Module 6

Limits to Freedom of Speech and of the Press

and to the Right to Information

Objectives:
At the end of this module, you are expected to:
1. Discuss the limitations of freedom of speech and of the
press; and

2. Digest cases on the limitations of freedom of speech and

of the press.

1. The Right to Privacy

a. Concept
The right to privacy has been defined as “the right to be left
alone." This phrase was first used in a treatise on tort law by Thomas
Cooley in 1888. It became equated with the right of privacy by its use
in the December 15, 1890, Harvard Law Review Article of Samuel D.
Warren and Louis D. Brandeis entitled, “The Right to Privacy."
In the landmark case of Morfe v. Mutuc (22 SCRA 424 [1968]) where
the issue of privacy was one of first impression, the Court cited in a
footnote the column of Carmen Guerrero-Nakpil, “Consensus of One,"
where she wrote:
Privacy? What's that? There is no precise word for it in
Pilipino, and as far as I know in any Filipino dialect, and there is
none because there is no need for it. The Filipino believes that
privacy is an unnecessary imposition, an eccentricity that is barely
pardonable or, at best, an esoteric Western afterthought smacking of
legal trickery.

But Nakpil concluded, nevertheless, that “the case for privacy is

starting to get around.”
In the Morfe case, the Court said that the capacity to maintain
and support the enclave of private life marks the difference between a
democratic and a totalitarian society. The ultimate and pervasive
control of the individual in all aspects of his life is the hallmark
of the absolute state. In the concept of limited government has always
included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen.
In the same case, the Court discussed liberty and privacy, citing
Rubi v. Provincial Board (39 Phil. 660 (1919]). Quoting the words of
Apolinario Mabini, Justice Malcolm wrote: "Liberty is freedom to do
right and never wrong; it is ever guided by reason and the upright and
honorable conscience of the individual.” The Court expressed that
liberty must include privacy as well. The concept of liberty would be
emasculated if it does not likewise compel respect for his personality
as a unique individual whose claim to privacy and interference demands
respect. It clarified that the right to privacy as such is accorded
recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection."
The right to privacy has its foundations in natural law; it is
recognized intuitively. It arises out of those laws sometimes
characterized as 'immutable', because they are natural, and so just at
all times, and in all places, that no authority can either change or
abolish them. It is one of those rights referred by some law writers
as ‘absolute'—such as would belong to persons merely in a state of
nature, and which every man is entitled to enjoy.

a. Philippine Laws on Privacy—Basis

It has been observed that “the right to be left alone" is the

underlying theme of the whole of the Bill of Rights of the U.S.
Constitution. It has continued to be the fertile soil for the
cultivation of individual freedom. This also applies to the Philippine
Constitution in as much as its Bill of Rights was transplanted from
the U.S. Constitution.
The term “privacy” appears nowhere in the U.S. Constitution. That
is why in Pavesich, it was said to derive from natural law. During
American rule, the right of privacy was implicit in Section 5 of the
Philippine Bill of 1902: “That the right to be secure against
unreasonable searches and seizures shall not be violated.” In the
Philippine Autonomy Act of 1916, popularly known as The Jones Law,
Section 5 of the Philippine Bill of 1902 as amended also appeared
under Section 3. In addition, was another implicit proviso on privacy:
"That no warrant shall issue but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be
searched and the person or things to be seized."

1) THE 1987 CONSTITUTION AND OTHER PRESENT LAWS ON PRIVACY

The framers of the 1987 Constitution were aware of the atrocities
of the Marcos rule and they sought to prevent a repetition of the same
through the Constitution. The provisions which touch on privacy are in
the Bill of Rights, Article III, Sections 2 and 3:
 Section 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the
persons or things to be seized.
Section 3. (1) The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when
public safety or order requires otherwise as prescribed by law.
2 ) Any evidence obtained in violation of this, or the
preceding section shall be inadmissible for any purpose in any
proceeding.

a) Privacy of Communication and Correspondence

Article III, Section 3, paragraphs 1 and 2 above cover this

aspect of the right to privacy.
Letters, messages, telephone calls, telegrams and the like are
the forms of correspondence and communication covered.
Intrusion into the privacy of communication and correspondence is
allowed upon lawful order of the court or when public safety or order
requires otherwise as prescribed by law.”
A statute which allows intrusion is R.A. 4200. Section 3 of
R.A.4200 (Anti-Wiretapping Law) allows court-authorized wiretaps under
specific conditions for crimes of treason, espionage, piracy,
sedition, kidnapping, etc. It provides penalties for specific
violations of private communication.
The effect of any violation of Section 3(1), just like Article
III Section 2 is that evidence obtained is inadmissible for any
purpose in any proceeding.
The Bill of Rights governs the relationship between the
individual and the state, not the relation between individuals. People
v. Marti (193 SCRA 57 [1991]) is a case where Andre Marti delivered
four (4) giftwrapped packages to Manila Packing and Export Forwarders
to be sent to Zurich, Switzerland representing that the boxes
contained cigars, books, & gloves. Before delivering the boxes to the
Bureau of Posts, Job Reyes (Proprietor) following standard operating
procedure, opened the boxes for final inspection and found dried
marijuana leaves inside. He then brought the boxes and their contents
to the NBI for inspection and custody. The result was a conviction for
Violation of the Dangerous Drugs Act (R.A. 6425) for Andre Marti. He
then asserted that the evidence should not be admitted, based on
Article III Sections 2 and 3 of the 1987 Constitution. But the Supreme
Court declared: The Bill of Rights is not meant to be invoked against
acts of private individuals. If the search is made at the initiative
of the proprietor of a private establishment for its own and private
purposes without the intervention of police authorities, the right
against unreasonable searches and seizures cannot be invoked.
Violations against unreasonable searches & seizures may only be
invoked against the State.

b) Search and Seizure (Article III, Section 2)

