
whatever grievances that may be aired proportionally between the offense
being susceptible to correction through committed and the sanction imposed is
the ways of the law. If the assembly is to not followed, an element of
be held in school premises , permit must arbitrariness intrudes. That would give
be sought from its school authorities, rise to a due process question . To avoid
who are devoid of the power to deny this constitutional objection, it is the
such request arbitrarily or holding of this court that a one-week
unreasonably. In granting such permit, suspension would be punishment
there may be conditions as to the time enough.
and place of the assembly to avoid
disruption of classes or stoppage of
work of the non-academic personnel.
Dela Cruz & PBM cases
2. YES. Even if, however, there be
violations of its terms, the penalty Same factual circumstances
incurred should not be Differences: PBM – directed against
disproportionate to the offense. It does government/ Public officials ;
not follow however, that the petitioners education
can be totally absolved for the events
that transpired. Admittedly, there was a Dela Cruz – economic reasons against an
violation of the terms of the permit. The employer ; property - here, employer was
rally was held at a place other than that
also government
specified, in the second floor lobby, PBM - Property vs. Human right
rather than the basketball court, of the
VMAS building of the University.
Moreover, it was continued longer than DOCTRINE:
the period allowed. According to the
decision of Ramento, the concerted De la Cruz vs. Court of Appeals [G.R. No.
activity went on until 5:30pm. Private 126183, March 25, 1999]
respondent could thus, take disciplinary
action. On those facts, however, an THE RIGHT TO PEACEABLY ASSEMBLE
admonition, even a censure certainly not MUST BE EXERCISED WITHIN
a suspension could be the appropriate ALLOWABLE LIMITS. As early as 18
penalty. December 1990 we have categorically
ruled in the consolidated cases of Manila
While the discretion of both respondent Public School Teachers Association v.
University and responded Ramento is Laguio Jr. and Alliance of Concerned
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MENDIOLA, MANILA
Teachers v. Hon. Isidro Cariño that the teachers availed of their free time —
mass actions of September/October 1990 recess, after classes, weekends or
staged by Metro Manila public school holidays — to dramatize their grievances
teachers "amounted to a strike in every and to dialogue with the proper
sense of the term, constituting as they did, authorities within the bounds of law, no
a concerted and unauthorized stoppage of one — not the DECS, the CSC or even the
or absence from work which it was said Supreme Court — could have held them
teachers' sworn duty to perform, carried liable for their participation in the mass
out for essentially economic reasons — to actions.
protest and pressure the Government to
correct what, among other grievances, the With respect to our ruling in PBM
strikers perceived to be the unjust or Employees Organization v. Philippine
prejudicial implementation of the salary Blooming Mills Co., Inc., invoked by
standardization law insofar as they were petitioners, we have likewise already
concerned, the non-payment or delay in ruled in the Rolando Gan case that the
payment of various fringe benefits and PBM ruling — that the rights of free
allowances to which they were entitled, expression and assembly could not be
and the imposition of additional teaching lightly disregarded as they occupy a
loads and longer teaching hours." preferred position in the hierarchy of civil
liberties — was not applicable to defend
In Rolando Gan v. Civil Service the validity of the 1990 mass actions
Commission, we denied the claim that the because what were pitted therein against
teachers were thereby denied their rights the rights of free expression and of
to peaceably assemble and petition the assembly were inferior property rights
government for redress of grievances while the higher consideration involved
reasoning that this constitutional liberty in the case of the striking teachers was
to be upheld, like any other liberty, must the education of the youth which must, at
be exercised within reasonable limits so the very least, be equated with the
as not to prejudice the public welfare. But freedom of assembly and to petition the
the public school teachers in the case of government for redress of grievances.
the 1990 mass actions did not exercise
their constitutional rights within We affirmed the foregoing rulings in
reasonable limits. Bagana v. Court of Appeals by denying a
similar petition filed by another group of
On the contrary, they committed acts teachers who participated in the 1990
prejudicial to the best interest of the mass actions but who claimed to have
service by staging the mass protests on been merely exercising their
regular school days, abandoning their constitutional right to free assembly. We
classes and refusing to go back even after held in Bagana that the Court of Appeals
they had been ordered to do so. Had the committed no reversible error in
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MENDIOLA, MANILA
affirming the CSC resolutions finding the DELA CRUZ v. COURT OF APPEALS
teachers guilty of conduct prejudicial to G.R. No. 126183, March 25, 1999,
the best interest of the service and Bellosillo, J.
imposing penalties of six (6) months'
suspension without pay. FACTS: The respective school principals
submitted reports to the Secretary of
In Bangalisan v. Court of Appeals we DECS regarding the participation of public
added that the persistent refusal of the school teachers (petitioners) in an illegal
striking teachers to call the mass actions strike and their defiance to the return-to-
by the conventional term "strike" did not work order issued by the DECS Secretary.
erase the true nature of the mass actions The Sec. of DECS on his own filed an
as unauthorized stoppages of work the administrative complaint against the
purpose of which was to obtain a petitioners for the said acts which
favorable response to the teachers' were considered as a violation of the Civil
economic grievances. We again stressed Service Decree of the Philippines. For
that the teachers were penalized not failure to submit their answers the Sec. of
because they exercised their right to DECS issued an order of dismissal against
peaceably assemble but because of the the teachers which was implemented
manner by which such right was immediately. Petitioners appealed to the
exercised, i.e., going on unauthorized and Merit Systems Protection Board (MSPB)
unilateral absences thus disrupting and then to the Civil Service Commission
classes in various schools in Metro Manila (CSC). The CSC found petitioners guilty of
which produced adverse effects upon the "conduct prejudicial to the best interest of
students for whose education the the service" for having participated in the
teachers were responsible. But herein mass actions and imposed upon them the
petitioners contend that classes were not reduced penalty of six (6) months'
actually disrupted because substitute suspension.
teachers were immediately appointed by
Secretary Cariño. Besides being a purely However, in view of the length of time
factual assertion which this Court cannot that petitioners had been out of the
take cognizance of in a petition for review, service by reason of the immediate
the fact that the prompt remedial action implementation of the dismissal orders of
taken by Secretary Cariño might have Secretary Cariño, the CSC likewise
partially deflected the adverse effects of ordered petitioners' automatic
the mass protests did not erase the reinstatement in the service without back
administrative liability of petitioners for wages. Petitioners were unhappy with the
the intended consequences thereof which CSC decision. They initially filed petitions
were the very reason why such prompt for certiorari with the SC which were all
remedial action became necessary. referred to the CA. The CA ruled that the
questioned resolutions of the Civil Service
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MENDIOLA, MANILA
Commission finding petitioners guilty of denial of their right to peaceably

conduct prejudicial to the best interest of assemble?
the service were based on reasonable and
justifiable grounds; that petitioners' HELD:
perceived grievances were no excuse for
them not to conduct classes and defy the 1. YES. The persistent refusal of the
return-to-work order issued by their striking teachers to call the mass actions
superiors; that the immediate execution by the conventional term "strike" did not
of the dismissal orders of Secretary erase the true nature of the mass
Cariño was sanctioned under law. actions as unauthorized stoppages of
Petitioners contend that the Court of work the purpose of which was to
Appeals grievously erred in affirming the obtain a favorable response to the
CSC resolutions finding them guilty of teachers' economic grievances. The
conduct prejudicial to the best interest of mass actions staged by Metro Manila
the service when their only "offense" was public school teachers amounted to a
to exercise their constitutional right to strike in every sense of the term,
peaceably assemble and petition the constituting as they did, a concerted
government for redress of their and unauthorized stoppage of or
grievances. absence from work which it was said
teachers' sworn duty to perform,
Moreover, petitioners insist that the mass carried out for essentially economic
actions of September/October 1990 were reasons — to protest and pressure the
not "strikes" as there was no actual Government to correct what, among
disruption of classes. Petitioners other grievances, the strikers perceived to
therefore ask for exoneration or, in the be the unjust or prejudicial
alternative, award of back wages for the implementation of the salary
period of three (3) years when they were standardization law insofar as they were
not allowed to work while awaiting concerned, the non-payment or delay in
resolution of their appeals by the MSPB payment of various fringe benefits and
and CSC, deducting the period of six (6) allowances to which they were entitled,
months' suspension eventually meted and the imposition of additional teaching
them. loads and longer teaching hours.
ISSUES: 2. YES. The teachers were penalized not

1. WON the public school teachers were because they exercised their right to
involved in a “strike”? peaceably assemble but because of the
2. WON the teachers should be penalized manner by which such right was
for participating in the strike? exercised, i.e., going on unauthorized and
3. WON penalizing the teachers for unilateral absences thus disrupting
participation in the strike amounts to a classes in various schools in Metro Manila
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MENDIOLA, MANILA
which produced adverse effects upon the and to dialogue with the proper
students for whose education the authorities within the bounds of law, no
teachers were responsible. one - not the DECS, the CSC or even the
Supreme Court - could have held them
Although petitioners contend that liable for their participation in the mass
classes were not actually disrupted actions.
because substitute teachers were
immediately appointed by Secretary 3. NO. In Rolando Gan v. Civil Service
Cariño, that the prompt remedial action Commission, it was held that for the
taken by Secretary Cariño might have right to peaceably assemble and
partially deflected the adverse effects of petition the government for redress of
the mass protests did not erase the grievances to be upheld, like any other
administrative liability of petitioners liberty, it must be exercised within
for the intended consequences thereof reasonable limits so as not to prejudice
which were the very reason why such the public welfare. The public school
prompt remedial action became teachers in the case of the 1990 mass
necessary. actions did not exercise their
constitutional rights within reasonable
“This Court denies the claim that the limits.
teachers were thereby denied their
rights to peaceably assemble and On the contrary, they committed acts
petition the government for redress of prejudicial to the best interest of the
grievances reasoning that this service by staging the mass protests on
constitutional liberty to be upheld, like regular school days, abandoning their
any other liberty, must be exercised classes and refusing to go back even
within reasonable limits so as not to after they had been ordered to do so.
prejudice the public welfare.” The Had the teachers availed of their free
public school time — recess, after classes, weekends
teachers in these mass actions did not or holidays — to dramatize their
exercise their constitutional rights grievances and to dialogue with the
within reasonable limits. On the proper authorities within the bounds
contrary, they committed acts of law, no one — not the DECS, the CSC
prejudicial to the best interest of the or even the Supreme Court — could
service by staging the mass protests on have held them liable for their
regular school days, abandoning their participation in the mass actions.
classes and refusing to go back even
after they had been ordered to do so. The argument that the rights of free
Had the teachers availed of their free time expression and assembly could not be
- recess, after classes, weekends or lightly disregarded as they occupy a
holidays - to dramatize their grievances preferred position in the hierarchy of civil
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MENDIOLA, MANILA
liberties is not applicable to defend the Q: Can you invoke right to expression
validity of the 1990 mass actions because vs. private individual?
there is a higher consideration involved ANS - Art. 4: “NO LAW shall be passed….”
here which is the education of the youth.
DOCTRINE:
PBM Employees Association vs.

NACHURA: Philippine Blooming Mills [G.R. No. L-
31195, June 5, 1973]
In PBM Employees Association v. PBM
Steel Mills, supra.,the Court ruled that the
FREEDOM OF EXPRESSION IS PRIMARY
right to free assembly and petition
OVER PROPERTY RIGHTS. The freedoms
prevails over economic rights. However,
in De la Cruz v. Court of Appeals, of expression and of assembly as well as
supra.,the Supreme Court said that the the right to petition are included among
the immunities reserved by the sovereign
education of the youth occupies a
preferred position over — or, at the very people, in the rhetorical aphorism of
Justice Holmes, to protect the ideas that
least, equated with — the freedom of
we abhor or hate more than the ideas we
assembly and petition.
cherish; or as Socrates insinuated, not
In David v. Macapagal-Arroyo, supra.,the only to protect the minority who want to
Supreme Court said that on the basis of talk, but also to benefit the majority who
the relevant and uncontested facts, it is refuse to listen. And as Justice Douglas
clear that the (1) warrantless arrest of cogently stresses it, the liberties of one
petitioners David and Llamas; (2) the are the liberties of all; and the liberties of
dispersal of the rallies and warrantless one are not safe unless the liberties of all
arrest of the KMU and NAFLU members; are protected.
(3) the imposition of standards on media
or any prior restraint on the press; and The rights of free expression, free
(4) the warrantless search of the Daily assembly and petition, are not only civil
Tribune offices and the whimsical seizure rights but also political rights essential to
of some articles for publications and other man's enjoyment of his life, to his
materials, are not authorized by the happiness and to his full and complete
Constitution, the law and jurisprudence; fulfillment. Thru these freedoms the
not even by the valid provisions of PP citizens can participate not merely in the
1017 and G.O. No. 5. periodic establishment of the government
through their suffrage but also in the
administration of public affairs as well as
in the discipline of abusive public officers.
The citizen is accorded these rights so

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MENDIOLA, MANILA
that he can appeal to the appropriate that a mere reasonable or rational

governmental officers or agencies for relation between the means employed by
redress and protection as well as for the the law and its object or purpose — that
imposition of the lawful sanctions on the law is neither arbitrary nor
erring public officers and employees. discriminatory nor oppressive — would
suffice to validate a law which restricts or
While the Bill of Rights also protects impairs property rights. On the other
property rights, the primacy of human hand, a constitutional or valid
rights over property rights is recognized. infringement of human rights requires a
Because these freedoms are "delicate and more stringent criterion, namely
vulnerable, as well as supremely precious existence of a grave and immediate
in our society" and the "threat of danger of a substantive evil which the
sanctions may deter their exercise almost State has the right to prevent. So it has
as potently as the actual application of been stressed in the main opinion of Mr.
sanctions," they "need breathing space to Justice Fernando in Gonzales vs. Comelec
survive," permitting government and reiterated by the writer of the
regulation only "with narrow specificity." opinion in Imbong vs. Ferrer. It should be
added that Mr. Justice Barredo in
Property and property rights can be lost Gonzales vs. Comelec, supra, like Justices
thru prescription; but human rights are Douglas, Black and Goldberg in N.Y. Times
imprescriptible. If human rights are Co. vs. Sullivan, believes that the freedoms
extinguished by the passage of time, then of speech and of the press as well as of
the Bill of Rights is a useless attempt to peaceful assembly and of petition for
limit the power of government and ceases redress of grievances are absolute when
to be an efficacious shield against the directed against public officials or "when
tyranny of officials, of majorities, of the exercised in relation to our right to
influential and powerful, and of oligarchs choose the men and women by whom we
- political, economic or otherwise. shall be governed," even as Mr. Justice
Castro relies on the balancing-of-interests
In the hierarchy of civil liberties, the test.
rights of free expression and of assembly
occupy a preferred position as they are Chief Justice Vinson is partial to the
essential to the preservation and vitality improbable danger rule formulated by
of our civil and political institutions; and Chief Judge Learned Hand, viz. — whether
such priority "gives these liberties the the gravity of the evil, discounted by its
sanctity and the sanction not improbability, justifies such invasion of
permitting dubious intrusions." free expression as is necessary to avoid
the danger.
The superiority of these freedoms over
property rights is underscored by the fact
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MENDIOLA, MANILA
which underlie the issues posed by the

