BILL OF RIGHTS, 1987 CONSTITUTION

ARTICLE III, SECTION 4

LANDMARK AND LATEST JURISPRUDENCE ON

FREEDOM OF SPEECH, EXPRESSION, PRESS,
PEACEFUL ASSEMBLY, PETITION THE GOVERNMENT
FOR REDRESS OF GRIEVANCES

BY: REYNALDO G. LOPEZ, MANILA 2022

*This lecture material is for the exclusively use of the students of Prof.
Reynaldo G. Lopez in Constitutional Law. Any unauthorized copy,
publication, sale, redistribution or reproduction of this work constitutes
a violation and infringement of his rights under the Intellectual
Property Code and other existing copyright laws.

* Article III, Section 4, Constitution: “No law shall be passed impairing the freedom
of speech, of expression and of the press, and the right of the people to peaceably
assemble and petition the government for redress of grievances.”

CONCEPT

Freedom of expression is an alienable human right that flows from the very
nature of man. It must be nurtured and protected by the State for the full and
proper growth of the individual and the nation. (Schmandt and Steinbecker, pp.
163-164).

PURPOSE

It is only free debate and free exchange of ideas that a government remains
responsive to the will of the people and peaceful change is effected. (De Jorge vs.
Oregon, 299 US 353, 1937).

The press, as the Fourth Estate, scrutinizes the acts and conduct of public
officials and the plans and policies of government, holding the government
accountable to the people. If we preserve this right, public opinion must be
enlightened, political vigilance must be encouraged. (Tanada and Fernando, citing
Story, p. 313).

SCOPE: PROTECTED SPEECH

 Speech is not limited to vocal communication. Conduct is treated as a form of
speech sometimes referred to as symbolic speech, (Joshua Waldman, Symbolic
Speech and Social Meaning, 97 Columbia Law Review, p. 1844, p. 1847, 1997) such
that when speech and nonspeech elements are combined in the same course of
conduct, the communicative element of conduct, the communicative element of the
conduct may be sufficient to bring into play the right to freedom of expression. (US
vs. O’Brien, (354 US 476, 1957). In US vs. O’Brien, O’Brien burned his Selective
Service Registration Certificate before a crowd in order to influence others to adopt
his anti-war beliefs. In the Philippines, Andres Bonifacio tore his cedula to defy
Spanish colonial government in the country. In Texas vs. Johnson, the US Supreme
Court, speaking through Justice Brennan, invalidated prohibitions on desecrating
the American flag, which at that time were enforced in 48 of the 50 states of the
United States of America.

The right to freedom of expression, thus, apply to the entire continuum of

speech from utterances made to conduct enacted, and even to inaction itself as a
symbolic manner of communication. Freedom of speech includes the right to be
silent. The Bill of Rights that guarantees to the individual the liberty to utter what is
in his mind also guarantees to him the liberty not to utter what (is or) is not in his
mind (Diocese of Bacolod vs. Comelec, GR 205728, 21 Jan 2015).

“Press” covers every sort of publications like print, broadcast, live shows,
optical media, video, and the internet. The term “Fourth Estate’ refers to the press
and news media both in explicit capacity of advocacy and implicit ability to frame
political issues.

The Three Estates used to refer to the Clergy (First Estate), the Nobility
(Second Estate), and the Commoners (Third Estate). Later, they refer to the
Monarchy (First Estate), the Nobles (Second Estate), and the Peasants and
Bourgeoisie (Third Estate). In some systems of government, they refer to the three
branches of government, namely Legislative, Executive and Judicial Branches. The
Press, though it is not formally recognized as part of the political system, it wields
significant indirect social influence, thus, it is considered as the Fourth Estate.
Wikipedia even adds a Fifth Estate, i.e., a socio-cultural reference to groupings of
outlier viewpoints in contemporary society, and is most associated with bloggers or
journalists, publishing in non-mainstream media outlets, and the social media or
social license. (Wikipedia)

SCHOOLS OF THOUGHT ON FREEDOM OF SPEECH AND EXPRESSION

1. Deliberative Democracy – submits that “substantial, open and ethical dialogue is

a critical, and indeed defining feature of a good polity. It includes collective decision
making with participation of all who will be affected by the decision. It is anchored
in the principle that sovereignty resides in the people. It makes government
accountable.