The 1987 Constitution has returned the 1935 rule that warrants
maybe issued only by judges. “Such other responsible officer as may be
authorized by law,” which was in the 1973 Constitution, was deleted
from the 1987 Constitution because the national experience under
Marcos administration taught the lesson that the power to issue
warrants when given to a non-judicial officer can be a tool of
oppression.
Only unreasonable searches and seizures are prohibited. Searches
and seizures are normally unreasonable unless authorized by a validly
issued search warrant or warrant of arrest. This provision seeks to
protect the privacy and sanctity of the person and of his house and
other possessions against arbitrary intrusions by State officers.
A reasonable search is not to be determined by any fixed formula
but is to be resolved according to the facts of each case, said the
Court in Valmonte v. General de Villa (G.R. 83988, September 29,
1989). Probable cause for an arrest or an issuance of a warrant of
arrest would mean such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has
been committed by the person sought to be arrested (Henry v. United
States, 361 U.S. 98 (1959]).
In the We Forum case, the Supreme Court found that the search
warrant was not issued on probable cause since the allegation that
Burgos Jr. was in possession of printing equipment and other
paraphernalia used as a means of committing subversion was unsupported
by particulars (133 SCRA 800 [1984]).
And in the case of Philippine Times (Corro v. Lising 137 SCRA 541
[1985]), the Court found that the affidavit did not establish probable
cause that “said periodical published by Rommel Corro contains
articles tending to incite distrust and hatred for the government of
the Philippines.”
It must be noted that not every warrantless arrest is illegal,
according to Rule 113 Section 6 of the Rules of Court.

c) The Right of Privacy in Private Law and Other Laws

The discussion above has been on the public law aspect of

privacy, or the rights of the citizen against the State, as provided
for in the Constitution. Here we will discuss the right of privacy of
individuals against other individuals.
In the Philippines, the Civil Code and other special laws protect
individual privacy against certain kinds of invasion:
In Chapter 2 of the Preliminary Title of the Civil Code
entitled "Human Relations” are two articles on privacy. Article 26
recognizes the essence of the right by commanding that “Every
person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons.” This statement clearly
demonstrates an appreciation of the "inner man”—his intellect, his
feelings, his sensibilities, and beliefs-and him in his relations
with others. The article then enumerates certain acts against which
the person is protected and indicates the remedies against their
commission. The acts enumerated include: (1) prying into the
privacy of another's residence—this could range from the activities
of crude Peeping Toms to the use of the most advanced intrusion and
surveillance devices; (2) meddling with or disturbing the private
life or family relations of another; (3) intriguing to cause
another to be alienated from his friends; (4) vexing or humiliating
another on account of his religious beliefs, lowly station in life,
place of birth, physical defect or other personal conditions. These
protect against mischiefs which a private party may cause another.

Article 32 of the same code applies both to public officers and

private individuals. It implements the Bill of Rights by providing for
an action for damages against any person who obstructs, defeats,
violates or in any manner impedes or impairs the constitutionally
protected rights. Among these are rights which protect privacy.
Article 723 governs the publication of letters and other private
communication. This article affirms that the ownership of letters and
other private written communications are in the person to whom they
are addressed and delivered but requires the consent of the writer or
his heirs before they can be published or disseminated. If the public
good or the interest of justice so requires, the court may order their
publication or dissemination. While the recipient is the owner of the
letters written to him, if the writer sends an open letter, furnishing
the press a copy, the letter could hardly be classified as private.
But suppose the letter is private and the sender keeps a copy, if he
decides to publish it, the consent of the owner—the addressee would be
needed.
Private law violations of privacy give rise to an action for
damages, for restraint or other relief. Privacy is a personal right.
It does not normally survive a person whose privacy has been invaded."
In Valmonte v. Belmonte (170 SCRA 256 (1989]) the Court held,
following Vassar College v. Loose Wells Biscuits Co. (197 F. 982
(1912]), that a corporation has no right to privacy in its name since
the entire basis of the right to privacy is an injury to the feelings
and sensibilities of the party, and a corporation would have no such
ground for relief.
 The right to recover damages for violation of privacy differs
from actions for libel or defamation. In libel, damage to reputation
is essential to recovery, but in privacy, it is not.
Under the Revised Penal Code, certain acts which constitute a
violation of privacy are punishable: 1) the revelation of secrets
which have become known to a public officer by reason of his official
capacity including the wrongful delivery of papers or copies of papers
in his charge which should not be published (Article 229 and 230); 2)
trespass to (Article 280); and 3) the discovery and revelation of
secrets by seizing papers and letters and revealing their contents; or
revealing secrets with abuse of office (Article 290 and 291).

d) Privacy and Public Figures

Our discussion of the Constitutional provisions on privacy or its

public law aspect showed us the limitations on government's
encroaching upon zones of privacy. We identified the provisions
imposing those limitations and the remedies provided. We also dealt
with the private law aspect the main thrust of which is to obtain a
remedy against the violation of the right by private parties.

Between public and private law is an area where rights equally

protected by the Constitution have to be reconciled: the right of
privacy against the right of the public to know, and the exercise of
freedom of expression.

This was what the Court did in Ayer Productions Pty Ltd. v.
Capulong (160 SCRA 861 [1988]), when Juan Ponce Enrile sought to
enjoin Ayer from producing the movie "The Four Day Revolution." He
alleged that Ayer's production of the movie-series without his consent
and over his objections constituted an obvious violation of his right
to privacy. The Court did not decide in favor of Enrile's claim. It
stated that: "The right of privacy xxx like freedom of expression is
not an absolute right. A limited intrusion into a person's privacy has
long been regarded as permissible when that person is a public figure
and the information sought xxx constitutes matters of public
character. xxx the right of privacy cannot be invoked to resist
publication and dissemination of matters of public interest. The
interest sought to be protected by the right of privacy is the right
to be free from unwarranted publicity, from the wrongful publicizing
of the private affairs and activities of an individual which are
outside the realm of legitimate public concern.

