Freedom of Expression - MAD

FREEDOM OF EXPRESSION  There need not be total suppression; even restriction of circulation
Section 4, Art. 3 - No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
What are considered protected speech?
A: Protected speech includes every form of expression, whether oral, written,
tape or disc recorded. It includes motion pictures as well as what is known as
symbolic speech such as the wearing of an armband as a symbol of protest.
Peaceful picketing has also been included within the meaning of speech.
constitutes censorship.
 The restriction was so broad as to include even the citizen’s privately
owned vehicles, equivalent to deprivation of property without due
process of law.
 Movie Censorship. The power of the Board of Review for Motion
Pictures and Television (BRMPT) [now the Movie and Television
Review and Classification Board (MTRCB)] can be exercised only for
purposes of “classification”, not censorship.
In Ayer Productions Pty Ltd. V. Capulong, A public figure’s right to
privacy is narrower than that of an ordinary citizen.

What is the concept behind the provision?

 Exceptions to the rule:
Consistent with its intended role in society, it means that the people are kept
1. When a nation is at war, many things that might be said in time
from any undue interference from the government in their thoughts and words.
of peace are such a hindrance to its effort that their utterance will
The guarantee basically flows from the philosophy that the authorities do not
not be endured so long as men fight and that no court could
necessarily know what is best for the people.
regard them as protected by any constitutional right.
2. The primary requirements of decency may be enforced against
Tests that determine the validity of restraints on freedom of speech and
obscene publications.
expression ( D B C )
3. The security of community life may be protected against
1. Dangerous tendency doctrine
incitements to acts of violence and the overthrow by force of
2. Balancing of interests tests
orderly government.
3. Clear and present danger rule
 Doctrine of Fair Comment
In Borjal v. CA, The doctrine provides that while as a general rule,
What are the four aspects of freedom of speech and press? ( C S A C )
every discreditable public imputation is false because every man is
1. Freedom from censorship or prior restraint
presumed innocent, thus every false imputation is deemed malicious, as
2. Freedom from subsequent punishment
an exception, when the discreditable imputation is directed against a
3. Freedom of access to information
public person in his public capacity, such is not necessarily actionable.
4. Freedom of circulation
For it to be actionable, it must be shown that either there is a false
allegation of fact or comment based on a false supposition.
1. Freedom from censorship or prior restraint
However, if the comment is an expression of opinion, based on
 Meaning: Prior Restraint means official government restrictions on the
established facts; it is immaterial whether the opinion happens to
press or other forms of expression in advance of actual publication
be mistaken, as long as it might reasonably be inferred from facts.
or dissemination.