2. Market Place of Ideas. (Justice Holmes) – “The absolute good is better reached by
free trade in ideas,” that the best of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the only ground upon
which their wishes safely can be carried out. Exposure to other ideas allows one to
“consider, test and develop their own conclusions.

3. Self Expression enhances human dignity. This right is a means of assuring

individual self-fulfillment. Freedom of expression, assembly and petition, are not
only civil rights but also political rights essential to men’s enjoyment of his life,to his
happiness and to his full and complete fulfillment.

4. Expression as marker for group identity. Free speech must be protected as the
vehicle to find those who have similar and shared values and ideals, to join together
and forward common goals.

5. Protection of individuals and minorities against majoritarian abuses. (“tyranny of

the majority”) perpetrated through the framework of democratic governance “It is
of great importance in a republic not only to guard society against the oppressor of
its rulers, but also to guard one part of society against the injustice of the other part
(James Madison).

6. Safety Valve Theory – it provides that “nonviolent manifestations of dissent

reduce the likelihood of violence. This is to avoid the situation and prevent the
people from resorting to violence, thus, there is need for peaceful methods in
making passionate dissent (Justice Frankfurter).

CHILLING EFFECT

There are two things which the Constitution abhor for being violative of the
freedom of speech and expression:

1. Prior Restraint (censorship) – official government restriction on the press and

other forms of expression in advance of actual public dissemination.

2. Fear of Subsequent punishment – a government policy which has the effect of

unduly curtailing expression through a system of providing penalties after the
speech or expression is published.

CASE: Babst vs. National Intelligence Board (NIB), (GR L-62992, 28 Sep
1984)
 Petitioners are journalists who received from General Estrada, NIB
Chairman, and summoning to appear before the NIB at Fort Bonifacio to shed light
on confidential matters. Petitioners claim that these amount to censorship.
Respondent responds that those letters are mere invitations and that the
proceedings have been terminated, thus, the case has become moot and academic.

Held: The SC dismissed the petition on the basis of mootness but has this to
say:
Ordinarily, an invitation to attend a hearing and answer some questions,
which the person may heed or refuse at her pleasure, is not illegal or constitutionally
objectionable. Under certain circumstances, however, such an invitation can easily
assume a different appearance. Thus, where the invitation comes from a powerful
military group when the country has just emerged from martial rule and when the
privilege of the writ of habeas corpus has not entirely been lifted and the designated
interrogation site is a military camp, the same can easily be taken, not as a strictly
voluntary invitation which it purports to be, but as an authoritative command
which one can only defy at his peril, especially when the letter contains the ominous
seeming that “failure to appear…shall be considered as a waiver…and this
Committee will be constrained to proceed in accordance with law.”

TESTS FOR VALID RESTRAINT ON FREE SPEECH AND EXPRESSION

1. Clear and present danger – if there is a clear and present danger of a substantive
evil which the State has to prevent or prohibit. It is a question of degree and
proximity. (Schenck vs. US, 248 US 47, 1919)

2. Dangerous tendency – this is adopted in cases where extreme difficulty is

confronted determining where the freedom of expression ends and the rights of
courts to protect their independence begins. If the words uttered create a dangerous
tendency which the State has to prevent, then such words are punishable. (Gilbert v
Minnesota, 254 US 325, 1920; Gitlow v NY, 268 US 652, 1925)

3. Balancing of interest test – a subjective test with which a court weighs competing
interest like between a person’s liberty interest and the government’s interest in
public safety; or between a person’s right (privacy) and another person’s right
(freedom of expression).

CASE: Disini vs . Secretary of Justice, (GR 203335, 11 Feb 2014)

Section 19 of RA 10175, Anti-Cybercrime Act, empowers the DOJ to restrict

or block computer data when a computer data is found prima facie to be in violation
of the cybercrime law. Petitioners contest section 19 because it stifles freedom of
expression.
 Held: Invalid. On the freedom of expression, the content of the computer
data can also constitute speech. Section 19 operates as a restriction on the freedom
of expression over cyberspace. Legislature may, within constitutional bounds,
declare certain kinds of expression illegal. But for an executive officer to seize
content alleged to be unprotected without any judicial warrant would make him
judge, jury and executioner all rolled into one. Also, jurisprudence evaluates
restraint on free speech on one of the three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present danger rule. Section 19
merely requires prima facie to restrict or block the computer data.