It held that the production and filming by Ayer of “The Four Day
Revolution" did not constitute an unlawful intrusion upon Enrile's
right to privacy. The subject matter was the non-bloody change of
government that took place at EDSA in February 1986. It was one of
public concern and international interest. The Court ruled that the
subject relates to a highly critical stage in the history of this
country and must be regarded as having passed into the public domain
as an appropriate subject for coverage any form of mass media.

The production is not focused on the man, Juan Ponce Enrile, but
it is compelled, if it is to be historical, to refer to the role
played by him in precipitating the constituent events of change of
government in February 1986. The intrusion in his life would be
limited in character. Based on the synopsis of the film, the extent of
intrusion is reasonably necessary to keep the film a truthful
historical account.

Here, the Court defined a “public figure," quoting Profs. Prosser

and Keeton:

A public figure has been defined as a person who, by his

accomplishments, fame or mode of living, or by adopting a
profession or calling gives the public a legitimate interest in
his doings, his affairs and his character, has become a "public
personage." He is in other words a celebrity. Obviously to be
included in this category are those who have achieved some degree
of reputation by appearing before the public as in the case of an
actor, a professional baseball player, a pugilist, or any other
entertainer. The list is, however, broader chances. It includes
public officers, famous inventors and explorers, war heroes and
even ordinary soldiers, an infant prodigy, no less a personage
than the Grand Exalted Ruler of a lodge. It includes, in short
anyone who has arrived at a position where public attention is
focused upon him as a person.

The Court then explained why Enrile was a "public figure":

Private respondent is a “public figure precisely because, inter

alia, of his participation as a principal actor in the culminating
events of the change of government in February 1986. Because of
his participation therein major in character, a film reenactment
of the peaceful revolution that fails to make reference to the
role played by private respondent would be grossly unhistorical.
The right of privacy of a “public figure" is necessarily narrower
than that of an ordinary citizen. Private respondent has not
retired into the seclusion of simple private citizenship. He
continues to be a public figure." After a successful political
campaign during which his participation in the EDSA Revolution was
directly or indirectly referred to in the press, radio and
television, he sits in a very public place, the Senate of the
Philippines.

In the same case, the Court dealt too with Gregorio Honasan :
Ayer Productions, filed in another Makati Court which sought to enjoin
the same company from further filming any scene of the subject mini-
series. The Supreme Court disposed of the complaint filed by former
Colonel Honasan and stated "x x x who, having refused to subject
himself to the legal processes of the Republic and having become once
again a fugitive from justice, must be deemed to have forfeited any
right he might have had to protect his privacy through court
processes."

Enrile relied heavily on the case of Lagunzad v. Vda de Gonzales

(02 SCRA 487 [1979]), a case filed against the mother of Moises
Padilla mayoralty candidate before he died and subject of the film,
"The Moises Padilla Story" by Lagunzad, the producer. The case was
precipitated by the Licensing Agreement entered into between the
parties which Lagunzad claimed to be null and void for having an
illegal consideration. Lagunzad bought the rights to the copyrighted
but unpublished book from the author but had to sign a Licensing
Agreement with the deceased subject's mother who threatened to call a
press conference declaring the whole picture as a fake, after
Padilla's half-sister, Nelly Amante, had seen "rushes of the film.

The Court held that the purchase of the rights to the book "did
not dispense with the need for prior consent and authority from the
heirs of the deceased to portray publicly episodes in said deceased
life and in that of his mother and members of his family. Schuyler v.
Curtis (147 NY. 434) was cited which held that, "a privilege may be
given the surviving relatives of a deceased person to protect his
memory, but the privilege exists for the benefit of the living to
protect their feelings and to prevent a violation of their rights in
the character and memory of the deceased.

The Court continued: "Being a public figure ipso facto does not
automatically destroy in toto a person's right to privacy. The right
to invade a person's privacy to disseminate public information does
not extend to a fictional or novelized representation of a person, no
matter how public a figure he or she may be. In the case at bar, while
it is true that petitioner exerted efforts to present a true-to-life
story of Moises Padilla, petitioner admits that he included a little
romance in the film because without it, it would be a drab story of
torture and brutality."

The Court balanced the right to privacy asserted by Mrs. Sotto

Vda. de Gonzales against the right to freedom of expression invoked by
Lagunzad and decided that the Licensing Agreement must be held valid
because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern.

It was only in the Lagunzad case where the party invoking privacy
prevailed. Note that in the Morfe, Valmonte and Ayer cases, the Court
did not uphold the parties invoking the right to privacy.
 2.National Security

The crimes against national security and public order which may
affect or have actually affected mass media are basically in the
Revised Penal Code or Act No. 3815.

Article 117. Espionage. The penalty of prision correccional (six

months and one day to twelve years) shall be inflicted upon any person
who:

1. Without authority therefore, enters a warship, fort, or

naval or military establishment or reservation to obtain any
information, plans, photographs, or other data of a
 confidential nature relative to the defense of the
Philippine archipelago; or

2. Being in possession, by reason of public office he holds, of

the articles, data, or information referred to in the
preceding paragraph, discloses their contents to a
representative of a foreign nation.
The penalty next higher in degree shall be imposed if the
offender be a public officer or employee.

Article 134. Rebellion or insurrection – How committed

The crime of rebellion or insurrection is committed by

rising publicly and taking arms against the Government for the purpose
of removing from the allegiance to said Government or its laws, the
territory of the Republic of the Philippines o0r any part thereof, of
any body of land, naval or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives.

Article 138. Inciting to rebellion or insurrection

The penalty of prision mayor or in its minimum period shall be

imposed upon any person who, without taking arms or being in open
hostility against the government, shall incite others to the execution
of any of the acts specified in Article 134 of this Code, by means of
speeches, proclamations, writings, emblems, banners or other
representations tending to the same end.

