Clear and Present Danger.

Certain expression, oral or writ-ten, may incite, urge, counsel, advocate, or importune the commission
of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms
of “symbolic” action, may either counsel the commission of criminal conduct or itself constitute criminal
conduct. Leaving aside for the moment the problem of “speech-plus” communication, it becomes
necessary to determine when expression that may be a nexus to criminal conduct is subject to
punishment and restraint. At first, the Court seemed disposed in the few cases reaching it to rule that if
the conduct could be made criminal, the advocacy of or promotion of the conduct could be made
criminal.463 Then, in Schenck v. United States,464 in which the defendants had been convicted of
seeking to disrupt recruitment of military personnel by disseminating leaflets, Justice Holmes formulated
the “clear and present danger” test that has ever since been the starting point of argument. “The
question in every case is whether the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree.”465 The convictions were
unanimously affirmed. One week later, the Court again unanimously affirmed convictions under the
same act with Justice Holmes writing, “we think it necessary to add to what has been said in Schenck v.
United States only that the First Amendment while prohibiting legislation against free speech as such
cannot have been, and obviously was not, intended to give immunity for every possible use of language.
We venture to believe that neither Hamilton nor Madison, nor any other competent person then or
later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of
Congress would be an unconstitutional interference with free speech.”466 And, in Debs v. United
States,467 Justice Holmes upheld a conviction because “the natural and intended effect” and the
“reasonably probable effect” of the speech for which the defendant was prosecuted was to obstruct
military recruiting.

In Abrams v. United States,468 however, Justices Holmes and Brandeis dissented upon affirmance of the
convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with the
United States’ participation in World War I. The majority simply referred to Schenck and Frohwerk to
rebut the First Amendment argument, but the dissenters urged that the government had made no
showing of a clear and present danger. Another affirmance by the Court of a conviction, the majority
simply saying that “[t]he tendency of the articles and their efficacy were enough for the offense,” drew a
similar dissent.469 Moreover, in Gitlow v. New York,470 a conviction for distributing a manifesto in
violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of
overthrowing organized government by force or violence, the Court affirmed in the absence of any
evidence regarding the effect of the distribution and in the absence of any contention that it created any
immediate threat to the security of the state. In so doing, the Court discarded Holmes’ test. “It is clear
that the question in such cases [as this] is entirely different from that involved in those cases where the
statute merely prohibits certain acts involving the danger of substantive evil, without any reference to
language itself, and it is sought to apply its provisions to language used by the defendant for the
purpose of bringing about the prohibited results. . . . In such cases it has been held that the general
provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its
natural tendency and probable effect was to bring about the substantive evil which the legislative body
might prevent. . . . And the general statement in the Schenck Case . . . was manifestly intended . . . to
apply only in cases of this class, and has no application to those like the present, where the legislative
body itself has previously determined the danger of substantive evil arising from utterances of a
specified character.”471 Thus, a state legislative determination “that utterances advocating the
overthrow of organized government by force, violence and unlawful means, are so inimical to the
general welfare and involve such danger of substantive evil that they may be penalized in the exercise of
its police power” was almost conclusive to the Court.472 It is not clear what test, if any, the majority
would have used, although the “bad tendency” test has usually been associated with the case.
In Whitney v. California,473 the Court affirmed a conviction under a criminal syndicalism statute based
on the defendant’s association with and membership in an organization that advocated the commission
of illegal acts, finding again that the determination of a legislature that such advocacy involves “danger
to the public peace and the security of the State” was entitled to almost conclusive weight. In a technical
concurrence, which was in fact a dissent from the opinion of the Court, Justice Brandeis restated the
“clear and present danger” test. “[E]ven advocacy of violation [of the law] . . . is not a justification for
denying free speech where the advocacy fails short of incitement and there is nothing to indicate that
the advocacy would be immediately acted on. . . . In order to support a finding of clear and present
danger it must be shown either that immediate serious violence was to be expected or was advocated,
or that the past conduct furnished reason to believe that such advocacy was then contemplated.”474

472

268 U.S. at 668. Justice Holmes dissented. “If what I think the correct test is applied, it is manifest that
there was no present danger of an attempt to overthrow the government by force on the part of the
admittedly small minority who shared the defendant’s views. It is said that this manifesto was more than
a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it
is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its
birth. The only difference between the expression of an opinion and an incitement in the narrower
sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be
thought of the redundant discourse before us it had no chance of starting a present conflagration. If in
the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the
dominant forces of the community, the only meaning of free speech is that they should be given their
chance and have their way.” Id. at 673.