PHILIPPINE BLOOMING MILLS case at bar.
EMPLOYEES ORGANIZATION v.
PHILIPPINE BLOOMING MILLS CO. INC. (1) In a democracy, the preservation and
G.R. No. L-31195, June 5, 1973, enhancement of the dignity and worth of
Makasiar, J. the human personality is the central core
as well as the cardinal article of faith of
Facts: Sometime in 1969, petitioner our civilization. The inviolable character
decided to stage a mass demonstration in of man as an individual must be
Malacañang in protest against alleged "protected to the largest possible extent
abuses of the Pasig Police. Respondent in his thoughts and in his beliefs as the
Company, however requested petitioner citadel of his person.
that the first-shift workers should not
participate in the strike for it will unduly (2) The Bill of Rights is designed to
prejudice the normal operation of the preserve the ideals of liberty, equality
company. Despite the warning, all the and security "against the assaults of
workers including those who were in opportunism, the expediency of the
first-shift still participated in the rally. passing hour, the erosion of small
encroachments, and the scorn and
Prior to that, respondent company derision of those who have no patience
informed that workers who belong in the with general principles.”
first-shift, who were without previous leave
of absence approved by the company, who In the pithy language of Mr. Justice Robert
shall participate in the rally shall be Jackson, the purpose of the Bill of Rights
dismissed for it is a clear violation of the is to withdraw "certain subjects from
existing CBA and is tantamount to an the vicissitudes of political controversy,
illegal strike. Respondent company then to place them beyond the reach of
filed a charge against petitioners and later majorities and officials, and to establish
dismissed some of its employees. them as legal principles to be applied by
the courts. One's rights to life, liberty
Issues: Whether or not the constitutional and property, to free speech, or free
freedoms of speech and expression of the press, freedom of worship and assembly,
petitioner were violated by the and other fundamental rights may not
respondent company in preventing some be submitted to a vote; they depend on
of its employees to participate in the rally the outcome of no elections."
and later dismissed some of them.
Laski proclaimed that "the happiness of
Held: No. There is need of briefly the individual, not the well-being of the
restating basic concepts and principles State, was the criterion by which its
behaviour was to be judged. His interests,
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MENDIOLA, MANILA
not its power, set the limits to the recognized. Because these freedoms are
authority it was entitled to exercise. "delicate and vulnerable, as well as
supremely precious in our society" and
(3) The freedoms of expression and of the "threat of sanctions may deter their
assembly as well as the right to petition exercise almost as potently as the
are included among the immunities actual application of sanctions," they
reserved by the sovereign people, in the "need breathing space to survive,"
rhetorical aphorism of Justice Holmes, to permitting government regulation only
protect the ideas that we abhor or hate "with narrow specificity."
more than the ideas we cherish; or as
Socrates insinuated, not only to protect Property and property rights can be lost
the minority who want to talk, but also to thru prescription; but human rights are
benefit the majority who refuse to listen. imprescriptible. If human rights are
And as Justice Douglas cogently stresses it, extinguished by the passage of time, then
the liberties of one are the liberties of all; the Bill of Rights is a useless attempt to
and the liberties of one are not safe unless limit the power of government and ceases
the liberties of all are protected. to be an efficacious shield against the
tyranny of officials, of majorities, of the
(4) The rights of free expression, free influential and powerful, and of oligarchs
assembly and petition, are not only civil - political, economic or otherwise.
rights but also political rights essential
to man's enjoyment of his life, to his In the hierarchy of civil liberties, the
happiness and to his full and complete rights of free expression and of
fulfillment. Thru these freedoms the assembly occupy a preferred position as
citizens can participate not merely in they are essential to the preservation
the periodic establishment of the and vitality of our civil and political
government through their suffrage but institutions; and such priority "gives these
also in the administration of public liberties the sanctity and the sanction not
affairs as well as in the discipline of permitting dubious intrusions." The
abusive public officers. The citizen is superiority of these freedoms over
accorded these rights so that he can appeal property rights is underscored by the
to the appropriate governmental officers fact that a mere reasonable or rational
or agencies for redress and protection as relation between the means employed
well as for the imposition of the lawful by the law and its object or purpose that
sanctions on erring public officers and the law is neither arbitrary nor
employees. discriminatory nor oppressive would
suffice to validate a law which restricts
(5) While the Bill of Rights also protects or impairs property rights . On the
property rights, the primacy of human other hand, a constitutional or valid
rights over property rights is infringement of human rights requires
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MENDIOLA, MANILA
a more stringent criterion, namely agency, the Chief Executive, against the
existence of a grave and immediate police officers of the municipality of
danger of a substantive evil which the Pasig. They exercised their civil and
State has the right to prevent. political rights for their mutual aid and
protection from what they believe were
So it has been stressed that the (1) police excesses.
“ FREEDOMS OF SPEECH” and (2)“OF
THE PRESS” as well as (3)“OF PEACEFUL As a matter of fact, it was the duty of
ASSEMBLY AND OF PETITION FOR herein private respondent firm to
REDRESS OF GRIEVANCES” are absolute protect herein petitioner Union and its
when directed against public officials or members from the harassment of local
"when exercised in relation to our right police officers. It was to the interest of
to choose the men and women by whom herein private respondent firm to rally
we shall be governed," even relying on to the defense of, and to take up the
the balancing-of-interests test. cudgels for, its employees, so that they
can report to work free from
The respondent Court of Industrial harassment, vexation or peril and as a
Relations, after opining that the mass consequence perform more efficiently
demonstration was not a declaration of their respective tasks to enhance its
strike, concluded that by their "concerted productivity as well as profits. Herein
act and the occurrence of a temporary respondent employer did not even offer to
stoppage of work," herein petitioners are intercede for its employees with the local
guilty of bargaining in bad faith and hence police. Was it securing peace for itself at
violated the collective bargaining the expense of its workers? Was it also
agreement with private respondent intimidated by the local police or did it
Philippine Blooming Mills Co., Inc. Set encourage the local police to terrorize or
against and tested by the foregoing vex its workers?
principles governing a democratic society,
such a conclusion cannot be sustained. Its failure to defend its own employees
all the more weakened the position of
The demonstration held by petitioners its laborers vis-a-vis the alleged
was against alleged abuses of some oppressive police, who might have been
Pasig policemen, NOT against their all the more emboldened thereby to
employer, herein private respondent subject its lowly employees to further
firm, said demonstration was purely indignities.
and completely an exercise of their
freedom of expression in general and of In seeking sanctuary behind their
their right of assembly and of petition freedom of expression as well as their
for redress of grievances in particular right of assembly and of petition
before the appropriate governmental against alleged persecution of local
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MENDIOLA, MANILA
officialdom, the employees and laborers GRIEVANCES over PROPERTY RIGHTS

of herein private respondent firm were has been sustained. Emphatic reiteration
fighting for their very survival, utilizing of this basic tenet as a coveted boon at
only the weapons afforded them by the once the shield and armor of the dignity
Constitution he untrammeled and worth of the human personality, the
enjoyment of their basic human rights. all consuming ideal of our enlightened
The pretension of their employer that it civilization becomes Our duty, if freedom
would suffer loss or damage by reason and social justice have any meaning at all
of the absence of its employees, is a plea for him who toils so that capital can
for the preservation merely of their produce economic goods that can
property rights . Such apprehended loss generate happiness for all.
or damage would not spell the difference
between the life and death of the firm or To regard the demonstration against
its owners or its management. The police officers, not against the employer, as
employees' pathetic situation was a stark evidence of bad faith in collective
reality abused, harassed and persecuted bargaining and hence a violation of the
as they believed they were by the peace collective bargaining agreement and a
officers of the municipality. cause for the dismissal from employment of
the demonstrating employees, stretches
As above intimated, the condition in unduly the compass of the collective
which the employees found themselves bargaining agreement, is "a potent means
vis-a-vis the local police of Pasig, was a of inhibiting speech" and therefore
matter that vitally affected their right inflicts a moral as well as mortal wound
to individual on the constitutional guarantees of free
existence as well as that of their expression, of peaceful assembly and of
families. Material loss can be repaired petition.
or adequately compensated. The
debasement of the human being broken The collective bargaining agreement which
in morale and brutalized in spirit can fixes the working shifts of the employees,
never be fully evaluated in monetary according to the respondent Court of
terms. The wounds fester and the scars Industrial Relations, in effect imposes on
remain to humiliate him to his dying the workers the "duty . . . to observe
day, even as he cries in anguish for regular working hours." The strained
retribution, denial of which is like construction of the Court of Industrial
rubbing salt on bruised tissues. Relations that such stipulated working
shifts deny the workers the right to stage
As heretofore stated, THE PRIMACY OF a mass demonstration against police
HUMAN RIGHTS, FREEDOM OF abuses during working hours, constitutes
EXPRESSION, OF PEACEFUL ASSEMBLY a virtual tyranny over the mind and life of
AND OF PETITION FOR REDRESS OF the workers and deserves severe
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MENDIOLA, MANILA
condemnation. Renunciation of the Circulation is one of the aspects of

freedom should not be predicated on such freedom of expression. If demonstrators
a slender ground. are reduced by one-third, then by that
much the circulation of the issues raised
The mass demonstration staged by the by the demonstration is diminished. The
employees on March 4, 1969 could not more the participants, the more persons
have been legally enjoined by any court, for can be apprised of the purpose of the rally.
such an injunction would be trenching
upon the freedom of expression of the Moreover, the absence of one-third of
workers, even if it legally appears to be an their members will be regarded as a
illegal picketing or strike. The respondent substantial indication of disunity in their
Court of Industrial Relations in the case at ranks which will enervate their position
bar concedes that the mass and abet continued alleged police
demonstration was not a declaration of a persecution. At any rate, the Union
strike "as the same is not rooted in any notified the company two days in advance
industrial dispute although there is a of their projected demonstration and the
concerted act and the occurrence of a company could have made arrangements
temporary stoppage of work." to counteract or prevent whatever losses
it might sustain by reason of the absence
The respondent firm claims that there of its workers for one day, especially in
was no need for all its employees to this case when the Union requested it to
participate in the demonstration and excuse only the day-shift employees who
that they suggested to the Union that will join the demonstration on March 4,
only the first and regular shift from 6 1969 which request the Union reiterated
A.M. to 2 P.M. should report for work in in their telegram received by the
order that loss or damage to the firm company at 9:50 in the morning of March
will be averted. This stand failed to 4, 1969, the day of the mass
appreciate the sine qua non of an demonstration (pp. 42-43, rec.). There
effective demonstration especially by a was a lack of human understanding or
labor union, namely the complete unity compassion on the part of the firm in
of the Union members as well as their rejecting the request of the Union for
total presence at the demonstration site excuse from work for the day shifts in order
in order to generate the maximum to carry out its mass demonstration. And
sympathy for the validity of their cause to regard as a ground for dismissal the
but also immediate action on the part of mass demonstration held against the
the corresponding government Pasig police, not against the company, is
agencies with jurisdiction over the gross vindictiveness on the part of the
issues they raised against the local employer, which is as unchristian as it is
police. unconstitutional.

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MENDIOLA, MANILA
The respondent company is the one was as heretofore stated, "a potent means
guilty of unfair labor practice. Because of inhibiting speech."
the refusal on the part of the
respondent firm to permit all its Such a concerted action for their mutual
employees and workers to join the mass help and protection, deserves at least
demonstration against alleged police equal protection as the concerted action
abuses and the subsequent separation of employees in giving publicity to a letter
of the eight (8) petitioners from the complaint charging a bank president with
service constituted an unconstitutional immorality, nepotism, favoritism and
restraint on their freedom of expression, discrimination in the appointment and
freedom of assembly and freedom to promotion of bank employees. We further
petition for redress of grievances, the ruled in the Republic Savings Bank case,
respondent firm committed an unfair supra, that for the employees to come
labor practice defined in Section 4(a-1) within the protective mantle of Section 3
in relation to Section 3 of Republic Act No. in relation to Section 4(a-1) of Republic
875, otherwise known as the Industrial Act No. 875, "it is not necessary that union
Peace Act. Section 3 of Republic Act No. activity be involved or that collective
875 guarantees to the employees the right bargaining be contemplated," as long as
"to engage in concerted activities for . . . the concerted activity is for the
mutual aid or protection"; while Section furtherance of their interests.
4(a-1) regards as an unfair labor practice
for an employer "to interfere with, As stated clearly in the stipulation of facts
restrain or coerce employees in the embodied in the questioned order of
exercise of their rights guaranteed in respondent Court dated September 15,
Section Three." 1969, the company, "while expressly
acknowledging, that the demonstration is
We repeat that the obvious purpose of the an inalienable right of the Union
mass demonstration staged by the guaranteed by the Constitution,"
workers of the respondent firm on March nonetheless emphasized that "any
4, 1969, was for their mutual aid and demonstration for that matter should not
protection against alleged police abuses, unduly prejudice the normal operation of
denial of which was interference with or the company" and "warned the PBMEO
restraint on the right of the employees to representatives that workers who belong
engage in such a common action to better to the first and regular shifts, who
shield themselves against such alleged without previous leave of absence
police indignities. The insistence on the approved by the Company, particularly
part of the respondent firm that the the officers present who are the
workers for the morning and regular organizers of the demonstration, who
shifts should not participate in the mass shall fail to report for work the following
demonstration, under pain of dismissal, morning (March 4, 1969) shall be
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MENDIOLA, MANILA
dismissed, because such failure is a view to disciplining the local police

violation of the existing CBA and, officers involved.
therefore, would be amounting to an
illegal strike (;)" (p. III, petitioner's brief). On the other hand, while the respondent
Such threat of dismissal tended to coerce Court of Industrial Relations found that
the employees from joining the mass the demonstration "paralyzed to a large
demonstration. However, the issues that extent the operations of the complainant
the employees raised against the local company," the respondent Court of
police, were more important to them Industrial Relations did not make any
because they had the courage to proceed finding as to the fact of loss actually
with the demonstration, despite such sustained by the firm. This significant
threat of dismissal. The most that could circumstance can only mean that the firm
happen to them was to lose a day's wage did not sustain any loss or damage. It did
by reason of their absence from work on not present evidence as to whether it lost
the day of the demonstration. expected profits for failure to comply with
purchase orders on that day; or that
penalties were exacted from it by
One day's pay means much to a laborer, customers whose orders could not be
more especially if he has a family to filled that day of the demonstration; or
support. Yet, they were willing to forego that purchase orders were cancelled by
their one-day salary hoping that their the customers by reason of its failure to
demonstration would bring about the deliver the materials ordered; or that its
desired relief from police abuses. But own equipment or materials or products
management was adamant in refusing to were damaged due to absence of its
recognize the superior legitimacy of their workers on March 4, 1969.
right of free speech, free assembly and the
right to petition for redress. On the contrary, the company saved a
Because the respondent company sizable amount in the form of wages for
ostensibly did not find it necessary to its hundreds of workers, cost of fuel,
demand from the workers proof of the water and electric consumption that day.
Such savings could have amply
truth of the alleged abuses inflicted on
compensated for unrealized profits or
them by the local police, it thereby
damages it might have sustained by
concedes that the evidence of such abuses
reason of the absence of its workers for
should properly be submitted to the
only one day.
corresponding authorities having
jurisdiction over their complaint and to
Apart from violating the constitutional
whom such complaint may be referred by
the President of the Philippines for guarantees of free speech and assembly
proper investigation and action with a as well as the right to petition for
redress of grievances of the employees,
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MENDIOLA, MANILA
the dismissal of the eight (8) leaders of It has been likewise established that a
the workers for proceeding with the violation of a constitutional right
demonstration and consequently being divests the court of jurisdiction; and as
absent from work, constitutes a denial a consequence its judgment is null and
of social justice likewise assured by the void and confers no rights. Relief from a
fundamental law to these lowly criminal conviction secured at the
employees. Section 5 of Article II of the sacrifice of constitutional liberties, may be
Constitution imposes upon the State "the obtained through habeas corpus
promotion of social justice to insure the proceedings even long after the finality of
well-being and economic security of all of the judgment. Thus, habeas corpus is the
the people," which guarantee is remedy to obtain the release of an
emphasized by the other directive in individual, who is convicted by final
Section 6 of Article XIV of the Constitution judgment through a forced confession,
that "the State shall afford protection to which violated his constitutional right
labor . . ." Respondent Court of Industrial against self-incrimination; or who is
Relations as an agency of the State is denied the right to present evidence in his
under obligation at all times to give defense as a deprivation of his liberty
meaning and substance to these without due process of law, even after the
constitutional guarantees in favor of the accused has already served sentence for
working man; for otherwise these twenty-two years.
constitutional safeguards would be
merely a lot of "meaningless Both the respondents Court of Industrial
constitutional patter." Under the Relations and private firm trenched upon
Industrial Peace Act, the Court of these constitutional immunities of
Industrial Relations is enjoined to effect petitioners. Both failed to accord
the policy of the law "to eliminate preference to such rights and aggravated
the causes of industrial unrest by the inhumanity to which the aggrieved
encouraging and protecting the exercise workers claimed they had been subjected
by employees of their right to self- by the municipal police. Having violated
organization for the purpose of collective these basic human rights of the laborers,
bargaining and for the promotion of their the Court of Industrial Relations ousted
moral, social and economic wellbeing." itself of jurisdiction and the questioned
orders it issued in the instant case are a
It is most unfortunate in the case at bar nullity. Recognition and protection of
that respondent Court of Industrial such freedoms are imperative on all
Relations, the very governmental agency public offices including the courts 28 as
designed therefore, failed to implement well as private citizens and corporations,
this policy and failed to keep faith with its the exercise and enjoyment of which must
avowed mission its raison d'etre as not be nullified by mere procedural rule
ordained and directed by the Constitution. promulgated by the Court Industrial
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MENDIOLA, MANILA
Relations exercising a purely delegate

legislative power, when even a law To accord supremacy to the foregoing
enacted by Congress must yield to the rules of the Court of Industrial Relations
untrammelled enjoyment of these human over basic human rights sheltered by
rights. There is no time limit to the the Constitution, is not only
exercise of the freedoms. The right to incompatible with the basic tenet of
enjoy them is not exhausted by the constitutional government that the
delivery of one speech, the printing of Constitution is superior to any statute
one article or the staging of one or subordinate rules and regulations,
demonstration. It is a continuing but also does violence to natural reason
immunity to be invoked and exercised and logic. The dominance and
when exigent and expedient whenever superiority of the constitutional right
there are errors to be rectified, abuses over the aforesaid Court of Industrial
to be denounced, inhumanities to be Relations procedural rule of necessity
condemned. Otherwise these should be affirmed. Such a Court of
guarantees in the Bill of Rights would Industrial Relations rule as applied in
be vitiated by rule on procedure this case does not implement or
prescribing the period for appeal. The reinforce or strengthen the
battle then would be reduced to a race constitutional rights affected,' but
for time. And in such a contest between instead constrict the same to the point
an employer and its laborer, the latter of nullifying the enjoyment thereof by
eventually loses because he cannot the petitioning employees. Said Court of
employ the best an diligence and zeal, Industrial Relations rule, promulgated
bereft as he is of the financial resources as it was pursuant to a mere legislative
with which to pay for competent legal delegation, is unreasonable and
services. therefore is beyond the authority
granted by the Constitution and the law.
Does the mere fact that the motion for A period of five (5) days within which to
reconsideration was filed two (2) days file a motion for reconsideration is too
late defeat the rights of the petitioning short, especially for the aggrieved
employees? Or more directly and workers, who usually do not have the
concretely, does the inadvertent omission ready funds to meet the necessary
to comply with a mere Court of Industrial expenses therefore.
Relations procedural rule governing the
period for filing a motion for In case of the Court of Appeals and the
reconsideration or appeal in labor cases, Supreme Court, a period of fifteen (15)
promulgated pursuant to a legislative days has been fixed for the filing of the
delegation, prevail over constitutional motion for re hearing or reconsideration
rights? The answer should be obvious in (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1,
the light of the aforecited cases. Rule 56, Revised Rules of Court). The delay
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MENDIOLA, MANILA
in the filing of the motion for