4. Imminent Lawless Action Test – US SC held that the government cannot punish
inflammatory speech unless that speech is “directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.”
(Brandenburg vs. Ohio, 395 US 444, 1969).

“Advocacy of illegal action becomes punishable only if such advocacy is

directed to inciting or producing lawless action and is likely to incite or promote
action. Except in unusual instances, Brandenburg protects the advocacy of
lawlessness as long as such speech is not translated into action.” (MVRS
Publications, Inc. vs. Islamic Da’wah Council of the Philippines, GR 135306, 28 Jan
2003).

Three elements of Imminent Lawless Action Test:

a. Intent to speak
b. Imminence of lawlessness
c. Likelihood of lawlessness

COUNTERSPEECH DOCTRINE – The remedy for speech that is false is speech

that is true. This is the ordinary course for a free society. The response to the
unreasoned is the rational; to the uninformed, the enlightened; to the straight-out
lie, the simple truth. (J. Kennedy in US vs. Alvarez, 567 US 709 2012).

Under the Counterspeech Doctrine, bad speech can be countered with good
speech; negative speech with positive speech, and government should counter false
speech with truthful speech as opposed to engaging in raw censorship nd stark
suppression. “If there be a time to expose through discussion the falsehood and
fallacies, to avert the evil by the processes of education, the remedy to be applied is
more speech, not enforced silence.” (J. Brandeis concurring in Whitney vs.
California, 274 US 357, 1927).

REGULATIONS

1. Content-Based Regulation – the regulation is on the substance of the message.

 Tests for validity: Clear and present danger test; Dangerous tendency test;
Strict Scrutiny Test

2. Content-Neutral Regulation – Generally, the regulation is on the time, place and

manner of the speech, without regard to the substance or message of the expression.

Test for validity: Intermediate Scrutiny Test; O’Brien Test

Under the O’Brien Test (US vs. O’Brien, 391 US 367, 1968), government
regulation is valid if:

1. It is within the constitutional power of the government.

2. Purpose is an important or substantial government interest.
3. Government interest is unrelated to suppression of free speech.
4. The incidental restriction on free speech is no greater than is essential to the
furtherance of said state interest.

CASE: Osmena v Comelec, (GR 132231, 31 Mar 1998)

RA 6646, Election Reforms of 1987, prohibits media from selling or giving

for free print space or airtime for campaign or other political purposes, except to
Comelec.

Held: The regulation is a valid content-neutral regulation using the O’Brien

test. The regulation is unrelated to the suppression of speech. Its purpose is to
ensure equal opportunity, time and space for political campaigns.

FACIAL CHALLENGE vs. APPLIED CHALLENGE

Facial challenge – a challenge to a statute in which the plaintiff alleges that the
legislation is always unconstitutional for being unreasonable. In facial challenge, the
statute need not have a direct effect on the plaintiff. The court lowers down the
requirement of locus standi because the law creates a chilling effect which is of
transcendental importance.

Applied challenge – a challenge to a statute in which the plaintiff which alleges that
a particular application of a statute, if applied to him, is unconstitutional. In applied
challenge, the statute must have a direct effect on the plaintiff to establish locus
standi.

VOID-FOR-VAGUENESS DOCTRINE – A law is vague when it lacks

comprehensible standards that men of common intelligence must necessarily guess
as to its meaning and differ as to its application. It is unconstitutional for two
reasons;
1. It violates due process – no fair notice of the conduct to be avoided, thus violates a
person’s constitutional right to be informed of the nature and cause of accusation
against him/

2. It leaves unbridled discretion to the implementors of the law which becomes an

arbitrary exercise of power. However, general terms are not automatically void or
vague.

OVERBREADTH DOCTRINE – A law which prohibits unprotected activity but a

substantial amount of protective activity is restrained or chilled in the process. It
prohibits government from achieving its purpose by means which that sweep
unnecessarily broadly, reaching constitutionally unprotected speech as well as
protected speech. A statute that is so broadly written that it deters free expression
can be struck down on its face as unconstitutional because of its chilling effect.

CASE: Southern Hemisphere Engagement Network, Inc. v Anti-Terrorism

Council, (GR 178552, 5 Oct 2010)

Petitioners challenge the constitutionality of RA 9372, Human Security Act,

for being void-for-vagueness. It does not define what “terrorism” is.