Ermita-Malate Hotel and Motel Operators v. City of Manila G.R. No. L-24693 [Case Digest]
 Facts:

            The City of Manila enacted an Ordinance No. 4760 to require the owner, manager, keeper or duly
authorized representative of a hotel, motel, or lodging house to refrain from entertaining or accepting
any guest or customer or letting any room or other quarter to any person or persons without his filling
up the prescribed form in a lobby open to public view at all times and in his presence.

            The Ermita-Malate Hotel Operators question the constitutionality of the said ordinance on the
ground that it is violative of due process clause of the Bill of Rights.
 

Issue:

            Whether or not Ordinance No. 4760 of the City of Manila is violative of the due process clause.

Held:

            No.

Ratio:

            This particular manifestation of a police power measure being specifically aimed to safeguard
public morals is immune from such imputation of nullity resting purely on conjecture and unsupported
by anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of police
power which has been properly characterized as the most essential, insistent and the least limitable of
powers, extending as it does "to all the great public needs."

Synopsis of Rule of Law. Standing is denied to “generalized grievances.”

Facts. Plaintiff sued Congress, hoping to compel release of detailed funding records of CIA funding.
Plaintiff based his standing to sue on his status as a United States taxpayer.

Issue. Is taxpayer status sufficient to establish standing to bring suit in this case?

Held. No. Appeals court ruling reversed and remanded.

The Supreme Court of the United States (Supreme Court) applied the two-prong test developed in

Brief Fact Summary. Richardson, the Plaintiff-Respondent (Plaintiff) sued Congress. He alleged that
public reporting under the Central Intelligence Agency (“CIA”) Act of 1949 violates Article I, s 9, cl. 7 (the
Act) of the United States Constitution (Constitution), the statement and account clause.

G.R. No. L-5060 – 15 Phil. 85 – Political Law – Police Power – Limitations on Private
Ownership – General Welfare
Sometime in the 1900s, Toribio applied for a permit to have his carabao slaughtered for human
consumption. His request was denied because his carabao was found not unfit for work. He
nevertheless slaughtered his carabao without the necessary license. He was eventually sued and was
sentenced by the trial court. His counsel argued that the law requiring one to acquire a permit before
slaughtering a carabao is not a valid exercise of police power.

ISSUE: Whether or not the said law is valid.

 HELD: The SC  ruled against Toribio. The SC explained that it “is not a taking of the property for public
use, within the meaning of the constitution, but is a just and legitimate exercise of the power of the
legislature to regulate and restrain such particular use of the property as would be inconsistent with or
injurious to the rights of the public. All property is acquired and held under the tacit condition that it
shall not be so used as to injure the equal rights of others or greatly impair the public rights and
interests of the community.” The wisdom behind said law: the prohibition of the slaughter of carabaos
for human consumption, so long as these animals are fit for agricultural work or draft purposes was a
“reasonably necessary” limitation on private ownership, to protect the community from the loss of the
services of such animals by their slaughter by improvident owners, tempted either by greed of
momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and dangerously affected

Ormoc Sugar vs Treasurer of Ormoc City (1968)

The Ordinance taxes only centrifugal sugar produced and exported by the Ormoc Sugar Co. Inc. and
none other. At the time of the taxing ordinance’s enacted, the company was the only sugar central in
Ormoc City. The classification, to be reasonable, should be in terms applicable to future conditions as
well. The taxing ordinance should not be singular and exclusive as to exclude any subsequently
established sugar central, of the same class as the present company, from the coverage of the tax. As it
is now, even if later a similar company is set up, it cannot be subject to the tax because the ordinance
expressly points only to the company as the entity to be levied upon.

  (1) it is based on substantial distinctions which make real differences;

 (2) these are germane to the purpose of the law;
 (3) the classification applies not only to present conditions but also to future conditions
which are substantially identical to those of the present;
 (4) the classification applies only to those who belong to the same class.
 The questioned ordinance does not meet the requisites for a reasonable classification.

PEOPLE V PEREZ

Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692, appears to have
been placed on the statute books exactly to meet such a situation. This section reads as follows:
"Every person who shall utter seditious words or speeches, or who shall write, publish or circulate
scurrilous libels against the Government of the United States or against the Government of the
Philippine Islands, or who shall print, write, publish, utter or make any statement, or speech, or do any
act which tends to disturb or obstruct any lawful officer in executing his office or in performing his duty,
or which tends to instigate others to cabal or meet together for unlawful purposes, or which suggests or
incites rebellious conspiracies or which tends to stir up the people against the lawful authorities, or
which tends to disturb the peace of the community or the safety or order of the Government, or who
shall knowingly conceal such evil practices from the constituted authorities, shall be punished by a fine
not exceeding two thousand dollars United States currency or by imprisonment not exceeding two
years, or both, in the discretion of the court."