reconsideration could have been only one DOCTRINE
day if September 28, 1969 was not a
Sunday. This fact accentuates the Bayan vs. Ermita [G.R. No. 169838,
unreasonableness of the Court of April 25, 2006]
Industrial are concerned.
FREEDOM OF ASSEMBLY, LIKE
It is a procedural rule that generally all FREEDOM OF SPEECH, ENJOYS
causes of action and defenses presently PRIMACY IN THE REALM OF
available must be specifically raised in the CONSTITUTIONAL PROTECTION. The
complaint or answer; so that any cause of first point to mark is that the right to
action or defense not raised in such peaceably assemble and petition for
pleadings, is deemed waived. redress of grievances is, together with
freedom of speech, of expression, and of
However, a constitutional issue can be the press, a right that enjoys primacy in
raised any time, even for the first time on the realm of constitutional protection. For
appeal, if it appears that the these rights constitute the very basis of a
determination of the constitutional issue functional democratic polity, without
is necessary to a decision of the case, the which all the other rights would be
very lismota of the case without the meaningless and unprotected. As stated in
resolution of which no final and complete Jacinto v. CA, the Court, as early as the
determination of the dispute can be made. onset of this century, in U.S. v. Apurado,
It is thus seen that a procedural rule of already upheld the right to assembly and
Congress or of the Supreme Court gives petition, as follows:
way to a constitutional right. In the
instant case, the procedural rule of the There is no question as to the petitioners'
Court of Industrial Relations, a creature of rights to peaceful assembly to petition the
Congress, must likewise yield to the government for a redress of grievances
constitutional rights invoked by herein and, for that matter, to organize or form
petitioners even before the institution of associations for purposes not contrary to
the unfair labor practice charged against law, as well as to engage in peaceful
them and in their defense to the said concerted activities. These rights are
charge. guaranteed by no less than the
Constitution, particularly Sections 4 and 8
of the Bill of Rights, Section 2(5) of Article
Q: Bayan vs. Ermita: CPR, why IX, and Section 3 of Article XIII.
unconstitutional? Jurisprudence abounds with hallowed
ANS - BP880 is a content-neutral pronouncements defending and
regulation promoting the people's exercise of these
rights. As early as the onset of this
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MENDIOLA, MANILA
century, this Court in U.S. vs. Apurado, simply regulates the time, place and
already upheld the right to assembly and manner of the assemblies. This was
petition and even went as far as to adverted to in Osmeña v. Comelec, where
acknowledge: the Court referred to it as a "content-
neutral" regulation of the time, place, and
"It is rather to be expected that more or manner of holding public assemblies.
less disorder will mark the public assembly
of the people to protest against grievances A fair and impartial reading of B.P. No.
whether real or imaginary, because on 880 thus readily shows that it refers to all
such occasions feeling is always wrought to kinds of public assemblies that would use
a high pitch of excitement, and the greater, public places. The reference to "lawful
the grievance and the more intense the cause" does not make it content-based
feeling, the less perfect, as a rule will be the because assemblies really have to be for
disciplinary control of the leaders over lawful causes, otherwise they would not
their irresponsible followers. But if the be "peaceable" and entitled to protection.
prosecution be permitted to seize upon
every instance of such disorderly conduct Neither are the words "opinion,"
by individual members of a crowd as an "protesting" and "influencing" in the
excuse to characterize the assembly as a definition of public assembly content
seditious and tumultuous rising against the based, since they can refer to any subject.
authorities, then the right to assemble and The words "petitioning the government
to petition for redress of grievances would for redress of grievances" come from
expose all those who took part therein to the wording of the Constitution, so its use
the severest and most unmerited cannot be avoided. Finally, maximum
punishment, if the purposes which they tolerance is for the protection and benefit
sought to attain did not happen to be of all rallyists and is independent of the
pleasing to the prosecuting authorities. If content of the expressions in the rally.
instances of disorderly conduct occur on
such occasions, the guilty individuals Furthermore, the permit can only be
should be sought out and punished denied on the ground of clear and present
therefore, but the utmost discretion must danger to public order, public safety,
be exercised in drawing the line between public convenience, public morals or
disorderly and seditious conduct and public health. This is a recognized
between an essentially peaceable assembly exception to the exercise of the right even
and a tumultuous uprising." under the Universal Declaration of
Human Rights and the International
BP 880 IS CONTENT-NEUTRAL Covenant on Civil and Political Rights.
REGULATION. It is very clear, therefore,
that B.P. No. 880 is not an absolute ban of CALIBRATED PREEMPTIVE RESPONSE
public assemblies but a restriction that IS UNCONSTITUTIONAL. For this reason,
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the so-called calibrated preemptive G.R. No. 169838, April 25, 2006,
response policy has no place in our legal Azcuna, J.
firmament and must be struck down as a
darkness that shrouds freedom. It merely Facts: Petitioners allege that they are
confuses our people and is used by some citizens and taxpayers of the Philippines
police agents to justify abuses. On the and that their rights as organizations and
other hand, B.P. No. 880 cannot be individuals were violated when the rally
condemned as unconstitutional; it does they participated in on October 6, 2005
not curtail or unduly restrict freedoms; it was violently dispersed by policemen
merely regulates the use of public places implementing Batas Pambansa (B.P.) No.
as to the time, place and manner of 880. Malacanang also issued a policy
assemblies. Far from being insidious, denominated as “Calibrated Pre-emptive
"maximum tolerance" is for the benefit of Response” (CPR) on all rallies. Said “CPR
rallyists, not the government. The Policy” provides, among others:
delegation to the mayors of the power to
issue rally "permits" is valid because it is The rule of calibrated preemptive
subject to the constitutionally sound response is now in force, in lieu of
"clear and present danger" standard. maximum tolerance. The authorities
will not stand aside while those with ill
In this Decision, the Court goes even one intent are herding a witting or
step further in safeguarding liberty by unwitting mass of people and inciting
giving local governments a deadline of 30 them into actions that are inimical to
days within which to designate specific public order, and the peace of mind of
freedom parks as provided under B.P. No. the national community. Unlawful mass
880. If, after that period, no such parks actions will be dispersed. The majority
are so identified in accordance with of law-abiding citizens have the right to
Section 15 of the law, all public parks and be protected by a vigilant and proactive
plazas of the municipality or city government. We appeal to the
concerned shall in effect be deemed detractors of the government to engage
freedom parks; no prior permit of in lawful and peaceful conduct befitting
whatever kind shall be required to hold of a democratic society.
an assembly therein. The only
requirement will be written notices to the They assail Batas Pambansa No. 880 as
police and the mayor's office to allow well as the policy o f “Calibrated
proper coordination and orderly activities. Preemptive Response" or CPR and seek to
stop violen t dispersals of rallies under the
"no permit, no rally" policy and the CPR
policy recently announced . of the
BAYAN VS. ERMITA Constitution and the International
Covenant on Civil and Political Rights and
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other human rights treaties of which the measure, to wit: (a) B.P. No. 880 is
Philippines is a signatory. They argue that content-neutral, i.e., it has no reference to
B.P. No. 880 requires a permit before one content of regulated speech; (b) B.P. No.
can stage a public assembly regardless of 880 is narrowly tailored to serve a
the presence or absence of a clear and significant governmental interest, i.e., the
present danger. It also curtails the choice interest cannot be equally well served by
of venue and is thus repugnant to the a means that is less intrusive of free
freedom of expression clause as the time speech interests; and (c) B.P. No. 880
and place of a public assembly form part leaves open alternative channels for
of the message for which the expression is communication of the information.
sought.
3. B.P. No. 880 is content-neutral as seen
Furthermore, it is not content-neutral as from the text of the law. Section 5
it does not apply to mass actions in requires the statement of the public
support of the government. The words assembly’s time, place and manner of
"lawful cause," "opinion," "protesting or conduct. It entails traffic re-routing to
influencing" suggest the exposition of prevent grave public inconvenience and
some cause not espoused by the serious or undue interference in the free
government. Also, the phrase "maximum flow of commerce and trade. Furthermore,
tolerance" shows that the law applies to nothing in B.P. No. 880 authorizes the
assemblies against the government denial of a permit on the basis of a rally’s
because they are being tolerated. As a program content or the statements of the
content-based legislation, it cannot pass speakers therein, except under the
the strict scrutiny test. constitutional precept of the “clear and
present danger test.” The status of B.P. No.
Respondent’s argue: 880 as a contentneutral regulation has
been recognized in Osmeña v. Comelec.
1. Petitioners have no standing because
they have not presented evidence that 4. Adiong v. Comelec held that B.P. No.
they had been “injured, arrested or 880 is a contentneutral regulation of the
detained because of the CPR,” and that time, place and manner of holding public
“those arrested stand to be charged with assemblies and the law passes the test for
violating Batas Pambansa [No.] 880 and such regulation, namely, these regulations
other offenses.” need only a substantial governmental
interest to support them.
2. Neither B.P. No. 880 nor CPR is void on
its face. Petitioners cannot honestly claim 5. Sangalang v. Intermediate Appellate
that the time, place and manner Court[9] held that a local chief executive
regulation embodied in B.P. No. 880 has the authority to exercise police power
violates the three-pronged test for such a to meet “the demands of the common
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good in terms of traffic decongestion and that J. B. L. Reyes v. Bagatsing, Primicias

public convenience.” Furthermore, the v. Fugoso, and Jacinto v. CA, have
discretion given to the mayor is narrowly affirmed the constitutionality of
circumscribed by Sections 5 (d), and 6 (a), requiring a permit; that the permit is
(b), (c), (d), (e), 13 and 15 of the law. for the use of a public place and not for
the exercise of rights; and that B.P. No.
6. The standards set forth in the law are 880 is not a content-based regulation
not inconsistent. “Clear and convincing because it covers all rallies.
evidence that the public assembly will
create a clear and present danger to The petitions were ordered consolidated
public order, public safety, public on February 14, 2006. After the
convenience, public morals or public submission of all the Comments, the Court
health” and “imminent and grave danger set the cases for oral arguments on April 4,
of a substantive evil” both express the 2006,[14] stating the principal issues, as
meaning of the “clear and present danger follows:
test.”
Issues:
7. CPR is simply the responsible and 1. On the constitutionality of Batas
judicious use of means allowed by Pambansa No. 880, specifically Sections 4,
existing laws and ordinances to protect 5, 6, 12 13(a) and 14(a) thereof, and
public interest and restore public order. Republic Act No. 7160:
Thus, it is not accurate to call it a new rule
but rather it is a more pro-active and (a) Are these content-neutral or content-
dynamic enforcement of existing laws, based regulations?
regulations and ordinances to prevent (b) Are they void on grounds of
chaos in the streets. It does not replace overbreadth or vagueness?
the rule of maximum tolerance in B.P. No. (c) Do they constitute prior restraint?
880. (d) Are they undue delegations of powers
to Mayors?
Respondent Mayor Joselito Atienza, for (e) Do they violate international human
his part, submitted in his Comment that rights treaties and the Universal
the petition in G.R. No. 169838 should be Declaration of Human Rights?
dismissed on the ground that Republic
Act No. 7160 gives the Mayor power to 2. On the constitutionality and legality of
deny a permit independently of B.P. No. the policy of Calibrated Preemptive
880; that his denials of permits Response (CPR):
were under the “clear and present (a) Is the policy void on its face or due to
danger” rule as there was a clamor to vagueness?
stop rallies that disrupt the economy (b) Is it void for lack of publication?
and to protect the lives of other people;
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(c) Is the policy of CPR void as applied to There is no question as to the

the rallies of September 26 and petitioners’ rights to peaceful assembly
October 4, 5 and 6, 2005? to petition the government for a redress
of grievances and, for that matter, to
Held: organize or form associations for
Petitioners’ standing cannot be purposes not contrary to law, as well as
seriously challenged. Their right as to engage in peaceful concerted
citizens to engage in peaceful assembly and activities.
exercise the right of petition, as
guaranteed by the Constitution, is directly These rights are guaranteed by no less
affected by B.P. No. 880 which requires a than the Constitution, particularly
permit for all who would publicly assemble Sections 4 and 8 of the Bill of Rights,
in the nation’s streets and parks. They Section 2(5) of Article IX, and Section 3 of
have, in fact, purposely engaged in public Article XIII. Jurisprudence abounds with
assemblies without the required permits hallowed pronouncements defending and
to press their claim that no such permit promoting the people’s exercise of these
can be validly required without violating rights. As early as the onset of this
the Constitutional guarantee. century, this Court in U.S. vs. Apurado,
Respondents, on the other hand, have already upheld the right to assembly and
challenged such action as contrary to law petition and even went as far as to
and dispersed the public assemblies held acknowledge:
without the permit.
“ It is rather to be expected that more or
I. B.P. 880 IS CONSTITUTIONAL. The less disorder will mark the public
first point to mark is that the right to assembly of the people to protest
peaceably assemble and petition for against grievances whether real or
redress of grievances is, together with imaginary, because on such occasions
freedom of speech, of expression, and of feeling is always wrought to a high
the press, a right that enjoys primacy in pitch of excitement, and the greater, the
the realm of constitutional protection. For grievance and the more intense the
these rights constitute the very basis of a feeling , the less perfect, as a rule will be
functional democratic polity, without the disciplinary control of the leaders
which all the other rights would be over their irresponsible followers. But if
meaningless and unprotected. As stated in the prosecution be permitted to seize
Jacinto v. CA, the Court, as early as the upon every instance of such disorderly
onset of this century, in U.S. v. Apurado, conduct by individual members of a
already upheld the right to assembly and crowd as an excuse to characterize the
petition, as follows: assembly as a seditious and tumultuous
rising against the authorities, then the
right to assemble and to petition for
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redress of grievances would expose all others having equal rights, nor
those who took part therein to the injurious to the rights of the community
severest and most unmerited or society. The power to regulate the
punishment, if the purposes which they exercise of such and other
sought to attain did not happen to be constitutional rights is termed the
pleasing to the prosecuting authorities. sovereign “police power,” which is the
If instances of disorderly conduct occur power to prescribe regulations, to
on such occasions, the guilty individuals promote the health, morals, peace,
should be sought out and punished education, good order or safety, and
therefor, but the utmost discretion must general welfare of the people.
be exercised in drawing the line This sovereign police power is exercised
between disorderly and seditious by the government through its legislative
conduct and between an essentially branch by the enactment of laws
peaceable assembly and a tumultuous regulating those and other constitutional
uprising.” and civil rights, and it may be delegated to
political subdivisions, such as towns,
Again, in Primicias v. Fugoso, the Court municipalities and cities by authorizing
likewise sustained the primacy of their legislative bodies called municipal
freedom of speech and to assembly and and city councils enact ordinances for
petition over comfort and convenience purpose.
in the use of streets and parks.
1. It is thus clear that the Court is called
Next, however, it must be remembered upon to protect the exercise of the
that the right, while sacrosanct, is not cognate rights to free speech and peaceful
absolute. assembly, arising from the denial of a
permit. The Constitution is quite explicit:
In Primicias, this Court said: “No law shall be passed abridging the
freedom of speech, or of the press, or the
The right to freedom of speech, and to right of the people peaceably to assemble
peacefully assemble and petition the and petition the Government for redress
government for redress of grievances, of grievances.” Free speech, like free press,
are fundamental personal rights of the may be identified with the liberty to
people recognized and guaranteed by discuss publicly and truthfully any matter
the constitutions of democratic of public concern without censorship or
countries. But it is a settled principle punishment.
growing out of the nature of well
ordered civil societies that the exercise There is to be then no previous restraint
of those rights is not absolute for it may on the communication of views or
be so regulated that it shall not be subsequent liability whether in libel suits,
injurious to the equal enjoyment of prosecution for sedition, or action for
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damages, or contempt proceedings unless the maintenance of democratic

there be a “clear and present danger of a institutions, is the danger, of a character
substantive evil that [the State] has a right both grave and imminent, of a serious evil
to prevent.” to public safety, public morals, public
health, or any other legitimate public
Freedom of assembly connotes the right interest.
of the people to meet peaceably for
consultation and discussion of matters 2. Nowhere is the rationale that underlies
of public concern. It is entitled to be the freedom of expression and peaceable
accorded the utmost deference and assembly better expressed than in this
respect. It is not to be limited, much less excerpt from an opinion of Justice
denied, except on a showing, as is the Frankfurter: “It must never be forgotten,
case with freedom of expression, of a however, that the Bill of Rights was the
clear and present danger of a child of the Enlightenment. Back of the
substantive evil that the state has a guaranty of free speech lay faith in the
right to prevent. power of an appeal to reason by all the
peaceful means for gaining access to the
Even prior to the 1935 Constitution, mind. It was in order to avert force and
Justice Malcolm had occasion to stress explosions due to restrictions upon
that it is a necessary consequence of our rational modes of communication that the
republican institutions and complements guaranty of free speech was given a
the right of free speech. To paraphrase generous scope. But utterance in a
the opinion of Justice Rutledge, speaking context of violence can lose its
for the majority of the American Supreme significance as an appeal to reason and
Court in Thomas v. Collins, it was not by become part of an instrument of force.
accident or coincidence that the rights to Such utterance was not meant to be
freedom of speech and of the press were sheltered by the Constitution.” What was
coupled in a single guarantee with the rightfully stressed is the abandonment of
right of the people peaceably to assemble reason, the utterance, whether verbal or
and to petition the government for printed, being in a context of violence. It
redress of grievances. All these rights, must always be remembered that this
while not identical, are inseparable. right likewise provides for a safety valve,
allowing parties the opportunity to give
In every case, therefore, where there is a vent to their views, even if contrary to the
limitation placed on the exercise of this prevailing climate of opinion.
right, the judiciary is called upon to
examine the effects of the challenged For if the peaceful means of
governmental actuation. The sole communication cannot be availed of,
justification for a limitation on the resort to non-peaceful means may be the
exercise of this right, so fundamental to only alternative. Nor is this the sole
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reason for the expression of dissent. It