Article 154. Unlawful use of means of publication and unlawful

utterances.

1. Any person who by means of printing, lithography, or any other

means of publication shall publish or cause to be published as
news any false news which may endanger the public order, or
cause damage to the interest or credit of the State;
2. Any person who by the same means, or by words, utterances or
speeches, shall encourage disobedience to the law or the
constituted authorities or praise, justify, or extol any act
punished by law;
3. Any person who shall maliciously publish or cause to be
published any official resolution or document without proper
authority, or before they have been published officially; or

4. Any person who shall print, publish, or distribute or cause to

be printed, published, or distributed books, pamphlets,
periodicals, or leaflets which do not bear the real printer’s
name, or which are classified or anonymous.

a. National Security as a Limitation to Press Freedom

 On July 27, 1984, four days after the State of the Nation Address
of then President Ferdinand Marcos where he stated that “violence,
subversion, and libel are not acceptable weapons of dissent in a
democratic society,” then Chief Justice Enrique Fernando spoke on
“Legal Developments in Philippine Journalism” before members of the
National Press Club of the Philippines. To the question to what extent
does the political system operational in a society determine or
influence the view by the judiciary of press freedom? He replied:

The question of security. The University of Minnesota bar

review has one issue on press freedom and it says that the greatest
threat to press freedom is national security. That is why the
balancing of interests test is the problem of the judiciary.
Because, they said, ahead of everything else is national security.

Why “national security,” though difficult to define, takes

precedence over everything else in the view of governments is
discussed in Near vs. Minnesota (283 U.S. 697 [1931]), the landmark
case in American jurisprudence recognizing the dangers of prior
restraint. This case also indicated that the constitutional ban on
prior restraints was not absolute and did permit certain narrow
exceptions. It made the point very clearly that while expression was
generally protected from prior restraint, it might subsequently be
punished if it were determined that the expression was unlawful.

Protection even as to prior restraint is not absolutely

unlimited. The security of community life, says existing
jurisprudence, must be protected against incitement to acts of
violence and the overthrow by force of orderly government. Thus,
government can stop the publication of material inciting people to
acts of violence, and may prohibit the publication and dissemination
of certain kinds of material during wartime.

In Near vs. Minnesota, the US Supreme Court, whose decisions the

Philippine Supreme Court usually finds instructive, stated:

xxx every man shall have a right to speak, write and print
his opinions upon any subject whatsoever, without prior
restraint, xxx so always that he does not thereby disturb the
public peace, or attempt to subvert the government.

People vs. Perez, a case decided by the Philippine Supreme Court

during the American Regime based on Act No. 292 (Treason and Sedition
Law) involved national security. Isaac Perez, the municipal treasurer
of Pilar, Sorsogon was convicted of the crime of sedition for having
uttered these words: “The Filipinos, like myself, must use bolos for
cutting off (Governor-General) Wood’s head for having recommended a
bad thing for the Filipinos, for he has killed our independence.”
Perez was originally charged under the Penal Code, but the Supreme
Court decided that seditious words, speeches, and libels constituted
violations of the Treason and Sedition Law.

Sedition, the Court explained, “is the raising of commotions or

disturbances in the State. It is a revolt against legitimate
authority. Here, the person maligned is the Chief Executive of the
Philippines appointed by the President of the United States. There is
a seditious tendency in the words used, which could easily produce
disaffection among the people and a state of feeling incompatible with
the disposition to remain loyal to the government.” Justice Malcolm
continued: “While our sense of humor is not entirely blunted, we
nevertheless entertain the conviction that the courts should be the
first to stamp out the embers of insurrection.”
 1. Libel

a. What Libel is; Its History and Rationale

Libel can claim no talismanic immunity from constitutional

limitations. Libel law punishes assassination of character. Like
obscenity, libel is unprotected speech.

Article 353 of the Revised Penal Code defines libel. Since it

includes all attacks against honor, the proper generic term is
defamation which embraces all kinds of insult. In Philippine law, as
in common law jurisdiction, there are two types of defamation: libel
and slander. A libel is generally in writing or other relatively
permanent form. Slander is oral or spoken. Defamation through the mass
media is generally classified as libel.

The enjoyment of a private reputation is as much a constitutional

right as the possession of life, liberty, or property. It is one of
those rights necessary to the whole scheme of civilization. The evil
which the law on libel seeks to punish is not the disturbance of
public order caused by defamatory language, but its tendency to injure
the person defamed, regardless of its effect on the public. The
purpose of libel is to encourage victims to civil suit instead of
taking the law into their own hands.

b. Laws Applied to Cases

1. Article 353- Elements

In People vs. Gomez (770 G. 22321 [May 4, 1981]), the Supreme

Court held that all the elements of libel were contained in the
information, as follows:

1)Alleged libelous letter is defamatory: it imputed dishonesty,

depravity and lack of virtue to the complainant; it cannot but bring
dishonor and disgrace to the complainant’s reputation;
2) Presence of publicity: it is undeniably present with the
allegation that the respondent did willfully, unlawfully,
feloniously distribute, post at company’s bulletin board and
circulate unsealed copies of the letter;
3)Presence of malice: malice appears in such phrases as “with
malicious intent of impeaching the honesty, virtue, integrity and
reputation” of complainant; and
4)Element of identifiability present: the information quotes
the libelous letter mentioning by name the person defamed and
insulted, the complainant, Edgardo Biasbas.

a) Libel by means of publication of photograph

In Lopez vs. Court of Appeals (34 SCRA 117 [1970]), the Court
quoted the standard treatise of Newell on Slander and Libel:
“Publication of a person’s photograph in connection with an article
libelous of a third person, is a libel on the person whose picture is
published, where the acts set out in the article are imputed to such
person.” Here, the picture of Fidel Cruz, businessman was published
instead of Fidel Cruz, sanitary inspector, who was responsible for the
“hoax of the year.”