In the words of the law, Perez has uttered seditious words. He has made a statement and done an act
which tended to instigate others to cabal or meet together for unlawful purposes. He has made a
statement and done an act which suggested and incited rebellious conspiracies. He has made a
statement and done an act which tended to stir up the people against the lawful authorities. He has
made a statement and done an act which tended to disturb the peace of the community and the safety
or order of the Government. All of these various tendencies can be ascribed to the action of Perez and
may be characterized as penalized by section 8 of Act No. 292 as amended.

ICHONG v. HERNANDEZ
101 PHIL 115
FACTS:
Petitioner, also in behalf of other alien residents’ corporations and partnerships,
brought this action to obtain a judicial declaration that RA 1180 is unconstitutional.
Petitioner contends, among others, that said act violates the equal protection of laws
and that it violates the treaty of the Philippines with China. Solicitor General contends
that the act was a valid exercise of the police power and that not a single treaty was
infringed by said act.

ISSUE:
Whether or not RA 1180 violates the equal protection of laws

HELD:
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination on the oppression of inequality. The real
question at hand is whether or not the exclusion of the future aliens for the retail trade
unreasonable. The equal protection clause “is not infringed by a specified class if it
applies to all persons within such class and reasonable grounds exist for making a
distinction between those who fall within such class and those who do not”. Aliens are
under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality.
The difference in status between citizens and aliens constitute a basis for reasonable
classification in the exercise of police power.

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Us v causby

Question
Did the flying of planes by the United States military over Causby's farm constitute a violation of the Takings
Clause of the Fifth Amendment?

Rule:
Yes, to an extent. In a 5-2 opinion authored by Justice William O. Douglas, the Court concluded
that the ancient common law doctrine "has no place in the modern world." Justice Douglas
noted that, were the Court to accept the doctrine as valid, "every transcontinental flight would
subject the operator to countless trespass suits. Common sense revolts at the idea." However,
while the Court rejected the unlimited reach above and below the earth described in the
common law doctrine, it also ruled that, "if the landowner is to have full enjoyment of the land,
he must have exclusive control of the immediate reaches of the enveloping atmosphere."
Without defining a specific limit, the Court stated that flights over the land could be considered a
violation of the Takings Clause if they led to "a direct and immediate interference with the
enjoyment and use of the land." Given the damage caused by the particularly low, frequent
flights over his farm, the Court determined that the government had violated Causby's rights,
and he was entitled to compensation. (Chief Justice Harlan Fiske Stone died on April 22; Justice
Robert H. Jackson took no part in the consideration or decision in the case, leaving the court
with 7 members.)

MARBURY V MADISON

Question
1. Do the plaintiffs have a right to receive their commissions?
2. Can they sue for their commissions in court?
3. Does the Supreme Court have the authority to order the delivery of their commissions?
4. The Court found that Madison’s refusal to deliver the commission was illegal, but
did not order Madison to hand over Marbury’s commission via writ of mandamus.
Instead, the Court held that the provision of the Judiciary Act of 1789 enabling
 Marbury to bring his claim to the Supreme Court was itself unconstitutional, since
it purported to extend the Court’s original jurisdiction beyond that which Article III,
Section 2, established. 
5. Marshall expanded that a writ of mandamus was the proper way to seek a
remedy, but concluded the Court could not issue it. Marshall reasoned that the
Judiciary Act of 1789 conflicted with the Constitution. Congress did not have
power to modify the Constitution through regular legislation because Supremacy
Clause places the Constitution before the laws. 
6. In so holding, Marshall established the principle of judicial review, i.e., the power
to declare a law unconstitutional. 

The Liberty Interest.