means more than just the right to be There can be no legal objection, absent
heard of the person who feels aggrieved the existence of a clear and present
or who is dissatisfied with things as they danger of a substantive evil, on the
are. Its value may lie in the fact that there choice of Luneta as the place where the
may be something worth hearing from the peace rally would start. The Philippines
dissenter. That is to ensure a true ferment is committed to the view expressed in the
of ideas. There are, of course, well-defined plurality opinion, of 1939 vintage of,
limits. What is guaranteed is peaceable Justice Roberts in Hague v. CIO:
assembly. One may not advocate disorder “Whenever the title of streets and parks
in the name of protest, much less preach may rest, they have immemorially been
rebellion under the cloak of dissent. The held in trust for the use of the public and,
Constitution frowns on disorder or tumult time out of mind, have been used for
attending a rally or assembly. Resort to purposes of assembly, communicating
force is ruled out and outbreaks of thoughts between citizens, and discussing
violence to be avoided. The utmost calm public questions. Such use of the streets
though is not required. and public places has, from ancient times,
been a part of the privileges, immunities,
As pointed out in an early Philippine case, rights and liberties of citizens. The
penned in 1907 to be precise, United privilege of a citizen of the United States
States v. Apurado: “It is rather to be to use the streets and parks for
expected that more or less disorder will communication of views on national
mark the public assembly of the people to questions may be regulated in the interest
protest against grievances whether real of all; it is not absolute, but relative, and
or imaginary, because on such occasions must be exercised in subordination to the
feeling is always wrought to a high pitch general comfort and convenience, and in
of excitement, and the greater the consonance with peace and good order;
grievance and the more intense the but must not, in the guise of respondents,
feeling, the less perfect, as a rule, will be be abridged or denied.” The above excerpt
the disciplinary control of the leaders was quoted with approval in Primicias v.
over their irresponsible followers.” Fugoso. Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas,
It bears repeating that for the a 1915 decision, where this Court
constitutional right to be invoked, riotous categorically affirmed that plazas or parks
conduct, injury to property, and acts of and streets are outside the commerce of
vandalism must be avoided. To give free man and thus nullified a contract that
rein to one’s destructive urges is to call leased Plaza Soledad of plaintiff-
for condemnation. It is to make a mockery municipality. Reference was made to such
of the high estate occupied by intellectual plaza “being a promenade for public use,”
liberty in our scheme of values.
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which certainly is not the only purpose rights of assembly or of freedom of

that it could serve. speech and press, where, as the statute is
construed by the state courts, the
To repeat, there can be no valid reason licensing authorities are strictly limited,
why a permit should not be granted for in the issuance of licenses, to a
the proposed march and rally starting consideration of the time, place, and
from a public park that is the Luneta. manner of the parade or procession, with
Neither can there be any valid objection a view to conserving the public
to the use of the streets to the gates of convenience and of affording an
the US embassy, hardly two blocks away opportunity to provide proper policing,
at the Roxas Boulevard. Primicias v. and are not invested with arbitrary
Fugoso has resolved any lurking doubt discretion to issue or refuse license, * * *.
on the matter. In holding that the then
Mayor Fugoso of the City of Manila “Nor should the point made by Chief
should grant a permit for a public Justice Hughes in a subsequent portion of
meeting at Plaza Miranda in Quiapo, the opinion be ignored: “Civil liberties, as
this Court categorically declared: “Our guaranteed by the Constitution, imply the
conclusion finds support in the decision in existence of an organized society
the case of Willis Cox v. State of New maintaining public order without which
Hampshire, 312 U.S., 569. In that case, the liberty itself would be lost in the excesses
statute of New Hampshire P.L. chap. 145, of unrestricted abuses. The authority of a
section 2, providing that no parade or municipality to impose regulations in
procession upon any ground abutting order to assure the safety and
thereon, shall be permitted unless a convenience of the people in the use of
special license therefore shall first be public highways has never been regarded
obtained from the selectmen of the town as inconsistent with civil liberties but
or from licensing committee,’ was rather as one of the means of
construed by the Supreme Court of New safeguarding the good order upon which
Hampshire as not conferring upon the they ultimately depend. The control of
licensing board unfettered discretion to travel on the streets of cities is the most
refuse to grant the license, and held valid. familiar illustration of this recognition
And the Supreme Court of the United of social need. Where a restriction of the
States, in its decision (1941) penned by use of highways in that relation is
Chief Justice Hughes affirming the designed to promote the public
judgment of the State Supreme Court, convenience in the interest of all, it
held that ‘a statute requiring persons cannot be disregarded by the attempted
using the public streets for a parade or exercise of some civil right which in
procession to procure a special license other circumstances would be entitled
therefore from the local authorities is not to protection.”
an unconstitutional abridgment of the
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xxx private place, only the consent of the

owner or the one entitled to its legal
x x x The principle under American possession is required. Such application
doctrines was given utterance by Chief should be filed well ahead in time to
Justice Hughes in these words: “The enable the public official concerned to
question, if the rights of free speech and appraise whether there may be valid
peaceable assembly are to be preserved, objections to the grant of the permit or
is not as to the auspices under which the to its grant but at another public place.
meeting is held but as to its purpose; It is an indispensable condition to such
not as to the relations of the speakers, but refusal or modification that the clear
whether their utterances transcend the and present danger test be the standard
bounds of the freedom of speech which for the decision reached. If he is of the
the Constitution protects.” There could be view that there is such an imminent and
danger to public peace and safety if such a grave danger of a substantive evil, the
gathering were marked by turbulence. applicants must be heard on the matter.
That would deprive it of its peaceful Thereafter, his decision, whether
character. It is true that the licensing favorable or adverse, must be
official, here respondent Mayor, is not transmitted to them at the earliest
devoid of discretion in determining opportunity. Thus if so minded, they can
whether or not a permit would be granted. have recourse to the proper judicial
It is not, however, unfettered discretion. authority . Free speech and peaceable
While prudence requires that there be a assembly , along with the other
realistic appraisal not of what may intellectual freedoms, are highly ranked
possibly occur but of what may probably in our scheme of constitutional values.
occur, given all the relevant It cannot be too strongly stressed that
circumstances, still the assumption – on the judiciary, -- even more so than on
especially so where the assembly is the other departments – rests the grave
scheduled for a specific public place – is and delicate responsibility of assuring
that the permit must be for the assembly respect for and deference to such
being held there. The exercise of such a preferred rights. No verbal formula, no
right, in the language of Justice Roberts, sanctifying phrase can, of course,
speaking for the American Supreme Court, dispense with what has been so
is not to be “abridged on the plea that it felicitiously termed by Justice Holmes
may be exercised in some other place.” “as the sovereign prerogative of
judgment.” Nonetheless, the
By way of a summary. The applicants presumption must be to incline the
for a permit to hold an assembly should weight of the scales of justice on the
inform the licensing authority of the side of such rights, enjoying as they do
date, the public place where and the precedence and primacy. x x x.
time when it will take place. If it were a

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B.P. No. 880 was enacted after this Court recognized exception to the exercise of
rendered its decision in Reyes. The the right even under the Universal
provisions of B.P. No. 880 practically Declaration of Human Rights and the
codify the ruling in Reyes: It is very clear, International Covenant on Civil and
therefore, that B.P. No. 880 is NOT AN Political Rights. Universal Declaration of
ABSOLUTE BAN OF PUBLIC ASSEMBLIES Human Rights
BUT A RESTRICTION THAT SIMPLY
REGULATES THE TIME, PLACE AND Article 20
MANNER OF THE ASSEMBLIES. This was 1. Everyone has the right to freedom of
adverted to in Osmeña v. Comelec, peaceful assembly and association. x x x
where the Court referred to it as a
“content-neutral” regulation of the time, Article 29
place, and manner of holding public 1. Everyone has duties to the community
assemblies in which alone the free and full
development of his personality is possible.
A fair and impartial reading of B.P. No.
880 thus readily shows that it refers to all 2. In the exercise of his rights and
kinds of public assemblies[22] that would freedoms, everyone shall be subject only
use public places. The reference to “lawful to such limitations as are determined by
cause” does not make it content-based law solely for the purpose of securing due
because assemblies really have to be for recognition and respect for the rights and
lawful causes, otherwise they would not freedoms of others and of meeting the
be “peaceable” and entitled to protection. just requirements of morality, public
Neither are the words “opinion,” order and the general welfare in a
“protesting” and “influencing” in the democratic society.
definition of public assembly content
based, since they can refer to any subject. 3. These rights and freedoms may in no
The words “petitioning the government case be exercised contrary to the
for redress of grievances” come from the purposes and principles of the United
wording of the Constitution, so its use Nations. The International Covenant on
cannot be avoided. Finally, maximum Civil and Political Rights
tolerance is for the protection and benefit
of all rallyists and is independent of the Article 19.
content of the expressions in the rally. 1. Everyone shall have the right to hold
opinions without interference.
Furthermore, THE PERMIT can only be
denied on the ground of clear and 2. Everyone shall have the right to
present danger to public order, public freedom of expression; this right shall
safety, public convenience, public include freedom to seek, receive and
morals or public health. This is a impart information and ideas of all kinds,
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regardless of frontiers, either orally, in There is, likewise, no prior restraint,

writing or in print, in the form of art, or since the content of the speech is not
through any other media of his choice. relevant to the regulation. As to the
delegation of powers to the mayor, the
3. The exercise of the rights provided for law provides a precise and sufficient
in paragraph 2 of this article carries with standard – the clear and present
it special duties and responsibilities. It danger test stated in Sec. 6(a) . The
may therefore be subject to certain reference to “imminent and grave danger
restrictions, but these shall only be such of a substantive evil” in Sec. 6(c)
as are provided by law and are necessary: substantially means the same thing and is
not an inconsistent standard. As to whether
(a) For respect of the rights or respondent Mayor has the same power
reputations of others; independently under Republic Act No.
(b) For the protection of national security 7160[24] is thus not necessary to resolve in
or of public order (ordre public), or of these proceedings, and was not pursued by
public health or morals. the parties in their arguments.
Contrary to petitioner’s claim, THE Finally, for those who cannot wait,
LAW IS VERY CLEAR and is nowhere Section 15 of the law provides for an
vague in its provisions. “Public” does alternative forum through the creation
not have to be defined. Its ordinary of freedom parks where no prior permit
meaning is well-known. Webster’s is needed for peaceful assembly and
Dictionary defines it, thus: public, n, x x x petition at any time:
2: an organized body of people x
3: a group of people distinguished by Sec. 15. Freedom parks. – Every city and
common interests or characteristics x x x. municipality in the country shall within
six months after the effectivity of this Act
Not every expression of opinion is a public establish or designate at least one suitable
assembly. The law refers to “rally, “freedom park” or mall in their
demonstration, march, parade, procession respective jurisdictions which, as far as
or any other form of mass or concerted practicable, shall be centrally located
action held in a public place.” So it does not within the poblacion where
cover any and all kinds of gatherings. demonstrations and meetings may be
Neither is the law overbroad. It held at any time without the need of any
regulates the exercise of the right to prior permit.
peaceful assembly and petition only to
the extent needed to avoid a clear and In the cities and municipalities of
present danger of the substantive evils Metropolitan Manila, the respective
Congress has the right to prevent. mayors shall establish the freedom parks
within the period of six months from the
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effectivity this Act. This brings up the II. THE CPR IS NULL & VOID
point, however, of compliance with this The Court now comes to the matter of the
provision. The Solicitor General stated CPR. As stated earlier, the Solicitor
during the oral arguments that, to his General has conceded that the use of the
knowledge, only Cebu City has declared a term should now be discontinued, since it
freedom park – Fuente Osmeña. That of does not mean anything other than the
Manila, the Sunken Gardens, has since maximum tolerance policy set forth in B.P.
been converted into a golf course, he No. 880. This is stated in the Affidavit of
added. respondent Executive Secretary Eduardo
Ermita, submitted by the
If this is so, the degree of observance of
B.P. No. 880’s mandate that every city Solicitor General, thus:
and municipality set aside a freedom At any rate, the Court rules that in view
park within six months from its of the maximum tolerance mandated by
effectivity in 1985, or 20 years ago, B.P. No. 880, CPR serves no valid
would be pathetic and regrettable. The purpose if it means the same thing as
matter appears to have been taken for maximum tolerance and is illegal if it
granted amidst the swell of freedom means something else . Accordingly,
that rose from the peaceful revolution what is to be followed is and should be
of 1986. Considering that the existence that mandated by the law itself, namely,
of such freedom parks is an essential maximum tolerance, which specifically
part of the law’s system of regulation of means the following:
the people’s exercise of their right to
peacefully assemble and petition, the Sec. 3. Definition of terms. – For purposes
Court is constrained to rule that after of this Act:
thirty (30) days from the finality of this xxx
Decision, no prior permit may be
required for the exercise of such right in (c) “Maximum tolerance” means the
any public park or plaza of a city or highest degree of restraint that the
municipality until that city or military, police and other peace keeping
municipality shall have complied with authorities shall observe during a public
Section 15 of the law. assembly or in the dispersal of the same.
xxx
For without such alternative forum, to
deny the permit would in effect be to Sec. 9. Non-interference by law
deny the right. “Advance notices” should, enforcement authorities. – Law
however, be given to the authorities to enforcement agencies shall not interfere
ensure proper coordination and orderly with the holding of a public assembly.
proceedings.

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However, to adequately ensure public (c) Tear gas, smoke grenades, water
safety, a law enforcement contingent cannons, or any similar anti-riot device
under the command of a responsible shall not be used unless the public
police officer may be detailed and assembly is attended by actual violence or
stationed in a place at least one hundred serious threats of violence, or deliberate
(100) meters away from the area of destruction of property.
activity ready to maintain peace and
order at all times. Sec. 11. Dispersal of public assembly with
permit. – No public assembly with a
Sec. 10. Police assistance when requested. permit shall be dispersed. However, when
– It shall be imperative for law an assembly becomes violent, the police
enforcement agencies, when their may disperse such public assembly as
assistance is requested by the leaders or follows:
organizers, to perform their duties always
mindful that their responsibility to (a) At the first sign of impending violence,
provide proper protection to those the ranking officer of the law enforcement
exercising their right peaceably to contingent shall call the attention of the
assemble and the freedom of expression leaders of the public assembly and ask the
is primordial. Towards this end, law latter to prevent any possible
enforcement agencies shall observe the disturbance;
following guidelines:
(b) If actual violence starts to a point
(a) Members of the law enforcement where rocks or other harmful objects
contingent who deal with the from the participants are thrown at the
demonstrators shall be in complete police or at the non-participants, or at any
uniform with their nameplates and units property causing damage to such
to which they belong displayed property, the ranking officer of the law
prominently on the front and dorsal parts enforcement contingent shall audibly
of their uniform and must observe the warn the participants that if the
policy of “maximum tolerance” as herein disturbance persists, the public assembly
defined; will be dispersed;
(b) The members of the law enforcement (c) If the violence or disturbance
contingent shall not carry any kind of prevailing as stated in the preceding
firearms but may be equipped with baton subparagraph should not stop or abate,
or riot sticks, shields, crash helmets with the ranking officer of the law enforcement
visor, gas masks, boots or ankle high contingent shall audibly issue a warning
shoes with shin guards; to the participants of the public assembly,
and after allowing a reasonable period of

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MENDIOLA, MANILA
time to lapse, shall immediately order it 4. the carrying of firearms by members of

to forthwith disperse; the law enforcement unit;
5. the interfering with or intentionally
(d) No arrest of any leader, organizer or disturbing the holding of a public
participant shall also be made during the assembly by the use of a motor vehicle, its
public assembly unless he violates during horns and loud sound systems.
the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall Furthermore, there is need to address
be governed by Article 125 of the Revised the situation adverted to by petitioners
Penal Code, as amended; where mayors do not act on
applications for a permit and when the
(d) Isolated acts or incidents of disorder police demand a permit and the
or breach of the peace during the public rallyists could not produce one, the rally
assembly may be peacefully dispersed. is immediately dispersed. In such a
xxx situation, as a necessary consequence
and part of maximum tolerance,
Sec. 12. Dispersal of public assembly rallyists who can show the police “ an
without permit. – When the public application” duly filed on a given date
assembly is held without a permit where can, after two days from said date, rally
a permit is required, the said public in accordance with their application
assembly may be peacefully dispersed. without the need to show a permit, the
grant of the permit being then
Sec. 13. Prohibited acts. – The following presumed under the law, and it will be
shall constitute violations of the Act: the burden of the authorities to show
that there has been a denial of the
(e) Obstructing, impeding, disrupting or application, in which case the rally may
otherwise denying the exercise of the be peacefully dispersed following the
right to peaceful assembly; procedure of maximum tolerance
(f) The unnecessary firing of firearms by a prescribed by the law.
member of any law enforcement agency
or any In sum, this Court reiterates ITS BASIC
person to disperse the public assembly; POLICY OF UPHOLDING THE
(g) Acts described hereunder if FUNDAMENTAL RIGHTS OF OUR
committed within one hundred (100) PEOPLE, ESPECIALLY FREEDOM OF
meters from the area of activity of the EXPRESSION AND FREEDOM OF
public assembly or on the occasion ASSEMBLY. In several policy addresses,
thereof: Chief Justice Artemio V. Panganiban has
repeatedly vowed to uphold the liberty of
xxx our people and to nurture their
prosperity. He said that “in cases
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MENDIOLA, MANILA
involving liberty, the scales of justice BATAS PAMBANSA BLG. 880

should weigh heavily against the
government and in favor of the poor, the An Act Ensuring The Free Exercise By
oppressed, the marginalized, the The People Of Their Right Peaceably
dispossessed and the weak. Indeed, laws To Assemble And Petition The
and actions that restrict fundamental Government [And] For Other Purposes
rights come to the courts with a heavy Be it enacted by the Batasang
presumption against their validity. These Pambansa in session assembled:
laws and actions are subjected to
heightened scrutiny.” Section 1. Title . – This Act shall be
known as “The Public Assembly Act of
SUMMARY: 1985.”
1. For this reason, the so-called
calibrated preemptive response policy Sec. 2. Declaration of policy. – The
has no place in our legal firmament and constitutional right of the people
must be struck down as a darkness that peaceably to assemble and petition the
shrouds freedom. It merely confuses our government for redress of grievances is
people and is used by some police essential and vital to the strength and
agents to justify abuses. stability of the State. To this end, the State
shall ensure the free exercise of such right
2. On the other hand, B.P. No. 880 without prejudice to the rights of others
cannot be condemned as to life, liberty and equal protection of the
unconstitutional; it does not curtail or law.
unduly restrict freedoms; it merely
regulates the use of public places as to Sec. 3. Definition of terms. – For
the time, place and manner of purposes of this Act:
assemblies. Far from being insidious,
“maximum tolerance” is for the benefit (a) “Public assembly” means any rally,
of rallyists, not the government. demonstration, march, parade, procession
or any other form of mass or concerted
3 . The delegation to the mayors of the action held in a public place for the
power to issue rally “permits” is valid purpose of presenting a lawful cause; or
because it is subject to the expressing an opinion to the general
constitutionally-sound “clear and public on any particular issue; or
present danger” standard. protesting or influencing any state of
affairs whether political, economic or
social; or petitioning the government for
redress of grievances.