Held: A facial challenge does not apply to penal legislation. In applied

challenge, only extant facts affecting REAL LITIGANTS are considered; while
facial challenge affects the entire law because of possible chilling effect against free
speech and expression which is of transcendental importance, eventhough no
litigants are directly affected by the law. RA 9372 does not regulate speech but
conduct. The speech here is merely incidental, not elemental.

RA 9372, as applied to petitioners, the petitioners have no locus standi

because they have no proof that they have personally suffered from actual or
threatened injury. For three years since the effectivity of RA 9372, there has been no
arrest made under the law. On the contention that the petitioners are being
subjected to surveillance, the SC found no proof of any connection between the
alleged “surveillance” and the implementation of RA 9372.

CASE: Estrada v Sandigabnayan, (GR 148560, 19 Nov 2001)

Estrada challenged the constitutionality of RA 7080, Plunder Law for being

vague, therefore void. He contends that the law does not provide for the statutory
definition of the terms “combination” and “series” in the key phrase under Section
1, (d) and Section 2, “combination or series of overt or criminal acts” and the word
“pattern in Section 4, of RA 7080.
 Held: The law is valid. It is a well-settled principle in statutory construction
that words of a statute shall be interpreted in their natural, plain and ordinary
meaning, unless it is evident that Congress intends a technical or special meaning to
those legal words. “Combination” is the result or product of combining and “Series”
means a number of things or events of the same class coming one after another in
spatial and temporal succession.

Note: Here, the SC entertained the issue of void-for-vagueness and

overbreadth doctrines despite the question raised is not on speech but on a penal
legislation because the law has been challenged as applied to Estrada.

CASE: Disini vs . Secretary of Justice, (GR 203335, 11 Feb 2014)

Section 5 (a) of RA 10175, Anti-Cybercrime Act, makes “aiding and abetting

in the commission of cybercrime” and (b) “attempt in the commission of
cybercrime” as constituting a cybercrime offense. Petitioners assail the
constitutionality of Section 5 as it suffers from overbreadth and void-for-vagueness,
creating a chilling and deterrent effect on protected expression. ”

Held: Although Section 5 (a) of RA 10175 was declared valid insofar as

authors of libelous statements are concerned, it is invalid insofar as persons “aiding
and abetting”, and “attempting” in the commission of libel as constituting
cybercrime for being overbroad. It penalizes those who merely react to the original
post. In the cyberworld, there are many actors. If the post is made available to the
public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the program
screen such as “Like”, “Comment” or “Share”. On Twitter, a user has “Followers”
enabling the subscriber to read the user’s posts. These actors, who merely reacted to
the alleged defamatory statement or article, were not the authors of the statements
posted in social media. The old parameters for enforcing the traditional form of libel
would be a square peg in a round hole when applied to cyberspace libel. Unless
Congress crafts a cyber libel law that takes into account its unique circumstances
and culture, such law will tend to create a chilling effect on the millions that use that
use this new medium of communication in violation of their constitutionally
guaranteed right to freedom of expression.

Held: Section 5 (a) of RA 10175 is likewise invalid with respect to libel as

constituting cybercrime for being void-for-vagueness. When a penal statue
encroaches upon the freedom of speech, a facial challenge grounded on the void-for
vagueness doctrine is acceptable. Who is to decide when to prosecute persons who
boost the visibility of a posting on the internet by “liking” it? Netizens are not given
“fair notice” or warning as to what is criminal conduct and what is lawful conduct.
Its vagueness creates a chilling effect on the part of the internet user’s freedom of
expression, especially since the crime of aiding and abetting ensnares all the actors
in the cyberspace front in a fuzzy way. What is more, formal crimes such as libel are
not punishable unless consummated.

STATE REGULATIONS ON DIFFERENT FORMS OF MEDIA

1. Print Media

CASE: New York Times v Sullivan, (376 US 254, 1964)

Students rally for equal rights. NY Times published the story that the police
padlocked the school canteen from “Negroes”. Sullivan claims that since he is the
City Commissioner of Montgomery, Alabama, he was the one being referred to in
the article which is in the form of paid ads. He asks for punitive damages for libel.