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 Is the Borjal doctrine applicable in a case where the allegations against a
public official were false and that the journalist did not exert effort to
verify the information before publishing his articles?
A: No. Borjal may have expanded the protection of qualified privileged
communication beyond the instances given in Art. 354 of the RPC, but
this expansion do not cover such a case. The expansion speaks of
"fair commentaries on matters of public interest." While Borjal
places fair commentaries within the scope of qualified privileged
communication, the mere fact that the subject of the article is a public
figure or a matter of public interest does not automatically exclude the
author from liability. His articles cannot even be considered as qualified
privileged communication under the second paragraph of Art. 354 of
the RPC which exempts from the presumption of malice a fair and true
report. Good faith is lacking. (Tulfo vs. G.R. No. 161032, September 16,
2008)
2.
2. Freedom of Subsequent Punishment
 Meaning: The free speech and press clause also prohibits systems of
subsequent punishment which have the effect of unduly curtailing
expression.
Without this assurance, the individual would hesitate to speak for fear
that he might be held to account for his speech, or that he might be
provoking the vengeance of the officials he may have criticized.
 Is freedom from subsequent punishment absolute?
A: No, it may be properly regulated in the interest of the public. The
State may validly impose penal and/or administrative sanctions such as
in the following: ( L O C S )
1. Libel – a public and malicious imputation of a crime, vice or defect,
real or imaginary or any act omission, status tending to cause
dishonor, discredit or contempt of a natural or judicial person,
or blacken the memory of one who is dead (Art 353, Revised
Penal Code). Oral defamation is called slander [Art. 358, Revised
Penal Code].
- Every defamatory imputation is presumed to be
malicious, but this presumption of malice does not exist in
the following instances:
(1) A private communication made by any person to
another in the performance of any legal, moral or social
duty; and
(2) A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other
official proceedings which are not of a confidential nature,
or of any statement, report or speech delivered in said
proceedings, or of any act performed by public officers in
the exercise of their functions [Art. 353, Revised Penal
Code],
Obscenity – In Pita v Court of Appeals, the Supreme Court
declared that the determination of what is obscene is a judicial
function. To wit:
1. The authorities must convince the court that the
materials sought to be seized are obscene and pose a clear and
present danger of an evil substantive enough to warrant State
interference and action;
2. The judge must determine whether or not the same
are indeed obscene. The question is to be resolved on a case-to-
case basis and on the judge’s sound discretion.
- There is no perfect definition of “obscenity”, but the latest
word is that of Miller v. California, which established basic
guidelines, to wit:
(1) Whether the average person, applying
contemporary standards, would find that the work,
taken as a whole, appeals to the prurient interest;
(2) Whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable state law; and
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(3) Whether the work, taken as a whole, lacks serious
literary, artistic, political or scientific value. – S-LAPS
- Kottinger rule ( cited in Pita v. CA) –( C S D )
(1) Whether the tendency of the matter charged as
obscene, is to deprave or corrupt those whose
minds are open to such immoral influences and
into whose hands a publication or other article
charged as being obscene may fall.
(2) Whether it shocks the ordinary and common sense
of men as an indecency.
(3) Whether a picture is obscene or indecent must
depend upon the circumstances of the case and
that the question is to be decided by the "judgment of
the aggregate sense of the community reached by it
3. Criticism of Official Conduct – the constitutional guarantee requires
a federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct
unless he proves that the statement was made with actual malice.
- The leading case of U.S. v. Bustos, is authority for the rule
that the individual is given the widest latitude in
criticism of official conduct. The Supreme Court
compared criticism to a “scalpel that relieves the abscesses
of officialdom”.
- In People v. Alarcon, it was held that newspaper
publications tending to impede, obstruct, embarrass or
influence the courts in administering justice in a pending
suit or proceeding constitutes criminal contempt which
is summarily punishable by the courts.
 It is not necessary to show that the publication
actually obstructs the administration of justice; it
is enough that it tends to do so.
4. Rights of students to free speech in school premises not absolute –
This right must always be applied in light of the special
characteristics of the school environment. While the Campus
Journalism Act provides that a student shall not be expelled or
suspended solely on the basis of articles he or she has written, the
same should not infringe on the school’s right to discipline its
students. Thus, this section of the Campus Journalism Act should
be read to mean that the school cannot suspend or expel a student
solely on the basis of the articles he or she has written, except
when such article materially disrupts class work or involves
substantial disorder or invasion of rights of others [Miriam College
Foundation v. Court of Appeals, G.R. No. 127930, December 15,
2000]
Clear and Present Danger Rule
 Whether the words are used in such circumstances and of such a
nature as to create a clear and present danger that they will bring
about the substantive evils that the State has the right to prevent.
“The substantive evil must be extremely serious and the degree of
imminence extremely high before utterances can be punished”.
 The rule is that the danger created must not only be clear and present
but also traceable to the ideas expressed.
 Clear - seems to point to a causal connection with the danger of the
substantive evil arising from the utterance questioned.
 Present - refers to the time element, identified with imminent and
immediate danger. The danger must not only be probable, but very
likely inevitable.
In Reyes v. Bagatsing, The denial of a rally does not pass the clear and
present danger test. The mere assertion that subversives may infiltrate
the ranks of the demonstrators does not suffice.
Dangerous Tendency Rule
 The words uttered create a dangerous tendency of an evil which the
State has the right to prevent, and then such words are punishable. It is
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sufficient if the natural tendency and the probable effect of the
utterance were to bring about the substantive evil that the
legislative body seeks to prevent.
Balancing of interest
 When particular conduct is regulated in the interest of public order,
and the regulation results in an indirect, conditional, or partial
abridgment of speech, the duty of the courts is to determine which
of the two conflicting interests demands the greater protection
under the particular circumstances presented.
 In Soriano v. MTRCB, the Court, applying the balancing of interest
doctrine, ruled that the government’s interest to protect and promote
the interests and welfare of the children adequately buttresses the
reasonable curtailment and valid restraint on petitioner’s prayer to
continue as program host of Ang Dating Daan during the suspension
period. Soriano’s offensive and obscene language uttered on prime‐