With respect to liberty interests, the Court has followed a similarly
meandering path. Although the traditional concept of liberty was freedom
from physical restraint, the Court has expanded the concept to include
various other protected interests, some statutorily created and some
not.834 Thus, in Ingraham v. Wright,835 the Court unanimously agreed that
school children had a liberty interest in freedom from wrongfully or
excessively administered corporal punishment, whether or not such interest
was protected by statute. “The liberty preserved from deprivation without
due process included the right ‘generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of happiness
by free men.’ . . . Among the historic liberties so protected was a right to be
free from, and to obtain judicial relief for, unjustified intrusions on personal
security.”836
The Court also appeared to have expanded the notion of “liberty” to include
the right to be free of official stigmatization, and found that such threatened
stigmatization could in and of itself require due process. 837 Thus,
in Wisconsin v. Constantineau,838 the Court invalidated a statutory scheme
in which persons could be labeled “excessive drinkers,” without any
opportunity for a hearing and rebuttal, and could then be barred from places
where alcohol was served. The Court, without discussing the source of the
entitlement, noted that the governmental action impugned the individual’s
reputation, honor, and integrity.839
But, in Paul v. Davis,840 the Court appeared to retreat from recognizing
damage to reputation alone, holding instead that the liberty interest
extended only to those situations where loss of one’s reputation also
resulted in loss of a statutory entitlement. In Davis, the police had included
plaintiff ’s photograph and name on a list of “active shoplifters” circulated to
merchants without an opportunity for notice or hearing. But the Court held
that “Kentucky law does not extend to respondent any legal guarantee of
present enjoyment of reputation which has been altered as a result of
petitioners’ actions. Rather, his interest in reputation is simply one of a
number which the State may protect against injury by virtue of its tort law,
providing a forum for vindication of those interest by means of damage
actions.”841 Thus, unless the government’s official defamation has a specific
negative effect on an entitlement, such as the denial to “excessive drinkers”
of the right to obtain alcohol that occurred in Constantineau, there is no
protected liberty interest that would require due process.
A number of liberty interest cases that involve statutorily created
entitlements involve prisoner rights, and are dealt with more extensively in
the section on criminal due process. However, they are worth noting here.
In Meachum v. Fano,842 the Court held that a state prisoner was not entitled
to a fact-finding hearing when he was transferred to a different prison in
which the conditions were substantially less favorable to him, because (1)
the Due Process Clause liberty interest by itself was satisfied by the initial
valid conviction, which had deprived him of liberty, and (2) no state law
guaranteed him the right to remain in the prison to which he was initially
assigned, subject to transfer for cause of some sort. As a prisoner could be
transferred for any reason or for no reason under state law, the decision of
prison officials was not dependent upon any state of facts, and no hearing
was required.
In Vitek v. Jones,843 by contrast, a state statute permitted transfer of a
prisoner to a state mental hospital for treatment, but the transfer could be
effectuated only upon a finding, by a designated physician or psychologist,
that the prisoner “suffers from a mental disease or defect” and “cannot be
given treatment in that facility.” Because the transfer was conditioned upon
a “cause,” the establishment of the facts necessary to show the cause had to
be done through fair procedures. Interestingly, however, the Vitek Court
also held that the prisoner had a “residuum of liberty” in being free from the
different confinement and from the stigma of involuntary commitment for
mental disease that the Due Process Clause protected. Thus, the Court has
recognized, in this case and in the cases involving revocation of parole or
probation,844 a liberty interest that is separate from a statutory entitlement
and that can be taken away only through proper procedures.
But, with respect to the possibility of parole or commutation or otherwise
more rapid release, no matter how much the expectancy matters to a
prisoner, in the absence of some form of positive entitlement, the prisoner
 may be turned down without observance of procedures. 845 Summarizing its
prior holdings, the Court recently concluded that two requirements must be
present before a liberty interest is created in the prison context: the statute
or regulation must contain “substantive predicates” limiting the exercise of
discretion, and there must be explicit “mandatory language” requiring a
particular outcome if substantive predicates are found. 846 In an even more
recent case, the Court limited the application of this test to those
circumstances where the restraint on freedom imposed by the state creates
an “atypical and significant hardship.”847

HUGO BLCAK DISSENTING OPINION - KOREMATSU

In an opinion written by Justice Black, the Court ruled that the evacuation order violated
by Korematsu was valid. The majority found that the Executive Order did not show
racial prejudice but rather responded to the strategic imperative of keeping the U.S. and
particularly the West Coast (the region nearest Japan) secure from invasion. The Court
relied heavily on a 1943 decision, Hirabayashi v. U.S., which addressed similar issues.
Black argued that the validation of the military's decision by Congress merited even
more deference. 

Justice Frankfurter concurred, writing that the “martial necessity arising from the danger
of espionage and sabotage” warranted the military’s evacuation order. 

Justice Jackson dissented, arguing that the exclusion order legitimized racism that
violated the Equal Protection Clause of the Fourteenth Amendment. 

Olmstead

Does using wiretapped conversations, that were not obtained through a warrant,
as evidence at a criminal trial violate the Fourth or Fifth Amendments?  No.

Judgment:
The decision of the Ninth Circuit Court of Appeals is affirmed.
Rule of Law or Legal Principle Applied:
Using wiretapped conversations that were not obtained through a warrant, as
evidence at a criminal trial does not violate the Fourth or Fifth Amendments.
Reasoning:
As a threshold matter, there is no Fifth Amendment issue here because
Olmstead and the other defendants in the case were voluntarily engaging in
business over the telephone.  Therefore, there was no compelled statement of
incrimination.
With regard to the Fourth Amendment, excluding evidence at trial if the evidence
was obtained in violation of the Fourth Amendment is proper.  However, the
Fourth Amendment does not apply to wiretapped phone conversations.  It applies
to “letters and effects,” but not to conversations.  There was no search or seizure
in this case, and no entry into anyone’s house.
Congress can pass a law to protect the use of phone conversations at trial, but
the Court will not read the Fourth Amendment as covering wiretapped
conversations.