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The processions, rallies, parades, organize and hold a public assembly in a

demonstrations, public meetings and public place.
assemblages for religious purposes shall
be governed by local ordinances; However, no permit shall be required if
Provided, however, That the declaration the public assembly shall be done or
of policy as provided in Section 2 of this made in (1) a freedom park duly
Act shall be faithfully observed. established by law or ordinance or
(2) in private property, in which case only
The definition herein contained shall not the consent of the owner or the one
include picketing and other concerted entitled to its legal possession is required,
action in strike areas by workers and or
employees resulting from a labor dispute (3) in the campus of a government-owned
as defined by the Labor Code, its and operated educational institution
implementing rules and regulations, and which shall be subject to the rules and
by the Batas Pambansa Bilang 227. regulations of said educational institution.
Political meetings or rallies held during
(b) “Public place” shall include any any election campaign period as provided
highway, boulevard, avenue, road, street, for by law are NOT covered by this Act.
bridge or other thoroughfare, park, plaza
square, and/or any open space of public Sec. 5. Application requirements.-- All
ownership where the people are allowed applications for a permit shall comply
access. with the following guidelines:
(c) “Maximum tolerance” means the (a) The applications shall be in writing
highest degree of restraint that the and shall include the names of the leaders
military, police and other peace keeping or organizers; the purpose of such public
authorities shall observe during a public assembly; the date, time and duration
assembly or in the dispersal of the same. thereof, and place or streets to be used for
the intended activity; and the probable
(d) “Modification of a permit” shall number of persons participating, the
include the change of the place and time transport and the public address systems
of the public assembly, rerouting of the to be used.
parade or street march, the volume of
loud-speakers or sound system and (b) The application shall incorporate the
similar changes. duty and responsibility of applicant under
Section 8 hereof.
Sec. 4. Permit when required and when
not required.—A written permit shall be (c) The application shall be filed with the
required for any person or persons to office of the mayor of the city or
municipality in whose jurisdiction the
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MENDIOLA, MANILA
intended activity is to be held, at least five immediately inform the applicant who
(5) working days before the scheduled must be heard on the matter.
public assembly.
(d) The action on the permit shall be in
(d) Upon receipt of the application, which writing and served on the applicant
must be duly acknowledged in writing, within twenty-four hours.
the office of the city or municipal mayor
shall cause the same to immediately be (e) If the mayor or any official acting in
posted at a conspicuous place in the city his behalf denies the application or
or municipal building. modifies the terms thereof in his permit,
the applicant may contest the decision in
an appropriate court of law.
Sec. 6. Action to be taken on the
application. – (f) In case suit is brought before the
Metropolitan Trial Court, the Municipal
(a) It shall be the duty of the mayor or any
Trial Court, the Municipal Circuit Trial
official acting in his behalf to issue or
Court, the Regional Trial Court, or the
grant a permit unless there is clear and
convincing evidence that the public Intermediate Appellate court, its
assembly will create a clear and present decisions may be appealed to the
danger to public order, public safety, appropriate court within forty-eight (48)
hours after receipt of the same. No appeal
public convenience, public morals or
bond and record on appeal shall be
public health.
required. A decision granting such permit
(b) The mayor or any official acting in his or modifying if in terms satisfactory to the
applicant shall be immediately executory.
behalf shall act on the application within
two (2) working days from the date the
(g) All cases filed in court under this
application was filed, failing which, the
permit shall be deemed granted. Should section shall be decided within twenty-
for any reason the mayor or any official four (24) hours from date of filing. Cases
acting in his behalf refuse to accept the filed hereunder shall be immediately
endorsed to the executive judge for
application for a permit, said application
disposition or, in his absence, to the next
shall be posted by the applicant on the
in rank.
premises of the office of the mayor and
shall be deemed to have been filed.
(h) In all cases, any decision may be
appealed to the Supreme Court.
(c) If the mayor is of the view that there is
imminent and grave danger of a
substantive evil warranting the denial or (i) Telegraphic appeals to be followed by
modification of the permit, he shall formal appeals are hereby allowed.

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Sec. 7. Use of Public throroughfare. – rights of other persons not participating

Should the proposed public assembly in the public assembly.
involve the use, for an appreciable length
of time, of any public highway, boulevard, Sec. 9. Non-interference by law
avenue, road or street, the mayor or any enforcement authorities. – Law
official acting in his behalf may, to prevent enforcement agencies shall not interfere
grave public inconvenience, designate the with the holding of a public assembly.
route thereof which is convenient to the However, to adequately ensure public
participants or reroute the vehicular safety, a law enforcement contingent
traffic to another direction so that there under the command of a responsible
will be no serious or undue interference police officer may be detailed and
with the free flow of commerce and trade. stationed in a place at least one hundred
(100) meters away from the area of
Sec. 8. Responsibility of applicant. – It activity ready to maintain peace and
shall be the duty and responsibility of the order at all times.
leaders and organizers of a public
assembly to take all reasonable measures Sec. 10. Police assistance when
and steps to the end that the intended requested. – It shall be imperative for
public assembly shall be conducted law enforcement agencies, when their
peacefully in accordance with the terms of assistance is requested by the leaders or
the permit. These shall include but not be organizers, to perform their duties always
limited to the following: mindful that their responsibility to
provide proper protection to those
(a) To inform the participants of their exercising their right peaceably to
responsibility under the permit; assemble and the freedom of expression
(b) To police the ranks of the is primordial. Towards this end, law
demonstrators in order to prevent non- enforcement agencies shall observe the
demonstrators from disrupting the lawful following guidelines:
activities of the public assembly;
(c) To confer with local government (a) Members of the law enforcement
officials concerned and law enforcers to contingent who deal with the
the end that the public assembly may be demonstrators shall be in complete
held peacefully; uniform with their nameplates and units
(d) To see to it that the public assembly to which they belong displayed
undertaken shall not go beyond the time prominently on the front and dorsal parts
stated in the permit; and of their uniform and must observe the
(e) To take positive steps that policy of “maximum tolerance” as herein
demonstrators do not molest any person defined;
or do any act unduly interfering with the

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(b) The members of the law enforcement (c) If the violence or disturbance
contingent shall not carry any kind of prevailing as stated in the preceding
firearms but may be equipped with baton subparagraph should not stop or abate,
or riot sticks, shields, crash helmets with the ranking officer of the law enforcement
visor, gas masks, boots or ankle high contingent shall audibly issue a warning
shoes with shin guards; to the participants of the public assembly,
and after allowing a reasonable period of
(c) Tear gas, smoke grenades, water time to lapse, shall immediately order it
cannons, or any similar anti-riot device to forthwith disperse;
shall not be used unless the public
assembly is attended by actual violence or (d) No arrest of any leader, organizer or
serious threats of violence, or deliberate participant shall also be made during the
destruction of property. public assembly unless he violates during
the assembly a law, statute, ordinance or
Sec. 11. Dispersal of public assembly any provision of this Act. Such arrest shall
with permit. – No public assembly with a be governed by Article 125 of the Revised
permit shall be dispersed. However, when Penal Code, as amended;
an assembly becomes violent, the police
may disperse such public assembly as (e) Isolated acts or incidents of disorder
follows: or breach of the peace during the public
assembly may be peacefully dispersed.
(a) At the first sign of impending violence,
the ranking officer of the law enforcement Sec. 12. Dispersal of public assembly
contingent shall call the attention of the without permit. – When the public
leaders of the public assembly and ask the assembly is held without a permit where
latter to prevent any possible a permit is required, the said public
disturbance; assembly may be peacefully dispersed.
(b) If actual violence starts to a point Sec. 13. Prohibited acts. – The following
where rocks or other harmful objects shall constitute violations of the Act:
from the participants are thrown at the
police or at the non-participants, or at any (a) The holding of any public assembly as
property causing damage to such defined in this Act by any leader or
property, the ranking officer of the law organizer without having first secured
enforcement contingent shall audibly that written permit where a permit is
warn the participants that if the required from the office concerned, or the
disturbance persists, the use of such permit for such purposes in
public assembly will be dispersed; any place other than those set out in said
permit: Provided, however, That no
person can be punished or held criminally
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MENDIOLA, MANILA
liable for participating in or attending an 4. the carrying of firearms by members of

otherwise peaceful assembly; the law enforcement unit;
(b) Arbitrary and unjustified denial or 5. the interfering with or intentionally

modification of a permit in violation of the disturbing the holding of a public
provisions of this Act by the mayor or any assembly by the use of a motor vehicle, its
other official acting in his behalf; horns and loud sound systems.
(c) The unjustified and arbitrary refusal Sec. 14. Penalties. – Any person found
to accept or acknowledge receipt of the guilty and convicted of any of the
application for a permit by the mayor or prohibited acts defined in the
any official acting in his behalf; immediately preceding section shall be
punished as follows:
(d) Obstructing, impeding, disrupting or
otherwise denying the exercise of the (a) violation of subparagraph (a) shall be
right to peaceful assembly; punished by imprisonment of one month
and one day to six months;
(e) The unnecessary firing of firearms by (b) violations of subparagraphs (b), (c),
a member of any law enforcement agency (d), (e), (f), and item 4, subparagraph (g)
or any person to disperse the public shall be punished by imprisonment of six
assembly; months and one day to six years;
(c) violation of item 1, subparagraph (g)
(f) Acts in violation of Section 10 hereof; shall be punished by imprisonment of six
months and one day to six years without
(g) Acts described hereunder if prejudice to prosecution under
committed within one hundred (100) Presidential Decree No. 1866;
meters from the area of activity of the (d) violations of item 2, item 3, or item 5
public assembly or on the occasion of subparagraph (g) shall be punished by
thereof: imprisonment of one day to thirty days.
1. the carrying of a deadly or offensive Sec. 15. Freedom parks. – Every city and
weapon or device such as firearm, pillbox, municipality in the country shall within
bomb, and the like; six months after the effectivity of this Act
establish or designate at least one suitable
2. the carrying of a bladed weapon and “freedom park” or mall in their respective
the like; jurisdictions which, as far as practicable,
shall be centrally located within the
3. the malicious burning of any object in poblacion where demonstrations and
the streets or thoroughfares; meetings may be held at any time without
the need of any prior permit.
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MENDIOLA, MANILA
In the cities and municipalities of

Metropolitan Manila, the respective Q- What is the basis for the
mayors shall establish the freedom parks constitutional guarantee?
within the period of six months from the Ans- It is said that it is better to have an
effectivity this Act. irresponsible press than to have a timid
press. Putting it in the extremes, in
Sec. 16. Constitutionality.—Should any reporting official acts and conduct of
provision of this Act be declared invalid government and public officials, it is
or unconstitutional, the validity or better to have an irresponsible press than
constitutionality of the other provisions to have a timid press. But in discharging
shall not be affected thereby. the media responsibility as watchdog of
public officials, the newspaperman must
Sec. 17. Repealing clause. – All laws,
always adhere to the ethical standards of
decrees, letters of instructions,
truth and fairness.
resolutions, orders, ordinances or parts
thereof which are inconsistent with the The theory behind freedom of expression
provisions of this Act are hereby repealed, is that ours is a democratic society and so
amended, or modified accordingly. the only way to rule ultimately is by
means of public opinion, which is possible
Sec. 18. Effectivity. – This Act shall take only when everyone can speak their
effect upon its approval. minds and compete in the free
Approved, October 22, 1985. marketplace of ideas.
Q- What does the guarantee of free

speech protect? Explain.
ALBA-NOTES
Ans- The guarantee of free speech was
FREEDOM OF EXPRESSION enacted to protect not only polite speech,
Q-State the constitutional provision but even expression in its most
respecting the freedom of expression. unsophisticated form. Criminal libel
stands as a necessary qualification to any
Ans- No law shall be passed abridging the absolutist interpretation of the free
freedom of speech, of expression, or of the speech clause, if only because it prevents
press, or the right of the people to the proliferation of untruths which if
peaceably assemble and petition the unrefuted, would gain an undue influence
government for redress of grievances. in the public discourse. But in order to
(Sec4, Art III, 1987 Constitution). safeguard against fears that the public

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MENDIOLA, MANILA
debate might be muted due to the Atty. William Veto. He contended that
reckless enforcement of libel laws, truth his acts were part of his freedom of
has been sanctioned as a defense, more in expression. Rule on his contention.
the case when the statements in question Explain.
address public issues vs. CA, et al. GR No
involve public figures. (Ciriaco "Boy" ANS- His contention is not proper. The
Guingguing 1289S9, September 30, 2005) Supreme Court said that:
(1) the utterance or publication by a

person o falsehoods or half-truths or of
Q- Is the election of government men slanted or distorted versions of facts or
into the board of a newspaper accusations which he made o fide to
publication violative freedom of the verify, and which he made no bona fides
press? Explain. effort previously to verify, and which does
not or disdains to prove- cannot be
Ans- Yes In Liwayway publishing Co. vs justified as a legitimate exercise of the
PCGG, April 15, 1988, the Supreme Court freedom of speech and of the press
said that there should be no participation guaranteed by the Constitution, and
or intervention of the government in of cannot be deemed an activity shielded
the affairs of the press. The presence of from sanction by that constitutional
government in the board of newspaper guaranty;
publishing companies can cast a shadow
and threaten the protected and (2) such utterance or publication is also
guaranteed press. Ayer Productions Pty violative of “The Philippine Journalists'
Ltd. vs. Capulong April 29, 1988). Code of which inter alia commands the
journalist to "scrupulously report and
interpret the news, taking care not to
suppress essential facts nor to distort the
Q- Emiliano Jurado was asked to
truth by improper omission or emphasis,”
explain why he should not be cited
and make it his duty “to air the other side
contempt by the Supreme Court for his
half-truth reports about the Magic and to correct substantive errors
Seven judges in Makati and the Dirty promptly";
Seven in the Supreme Court, all (3) that such an utterance or publication,
members of the judiciary whom he when it is offensive to the dignity and
imputed to be corrupt. He also wrote reputation of a Court or of the judge
about a party tendered by Equitable presiding over it, or degrades or tends to
Bank where members of the Supreme place the courts in disrepute and disgrace
Court, Court of Appeals, other judges, or otherwise to debase the
prosecutors and lawyers were invited. administration of justice, constitutes
It turned out that it was the birthday of

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MENDIOLA, MANILA
contempt of court and is punishable after

due proceedings; and
Q- How do you characterize the
(4) that prescinding from the obvious freedom of expression rights?
proposition that any aggrieved party may
file a complaint to declare utterer writer ANS- Freedom of expression, the right of
in contempt, the initiation of appropriate speech and of the press is, to be sure,
contempt prerogative but indeed its duty among the most zealously protected
imposed by the overmastering need to rights in the Constitution. But every
preserve and protect its authority and the person exercising it is, as the Civil Code
integrity, independence and dignity of the stresses, obliged to act with justice, give
nation's judicial system. everyone his due, and observe honesty
and good faith." The constitutional right
of freedom of expression may not be
availed of to broadcast lies or half-truths-
Q- Emil Jurado contended that the this would not be "to observe honesty and
Supreme Court has no jurisdiction over good faith, it may not be used to insult
him as a member of the press or over others, destroy their name or regulation
his work as a journalist. Is the or bring them into disrepute- this would
contention correct? Why? not be "to act with justice" or "give
ANS- No, the Supreme Court may hold everyone his due.”
anyone to answer for utterances offensive Although honest utterances, even if
to its dignity, honor, or reputation, which inaccurate, may further the fruitful
tend to put it in disrepute ,obstruct the exercise of the right of free speech, it does
administration of justice or interfere with not follow that a lie, knowingly and
the disposition of its business or the deliberately published about a public
performance of its functions in an orderly official should enjoy immunity. A
manner. He cannot say that he was knowingly false statement made with
singled out. He is open to sanctions as a reckless disregard of the truth, does not
journalist who has misused and abused enjoy constitutional protection, for the
press freedom to put the judiciary in clear use of calculated falsehood would put
and present danger of disrepute and of different cast on the constitutional
public odium and opprobrium, to the question of protection of the writer. (In
detriment and prejudice of the Re: Emil Jurado, 60 SCAD 364, Adm.
administration of justice. That he is at the Matter No. 93-2-0317).
same time, a member of the Bar has
nothing to do with the setting in of those
sanctions, although it may aggravate
liability. (In Re: Emil Jurado, 60 SCAD Q- Can the writer of a news item or
364, Adm. Matter No. 93-2-0371). report which is not true or only half