time television broadcast, without doubt, was easily accessible to the
children. His statements could have exposed children to a language that
is unacceptable in everyday use. As such, the welfare of children and
the State’s mandate to protect and care for them, as parens patriae,
constitute a substantial and compelling government interest in
regulating.
Other Notes:
CONTENT‐NEUTRAL REGULATION CONTENT‐BASED RESTRAINT
Substantial governmental interest is They are given the strictest scrutiny in
required for their validity, and they light of their inherent and invasive
are not subject to the strictest form of impact.
judicial scrutiny rather only an
intermediate approach‐ somewhere
between the rationality that is
required of a law and the compelling
interest standard applied to content‐
based restrictions.
Note: When the prior restraint partakes of a content‐neutral regulation, it is
subject to an intermediate review. A content‐based regulation or any system or
prior restraint comes to the Court bearing a heavy presumption against its
unconstitutionality and thus measured against the clear and present danger rule,
giving the government a heavy burden to show justification for the imposition of
such restraint and such is neither vague nor overbroad.
Facial Challenge
A facial challenge is a challenge to a statute in court, in which the plaintiff
alleges that the legislation is always, and under all circumstances,
unconstitutional, and therefore void.
Facial challenge to a statute is allowed only when it operates in the area of
freedom of expression. Invalidation of the statute on its face, rather than as
applied, is permitted in the interest of preventing a chilling effect on freedom of
expression.
How is "facial" challenge different from "as‐applied" challenge?
A: Distinguished from an as‐applied challenge which considers only extant facts
affecting real litigants, a facial invalidation is an examination of the entire
law, pinpointing its flaws and defects, not only on the basis of its actual
operation to the parties, but also on the assumption or prediction that its very
existence may cause others not before the court to refrain from constitutionally
protected speech or activities.
Overbreadth Doctrine
The overbreadth doctrine permits a party to challenge the validity of a statute
even though as applied to him it is not unconstitutional but it might be if applied
to others not before the Court whose activities are constitutionally protected.
It is a type of facial challenge that prohibits the government from achieving its
purpose by means that “sweep unnecessarily broadly, reaching constitutionally
protected as well as unprotected activity.
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ASSEMBLY AND PETITION
Is the right to assembly subject to prior restraint?
The right to assemble is not subject to prior restraint. It may not be
conditioned upon the prior issuance of a permit or authorization from
government authorities. However, the right must be exercised in such a way as
will not prejudice the public welfare,
 In Primicias v. Fugoso if the assembly is to be held in a public place, a
permit for the use of such place, and not for the assembly itself, may be
validly required. Fear of serious injury cannot alone justify
suppression of free speech and assembly. But the power of local
officials in this regard is merely one of regulation, not prohibition.
- Thus, a permit to hold a public assembly shall not be
necessary where the meeting is to be held in a private
place, 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 upon within
two days, otherwise the permit shall be deemed
granted.
- Denial of the permit may be justified only upon clear and
convincing evidence that the public assembly will create a
clear and present danger to public order, safety,
convenience, morals or health.
- The law permits law enforcement agencies to detail a
contingent under a responsible officer at least 100 meters
away from the assembly in case it becomes necessary to
maintain order.
 In Malabanan v. Ramento, if the assembly is to be held in school
premises, permit must be sought from its school authorities, who are
devoid of the power to deny such request arbitrarily or unreasonably.
In granting such permit, there may be conditions as to the time and
place of the assembly to avoid disruption of classes or stoppage of work
of the non-academic personnel. Even if, however, there be violations of
its terms, the penalty incurred should not be disproportionate to the
offense.
Other notes:
In Bayan v. Ermita, the petitioners assailed the constitutionality of BP 880. The
SC held that B.P. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the
assemblies. It refers to all kinds of public assemblies that would use public
places. The reference to “lawful cause” does not make it content-based because
assemblies really have to be for lawful causes, otherwise they would not be
“peaceable” and entitled to protection.
____________________________________________________________________________________________
BATAS PAMBANSA BLG. 880
AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT
PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER
PURPOSES
Section 1. Title - This Act shall be known as "The Public Assembly Act of 1985."
Section 2. Declaration of policy - The constitutional right of the people peaceably to
assemble and petition the government for redress of grievances is essential and vital to
the strength and stability of the State. To this end, the State shall ensure the free exercise
of such right without prejudice to the rights of others to life, liberty and equal protection
of the law.
Section 3. Definition of terms - For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade,
procession or any other form of mass or concerted action held in a public place
for the purpose of presenting a lawful cause; or expressing an opinion to the
general public on any particular issue; or 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, demonstrations, public meetings and
assemblages for religious purposes shall be governed by local ordinances:
Provided, however, That the declaration of policy as provided in Section 2 of
this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted
action in strike areas by workers and employees resulting from a labor dispute
as defined by the Labor Code, its implementing rules and regulations, and by
the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street,
bridge or other thoroughfare, park, plaza, square, and/or any open space of
public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the
military, police and other peace keeping authorities shall observe during a
public assembly or in the dispersal of the same.
(d) "Modification of permit" shall include the change of the place and time of
the public assembly, rerouting of the parade or street march, the volume of
loud-speakers or sound system and similar changes.
Section 4. Permit when required and when not required - A written permit shall be
required for any person or persons to organize and hold a public assembly in a public
place. However, no permit shall be required if the public assembly shall be done or made
in a freedom park duly established by law or ordinance or in private property, in which
case only the consent of the owner or the one entitled to its legal possession is required,
or in the campus of a government-owned and operated educational institution which
shall be subject to the rules and regulations of said educational institution. Political
meetings or rallies held during any election campaign period as provided for by law are
not covered by this Act.
Section 5. Application requirements - All applications for a permit shall comply with the
following guidelines:
