Burgos, Sr. v.

Chief of Staff of the AFP

FACTS:
Two warrants were issued against petitioners for the search on the premises of “Metropolitan
Mail” and “We Forum” newspapers and the seizure of items alleged to have been used in
subversive activities. Petitioners prayed that a writ of preliminary mandatory and prohibitory
injunction be issued for the return of the seized articles, and that respondents be enjoined from
using the articles thus seized as evidence against petitioner.

ISSUE:
Whether or not closure of the premises of a news publishing house constitutes a virtual denial
of press freedom. (YES)

RULING:
 Yes, according to Judge Escolin, such closure is in the nature of previous restraint or
censorship abhorrent to the freedom of the press guaranteed under the fundamental
law, and constitutes a virtual denial of petitioners' freedom to express themselves in
print.
 This state of being is patently anathematic to a democratic framework where a free,
alert and even militant press is essential for the political enlightenment and growth of
the citizenry.
 The action against "WE FORUM" was a naked suppression of press freedom for the
search warrants were issued in gross violation of the Constitution.
 MUTUC V. COMELEC
FACTS:
 Petitioner Amelito Mutuc was a candidate for the position of delegate to the
Constitutional Convention. In this special civil action for prohibition filed on October 29,
1970, petitioner, alleged that respondent Commission on Elections, informed him
that his certificate of candidacy was given due course but prohibited him from using
jingles in his mobile units equipped with sound systems and loud speakers,
 Petitioner argued that this order is "violative of [his] constitutional right to freedom
of speech." Therefore, Petitioner filed a case against Commission on elections
seeking a writ of prohibition and at the same time praying for a preliminary injunction.
 The respondent argued that this authority was granted by the Constitutional
Convention Act. Which made it unlawful for candidates "to purchase, produce,
request or distribute sample ballots, or electoral propaganda gadgets such as pens,
lighters, fans (of whatever nature), flashlights, athletic goods or materials, wallets,
bandanas, shirts, hats, matches, cigarettes, and the like, whether of domestic or
foreign origin.
 "Petitioner contended that the jingle proposed to be used by petitioner is the recorded
or taped voice of a singer and therefore a tangible propaganda material, under the
above statute subject to confiscation. It prayed that the petition be denied for lack of
merit.

ISSUES:
Was the prohibition imposed by respondent a violation of the right to freedom of speech of the
petitioner? (YES)

RULING:
YES.
 COMELEC contended that the ban makes unlawful the distribution of electoral
propaganda gadgets, mention being made of pens, lighters, fans, flashlights, athletic
goods or materials, wallets, bandanas, shirts, hats, matches, and cigarettes, and
concluding with the words “and the like.” For COMELEC, the last three words sufficed to
justify such an order. The Supreme Court did not agree. It is quite apparent that what
was contemplated in the said law violated by Mutuc was the distribution of gadgets as a
means of inducement to obtain a favorable vote for the candidate responsible for its
distribution. It does not include campaign jingles for they are not gadgets as
contemplated by the law.
 The Constitution prohibits abridgement of free speech or a free press . According to the
Supreme Court, this preferred freedom calls all the more for the utmost respect when
what may be curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage. What the respondent Commission did was to impose
censorship on petitioner, an evil against which this constitutional right is directed.

Respondent Commission is PERMANENTLY RESTRAINED and prohibited from enforcing or

implementing or demanding compliance with its aforesaid order banning the use of political
taped jingles.

NOTE:
Ejusdem Generis are where general words follow the enumeration of particular classes of
persons or things, the general words will be construed as applicable only to persons or things of
the same general nature or class as those enumerated.

Censorship conditions the exercise of freedom of expression upon prior approval of the
government.

Freedom from subsequent punishment means freedom after speech.

 NEW YORK TIMES V. US

FACTS:
In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to
prevent the New York Times and Washington Post from publishing materials belonging to a
classified Defense Department study regarding the history of United States activities in
Vietnam. The President argued that prior restraint was necessary to protect national security.