b)Identifiability – must go beyond mere

collectivity to a specific individual

Newsweek, Inc. vs. Intermediate Appellate Court (142 SCRA 171

[1986]) arose out of an article entitled “An Island of Fear” in the
February 23, 1981 issue of Newsweek. Incorporated associations of
sugarcane planters in Negros Occidental claiming to have 8,500 members
filed a case against Newsweek for libel. Accordingly, their province
was portrayed as being dominated by sugarcane planters who exploited
their laborers and also killed them with impunity. The Court held that:

Libel can be committed only against individual reputation

and that in cases where libel is claimed to have been directed
at a group, there is actionable defamation only if the libel can
be said to reach beyond the mere collectivity, to do damage to a
specific individual group member’s reputation.

c)No libelous imputation if embraced by guarantee

of free speech and free press

An action for libel was filed by the Philippine Commercial and

Industrial Bank (PCIB) vs. Philnabank Employees’Association (105 SCRA
314 1981]) as a result of placards and signboards along the Philippine
National Bank Building in Escolta, Manila containing the following:
“PCIB BAD ACCOUNTS TRANSFERRED TO PNB-NIDC?” The allegation of its
being libelous was denied by defendants on the ground that such
placards containing the alleged writing were displayed during the
strikes as a fair legal labor strategy.

The Supreme Court pronounced that if viewed with calmness and

objectivity, such placards were lacking in libelous imputation. In
placing reliance on the constitutional right of freedom of expression
the Supreme Court manifested its adherence to the principle in US vs.
Bustos where the Court, in no uncertain terms made clear that the
judiciary, in deciding suits for libel, must ascertain whether or not
the offending words may be embraced by the guarantees of free speech
and free press. It cannot be too often said that Bustos was promulgated
as far back as 1918. A doctrine analogous in character was enunciated
by the US Supreme Court only thirty-six years later in New York Times
Co. vs. Sullivan.

d)Publication means “to make public”

In Orfanel vs. People (30 SCRA 819 [1969]), the Court stated: For
purposes of libel, writing a letter to another person other than the
person defamed is sufficient to constitute publication, for the person
to whom the letter is addressed is a third person as regards its writer
and the person defamed therein. And in Alonzo vs. CA (241 SCRA 51
[1995]), the Court said if the statement is sent straight to the person
to whom it is written, there is no publication of it. For publication
means, “to make public; to make known to people in general; to bring
before the public.”

2. Obscenity

Not every form of expression is protected by the Constitution. In

an orderly society, legislation defines those areas excluded from that
protection. Among them is obscenity. Obscene material has been described
as that which is “utterly without redeeming social importance.”

a. Laws and Regulations on Obscenity

1. Revised Penal Code

In the Revised Penal Code, obscenity is a crime against public

morals. In particular, it is an offense against decency and good
customs.

Article 201. Immoral doctrines, obscene publications and

exhibitions and indecent shows. The penalty of prision mayor or
a fine ranging from six thousand to twelve thousand pesos, or
both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines

openly contrary to public morals;

2. a) The authors of obscene literature, published with

their knowledge in any form; the editors publishing such
literature; and the owners/operators of the establishment
selling the same;

b) Those who, in the theaters, fairs, cinematographs or

any other place, exhibit indecent or immoral plays,
scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which
are prescribed by virtue hereof, shall include those
which:

1) glorify criminals or condone crimes;

 2) serve no other purpose but to satisfy the market for
violence, lust or pornography;
3) offend any race or religion;
4) tend to abet traffic in and use of prohibited drugs;
and
5.) are contrary to law, public order, morals, good
customs, established policies, lawful orders, decrees and
edicts.

3.) Those who shall sell, give away or exhibit films, print,
engravings, sculptures or literature which are offensive to
morals.

2) IMPLEMENTING RULES AND REGULATIONS OF THE MOVIE AND TELEVISION

REVIEW AND CLASSIFICATION BOARD

In the Implementing Rules and Regulations of the Movie and

Television Review and Classification Board (MTRCB) filed with the
University of the Philippines Office of the National Administrative
Register on February 3, 1997, the governing standard for review in
judging motion pictures, television programs, television commercials
and other related promotional materials submitted to it for review is
the application, as a general standard, of contemporary Filipino
values.

Although the MTRCB is basically a Classification Board, Chapter

III, Section 6 of the Implementing Rules and Regulations provides
that:

The Board shall delete scenes and disapprove film prints which
are immoral, indecent, contrary to law and good customs, those which
are damaging to the prestige of the Republic of the Philippines and
its people or its duly constituted authority or those which have a
dangerous tendency to encourage the commission of a crime, violence or
of a wrong, such as but not limited to:

1. Those which tend to incite subversion, insurrection, rebellion

or sedition against the State, or otherwise threaten its economic
and/or political stability;

2. Those which tend to undermine the faith and confidence of the

people in their government and/or the duly constituted authority;

3. Those which glorify criminals or condone crimes;

 4. Those which tend to encourage and/or abet traffic in and use
of prohibited drugs

5. Those which serve no other purpose than to satisfy the market

for violence, lust or pornography;

6. Those which are libelous or defamatory to the good name or

reputation of any person, whether living or dead;

7. Those which may constitute "contempt of court” or contempt of

any quasi-judicial tribunal, or those that pertain to matters which
are sub-judice in nature; and,

8. Those which clearly constitute a malicious attack against any

race, or against various sectors of the community like women, youth,
cultural communities, the handicapped, and urban poor sectors.

b. Obscenity-Definition; Tests

There is no uniformity in American jurisprudence as to what

constitutes obscenity." This is reflected in the few Philippine cases
on the subject.