(a) The applications shall be in writing and shall include the names of the
leaders or organizers; the purpose of such public assembly; the date, time and
duration thereof, and place or streets to be used for the intended activity; and
the probable number of persons participating, the transport and the public
address systems to be used.
(b) The application shall incorporate the duty and responsibility of applicant
under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least
five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in
writing, the office of the city or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in the city or municipal building.
Section 6. Action to be taken on the application -
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or
grant a permit unless there is clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing
which, the permit shall be deemed granted. Should for any reason the mayor or
any official acting in his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the office of the
mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application
within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the decision
in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions may be appealed to the appropriate
court within forty-eight (48) hours after receipt of the same. No appeal bond
and record on appeal shall be required. A decision granting such permit or
modifying it in terms satisfactory to the applicant shall, be immediately
executory.
(g) All cases filed in court under this Section shall be decided within twenty-
four (24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next in
rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Section 7. Use of public thoroughfare - Should the proposed public assembly involve the
use, for an appreciable length of time, of any public highway, boulevard, avenue, road or
street, the mayor or any official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to the participants or
reroute the vehicular traffic to another direction so that there will be no serious or
undue interference with the free flow of commerce and trade.
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Section 8. Responsibility of applicant - It shall be the duty and responsibility of the
leaders and organizers of a public assembly to take all reasonable measures and steps to
the end that the intended public assembly shall be conducted peacefully in accordance
with the terms of the permit. These shall include but not be limited to the following:
(a) To inform the participants of their responsibility under the permit;
(b) To police the ranks of the demonstrators in order to prevent non-
demonstrators from disrupting the lawful activities of the public assembly;
(c) To confer with local government officials concerned and law enforcers to
the end that the public assembly may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the
time stated in the permit; and
(e) To take positive steps that demonstrators do not molest any person or do
any act unduly interfering with the rights of other persons not participating in
the public assembly.
Section 9. Non-interference by law enforcement authorities - Law enforcement agencies
shall not interfere with the holding of a public assembly. However, to adequately ensure
public safety, a law enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred (100) meter away
from the area of activity ready to maintain peace and order at all times.
Section 10. Police assistance when requested - It shall be imperative for law enforcement
agencies, when their assistance is requested by the leaders or organizers, to perform
their duties always mindful that their responsibility to provide proper protection to
those exercising their right peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall observe the following
guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and units to
which they belong displayed prominently on the front and dorsal parts of their
uniform and must observe the policy of "maximum tolerance" as herein
defined;
(b) The members of the law enforcement contingent shall not carry any kind of
firearms but may be equipped with baton or riot sticks, shields, crash helmets
with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence or
serious threats of violence, or deliberate destruction of property.
Section 11. Dispersal of public assembly with permit - No public assembly with a permit
shall be dispersed. However, when an assembly becomes violent, the police may disperse
such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects
from the participants are thrown at the police or at the non-participants, or at
any property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the
disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbances prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of the
public assembly, and after allowing a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during
the public assembly unless he violates during the assembly a law, statute,
ordinance or any provision of this Act. Such arrest shall be governed by Article
125 of the Revised Penal Code, as amended:
(e) Isolated acts or incidents of disorder or branch of the peace during the
public assembly shall not constitute a group for dispersal.
Section 12. Dispersal of public assembly without permit - When the public assembly is
held without a permit where a permit is required, the said public assembly may be
peacefully dispersed.
Section 13. Prohibited acts - The following shall constitute violations of this Act:
(a) The holding of any public assembly as defined in this Act by any leader or
organizer without having first secured that written permit where a permit is
required from the office concerned, or the use of such permit for such purposes
in any place other than those set out in said permit: Provided, however, That no
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person can be punished or held criminally liable for participating in or In the cities and municipalities of Metropolitan Manila, the respective mayors shall
attending an otherwise peaceful assembly; establish the freedom parks within the period of six months from the effectivity of this
(b) Arbitrary and unjustified denial or modification of a permit in violation of Act.
the provisions of this Act by the mayor or any other official acting in his behalf.
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the
application for a permit by the mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement
agency or any person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters
from the area of activity of the public assembly or on the occasion thereof;
1. the carrying of a deadly or offensive weapon or device such as
firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3 the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a
public assembly by the use of a motor vehicle, its horns and loud
sound systems.

Section 14. Penalties - Any person found guilty and convicted of any of the prohibited
acts defined in the immediately preceding Section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one

month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph
(g) shall be punished by imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of
six months and one day to six years without prejudice to prosecution under
Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished
by imprisonment of one day to thirty days.

Section 15. Freedom parks - Every city and municipality in the country shall within six
months after the effectivity of this Act establish or designate at least one suitable
"freedom park" or mall in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations and meetings may be
held at any time without the need of any prior permit.