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MENDIOLA, MANILA
true refuse to reveal his source of the that even non-discriminatory taxation
news invoking RA. No. 53, as amended of constitutional guaranteed freedom
by RA. No. 1477 which shields a writer is unconstitutional. Rule on the
from forced revelation of confidential contention.
news sources? Why?
ANS- The contention is not correct. As a
ANS- No, surely it cannot be postulated rule, the press is not exempt from the
that the law protects a journalist who taxing power of the State. What the
deliberately prints lies or distorts the constitutional guarantee of free press
truth, or that a newsman may escape prohibits are laws which single out the
liability who publishes derogatory or press or target a group belonging to the
defamatory allegations against a person press for special treatment or which in
or entity, but recognizes no obligation any way discriminate against the press on
bona fide to establish beforehand the basis of the content of the publication.
factual basis of such imputations and There is none in R.A. No, 7716. Since the
refuses to submit proof the when law granted the press a privilege, the law
challenged to do so. It outrages all notions could take it back anytime without
of fair play and due process, and reduces offense to the Constitution. By granting
to use all the injunctions of the exemptions, the State does not forever
Journalists' Code of Ethics to allow a waive the exercise of its sovereign
newsman, with all the potentials of his prerogatives. In withdrawing the
profession to influence popular belief and exemption, the law merely subjects the
shape public opinion, to make shameful press to the same tax burden to which
and offensive charges destructive of other business have long ago been subject
personal or institutional honor and to. (Tolentino vs . Sec. of Finance, 54
repute, and when called to justify the SCAD 621, G R. No. 115455, August 25,
same, cavalierly beg off by claiming that 1994).
to do so would compromise his sources
and demanding acceptance of his word
for the reliability of those sources (In Re: Q- Is the imposition of value added tax
Emil Jurado, 60 SCAD 364, Adm. Matter upon publishers of newspapers and
No 93-2-0371) magazines violative of the freedom of
the press? Why?
Q- The Philippine Press Institute Ans- No, because the press is not immune
contended that the removal of the from nondiscriminatory taxes imposed on
press from the VAT exemption while business. The press was not singled out
maintaining those granted to others is because other business transactions
unconstitutional, it discriminated which were previously exempt from the
against the press. It even contended value added tax have also been subjected

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MENDIOLA, MANILA
to it. The fee being imposed for school premises, a permit must be sought
registration with the BIR is not being from the school authorities, who have no
imposed for the exercise of the freedom of power to deny the request arbitrarily but
the press but is an administrative fee may impose conditions as to the time and
being imposed to defray the cost of place to avoid disruption of classes or
registration. (Tolentino vs. Sec of stoppage of work of the non-academic
Finance, supra) personnel. While there was a violation of
the terms of the permit, the penalty was
disproportionate to the offense. One week
Q- X, a newspaper woman, was invited suspension would have been enough.
by the military during martial law to (Malabanan vs. Ramento, 129 SCRA 359,
determine her way of thinking based see also B.P. No. 880).
on her writing. Is there prior restraint
on the freedom of expression of X?
Why? Q- May a newspaper reporter or editor
who published an inaccurate account
ANS- Yes. In Babst vs. Minister of National of a closed-door investigation of a
Defense, 132 SCRA 316, it was ruled that judge be cited for contempt? Why?
invitation given to a journalist by the
military to determine her way of thinking ANS- Yes. In In Re: Lozano vs Quevedo, 54
based on past writings has a chilling effect Phil. 801, the Supreme Court said
even on future writings and thus,
amounts to prior restraint. "The rule is well-established that
newspaper publications tending to
impede, obstruct, embarrass, or influence
the courts in the administration of justice
Q- Respondent university granted the in attending a suit or proceeding
students a permit to hold a rally at the constitute criminal contempt which is
basketball court. Instead of limiting it summarily punishable by the courts. The
to the area designated, they went rule is otherwise after the case is ended. It
outside of it and disturbed the classes. is also regarded as an interference with
They were suspended one (1) year. the work of the courts to publish any
The act of the school was questioned as matters which their policy requires
violative of their right to peaceably should be kept private, as for example the
assemble. Is their contention correct? secrets of the jury room, or proceedings
Explain. in camera." (6 RCL pp. 508-515)
ANS: Yes. The rights to peaceably The organic Act wisely guarantees
assemble and speech are guaranteed to freedom of speech and of the press. This
the students. If the assembly is held in the constitutional right must be protected in

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MENDIOLA, MANILA
its fullest extent. The court has heretofore In his "Compliance" with the show
given evidence of its tolerant regard for cause resolution, he justified his act
charges under the Libel Law which come under the freedom of the press and the
dangerously close to its violation. We right of the people to information on
shall continue in this chosen path. The matters of public concern. Was his
liberty of the citizens must be preserved contention proper? Why?
in all of its completeness. But license or
abuse of liberty of the press and of the ANS- No. While his rights are guaranteed,
citizen should not be confused with a publication, however, relating to judicial
liberty in its true sense. As important as is action in a pending case which tends
the maintenance of an unmuzzled press impede, embarrass, or obstruct the court
and the free exercise of the rights of the and constitutes a clear and present
citizen is the maintenance of the danger to the administration of justice is
independence of the judiciary. Respect not protected by the guaranty of press
for the judiciary cannot be had if persons freedom.
are privileged to scorn a resolution of the What is fundamental is the principle of
court adopted for good purposes and if confidentiality of all actuations of or
such persons are to be permitted by records or proceedings before a court in a
subterranean means to diffuse inaccurate pending action, which are not essentially
accounts of confidential proceedings to public in As far as the proceedings are
the embarrassment of the parties and the concerned, those confidential matters
courts. (See also ln Re: Sotto, 82 Phil. 575). include, among others, raffling of cases,
deliberations and discussions of the en
banc or the division, drafts of decisions
Q- In the column of Atty. Emil Jurado, and resolutions agreed upon by the
he wrote: "well-placed sources at the members in consultation. (In Re: Atty.
Supreme Court, the Court upheld a Emiliano Jurado, Jr., Adm. Matter No.
long-standing legal precedent known 90-5-2373, July 12, 1990).
as the Hernandez Doctrine and
reaffirmed that the crime of rebellion
complexed with murder and other Q- A libel suit was filed against Isagani
common offenses does not exist. He
Yambot and the Philippine Daily
was required to explain why he should
Inquirer by Judge Escolastico Cruz due
not be dealt with in contempt, why he to an alleged malicious and false
had to publish false statements
article published at PDI which stated:
relative to the Court's action on a
pending case or otherwise indulging in “ According to Mendoza, Cruz
speculation or conjecture or airing still has a pending case of sexual
illicit information. harassment filed with the

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MENDIOLA, MANILA
Supreme Court by Fiscal Maria of being hauled to court one group or

Lourdes Garcia, also of the another on criminal or civil charges for
Makati RTC.” libel, so long as the newspaper respects
and keeps within the standards of
This was carried by other newspapers. morality and civility prevailing within the
In his affidavit, he stated that he had general community.’’(Villanueva vs PDI,
no sexual harassment case. The office 164427, May 15, 2009, 588 SCRA 1) Like
of the City Prosecutor Makati filed the fair commentaries on matters of public
information, hence, they filed a interest, fair reports on same should thus
Petition for Review with the be included under the protective mantle
Department of Justice which affirmed of privileged communications, and should
the resolution. They filed a Petition for not be subjected to microscopic
Certiorari with the Court of Appeals examination to discover grounds of
questioning the resolution of the malice or falsity. The concept of
Secretary of Justice which was affirmed privileged communication is implicit in
by the CA. May the petition prosper? the constitutionally protected freedom
Why? press, which would be threatened when
ANS- Yes. A newspaper should not be criminal suits are unscrupulously leveled
held to account to a point of suppression by persons wishing to silence the media
for honest mistakes, or imperfection in on account of unfounded claims of
inaccuracies in news reports (lsagani
the choice of words. (Lopez v. CA, 145 Phil.
Yambot, et al. v. Hon ruquero &
219 (1970)) While, indeed, the allegations
Escolastico Cruz, Jr, G.R. No. 16989s,
of inappropriate sexual advances in an
appeal of a contempt ruling does not turn March 23, 2011).
such case into one for sexual harassment, Freedom of expression enjoys an exalted
the subject news article's author, not place the hierarchy of i constitutional
having any legal training, cannot be rights. Free expression however, "is not
expected to make the fine distinction absolute for it may be so regulated that its
between a sexual harassment suit and a exercise shall neither be injurious to the
suit where there was an allegation of equal enjoyment of others having equal
sexual harassment. In fact, three other rights, nor injurious to the rights of the
newspapers reporting the same incident community or society." (Primicias v.
committed the same mistake. Fugoso, 80 Phil. 71 (1948).
In Borjal v Court of Appeals, 361 Phil.
1(1999) it was held that "[a] newspaper
especially one national in reach and Q- May students who demonstrated in
coverage, should be free to report events a school in the exercise of the freedom
and developments in which the public has of assembly be barred from enrolling?
a legitimate interest with minimum fear Why?
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MENDIOLA, MANILA
Ans- No. The exercise of freedom of publication, the College Discipline

assembly could not be a basis for barring Committee required them explain but
students from enrolling. The school and they refused to file answers
its officials are enjoined from acts o contending that it is the Regional office
surveillance, blacklisting suspension and of the DECS that has jurisdiction
refusal to re-enroll. Schools, however, pursuant t RA. 7079 the Campus
may refuse to re-enroll students who Journalism Act. The Committee,
clearly incurred marked academic however, proceeded with the
deficiency. investigation and imposed suspension
and expulsion orders, hence, the
The academic freedom enjoyed by students filed a petition for prohibition,
institutions of higher learning includes certiorari and injunction with the RTC,
the right to set academic standards to Quezon City questioning the
determine under what circumstances jurisdiction of the Discipline Board of
failing grades suffice for the expulsion of the College. The RTC issued a TRO and
students. Once done, however, that even went on to dismiss the case,
standard should be followed meticulously. hence, the students filed a petition for
It cannot be used to discriminate against prohibition, certiorari and injunction
those students who exercise their with the Supreme Court. They invoked
constitutional rights to peaceable sec 7 of RA. 7079 which provides that a
assembly and free speech. If it does so, student shall not be expelled or
then there is a legitimate grievance by the suspended on the basis of articles he
students thus prejudiced, to invoke that or she has written, or on the basis of
their right to equal protection is being the performance of his or her duties in
disregarded. the student publication. Pursuant to
such original DECS issued an order that
The school cannot inflict highly
the DECS regional office shall have the
disproportionate penalty of denial of
enrollment and the consequent failure of original jurisdiction over cases as a
senior students to graduate, if exercise of result of the decisions, actions and
the cognate rights of free speech and policies of editorial board of a school
within its area of administrative
peaceable assembly, improper conduct
responsibility. Does the court have
could be attributed to them. (Non vs.
jurisdiction? Explain.
Dames 1L GR N 89317, May 20, 1990).
Ans- No, it is the school's Discipline
Board that has jurisdiction. The power of
Q- Students were expelled because of school to investigate is an adjunct of its
an alleged obscene, vulgar, indecent, power to suspend or expel. It is a
gross, sexually explicit and devoid of necessary corollary to the enforcement of
moral values publication. Due to the rules and regulations and the

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MENDIOLA, MANILA
maintenance of a safe and orderly encompasses the freedom to determine

educational environment conducive to for itself on academic grounds.
learning. (Angeles v Sison, 112 SCRA 26).
That power, like the power to suspend or 1. Who may teach,
expel, is an inherent part of the academic 2. What may be taught,
freedom of institutions of higher learning 3. How it shall be taught, and
guaranteed by the constitution. 4. Who may be admitted to study
Section 7 of RA. 7079 should be read in a
manner as not to infringe upon the
school's right to discipline its students. It Q— Who has the power to discipline
should not also be construed as to unduly its students and why?
restrict the right of the students to free
speech. Section 7 should be read to mean ANS: The school has the power to
that the school cannot suspend or expel a discipline its students and this is
student solely on the basis of the articles apparent in the third freedom, i.e.,
he or she has written, except when such “how it shall be taught.” A school
articles materially disrupt class, work or certainly cannot function in an
involve substantial disorder or invasion of atmosphere of anarchy.
the rights of others. (Miriam College
“Thus, there can be no doubt
Foundation, Inc. vs. CA, et al., G.R. No.
that the establishment of an
127930, Dec. 15 2000). educational institution requires
rules and regulations necessary for
the maintenance of an orderly
Q- Upon whom does the constitution educational program and the
grant academic freedom? What does it creation of an educational
comprise and what are sub-summed in environment conducive to learning.
it? Such rules and regulations are
equally necessary for the protection
Ans- Sec. 1(2), Article XIV of the of the students, faculty and
Constitution guarantees all institutions of property.”
higher learning academic freedom. This
institutional academic freedom includes Moreover, the school has an
the right of the school or college to decide interest in teaching the student
for itself, its aims and objectives, and how discipline, a necessary, if not
best to attain them free from outside indispensable, value in any field of
coercion or interference save possibly learning. By instilling discipline,
when the overriding public welfare calls the school teaches discipline.
for restrain. The essential freedoms sub- Accordingly, the right to discipline
summed in the term "academic freedom'’

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MENDIOLA, MANILA
the student likewise finds basis in impose lesser sanctions such as

the freedom “what to teach.” suspension and the withholding of
graduation privileges. (Miriam
Incidentally, the school not only College Foundation, Inc. vs. CA, et
has the right but the duty to al., G.R. No. 127930, December 15,
develop discipline in its students. 2000).
The Constitution no less imposes
such duty.
“All educational institutions Q— What is the reason behind the
shall inculcate patriotism and rule that a school has the power
nationalism, foster love of humanity, to expel its student found guilty
respect for human rights, of hazing? Explain.
appreciation of the role of national
heroes in the historical ANS: The expulsion of students found
development of the country, teach guilty of hazing is part of the
the rights and duties of citizenship, power to impose discipline and to
strengthen ethical and spiritual reinstate them after they have
values, develop moral character been investigated and found guilty
and personal discipline, encourage by the Disciplinary Board to have
critical and creative thinking, violated the university’s
broaden scientific and technological disciplinary rules and standards
knowledge, and promote vocational will certainly undermine the
efficiency.” authority of the administration of
the school. This we would be most
Discipline was a means for the loathe to do.
school to carry out its
responsibility to help its students
“grow and develop into mature,
Q— X, a professor in the Graduate
responsible, effective and worthy School, graded three students
citizens of the community.” without requiring them to
Finally, nowhere in the above attend regular classes. Instead,
formulation is the right to he gave them a program of self-
discipline more evident than in study with reading materials
“who may be admitted to study.” If and weekly tutorial meetings,
a school has the freedom to quizzes and term papers. The
determine whom to admit, logic Board of Regents approved his
dictates that it also has the right to teaching method. X was charged
determine whom to exclude or before the Ombudsman. Will the
expel, as well as upon whom to action prosper? Why?

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MENDIOLA, MANILA
ANS: No. The teaching style of X is fraud, a university has the right to
supported by the constitutional revoke or withdraw the honor or
guarantee on academic freedom. distinction it has thus conferred.
Academic freedom clothes him This freedom of a university does
with the widest latitude to not terminate upon the
innovate and experiment on the “graduation” of a student, for it is
method of teaching which is most precisely the “graduation” of such
lifting to his students’ subject only student that is in question. (UP
to the rules and policy of the Board of Regents v. Ho. Court of
university. (Camacho v. Coresis, Appeals and Arokiaswamy
G.R. No. 134372, August 22, William Margaret Celine, G.R. No.
2002). 134625, Aug. 31, 1999).
Q— May a university validly revoke Q— State the essential freedoms

a degree or honor it has subsumed in the term “academic
conferred to a student after the freedom”?
graduation of the latter after
finding that such degree or ANS: It is a well-settled rule that the
honor was obtained through essential freedoms subsumed in
fraud? Explain. the term academic freedom
encompass not only the freedom to
ANS: Yes, because of the academic determine on academic grounds
freedom of institutions of higher who may teach, what may be
learning where they are given a taught and how it shall be taught,
wide sphere of authority certainly but likewise who may be admitted
extending to the choice of students. to study. Thus, its invocation by a
If such institution of higher school in rejecting students who
learning can decide who can and are academically delinquent
who cannot study in it, it certainly (Tangonan v. Pano, 137 SCRA
can also determine on whom it can 245 [1985]), or a laywoman
confer the honor and distinction of seeking admission to a seminary
being its graduates. (Garcia v. (Garcia v. Loyola School of
Faculty Admission Committee, Theology, 68 SCRA 277 [1975]),
Loyola School of Theology, 68 or students violating “School Rules
SCRA 277). on Discipline.” (Ateneo de Manila
University v. Capulong, G.R. No.
Hence, where it is shown that the 99327, May 27, 1993; Isabelo, Jr.
conferment of an honor or v. Perpetual Help College of Rizal,
distinction was obtained through Inc., 227 SCRA 595).
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MENDIOLA, MANILA
corrupt officials or personnel

should be terminated from their
Q— A resolution was issued by the loss, then so be it. Fixers or
PRC prohibiting examinees from swindlers should be flushed out.
attending review classes, and Strict guidelines to be observed by
receiving handout materials, examiners should be set up if
tips, and the like three (3) days violations are committed, then
before the date of the licenses should be suspended or
examination to preserve the revoked. (Lupangco vs. CA, 160
integrity and purity of the SCRA 848; Lucena Grand
licensure examinations in Terminal, Inc. vs. Jac Liner, Inc.,
accountancy. Is the resolution G.R. No. 148339, February 23,
valid? Why? 2005).
ANS: No, because of overbreadth.
Besides being unreasonable on its
face and violative of academic Q— May the courts interfere with
freedom, the measure is more the interpretation by the school
sweeping than what was necessary. authorities in interpreting the
It has been held thus: rules in determining who should
graduate with honors? Explain.
“Needless to say, the
enforcement of Resolution No. 105 ANS: As a rule, No, unless there is a
is not a guarantee that the alleged showing of grave abuse of
leakages in the licensure discretion.
examinations will be eradicated or
at least minimized. Making the Sec. 5 (2), Article XIV of the
examines suffer by depriving them Constitution provides that
of legitimate means of review or “[a]cademic freedom shall be
preparation on those last three enjoyed in all institutions of higher
precious days when they should be learning.” Academic freedom
refreshing themselves with all that accords an institution of higher
they have learned in the review learning the right to decide for
classes and preparing their mental itself its aims and objectives and
and psychological make-up for the how best to attain them. This
examination day itself— would be constitutional provision is not to
like uprooting the tree to get rid of be construed in a niggardly
a rotten branch. What is needed to manner or in a grudging fashion.
be done by the respondent is to Certainly, the wide sphere of
find out the source of such autonomy given to universities in
leakages and stop it right there. If the exercise of academic freedom