Held: Not libel. Importance of free press:

1. public discussion is a political duty

2. It is one’s privilege to speak one’s mind

Whatever is added to the field of libel is taken from the field of free debate. A
rule compelling the critic of official conduct to guarantee the truth of ALL his
FACTUAL ASSERTIONS and do so on the pain of libel judgments virtually, in
amount, leads to a compelling self-censorship. This will deter would-be critics of
official conduct from voicing their criticism, eventhough it is believed to be true and
eventhough it is in fact true, out of fear. That is CENSORSHIP.

2. Photos, Pictures, Paintings

CASE: People vs. Go Pin, (GR L-7491, 8 Aug 1955)

Accused was charged with obscenity for having exhibited in a recreation area
a film which was offensive to morals. He was sentenced to six months imprisonment
and a P300 fine. The accused did not deny his guilt but he claimed that under the
surrounding circumstances, the penalty of imprisonment shall be eliminated
because there was only a slight degree of obscenity as noted by the court. His
counsel pointed to some jurisprudence that nude paintings, pictures and sculptures
are not offensive because they are presented for the sake of art.

Held: Paintings and pictures of women in the nude, including of sculptures of

that kind, are offensive to morals when they are made and shown not for the sake of
art but rather for commercial purposes, i.e., when gain or profit would appear to be
the main, if not the exclusive consideration in their exhibition, and the cause of art
only of secondary or minimal importance.
 CASE: People v Kottinger, (GR L-20569, 29Oct 1923)

Police raided Camera Supply Company for sale of indecent and obscene
pictures (post cards) of natives labeled as “Philippines, Bontoc Women,” “Ifugao
Girl,” and “Kalinga Girls”.

Held: Pictures depicting persons as they actually live, without attempted

presentation of persons in unusual postures or dress is not obscene. Pictures
portraying the inhabitants in native dress, as they appear, and can be seen in the
regions in which they live are not obscene or indecent within the meaning of libel
law. Obscenity is something offensive to chastity or delicacy. It has relation to sexual
impurity.

Kottinger Test:

1. whether the tendency of the matter charged as obscene, is to deprave or corrupt

those whose minds are open to such immoral influences and into whose hands a
publication or other article charged as being obscene may fall.
2. that which shocks the ordinary and common sense of men as an indecency.
3. what is the judgment of the AGGREGATE SENSE OF THE COMMUNITY, not
the individual or particular reached by the publication.

3. Movies and Television

Requirements for censorship: (Freedman vs. Maryland, 380 US 51, 1965):

The non-criminal process which requires proper submission of a film to a

censor avoids constitutional infirmity ONLY IF it takes place under procedural
safeguards designed to obviate dangers of a censorship system.

1. The burden of proving that the film is unprotected expression must rest on the
censor.
2. The requirement cannot be administered in a manner which would lend an effect
on finality to the censor’s determination. (Right to appeal in judicial courts).

Related Law:

* PD 1986, Movie and Television Review and Classification Board (MTRCB)

CASE: MTRCB vs. ABS CBN and Loren Legarda (GR 155282, 17 Jan 2005)

“Inside Story,” a TV show hosted by Loren Legarda, was suspended for

violating MTRCB R&R requiring all tv networks to submit to the Board for review
and classification a copy of the synopsis of tv shows prior to their actual publication.
The program depicted in one of its episodes, “Prosti-tuition”, that students from
PWU engage in prostitution during enrolment season. PWU filed a complaint
against ABS CBN. The tv network claimed that under PD 1986, newsreels are
exempted from the said requirement, and that the regulation is a form of “prior
restraint” on freedom of expression and of the press.

Held: “Inside Story” is not purely newsreel exempted from review of

MTRCB under PD 1986. Oxford dictionary defines “newsreel” as a short film and
commentary about current events. Under PD 1986, newsreels and government-
produced shows are exempted from MTRCB’s review. However, under MTRCB
R&R, “newsreels” are straight news reporting, as distinguished from news analyses,
commentaries and opinions. Clearly the “Inside Story” cannot be considered a
newsreel. It is more of a public affairs program which is a cross between pure tv
news and news-related commentaries, analysis and/or exchange of opinions. Such
kind of a program is within MTRCB’s review power. The MTRCB did not
disapprove or ban the showing of the program. Neither did it cancel respondent’s
permit. They were merely penalized for their failure to submit to petitioner their
program for review and approval. Therefore, there is no need to resolve PD 1986
and MTRCB R&R contravene the Constitution.