While "obscenity" has not been defined to everyone's

satisfaction, "tests" in determining whether something is obscene or
not have been developed. The first such test that was adopted in
Philippine jurisprudence was the Hicklin test which found its way in
the first obscenity case of Regina v. Hicklin (L.R. 3 Q.B. 360
(1868]). It states:

*** The test of obscenity is this, whether the tendency of the

matter charged as obscene is to deprave and corrupt those whose minds
are open to such immoral influences, and into whose hands a
publication of this sort may fall. It admitted the “isolated passages
test," wherein suspect material was to be judged by the effect of
isolated passages upon persons particularly susceptible to prurient
appeal or lustful thoughts, without regard to the total effect of the
entire work.

The "isolated passages test" or Hicklin test was rejected in Roth

vs. U.S. (1957) as unconstitutionally restrictive of freedom of speech
and the press. Roth substituted a test which many American Courts were
already using:
 whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole
appeals to prurient interest (354 U.S. 489).

"Prurient" was clarified in footnote No. 20, using Webster's New

International Dictionary as: "itching, longing; uneasy with desire or
longing; of persons having itching, morbid, or lascivious longings; of
desire. curiosity, or propensity, lewd."

The Roth test received approval in Gonzales vs. Katigbak (137

SCRA 717 (1985]), where the applicable law, Executive Order No. 876
Section 3(c) (1963) (The Board of Review for Motion Pictures and
Television) provided the test to be used as "applying contemporary
Filipino cultural values as standard." In Katigbak, the Court said
that these words "can be construed in an analogous manner" to Roth.

Since Presidential Decree 1986 creating the Movie and Television

Review and Classification Board (MTRCB) also provides in Section 3 (c)
that the Board must apply "contemporary Filipino cultural values as
standard," then the present test applicable in determining whether a
material is obscene or not is the Roth test. That is, applying the
contemporary community standard, considering the dominant theme of the
material taken as a whole.

In the latest obscenity case, Pita v. Court of Appeals (1989) the

Court stated:

Kalaw Katigbak represented a marked departure from Kottinger in

the sense that it measured obscenity in terms of the "dominant
theme” of the work rather than "isolated passages” which were
central to Kottinger (although both cases are agreed that
'contemporary community standards are the final arbiters of what is
obscene)" (178 SCRA 371).

Katigbak also adopted Roth's explanation of what is obscene. From

paragraph 487 of Roth, Katigbak quoted: “sex and obscenity are not
synonymous." It went further:

Obscene material is material which deals with sex in a manner

appealing to prurient interest. The portrayal of sex, e.g., in art,
literature and scientific works, is not itself sufficient reason to
deny material the constitutional protection of freedom of speech and
press.” Sex, a great and mysterious motive force in human life, has
indisputably been a subject of absorbing interest to mankind through
the ages; it is one of the vital problems of human interest and
public concern.

Pita mentioned the latest word on obscenity: Miller v. California

(413 U.S. 15 (1973]), although it was not applied in the case.

Miller conducted a mass mailing campaign to advertise the sale of

illustrated books, euphemistically called “adult” material. He was
convicted of mailing unsolicited sexually explicit material in
violation of a California statute, which was affirmed by the Supreme
Court. In convicting Miller the Court did the following:

1. reaffirmed the holding in Roth (where the convict conducted

business in New York and mailed obscene circulars and advertising and
an obscene book), that obscenity is not within the area of
constitutionally protected speech or press:

2. rejected important aspects of the tests set out in the book

"John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of
Commonwealth of Massachusetts (1966), especially the "utterly without
redeeming social value” standard and substituted its own three-fold
test as a guide.

a) whether the average person, applying contemporary community

standards, would find the material taken as a whole, appeals to
prurient interest (Roth);}

b) whether the work depicts or describes, in a patently offensive

way, sexual conduct specifically defined by the applicable state law;
and

c) whether the work, taken as a whole, lacks serious literary,

artistic, political or scientific value;

3. indicated that only "hard core” pornography might be condemned

under these tests and included in that classification for the guidance
of legislative draft persons patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual or
simulated and patently offensive representations or descriptions of
masturbation, excretory functions and lewd exhibition of genitals; and

4. held that hard core pornography is to be determined by

reference to local or state community standards and not national
standards."

The “Miller test” has found its way into the Rules and
Regulations of the MTRCB, particularly in its definition of
pornography:

Pornography — As here used is synonymous with obscenity, the test

of which is whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a
whole appeals to prurient interest. This includes: a) patently
offensive or demeaning representations or descriptions of ultimate
sexual acts, or perverted, actual or simulated, sexual intercourse; b)
patently offensive representations or scatological descriptions of
masturbation, excretory functions and lewd exhibition of the genitals,
and c) explicit sexual exploitation of children.
 3. Fair Administration of Justice and Contempt

a. The Law on Contempt and Its Historical Background

Limitations to press freedom may arise from state and public

interest in the fair administration of justice. When press freedom is
abused, thus obstructing the fair administration of justice, one may
be held liable for contempt.
Rule 71 Section 3(d) of the Rules of Court of the Philippines states:
Any of the following acts may be punished for contempt:
d) Any improper conduct, tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice.
Though the rule on contempt is not in the Constitution but in the
Rules of Court, the American influence is also evident. In his
Comments on the Rules of Court, the late Chief Justice Manuel V. Moran
indicated that Rule 7, Section 3 (d) was taken from the rulings of the
Supreme Court during the American period. In his preface to the 1940
edition, Justice Moran wrote that: “The rulings laid down by the
District Courts of the United States are enlightening in this
jurisdiction." In his preface to the 1947 edition (after US
recognition of Philippine independence), he further wrote that: "The
new Model Code of Evidence and some of the comments thereon, prepared
by the American Law Institute of America, are included." These clearly
show the American influence on the Philippine Rules of Court.
The Philippines has also inherited the American tradition and history
with regard to contempt. In his Mass Media Law, Don Pember commented
that "contempt power can only be understood as an artifact of
history." He narrated that hundreds of years ago in England, the king
was above the law and dispensed justice to the people. Eventually
judges began to administer the courts on behalf of the king and they
retained much of the king's power since it was believed that the king
was spiritually guiding the hand of justice. But even as
representative democracy developed, judges retained the contempt
power. It was institutionalized in common law courts in Great Britain
and the United States. The United States in turn established this
power in Philippine Courts. Philippine courts continue to wield this
power today.
b. What Constitutes Fair Administration of Justice