The United States government sought injunctions against the publications. Each District Court
denied injunctive relief. But the Court of Appeals for the Second Circuit remanded the case to
the District Court for the Southern District of New York for further hearings.

ISSUE:
Did the order to prevent the publication of the alleged "classified information" violate Freedom
of Speech?

RULING:
 Yes.
 Court held that the government did not overcome the "heavy presumption against"
prior restraint of the press in this case.
 Justices Black and Douglas argued that the vague word "security" should not be used "to
abrogate the fundamental law embodied in the First Amendment."
 Justice Brennan reasoned that since publication would not cause an inevitable, direct,
and immediate event imperiling the safety of American forces, prior restraint was
unjustified.

Judgments of the lower courts AFFIRMED. Injunction was DENIED.

NOTE:
The clear and present danger test originated in Schenck v. the United States.
 The test says that the printed or spoken word may not be the subject of previous
restraint or subsequent punishment unless its expression creates a clear and present
danger of bringing about a substantial evil that the government has the right to
suppress.
 Dennis v. US

FACTS:
In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of
the US government and for the violation of several points of the Smith Act. The Act made it
unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the
United States government. The party members who had been petitioning for socialist reforms
claimed that the Act violated their First Amendment rights. Party leaders were found guilty and
lower courts upheld the conviction.

ISSUE:
Did the Smith Act violate the Freedom of Speech? (NO)

RULING:
 No.
 In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders
and found that the Smith Act did not "inherently" violate the First Amendment.
 In the plurality opinion, the Court held that defendants did not violate their First
Amendment rights because their conduct presented a clear and present danger of
attempting to accomplish a crime that was within Congress' power to punish.

The court AFFIRMED the conviction.

There was a distinction between the mere teaching of communist philosophies and active
advocacy of those ideas. Such advocacy created a "clear and present danger" that threatened
the government. Given the gravity of the consequences, the Court held that success or
probability of success was not necessary to justify restrictions on the freedom of speech.

NOTE:
The clear and present danger test originated in Schenck v. the United States.
 The test says that the printed or spoken word may not be the subject of previous
restraint or subsequent punishment unless its expression creates a clear and present
danger of bringing about a substantial evil that the government has the right to
suppress.

Smith Act, 18 U.S.C.S. § 11, by conspiring to advocate the overthrow of the United States.
 BAYAN VS. ERMITA
FACTS:
 Petitioners, Bayan, et al., alleged that their right as organizations and individuals were
violated when the rallies they participated in on October 4, 5 and 6, 2005 were violently
dispersed by policemen implementing Batas Pambansa No. 880.
 Petitioners contended that BP 880 is clearly a violation of the Constitution and the
International Covenant on Civil and Political Rights and other human rights treaties of
which the Philippines is a signatory.
 They argued that the right to peaceful assembly, are affected by BP 880 and the policy
of “Calibrated Preemptive Response” (CPR) being followed to implement it. They argue
that BP 880 requires a permit before one can stage a public assembly regardless of the
presence or absence of a clear and present danger. It also curtails the choice of venue
and is thus repugnant to the freedom of expression clause as the time and place of a
public assembly form part of the message which the expression is sought.
 Furthermore, it is not content-neutral as it does not apply to mass actions in support
of the government.
 Respondent contended that, B.P. No. 880 is content-neutral, i.e., it has no reference to
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is
less intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative
channels for communication of the information

ISSUE:
Whether the Calibrated Pre-emptive Response and the Batas Pambansa No. 880 violated the
freedom of expression and freedom to peaceably assembly.

HELD:
 The constitutionality of BP 880 was sustained but the provision on Calibrated pre-
emptive response (CPR) was declared as null and void.
 BP 880 is not an absolute ban of public assemblies but a restriction that simply
regulates the time, place and manner of the assemblies. BP 880 thus readily shows that
it refers to all kinds of public assemblies that would use public places. Finally, maximum
tolerance is for the protection and benefit of all rallyist and is independent of the
content of the expression in the rally.
 Furthermore, the permit can only be denied on the ground of clear and present danger
to public order, public safety, public convenience, public morals or public health. This is
a recognized exception to the exercise of the rights even under the Universal
Declaration of Human Rights and The International Covenant on Civil and Political
Rights.