CASE: Gonzalez vs. Kalaw Katigbak, (GR 69500, 22 Jul 1985)

This involves the classification of the movie “Kapit sa Patalim” directed by

Lino Brocka. MTRCB classified it “For Adults Only.” They can classify it “For GP”
but if the producer agrees to cut certain scenes. The producer refused citing grave
abuse of discretion on the part of the Board.

Held: There was abuse of discretion. Beauty lies in the eyes of the beholder.
SC cited Roth vs. US, (354 US 476, 1957), a landmark case before the US SC which
redefined the constitutional test for determining what constitutes “obscene
material” unprotected by the First Amendment. Justice Brennan speaking for the
Court wrote:

“Sex and obscenity are not synonymous. Obscene material is

one which deals with sex in a manner appealing to prurient interest.
The portrayal of sex in art, literature and scientific works is not
itself sufficient reason to deny the material from constitutional
protection of freedom of speech and of the press.”

The US SC rejected and rendered obsolete the Hicklin Test laid down in the
British case, Regina vs. Hicklin in 1868. Under the Hicklin test, the test for obscenity
is “whether the tendency of the matter 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”, regardless of its artistic or literary merit. The US SC ruled that the
Hicklin Test was inappropriate. Under the Roth Test, the test for obscenity is
“whether to the AVERAGE PERSON, APPLYING CONTEMPORARY
COMMUNITY STANDARDS, THE DOMINANT THEME of the material taken as
a whole appeals to prurient interest.

However, for failure to get the necessary votes to rule that the abuse of
discretion was grave, the SC dismissed the petition. However, certain principles
were enunciated:

1. Motion pictures are important, both as a medium for the communication

of ideas and the expression of the artistic impulse. Their effects on the perception by
our people of issues and public officials or public figures as well as the prevailing
cultural traits is considerable.

2. Citing Burstyn vs. Wilson, (343 US 495, 1952), ‘the importance of motion
pictures as an organ of public opinion lessened by the fact that they are designed to
entertain as well as to inform. There is no clear dividing line between what involves
knowledge and what affords pleasure. If such distinction were sustained, there is no
diminution of the basic right to free expression.’

3. The test whether freedom of expression may be limited is determined by

the clear and present danger test.

4. The ruling here is limited to concept of obscenity applicable to motion

pictures. Where television is concerned, a less liberal approach calls for observance.
This is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a television set. Children will likely be
among the avid viewers of the programs therein shown.

4. Radio

CASE: Bartnicki v Vopper, (532 US 514 (2001)

Vopper, a radio talk host, overheard and intercepted in the office a

conversation in the collective bargaining between the labor union and the employer.
The conversation was recorded and broadcast by Vopper over the radio. The radio
station was sued for broadcasting the conversation.

Held: The radio station is not liable because the radio station itself had done
nothing illegal to obtain the recorded tape. This means that media defendants are
not liable if a third party violated the law. Obiter: “One of the costs associated with
participation in public office is an attendant loss of privacy.”

CASE: Eastern Broadcasting Corp. (DYRE) v Dans, (GR L-59329, 19 Jul

1985)
 Radio station DYRE had been summarily closed on grounds of national
security. Petitioner DYRE contended denial of due process when it was closed on
mere allegation that the radio station was used to incite people to sedition.

Held: All forms of media, whether print or broadcast, are entitled to the
broad protection of freedom of speech and expression clause. The test for limitation
is clear and present danger.

In American Court in Federal Communication Commission (FCC) vs.

Pacifica Foundation (438 US 726, 1978), the US SC explained why radio
broadcasting, more than other forms of communications, receives the most limited
protection from the free expression clause. First, broadcast media have established a
uniquely pervasive presence in the lives of all citizens. Second, broadcasting is
uniquely accessible to children, unlike books and motion pictures.