Philippine jurisprudence has described fair administration of

justice in this manner: Parties have a constitutional right to have
their cases tried fairly in court by an impartial tribunal
uninfluenced by publications and public clamor. Every citizen has a
profound personal interest in the enforcement of the fundamental right
to have justice administered by the courts, under the protection and
form of law, free from outside coercion or interference. As important
as the maintenance of an unmuzzled press and the free exercise of the
rights of a citizen is the maintenance of the independence of the
judiciary (In re Abistado 57 Phil. 668 (1932]).

c. sub judice

Sub judice is a general term to describe the fact that an issue is

before a court for its determination; before a judge. Anyone who
publishes comments on a sub judice case or pending suit which may
obstruct the fair administration of justice may be liable for
contempt.
The old rule was that contempt was actionable only if committed with
respect to pending suits. This was first applied in the case of In re
Lozano, et. al (54 Phil. 801 [1930]) and reiterated in In Re Abistado
(57 Phil. 669 (1932]) and People v. Alarcon, et. al (65 Phil 265
(1939]) where the Supreme Court through Justice Malcolm stated: “The
rule is well established that newspaper publications tending to
impede, obstruct, embarrass, or influence the courts in administering
justice in a pending suit or proceeding constitute criminal contempt
which is summarily punishable by the courts. The rule is otherwise
after the case terminated."
But since the case of In Re Brilliantes (52 0.G. 59 (1946]) the
termination of a case has ceased to be a guarantee of immunity from
contempt.
d. Contempt

In the Philippines, the first major contempt case was In re Kelly

(35 Phil. 944 (1916)). This involved an American, Anzi B. Kelly, who
was found guilty of contempt and who requested for a hearing, which
was granted. But pending final decision, a Manila paper, “The
Independent" published Kelly's letter where he accused the members of
the court of "arrogantly misusing imaginary judicial powers," of being
made of mud, and of "cowardly shielding themselves behind contempt
proceedings." Here, the court ruled: “Any publication pending a suit,
reflecting upon the court, the jury, the parties, the officers of the
court, the counsel, etc. with the reference to the suit, or tending to
influence the decision of the controversy, is contempt of court and is
punishable.” The court found that Kelly's letter constituted contempt.
Contempt of court in general must be some act or conduct which tends
to interfere with the business of the court, by a refusal to obey some
lawful order of the court, or some act of disrespect to the dignity of
the court which in some way tends to interfere with or hamper the
orderly proceedings of the court and thus to lessen the general
efficiency of the same (In re Jones 9 Phil. 355 (1907]).
The power to punish for contempt is inherent in all courts and is
essential to their right of self-preservation. The power to punish for
contempt is necessary for its own protection against improper
interference with the due administration of justice; it is not
dependent upon the complaint of any of the parties litigant.
As mentioned earlier, since the Brilliantes case, there has been a
shift in judicial approach from the general rule that there can be no
contempt in post litigation publications.
In Brilliantes (42 O.G. 59 (1946]), the Manila Guardian newspaper
published an editorial after the case involving the validity of the
1944 Bar examinations had terminated, stating that the said Bar
examinations were conducted in a farcical manner. The editor was
declared in contempt of court, thus impliedly adopting the dissenting
opinion of Justice Moran in People v. Alarcon (65 Phil. 265 (1939]).
In re Almacen (31 SCRA 562 [1970]) followed, in which the court held
that the rule barring contempt after a case has been terminated had
lost much of its validity. The ruling in Brilliantes was invoked and
the dissenting opinion of Justice Moran in Alarcon was quoted with
approval.
In two recent decisions on two contempt cases promulgated by the
Supreme Court barely a week from each other, the dissenting opinion of
Justice Moran in Alarcon was quoted and adopted. In the dissenting
opinion which is now the rule, Justice Moran pointed out that there
are two kinds of contempt by reason of publication relating to courts
and court proceedings which are both classified as criminal contempt:
1. A publication which tends to impede, obstruct, embarrass or
influence the courts in administering justice in a pending suit or
proceeding is guilty of criminal contempt, which is summarily
punishable by the courts. What is sought to be shielded against the
influence of newspaper comments is the important duty of the courts to
administer justice in the decision of a pending case.
There is no contempt where there is no action pending as there is no
decision which might in any way be influenced by the newspaper
publication.
2. A publication which tends to degrade the courts and destroy public
confidence in them or that which tends to bring them in any way into
disrepute, is likewise guilty of criminal contempt and is equally
punishable by courts. The punitive hand of justice is extended to
vindicate the courts from any act or conduct calculated to bring them
disfavor or destroy public confidence in them.
Contempt exists with or without a pending case, as what is sought
to be protected is the court itself and its dignity. Courts would lose
their utility if public confidence in them is destroyed.
Thus, the termination of a case is not a guarantee of immunity
from a contempt charge for publications which are defamatory or
libelous. One may still be cited for contempt of court even after a
case has ended, where such punitive action is necessary to protect the
court and its dignity and to vindicate it from acts which destroy
public confidence in that court.
It is now clear that contempt is punishable even if committed
without relation to a pending case. People v. Godoy, a 50-page
decision written by Justice Florenz Regalado promulgated on March 29,
1995, provides judicial guidance on the present state of statutory
case laws on contempt. This case was featured on page 2 of the April
15, 1995 issue of the Philippine Daily Inquirer, under the title
"Tribunal Warns Media Critics," but we now refer to the text of the
case in the Supreme Court Reports Annotated Vol. 243. For clarity, the
High Court's discussion on contempt arose as a separate resolution on
an incident arising from the criminal case against Danny Godoy, a
teacher who was convicted by Judge Eustaquio Gacott, Jr. of having
raped one of his students. Judge Gacort imposed death penalty on Godoy
which automatically became subject to review by the High Court.
In connection with the same case, Judge Gacott of the Regional
Trial Court of Palawan filed a complaint to cite for indirect contempt
the columnist, Mauricio Reynoso and the publisher Eva P. Ponce de Leon
of the Palawan Times for an article published in its July 20, 1994
issue. It essentially says that Judge Gacott has created his own ghost
by alleging that Godoy's family has been giving him death threats
after he sentenced Godoy to death, and that under Judge Gacott,
"tagilid ang laban (the fight is skewed),” because in his interview in
the TV talk show "Magandang Gabi Bayan" he had said that “Tagilid na
ang mundo (the world is skewed)."
On this issue, the Court ruled in favor of the columnist and
publisher, and said that the article did not transcend the legal
limits for editorial comment and criticism. But it went further and
observed that there are two primary issues which need extended
discussion because of the frequency of contempt proceedings filed and
in order to clarify the various pronouncements on contempt: 1) whether
or not there can be contempt of court in case of post-litigation
statements or publications; and 2) which court has jurisdiction over
contempt committed against a trial court while a case is on appeal.
On the first issue, after differentiating between the English
Doctrine (there can be contempt of court even after the case has
terminated) and the American doctrine (the general rule is that
defamatory comments on the conduct of a judge with respect to past
cases finally disposed of do not constitute contempt except under
proper circumstances), the High Court stated the Philippine Doctrine
as follows:
The Philippine rule, therefore, is that in case of a post-
litigation newspaper publication fair criticism of the court, its
proceedings and its members are allowed. However, there may be a
contempt of court, even though the case has been terminated, if the
publication is attended by either of these circumstances: 1) where it
tends to bring the court into disrespect, or in other words, to
scandalize the court; or 2) where there is a clear and present danger
that the administration of justice would be impeded.
On the second issue, the rule has been that no other court than
the one contemned will punish for contempt. The rationale is that
contempt proceedings are sui generis (of its own kind) and are triable
only by the court against whose authority the contempt is charged.
However, there are exceptions to the general rule.