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MENDIOLA, MANILA
extends to the right to confer individual personalities as a

academic honors. Thus, exercise of natural person, likewise with the
academic freedom grants the freedom of expression, which can
University the exclusive discretion be exercised without
to determine to whom among its incorporation.
graduates it shall confer academic
recognition, based on its If all that petitioners intent to do is
established standards. And the to conduct a study, survey,
courts may not interfere with such research and subsequently publish
exercise of discretion unless there or disseminate the results of such
is a clear showing that the study, survey and research as a
University has arbitrarily and corporation, which is not an
capriciously exercised its objectionable purpose, then, the
judgment. Unlike the UP Board of incorporation should be done in
Regents that has the competence accordance with the legal
and expertise in granting honors to requirements provided under the
graduating students of the Corporation Code, specifically, the
University, courts do not have the provision of Section 17 of the
competence to constitute Corporation Code. Pursuant to said
themselves as an Honor’s section, petitioners should be
Committee and substitute their given a reasonable time to correct
judgment for that of the University or modify the objectionable
officials. (Morales vs. The Board portions in the subject of
of Regents of the UP, G.R. No. incorporation. (Phil. Statehood,
161172, December 13,2004). USA, Inc. vs. SEC, et al., G.R. No.
82493, Jan. 24, 1990).
Q— If the SEC denies the registration

of an association which seeks Q— After Atty. Raul Gonzales was
the Statehood of the Philippines stripped of his power of
in the USA, is this tantamount to investigation as Tanodbayan
abridging the freedom of pursuant to the 1987
association? Why? Constitution, he hurled several
attacks at the Supreme Court
ANS: No. The freedom of association can through the media. He was
be exercised without the suspended on the basis of the
individual or group of individuals same. Rule on the validity of his
incorporating themselves to suspension, whether it violated
acquire juridical personality his freedom of speech or not.
distinct and separate from their
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MENDIOLA, MANILA
ANS: His suspension is valid. Gonzales, G.R. Nos. 74690-707

Respondent Gonzales is entitled to and 80578, Feb. 1, 1989).
the constitutional guarantee of free
speech. No one seeks to deny him
that right, least of all the Supreme Q— May Atty. Gonzales invoke his
Court. What respondent seems right to expression as a lawyer?
unaware of is that freedom of
Why?
speech and of expression, like all
constitutional freedoms, is not ANS: No. A lawyer’s right to free
absolute and that freedom of expression may have been more
expression needs occasion to be limited than that of a layman. A
adjusted to and accommodated lawyer, acting in a professional
with the requirements of equally capacity, may have fewer rights of
important public interests. One of speech than would a private
these fundamental public interests citizen. Neither the right of free
is the maintenance of the integrity speech nor the right to engage in
and orderly functioning of the political activities be construed or
administration of justice. There is extended as to permit any such
no animosity between free liberties to a member of the Bar. A
expression and the integrity of the layman may, perhaps, pursue his
system of administering justice. theories of free speech or political
For the protection and activities until he runs afoul of the
maintenance of freedom of penalties of libel or slander, or into
expression itself can be secured some infraction of the statutory
only within the context of a law. A member of the Bar can, and
functioning and orderly system will, be stopped at the point where
dispensing justice, within the he infringes the Canons of Ethics,
context, in other words, of viable and if he wishes to remain a
independent institutions for member of the bar, he will conduct
delivery of justice which are himself in accordance therewith.
accepted by the general (Zaldivar vs. SB, G.R. Nos. 79690-
community. As Mr. Justice 707; Zaldivar vs. Gonzales, G.R.
Frankfurter puts it: “x xx A free No. 80578, Oct. 7, 1988).
press is not to be preferred to an
independent judiciary, nor an
independent judiciary to a free
Q— Senator Salonga in a speech
press. Neither has primacy over
stated that there is a need for a
the other, both are indispensable
violent struggle in the
to a free speech.” (Zaldivar vs.
Philippines should President
Sandiganbayan and Raul
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MENDIOLA, MANILA
Marcos fail to institute reforms. the results thereof are an

He was charged under the Anti- exercise of press freedom,” it
Subversion Law. Rule on the argues that “press freedom may
validity of the charge, stating be curtailed if the exercise
your reasons. thereof creates a clear and
present danger to the
ANS: He should not have been charged. community or it has a
There was no teaching of the moral dangerous tendency.” It then
propriety of a resort to violence, contended that “an exit poll has
much less on advocacy of force, or the tendency to sow confusion
a conspiracy to organize the use of considering the randomness of
force against the duly constituted selecting interviewees, which
authorities. The alleged remark further makes the exit poll
was not a threat to the government. highly unreliable. The
The speech did not constitute probability that the results of
incitement, but merely an such poll may not be in harmony
expression of opinion. (Salonga vs. with the official count made by
Pano, 134 SCRA 438). Political the Comelec is ever present. In
discussion is within the protective other words, the exit poll has
clause of freedom of speech and clear and present danger of
expression. It cannot be construed destroying the credibility and
as subversive. integrity of the electoral
process.” Rule on the contention.
If the speech, however, incites
immediate action of the people Explain.
listening to the speaker to resort ANS: The contention is not correct. Such
violence, them, that is not part of arguments are purely speculative
the protection. There is immediate and clearly untenable. First, by the
action. very nature of a survey, the
interviewees or participants are
selected at random, so that the
Q— The COMELEC issued a results will as much as possible be
resolution prohibiting the representative or reflective of the
conduct of exit polling justifying general sentiment or view of the
it pursuant to its constitutional community or group polled.
mandate to ensure a free, Second, the survey result is not
orderly, honest, credible and meant to replace or be at par with
peaceful election. While the official COMELEC count. It
admitting that “the conduct of consists merely of the opinion of
an exit poll and the broadcast of the polling group as to who the

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MENDIOLA, MANILA
electorate in general has probably tocreate disorder or confuse the

voted for, based on the limited voters. (ABS-CBN Broadcasting
data gathered from polled Corp. vs. COMELEC, G.R. No.
individuals. Finally, not at stake 133486, January 28, 2000).
here are the credibility and the
integrity of the elections, which are
exercises that are separate and Q— The COMELEC contended that
independent from the exit polls. exit polls indirectly transgress
The holding and the reporting of the sanctity and the secrecy of
the results of exit polls cannot the ballot. Is the contention
undermine those of the elections, correct? Why?
since the former is only a part of
the latter. If at all, the outcome of ANS: No, because there is no access to
one can only be indicative of the the ballots cast by the voters. The
other. ballot system of voting is not at
issue.
The COMELEC’s concern with the
possible non-communicative effect The reason behind the principle of
of exit polls- disorder and ballot secrecy is to avoid vote
confusion in the voting centers- buying through voter identification.
does not justify a total ban on them. This, voters are prohibited from
Undoubtedly, the assailed Comelec exhibiting the contents of their
Resolution is too broad, since its official ballots to other persons,
application is without qualification from making copies thereof, or
as to whether the polling is from putting distinguishing marks
disruptive or not. (See CBS vs. thereon so as to be identified. Also
Smith, 681 F. Supp. 794 [SD Fla. proscribed is finding out the
1988]). Concededly, the Omnibus contents of the ballots cast by
Election Code prohibits disruptive particular voters or disclosing
behavior around the voting centers. those of disabled or illiterate
(See Sec. 261 [d, e, f, k, and z-11]. voters who have been assisted.
See also Arts. 148, 149 and 153 of Clearly, what is forbidden is the
the Revised Penal Code). There is association of voters with their
no showing, however, that exit respective votes, for the purpose of
polls or the means to interview assuring that the votes have been
voters cause chaos in the voting cast in accordance with the
centers. Neither has any evidence instructions of a third party. This
been presented proving that the result cannot, however, be
presence of exit poll reporters achieved merely through the
near an election precinct tends voters’ verbal and confidential

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MENDIOLA, MANILA
disclosure to a pollster of whom restraint. They claimed that in

they have voted for. previous elections, they
published the results of the
In exit polls, the contents of the survey two days before the
official ballot are not actually election without causing
exposes. Furthermore, the confusion among the voters.
revelation of whom an elector has They also contended that there
voted for is not compulsory, but is no historical or empirical
voluntary. Voters may also choose evidence to support the
not to reveal their identities. conclusion that there is
Indeed, narrowly tailored immediate and inevitable
countermeasures may be danger to the voting process
prescribed by the COMELEC, so as posed by election surveys. They
to minimize or suppress incidental also pointed out that there is no
problems in the conduct of exit similar restriction to politicians
polls, without transgressing the making an explanation of their
fundamental right of our people. opinions of political issues thru
(ABS-CBN Broadcasting the media even before the
Corporation vs. COMELEC, G.R. No. election, hence there is no
133486, January 28, 2000). reason for the ordinary voters
to be denied access to the
results of the election surveys
Q— Sec. 5 (4) RA 9006 otherwise which are relatively objective.
known as the Fair Election Act The Comelec, on the other hand,
provides for a prohibition of contended that the law is
publication of election surveys designed to prevent the
affecting national candidates 15 manipulating and corruption of
days before an election and the electoral process, by
surveys affecting local unscrupulous and erroneous
candidates 7 days before an surveys just before the election.
election. Social Weather Stations, The prohibition bears a rational
Inc., and others filed a petition connection with the objective of
for prohibition to the law like the prevention of
enjointheComelec from the debasement of the electoral
enforcing the said law process resulting in the
contending that such restriction manipulation of surveys,
constitutes a prior restraint on bandwagon effect and absence
the exercise of freedom of of reply and that the impairment
speech without any clear and of freedom of expression is
present danger to justify such minimal, the limitation being
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MENDIOLA, MANILA
limited both as to duration and limitation is only for a period

scope as it does not prohibit and is only incidental.
election survey results, but only
requires timeliness. Decide. ANS: The contention is not correct. The
prohibition may be for a limited
ANS: The law constitutes an time, but the curtailment of the
unconstitutional abridgment of the right of expression is direct,
freedom of expression, speech and absolute and substantial. It
the press. To be sure, it lays a prior constitutes a total suppression of a
restraint on the freedom of category of speech and is not mad
expression, speech and the press less just because it is only for a
by prohibiting the publication of period of 15 days immediately
election survey results affecting before a national election and 7
candidates, local or national days immediately before a local
because of the preferred status of election. This sufficiently
the constitutional rights of speech, distinguishes the law from R.A.
expression and the press, such 6646, Sec. 11 9b) which was held
measure is vitiated by a weightly valid in NPC vs. Comelec, 207 SCRA
presumption of invalidity. (Ayer 1 and Osmena vs. Comelec, 288
Productions Pty. Ltd. vs. Capulong, SCRA 447) for the ban in RA 6646
160 SCRA 861). Indeed, any was not only authorized by a
system of prior restraint of specific constitutional provision,
expression bears a heavy (Sec. 4, Article IX-C) but also
presumption against constitutional provided for an alternative. In
validity. (Social Weather Stations, Osmena vs. Comelec, there was
Inc., et al. vs. Comelec, G.R. No. actually no media ban on the
147571, May 5, 2001). To sustain advertisement but the Comelec
the bank of publication of election was required to procure the same.
survey results would sanction the
censorship of all speeches by
candidates in an election on the Q— Why is the law prohibiting the
ground that the usual bombasts publication of results election
and hyperbolic claims made during
surveys not valid?
the campaigns can confuse voters
and thus debase the electoral ANS: It is invalid because: (a) it imposes
process. a prior restraint on the freedom of
expression; (b) it is a direct and
total suppression of a category of
Q— Rule on the contention of the expression even though such
OSG that the law is valid as the suppression is only for a limited

Page | 135
MENDIOLA, MANILA
period; and (c) the governmental “content-neutral restrictions,”

interest sought to be promoted can and give example of each.
be achieved by other means than Explain.
the suppression of the freedom of
expression. ANS: Content-based restrictions are
imposed because of the content of
the speech and are, therefore,
subject to the clear-and-present
Q— What test should be employed to danger test. An example is the case
determine the constitutionality of Sanidad v. Comelec, 181 SCRA
of Sec. 5.4, RA 9006? Explain. 529, prohibiting columnists,
commentators, and announcers
ANS: The O’Brien test. In US vs. O’Brien,
rom campaigning either for or
391 US 367, 377, 20 L. Ed. 2d 672,
680 1968, it was held that a against an issue in a plebiscite
government regulation is must have compelling reason to
support it, or it will not pass
sufficiently justified (1) if it is
within the constitutional power of muster under strict scrutiny. These
restrictions are censorial and
the government; (2) if it furthers
therefore they bear a heavy
an important substantial
presumption of constitutional
governmental interest; (3) if the
invalidity. In addition, they will be
government interest is unrelated
tested for possible overbreadth
to the suppression of free
expression; and (4) if the and vagueness.
incidental restriction on the Content-neutral restrictions, on
freedom of expression is no the other hand, like Sec. 11(b) of
greater than is essential to the R.A. No. 6646, which prohibits the
furtherance of that interest. sale or donation of print space and
air time to political candidates
Under this test, even if a law
during the campaign period, are
furthers an important or
not concerned with the content of
substantial governmental interest,
the speech. These regulations need
it should be invalidated if such
only a substantial governmental
governmental interest is not
interest to support them. A
related to the suppression of
deferential standard of review will
expression.
suffice to test their validity. The
clear-and-present danger rule is
inappropriate as a test for
Q— Distinguish “content-based determining the constitutional
restriction” on free speech from validity of laws, like Sec. 11(b) of

Page | 136
MENDIOLA, MANILA
R.A. No. 6646, which are not election survey results because of
concerned with the content of the possibility that such
political ads but only with their publication might undermine the
incidents. To apply the clear-and- integrity of the election, Sec 5.4
present danger test to such actually suppresses a whole class
regulatory measures would be like of expression, while allowing the
using a sledgehammer to drive a expression of opinion concerning
nail when a regular hammer is all the same subject matter by
that is needed. newspaper columnists, radio and
TV commentators, armchair
The test for this difference in the theorists, and other opinion
level of justification for the makers. In effect, Sec 5.4 shows a
restriction of speech is that bias for a particular subject matter,
content-based restrictions distort if not viewpoint, by preferring
public debate, have improper personal opinion to statistical
motivation, and are usually results. The constitutional
imposed because of fear of how guarantee of freedom of
people will react to a particular expression means that “the
speech. No such reasons underlie government has no power to
content-neutral regulations, like restrict expression because of its
regulation of time, place and message, its ideas, its subject
manner of holding public matter, or its contents.” The
assemblies under B.P. Blg. 880, the inhibition of speech should be
Public Assembly Act of 1985. upheld only if the expression falls
(Osmena vs. COMELEC, 288 SCRA within one of the few unprotected
447). categories dealt with in
Chaplinsky v New Hampshire
(315 US 568, 571-572, 86 L. Ed.
Q: Does Sec. 5.4 meet the 1031, 1035 [1942]), thus:
criterion laid down in O’Brien?
Why?
There are certain well
ANS - No. First Sec 5.4 fails to meet
defined and narrowly
criterion (3) of the O’Brien test
limited classes of speech,
because the causal connection of
the prevention and
expression to the asserted
governmental interest makes such punishment of which have
interest “not unrelated to the never been thought to raise
any Constitutional problem.
suppression of free expression.” By
These include the lewd and
prohibiting the publication of

Page | 137
MENDIOLA, MANILA
obscene, the profane, the security of the community

libelous, and the insulting life may be protected
or ‘fighting’ incite an against incitements to acts
immediate breach of the of violence and the
peace. Such utterances are overthrow by force of
no essential part of any orderly government.
exposition of ideas, and are
of such slight social value as
a step to truth that any Thus, the prohibition imposed by Sec 5.4
benefit that may be derived cannot be justified on the ground that it is
from them is clearly only for a limited period and is only
outweighed by the social incidental. The prohibition may be for a
interest in order and limited time, but the curtailment of the
morality. right of expression is direct, absolute, and
Nor is there justification for the substantial. It constitutes a total
prior restraint which Sec 5.4 lays suppression of a category of speech and is
on protected speech. In Near v not made less so because it is only for a
Minnesota (283 US 697, 715-716, period of fifteen (15) days immediately
75 l. Ed. 1357, 1356 [1931]), it was before a national election and seven (7)
held: days immediately before a local election.
The protection even as to This sufficiently distinguishes Sec 5.4

previous restraint is not from RA 6646, Sec 11(b), which was
absolutely unlimited. But found to be valid in National Press Club v
the limitation has been COMELEC and Osmena v COMELEC. For
recognized only in the ban imposed by RA 6646, Sec 11(b) is
exceptional cases x xx No not only authorized by a specific
one would question but that constitutional provision (Art IX-C, Sec 4),
a government might but it also provided an alternative so that,
prevent actual obstruction as pointed out in Osmena, there was
to its recruiting service or actually no ban but only a substitution of
the publication of the media advertisements by the COMELEC
sailing dates of transports space, and COMELEC hour.
or the number and location Second. Even if the governmental interest
of troops. On similar sought to be promoted is unrelated to the
grounds, the primary suppression of speech and the resulting
requirements of decency restriction of free expression is only
may be enforced against incidental, Sec. 5.4 nonetheless fails to
obscene publications. The meet criterion (4) of the O’Brien test,