With regard to the Calibrated pre-emptive response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, it is declared as NULL and VOID and respondents are
ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum
tolerance. The constitutionality of Batas Pambansa No. 880 is SUSTAINED
BATAS PAMBANSA BLG. 880
 An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble
And Petition The Government [And] For Other Purposes

It should be emphasized that the policy of MAXIMUM TOLERANCE is provided under the same
law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies
without a permit, and which recognizes certain instances when water cannons may be used.
This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally
policy" or with the dispersal and use of water cannons under certain circumstances for indeed,
the maximum amount of tolerance required is dependent on how peaceful or unruly a mass
action is. Our law enforcers should calibrate their response based on the circumstances on the
ground with the view to preempting the outbreak of violence.

The rule of CALIBRATED PREEMPTIVE RESPONSE is now in force, in lieu of maximum tolerance.
The authorities will not stand aside while those with ill intent are herding a witting or unwitting
mass of people and inciting them into actions that are inimical to public order, and the peace of
mind of the national community.
 The CPR is not contained in any presidential or executive issuance. It was merely
contained in a press release dated 21 September 2005, which pertinently reads:
 MTRC V ABS-CBN

FACTS:
 On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-
tuition," an episode of the television (TV) program "The Inside Story" produced and
hosted by respondent Legarda.
 It depicted female students working as prostitutes to enable them to pay for their
tuition fees. In the course of the program, student prostitutes, pimps, customers, and
some faculty members were interviewed.
 The Philippine Women’s University (PWU) was named as the school of some of the
students involved and the facade of PWU Building at Taft Avenue, Manila conspicuously
served as the background of the episode. The showing of "The Inside Story" caused
uproar in the PWU community.
 Dr. Leticia P. de Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and
Teachers Association filed letter-complaints with petitioner MTRCB. Acting on the letter-
complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB
Investigating Committee, alleging among others, that respondents
o did not submit "The Inside Story" to petitioner for its review and
o exhibited the same without its permission, thus, violating Presidential Decree
(P.D.) No. 19865 and Section 3,6 Chapter III and Section 7,7 Chapter IV of the
MTRCB Rules.

 Respondents explained that the "The Inside Story" is a "public affairs program, news
documentary and socio-political editorial," the airing of which is protected by the
constitutional provision on freedom of expression and of the press. Accordingly,
petitioner has no power, authority and jurisdiction to impose any form of prior restraint
upon respondents

 Petitioner argued that its power to review television programs does not amount to
"prior restraint." The law gives the Board the power to screen, review and examine all
‘television programs.

ISSUE:
WON the “inside story” is protected by the constitutional provision on freedom of expression
and of the press.

RULING:
 NO
 When the law (P. D. No. 1986) says "all television programs," the word "all" covers all
television programs, whether religious, public affairs, news documentary, etc.
 By the clear terms of the law, the Board has the power to approve, delete and/or
prohibit the exhibition and/or television broadcast of television programs.
 It then follows that since "The Inside Story" is a television program, it is within the
jurisdiction of the MTRCB over which it has power of review.

Respondents are ordered to pay the sum of TWENTY THOUSAND PESOS (₱20,000.00) for non-
submission of the program, subject of this case for review and approval of the MTRCB.

LIMITATION OF FREEDOM OF EXPRESSION

P – Public order (False information, inciting sedition)
R – Reputation of a person (Libel, slander)
D – Decency (Obscenity)
 US v STEVENS

FACTS:
 Congress enacted a law criminalizing the commercial creation, sale, or possession of
certain depictions of animal cruelty.
o US Code Title 18 Section 48. (a) Creation, Sale, or Possession
 Robert Stevens was convicted under that law "knowingly selling depictions of animal
cruelty with the intention of placing those depictions in interstate commerce for
commercial gain."
 The law focused primarily on “crush videos,” which feature the torture and killing of
helpless animals and are said to appeal to persons with a specific sexual fetish.
 Respondent Stevens was indicted for selling videos depicting dogfighting.
 Stevens argued that the law criminalizing the commercial creation, sale, or possession
of certain depictions of animal cruelty was facially invalid under the First Amendment.
 The District Court denied his motion, and thereupon, Stevens was convicted.