In the Philippines, the transistor radio is found everywhere. The impact of

the brant speech is immediate and forceful. However, the freedom to comment on
public affairs is essential to the vitality of a representative democracy. SC cited US
vs. Bustos (GR L-12592, 8 Mar 1918),

“The interest of society and the maintenance of good

government demand a full disclosure of public affairs. Complete
LIBERTY TO COMMENT on the conduct of public men is A
SCALPEL IN THE CASE OF FREE SPEECH. THE SHARP
INCISION ON ITS PROBE RELIEVES THE ABSCESSED OF
OFFICIALDOM. Men in public life may suffer under a hostile and
an unjust accusation; THE WOUND CAN BE ASSUAGED WITH
THE BALM OF A CLEAR CONSCIENCE. A public officer must
not be too thin-skinned with reference to comment upon his official
acts. Only then can the intelligence and dignity of the individual be
exalted.” (Malcolm, J.) (Note: Bustos case was decided 33 years
before the landmark US case, NY Times vs. Sullivan, which
enunciated a similar doctrine)

Broadcast stations deserve the special protection given to all forms of media
by the due process and freedom of expression clauses of the Constitution.

5. Live Shows and Theatrical Performances

CASE: People vs. Padan y Alova, (GR L-7295, 28 Jun 1957)

Accused exhibited inside a building hired performers or exhibitionists to

perform and in fact performed sexual intercourse in the presence of many
spectators for a P3 fee.
 Held: Actual exhibition of sexual act, preceded by acts of lasciviousness, has
no social redeeming value. In it, there is no room for art.

6. Optical Media, Video, Internet

Related Laws:

* RA 9239, Optical Media Act of 2003, creating the Video Regulatory Board (VRB)
*RA 10175, Cybercrime Prevention Act of 2012

FIFTH ESTATE – is a socio-cultural reference to groupings of outlier viewpoints in

contemporary society, and is most associated with bloggers or journalists,
publishing in non-mainstream media outlets, and the social media or social license.
(Wikipedia)

CASE: Disini vs . Secretary of Justice, (GR 203335, 11 Feb 2014)

1. Section 4 (c) (1) of RA 10175, Anti-Cybercrime Act, makes “cybersex” as

constituting a cybercrime offense. Petitioners claim that this section violates
freedom of expression. They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not regarded
as crimes under the penal code, would now be regarded as crimes when done “for
favor” in cyberspace. The law as written would invite the enforcement agencies into
the bedrooms of married couples or consenting individuals.

Held: Section 4 (c) (1) of RA 10175 is valid. The deliberations of the

Bicameral Committee of Congress on this section show a lack of intent to penalize a
“private showing between and among private two persons although that may be a
form of obscenity to some.” The understanding of those who drew up the
cybercrime law is that the element of “engaging in a business” is necessary to
constitute the illegal cybersex. It seeks to punish cyber prostitution, white slave
trade, and pornography for favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam. In any event, consenting adults are
protected by the wealth of jurisprudence delineating the bonds of obscenity.

2. Section 5 (a) of RA 10175, Anti-Cybercrime Act, makes “aiding and

abetting in the commission of cybercrime” and (b) “attempt in the commission of
cybercrime” as constituting a cybercrime offense. Petitioners assail the
constitutionality of Section 5 as it suffers from overbreadth and void-for-vagueness,
creating a chilling and deterrent effect on protected expression. ”

Held:

a. Section 5 (a) of RA 10175 is valid with respect to the crime of “aiding and
abetting” in the commission of cybercrimes on the following offenses; Illegal
Interception, Data Interference, System Interference, Misuse of Devices, Cyber-
squatting, Computer related forgery, Computer related fraud, Computer-related
identity theft, and cybersex. None of these offenses borders on the exercise of
freedom of expression. The person aiding and abetting in these cybercrimes can be
identified with adroit tracking of their works.

b. Section 5 (a) of RA 10175 is also valid with respect to the crime of

“attempt’ in the commission of cybercrimes. A hacker may have done all that is
necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another hacker
may have gained access to usernames and passwords of others but fail to use these
because the system supervisor is alerted. Without Section 5, the owner of the
username or password could not file a criminal action against the hacker. But this is
not right. The hacker should not be freed from liability simply because of the
vigilance of a lawful owner or his supervisor.

3. Section 19 of RA 10175, Anti-Cybercrime Act, empowers the DOJ to

restrict or block computer data when a computer data is found prima facie to be in
violation of the cybercrime law. Petitioners contest section 19 because it stifles
freedom of expression.

Held: Invalid. On the freedom of expression, the content of the computer

data can also constitute speech. Section 19 operates as a restriction on the freedom
of expression over cyberspace. Legislature may, within constitutional bounds,
declare certain kinds of expression illegal. But for an executive officer to seize
content alleged to be unprotected without any judicial warrant would make him
judge, jury and executioner all rolled into one.