Page | 138
MENDIOLA, MANILA
namely, that the restriction be not greater suppressing the publication of survey
than in necessary to further governmental results which are a form of expression? It
interest. As already stated, Sec 5.4 aims has been held that “(mere) legislative
the prevention of last-minute pressure on preferences or beliefs respecting matters
voters, the creation of bandwagon effect, of public convenience may well support
“junking” of weak or “losing” candidates, regulation directed at other personal
and resort to the form of election cheating, activities, but be insufficient to justify
called “dagdagbawas.” Praiseworthy as such as diminishes the exercise of rights
these aims of the regulation might be, so vital to the maintenance of democratic
they cannot be attained at the sacrifice of institutions.”
the fundamental right of expression,
when such aim can be more narrowly To summarize then, Sec. 5.4 is invalid
pursued by punishing unlawful acts because (1) it imposes a prior restraint on
rather than speech because of the freedom of expression, (2) it is a
apprehension that such speech creates direct and total suppression of a category
the danger of such evils. Thus, under the of expression even though such
Administrative Code of 1987, the Comelec suppression is only for a limited period,
is given the power to stop any illegal and (3) the governmental interest sought
activity, or confiscate, tear down, and stop to be promoted can be achieved by means
any unlawful, libelous, misleading, or false other than the suppression of freedom of
election propaganda, after due notice and expression. (Social Weather Stations,
hearing. Inc., v COMELEC, GR. No. 147571, May 5,
2001 [Mendoza])
This is surely less restrictive means that
the prohibition contained in Sec 5.4.
Pursuant to this power of the Comelec, it
Q: Petitioners assailed for being
can confiscate bogus survey results intrinsically vague and impermissible
calculated to mislead voters. Candidates
broad the definition of the crime of
can have their own surveys conducted. No terrorism under RA 9372 in that terms
right of reply can be invoked by others. like “widespread and extraordinary
No principle of equality is involved. It is a fear and panic among the populace”
free market to which each candidate and “coerce the government to give in
brings his ideas. As for the purpose of the to an unlawful demand” are nebulous,
law to prevent bandwagon effects, it is leaving law enforcement agencies with
doubtful whether the Government can
no standard to measure the prohibited
deal with this natural-enough tendency of acts, hence, void for non-vagueness
some voters. Some voters want to be and overbreadth. Respondents,
identified with the “winners.” Some are countered that the doctrines of void
susceptible to the herd mentality. Can for vagueness and overbreadth.
these be legitimately prohibited by Respondents, countered that the
Page | 139
MENDIOLA, MANILA
doctrines of void for vagueness and 165 SCRA 186 (1998). The overbreadth
overbreadth find no application in the doctrine, meanwhile decrees that a
present case since these doctrines governmental purpose to control or
apply only to free speech cases ; and prevent activities constitutionally subject
that RA 9372 regulates conduct, not to state regulations may not be achieved
speech. Is the contention of the by means which sweep unnecessarily
petitioners correct? broadly and thereby invade the area of
protected freedoms. (Bio UmparAdiong v
ANS - No, because the overbreadth and COMELECE, GR. NO. 103956, March 31,
vagueness doctrines have special 1992, 207 SCRA 712)
application only to free speech cases.
They cannot be resorted to invalidate a As distinguished from the vagueness
penal statute. In Romualdez v COMELEC, doctrine, the overbreadth doctrine
the Court stated that a facial invalidation assumes that individuals will understand
of criminal statutes is not appropriate. what a statute prohibits and will
(Estrada v SB, 421 Phil. 290, 2001; accordingly refrain from that behavior,
Southern Hemisphere Engagement even though some of it is protected.
Network, Inc. et. al. v Anti-Terrorism (Southern Hemisphere Engagement
Council, et. al., GR. No. 178552, October Network, Inc. et. al. v Anti-Terrorism
10, 2010) Council, et. al., GR. No. 178552, October
10, 2010)
Q: Do the doctrines of vagueness and

overbreadth operate on the same Q: Is facial challenge of a law the same
plane? Explain? as “As-applied challenge”? Explain.
A: No. A statute or act suffers from defect ANS - No. a “facial challenge is different
of vagueness when it lacks from an “as-applied” challenge.
comprehensible standards that men of
common intelligence must necessarily Distinguished from an as-applied
guess at its meaning and differ as to its challenge which considers only extant
application. It is repugnant to the facts affecting real litigants, a facial
Constitution in two respects: (1) it invalidation is an examination of the
violates due process for failure to accord entire law, pinpointing its flaws and
persons, especially the parties targeted by defects, not only on the basis of its actual
it, fair notice of the conduct to avoid it; operations to the parties, but also on the
and (2) it leaves law enforcers unbridled assumption or prediction that its very
discretion in carrying out its provisions existence may cause others not to before
and becomes an arbitrary flexing of the court to refrain from constitutionally
government muscle (People v Nazario, protected speech or activities. (David v

Page | 140
MENDIOLA, MANILA
Macapagal-Arroyo,GR. No. 171396, May attack penal statutes, such a test will
3, 2006, 489 SCRA 160) impair the State’s ability to deal crime. If
warranted, there would be nothing that
The vagueness and overbreadth doctrines, can hinder an accused from defeating the
as grounds for facial challenge, are not State’s power to prosecute on a mere
applicable to penal laws. A litigant cannot showing that, as applied to third parties,
thus successfully mount a facial challenge the penal statute is vague or overbroad,
against a criminal statute on either notwithstanding that the law is clear as
vagueness or overbreadth grounds. applied to him. (Southern Hemisphere
(Southern Hemisphere Engagement Engagement Network, Inc. et. al. v Anti-
Network, Inc. et. al. v Anti-Terrorism Terrorism Council, et. al., GR. No.
Council, et. al., GR. No. 178552, October 178552, October 10, 2010)
10, 2010)
Q: In insisting on a facial challenge on

Q: Is an “on-its-face” invalidation of the invocation that the law penalizes
penal statutes allowed? speech, petitioners contended that the
ANS - No. The rule established in or element of “unlawful demand” in the
definition of terrorism must
jurisdiction is, only statutes on free
necessarily be transmitted through
speech, religious freedom, and other
some form of expression protected by
fundamental rights may be facially
free speech clause. Is the contention
challenged. Under no case may ordinary
penal statutes be subjected to a facial correct? Why?
challenge. The rational is obvious. If a ANS - No. From the definition of the crime
facial challenge to a penal statute is of terrorism in Section 3 of RA 9372, the
permitted, the prosecution of crimes may following elements may be culled: (1) the
be hampers. No prosecution would be offender commits an act punishable under
possible. A strong criticism against any of the cited provisions of the RPC or
employing a facial challenge in the case of under any of the enumerated special
penal statutes, if the same is allowed, penal laws; (2) the commission of the
would effectively go against the grain of predicate crime sows and creates a
the doctrinal requirement of an existing condition of widespread and
and concrete controversy before judicial extraordinary fear and panic among the
power may be appropriately exercised. A populace; and (3) the offender is actuated
facial challenge against a penal statute is, by the desire to coerce the government to
at best, amorphous and speculative. It give in to an unlawful demand.
would, essentially, force the court to
consider third parties who are not before Before a charge for terrorism may be filed
it. The allowance of a facial challenge to under RA 9372, there must first be a

Page | 141
MENDIOLA, MANILA
predicate crime actually committed to person’s right to privacy. The right to

trigger the operation of the key qualifying disseminate public information does not
phrases in the other elements of the crime, extend to a fictional representation of a
including the coercion of the government person of he is a public figure. In
to accede to an “unlawful demand.” Given accordance with the balancing of interest
the presence of the first element, any test, the validity of the contract must be
attempt at singling out or highlighting the upheld because of the limits of freedom pf
communicative component of the expression are reached when expression
prohibition cannot recategorize the touches upon matters of private concern.
unprotected conduct into a protected (Lagunzad v Gonzales, 92 SCRA 476).
speech.
Utterances not elemental but inevitably
incidental to the doing of the criminal Q: Respondent Katigbak permitted the
conduct alter neither the intent of the law showing if the film “KapitsaPatalim.” It
to punish socially harmful conduct nor was however, classified as “for adults
the essence of the whole act as conduct only”, which petitioner questioned.
and not speech. This holds true a fortiori Discuss the validity or invalidity of the
in the present case where the expression act of respondent. Cite your reasons.
figures only as an inevitable incident of ANS - The act is valid. Motion pictures are
making the element of coercion a medium for communication of ideas and
perceptible. (Southern Hemisphere are recovered by the constitutional
Engagement Network, Inc. et. al. v Anti- guarantee of freedom of expressions. Lack
Terrorism Council, et. al., GR. No. of previous restraint is necessary for the
178552, October 10, 2010) exercise of such right. The power of the
Board of Review for Motion Pictures and
Television is limited to the classification
Q: X, the mother of Moises Padilla, filed of films. The law, however, frowns on
an action for sum of money against Y obscenity. Respondent did not act with
under a contract they signed which grave abuse of discretion in classifying
allowed the filming of the life of Moises the film as “for adults only”, because some
Padilla. Y refused to pay, contending of its contents are not fit for the young.
that under his freedom of speech and Some scenes showed some women
of the press, he had the right to express erotically dancing naked. Another scene
his thoughts in the film concerning the depicted lesbians kissing and caressing.
life of Padilla. Is the contention (Gonzales v Katigbak, 137 SCRA 717)
proper? Why?
ANS - No. Being a public figure does not
automatically destroy completely a

Page | 142
MENDIOLA, MANILA
Q: Suppose there are changes to be faithfully complied with irrespective of a

made and the permit would not be soldier’s personal views on the matter.
issued unless the same are made. Is the (Kapunan, Jr. v AFP Chief of Staff, etc.,
action proper? Why? et.al., GR NO. 83177, Dec. 6, 1988)
ANS - NO, the power is limited to the
classification and not to the issuance or
denial of permit because that is a previous Q: Senator Juan Ponce Enrile sought to
restraint tantamount to censorship. prevent the filming of the docu-drama
However, with respect to television, the based on February 1986 Revolution
principle is different. ParensPatriae will known as “Dangerous Life”. He invoked
come in to protect the children. The clear his right to privacy. He sought to forbid
and present danger rule will become a the use of his name. The RTC issued an
valid test. (Gonzales v Katigbak, supra). injunction. Is the injunction valid?
Why?
ANS - No. Movies come within the
Q: Is the restriction on the part of protection of the free speech clause. The
amilitary officer against issuing any circumstance that the production is a
press statements during the period of commercial activity expected to yield
his house arrest valid without profit is not a disqualification for availing
infringing his freedom of speech? of the freedom of speech and of the press
Explain. or expression. The right to privacy cannot
be invoked to resist publicity of matters of
ANS - Yes, it is valid. The restrictions public interest. Senator Enrile is a public
imposed on a military officer as figure, whose right to privacy is narrower
conditions for his “house arrest”, than that of an ordinary citizen. He has
particularly that he may not issue any not retired from public service. The
press statement or give any press injunction is a prior restraint on the
conference during the period of his freedom of expression.
detention are justified by the requirement
of military service, including the freedom With respect to Honasan, by turning a
of speech, may be circumscribed by the fugitive from justice, he had forfeited any
rules of military discipline. Thus, to a right to claim privacy. (Ayer Production v
certain degree, individual rights are Capulong, GR Nos. 82380 and 82398,
curtailed, because the effectiveness of the April 29, 1988)
military in fulfilling its duties under the
law depends to a large extent on the
maintenance of discipline within its ranks. Q: X, a practicing lawyer, sent a letter
Hence, lawful orders must be followed to the Chairman of the Anti-Smuggling
without question and rules must be

Page | 143
MENDIOLA, MANILA
Action Center denouncing certain such freedom, the publishers of news

agents of the ASAC for allegedly magazines should check the sources of
subjecting his client to indiginities and their information to ensure the
taking necklace and bracelet and her publication of the truth. Freedom of the
son’s watch plus certain amount of press like all other freedoms should be
money. The agents were charged but exercised with responsibility. (Newsweek
were exonerated. He was prosecuted v IAC, GR No. 6359, May 30, 1987)
for libel because the Bulletin Today
published news about the letter. He
filed a Motion to Quash, but it was Q: State the nature of the clear and
denied. If you were the ponente on present danger rule.
appeal, how would you decide? Explain.
ANS - Under the clear and present danger
ANS - I would rule that the letter is a rule, there must be substantive evil which
privileged communication. As a lawyer must be serious and the degree of
and citizen, he has the right to complain
occurrence is imminent. Time element is
against official abuses. He acted in good of the essence as there is a causal
faith and for justifiable ends in making the
relationship between the utterance and
alleged libelous imputations. The vitality the publication and the evil sought to be
of republicanism derives from an alert prevented. Substantive evil will occur as a
citizenry. When citizens discover matter of course because of the utterance
anomalies, it is their duty to expose and and the publicity. There is no time to
denounce it. The sins of the public are avert the danger by an information
imputable to those who commit them.
campaign.
They are also imputable to those who by
their silence or inaction permit or
encourage their commission. (Manuel v
Pano, GR No. 46079, April 17, 1989; see Q: Is the clear and present danger the
also Lopez v CA, 34 SCRA 116; Bulletin only test to restrain forms of speech?
Pub Corp. v Noel GR No. 76565, Nov. 9,
ANS - No. The clear and present danger
1988).
doctrine is not the only test which has
been applied by the courts. Generally, said
doctrine is applied to cases involving the
Q: Is the freedom of expression overthrow of the government and even
absolute? Why? other evils which do not clearly
undermine national security. Since not all
ANS - No. It is subject to the police power evils can be measured in terms of
of the State, for the protection of public “proximity and degree” the Court,
peace, morals, order, safety and general however, in several cases – Ayer
welfare. While a person may exercise

Page | 144
MENDIOLA, MANILA
Productions v Capulong, 160 SCRA 861 To the mind of the Court the balancing of
(1988) and Gonzales v COMELEC, 28 interest doctrine is the more appropriate
SCRA 835 (1969) applied the balancing of test to follow. (Soriano v Laguardia,
interests test. In Gonzales v COMELEC, it et.al,. supra)
was said that “where the legislation under
constitutional attack interferes with the
freedom of speech and assembly in a Q: AB Organization asked for a permit
more generalized way and where the to use Luneta from 10am to 6pm but it
effect of the speech and assembly in terms was denied because of the
of the probability of realization of a recommendation of the police that
specific danger is not susceptible even of trouble might arise. Instead, they were
impressionistic calculation,’ then the asked to use LiwasangBonifacio. Is the
“balancing of interests” test can be
denial valid? Why?
applied. (Soriano v Laguardia, et.al,.
supra) ANS - No. The officer must grant the
permit because they cannot pinpoint any
grave or imminent danger to justify the
Q: State the basis of the balancing of denial. Mere recommendation of the
interests test. Explain. police and existence of proof of clear and
present danger is not enough reason to
ANS - The balancing of interest test, to withhold the permit. (Labor Advisory
borrow from Professor Kauper, rests on and Consultative Council v Lopez, GR No.
the theory that it is the court’s function in 82844, April 29, 1988)
a case before it when it finds public
interests served by legislation, on the one
hand, and the free expression clause
affected by it, on the other, to balance one
against the other and 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 nature that it weighs the
abridgement of freedom, then the court
will find the legislated valid. In short, the
balance-of-interests theory rests on the
basis that constitutional freedoms are not
absolute, not even those stated in the free
speech and expression clause, and that
they may be abridged to some extent to
serve appropriate and important interests.
Page | 145

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SAN BEDA COLLEGE OF LAW 2017

FREEDOM OF EXPRESSION freedom of expression. In Mutuc v.

prescribed election period, the making of be allocated equally among the

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

1. It has a secular legislative purpose; Speech that promotes dialogue on public

through [the] framework [of legislatures to [make or] change laws, . . .

Respondents conceded that the

or functions conferred upon political Petitioners’ exercise of their right

Criticism of official conduct. The leading

administration of justice; it is enough that political activities can be so construed or

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

Court was susceptible to influence. US vs. Bustos

Right of students to free speech in school Meron text na naputol di ko mabasa!!!!!

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

criticism does not authorized

On the contrary, it is a DUTY which The inevitable and incontestable result

the evil-disposed and malignant is privileged is sufficient if it is social or

ISSUE: motion to reconsider its order

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

In Movie and Television Review and In Social Weather Stations v. Comelec,

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

of media of communications) is limited to the prevention of last- minute pressure on

bandwagon effect. DOCTRINE

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

between what involves knowledge and ORDINARY INDIVIDUALS. The counter-

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

information sought to be elicited from "Neither do we agree with petitioner's

would be a drab story of torture and interplay of interests observable in a given

Lastly, neither do we find merit in Whether the "BALANCING OF

years ago, and undoubtedly many other further, be no presentation of the

5. The line of equilibrium in the specific PRIVILEGED COMMUNICATIONS

debate in the Congress or in any

could be proved or because of fear of the defamation of a public official or public

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

the appellate court, they are neither

of the press. As was so well put by Justice

Reyes vs. Bagatsing permit. The Constitution is quite explicit:

assemble and to petition the government context of violence. It must always be

over their irresponsible followers." It excerpt was quoted with approval in

USE OF PUBLIC PLACES CAN ONLY BE

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

peaceable assembly. Even if shown then delicate responsibility of assuring respect

such ordinance to the exercise of the ultimately, the question is to be decided

a judicial question and as a consequence, "There must be objective and convincing,

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

presumed to be malicious [Alonzo v.

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

b) Dangerous Tendency Rule. As Facts: On December 1 and 3, 1983,

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

protected by the Constitutional tendency of the matter charged as

As the Court declared, the issue is a In a much later decision, Gonzalez v.

(2) authorizing them to carry out a search

4. If, in the opinion of the court, [2] if it furthers an important or

DOCTRINE Facts: Petitioners brought this action for

fifteen days before an election, and restraint.’There is thus a reversal of the

Indeed, as has been pointed out in Indeed, it is a mere restriction, not an

and leaves freedom of speech, law furthers an important or

specific constitutional provision, but it and hearing. This is surely a less

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

shed their constitutionally protected which is the power to prescribe