e. Acceptable Criticism
So long as the critics confine their criticisms to facts and base
them on the decisions of the court, they commit no contempt no matter
how severe the criticism may be; but when they pass beyond that line
and charge that judicial conduct was influenced by improper, corrupt,
or selfish motives, or that such conduct was affected by political
prejudice or interest, the tendency is to create distrust and destroy
the confidence of the people in their courts.

f. Free Speech and Fair Administration of Justice

The right of free speech is guaranteed by the Constitution and

must be guarded, but the courts have ruled that its abuse is expressly
prohibited by the Constitution itself and must not be permitted to
destroy or impair the efficiency of the courts or public respect for
them."
False and libelous utterances present a clear and present danger
to the administration of justice." Freedom of speech and press should
not be of impaired through the exercise of the power to punish for
contempt court, unless there is no doubt that the utterances in
question are a serious and imminent threat to the administration of
justice.'' Whether a case is pending or not, there is a constant and
ever growing need to protect the courts from a substantive evil, such
as invective, improper conduct, or utterances which tend to impede or
degrade the administration of justice or which calumniate courts and
their judges.'
The dignity and authority of the courts must be maintained while
free speech, a free press and the liberty of the citizen must be
preserved. Both are equally valuable, say the courts. To determine
whether an act of utterance is covered by the Constitutional guarantee
of liberty of the press or whether it is an abuse thereof, the courts,
in the Godoy case, stated that "we have perforce to draw from tenets
in American jurisprudence, though with discriminating choice, since
after all our present doctrines on contempt vis-a-vis constitutional
limitations trace their roots in the main to the lessons laid down and
born of the social and judicial experience in that jurisdiction.
The courts have also ruled that the liberty of the press means
can publish anything he or she pleases, but he or she is liable for
abuse of anyone this liberty. If one does this by scandalizing the
courts of the country, he or she is liable for contempt. It is
therefore the liberty of the press that is guaranteed, not its
licentiousness. There is a vast difference between criticism or fair
comment and defamation. Where defamation commences, true criticism
ends.

a. Important points to Consider Regarding Contempt

 The court's exercise of the power to punish for contempt has a dual
aspect: primarily, the proper punishment of the guilty party for his
or her disrespect to the court; and secondarily, his or her compulsory
performance of some acts or duty required of him or her by the court
and which he or she refuses to perform. Due to this two-fold aspect of
the exercise of the power to punish them, contempt is classified as
criminal or civil." But the demarcation line between the two is
indistinct because it is possible that both elements appear in one
act, or that the act is a little of both.
Criminal contempt is conduct directed against the dignity and
authority of the court; it is an offense against organized society, an
offense against public justice. Intent is a necessary element in
criminal contempt. Civil contempt on the other hand consists of
failing to do something ordered by a court in a civil action; it is an
offense against the party in whose behalf the violated order is made;
intent is immaterial."
In criminal contempt proceedings, it is generally held that the
State is the real prosecutor. Civil contempt proceedings however
should be instituted by an aggrieved party or someone who has
pecuniary interest in the right to be protected.
On the basis of the foregoing, it can be safely concluded that under
paragraph of Section Rule 71 of the Rules of Court of the Philippines,
indirect contempt or any improper conduct tending directly or
indirectly to impede, obstruct, or degrade the administration of
justice, constitutes criminal contempt.