ISSUE:
WON the law criminalizing the commercial creation, sale, or possession of certain depictions of
animal cruelty is unconstitutional under the Free Speech Clause of the First Amendment?

RULING:
The Third Circuit vacated the conviction and declared it unconstitutional as a content-based
regulation of protected speech.

 Furthermore, depictions of animal cruelty were not, as a class, categorically unprotected

speech, and did not even require that the depicted conduct be cruel as suggested by
maiming, mutilation, and torture, but not by wounding or killing.
 The Court ruled that the requirement that the depicted conduct be unlawful extended
to laws such as hunting and animal protection laws which were unrelated to cruelty;
 Depictions of conduct which was lawful in one state could constitute illegal depictions in
another state.

Law criminalizing the commercial creation, sale, or possession of certain depictions of animal
cruelty is substantially overbroad, and therefore INVALID UNDER THE FIRST AMENDMENT.

NOTE:
 Overbreadth is shorthand for the overbreadth doctrine, which provides that a
regulation of speech can sweep too broadly and prohibit protected as well as non-
protected speech.

 A content neutral restraint is a restraint which regulates the time, place or manner of
the expression in public places without any restraint on the content of the expression.

 A content-based law or regulation discriminates against speech based on the substance

of what it communicates.
 BROWN V. ENTERTAINMENT MERCHANTS ASSOCIATION

FACTS:
The State of California passed California Assembly Bill 1179 (Act), which prohibited the sale or
rental of “violent video games” to minors. This included games which included and depicted
killing, maiming, dismembering, or sexually assaulting an image of a human being. The Act also
required the packaging of the video games to be labeled “18.” Respondents, Entertainment
Merchants Association, filed a pre-enforcement action against the Governor of California,
claiming that the statute violated the First Amendment to the U.S. Constitution. The U.S.
District Court for the Northern District of California enjoined California authorities from
enforcing the statute, and on appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed.
Petitioner, the Governor of California, sought review by the U.S. Supreme Court.

ISSUE:
WON California Assembly Bill 1179 violative of freedom of expression?

ANSWER:
Yes.

CONCLUSION:
 The Supreme Court found that the statute violated the First Amendment. According to
the Court, video games were a protected means of expression under the First
Amendment.
 The Supreme Court held that "Like the protected books, plays, and movies that
preceded them, video games communicate ideas—and even social messages—through
many familiar literary devices (such as characters, dialogue, plot, and music) and
through features distinctive to the medium (such as the player's interaction with the
virtual world).

Furthermore, the state did not have a compelling interest in preventing psychological or
neurological harm to minors allegedly caused by video games, and even if the state had a
compelling interest, the law was not narrowly tailored enough to meet that objective because
it was both under-inclusive and over-inclusive.

 The Court determined that the statute was under-inclusive because it did not preclude
minors from having access to information about violence in other forms, only in video
games.
 And over-inclusive because it abridged the First Amendment rights of young people
whose parents (and aunts and uncles) thought that violent video games were a harmless
pastime.
 In conclusion, the Court ruled that the statute did not survive a strict scrutiny analysis.

California Assembly Bill 1179 (Act) was INVALID.

NOTE:
Strict-Scrutiny Test
 The curtailment must be justified by a compelling government interest. The State must
specifically identify an "actual problem" in need of solving, and the curtailment of free
speech must be actually necessary to the solution.
Under inclusiveness
 If it applies to one, it should apply to all.
Ex: Japanese American
(Bakit di sinama sa distinction yung German-american. Italian-American, etc.)
Over inclusive
 Applied even to those who need not be included.