KINDS OF SPEECHES

CORE SPEECH – communicates political, social and religious ideas. In order to

validly regulate core speech, it must pass the clear and present danger test.

CASE: Diocese of Bacolod vs. Comelec (GR 205728, 21 Jan 2015, Leonen, J.)

Petitioner posted two tarpaulins within the private compound of San

Sebastian Cathedral of Bacolod, “Team Buhay / Team Patay”, classifying those who
voted against and for the RH Law, respectively, Comelec sent notice and letter to
the petitioner ordering the removal of the tarpaulins because they violate Comelec’s
resolution on the lawful size of election propaganda.

Held: This is a content-based regulation. The content of the tarpaulin is not

totally divorced from the size of its medium. A content-based regulation bears a
heavy presumption of invalidity and is measured against the clear and present
danger rule. Under this rule, the evil consequences sought to be prevented must be
substantive, “extremely serious and the degree of imminence extremely high. Even
with this test, Comelec failed to justify the regulation. There is no reason for the
State to minimize the right of non-candidates to post the tarpaulin in their private
property. The tarpaulin does not affect anyone else’s constitutional rights.

But even if the Court treats this as content-neutral regulation, still it will not
pass the intermediate scrutiny test. Under the O’Brien Test, government regulation
is valid if:

1. It is within the constitutional power of the government. Here, Comelec has no

power to regulate tarpaulin of non-candidates. The Archdiocese is not a political
candidate or party. Rather than provide obstacles to their speech, government
should in fact encourage it.

2. Purpose is an important or substantial government interest. Here, there is no

substantial or important, much less compelling, interest to advance. The contention
of Comelec that it has the mandate to ensure equal opportunity for public
information campaign among candidates is not applicable in this case because the
petitioner is not a candidate.

3. Government interest is unrelated to suppression of free speech. Here, Comelec’s

notice and letter affect preferred (core) speech. It could result in a chilling effect
that would affect other citizens who want their voices to be heard on issues during
elections. Large tarpaulins, therefore, are not analogous to time and place used as
grounds for content-neutral regulations on speech and expression. They are
fundamentally part of expression protected by the Constitution. Size matters. It
enhances efficiency in communication. It makes easier for passengers inside moving
vehicles to read its content. It also underscores the importance of the message to the
reader. Also, large spaces allow more messages.

4. The incidental restriction on free speech is no greater than is essential to the

furtherance of said state interest. Here, the Comelec regulation is likewise lacking.
The restriction is not narrowly tailored to achieve the purpose. It must allow
alternative avenues for the actor to make speech. In the words of Marshall
McLuhan, ‘the form of expression is just as important as the message itself; the
medium is the message”. Harold Hunnis elaborates, “the materials on which words
were written down have counted for more than the words themselves.

COMMERCIAL SPEEECH – a communication which “no more proposes a

commercial transaction (Cass R. Sunstein, Free Speech Now, The Bill of Rights in
the Modern State, p. 255, p. 304, 1992). Commercial speech not only includes the
right of the speaker to speak but also of the right of the listener to receive
information. Even this type of speech is protected, it does not mean that it is
immune from government regulation. Commercial speech is entitled to less
protection than political speech and can be regulated if false or misleading. Unlike
with political speech, the truth of which maybe difficult to ascertain, the Court
thought commercial advertising to be more objective and thus subject to
determination of its truth content. (Virginia State Board of Pharmacy s. Virginia
Citizens Consumer Council., Inc., 425 US 748, 1976).

Thus, commercial speech is not of the same degree as core speeches. But
commercial speech is still a speech, and in order to validly restrict commercial
speech, the following requisites must be present:

1. Commercial speech must not be false or misleading and should not propose an
illegal transaction (Friedman vs. Rogers, 440 US 1, 1979; Pittsburgh Press Co. vs.
Human Relations Commission, 413 US 376, 1973).

2. However, even truthful and lawful commercial speech may be regulated if:
(Central Hudson Gas and Electric Corp. vs. Public Service Commission of NY, 447
US 557)
a. Government has substantial interest to protect;
b. The regulation directly advances that interest; and
c. The regulation is not more than necessary to protect that interest.

* RA 7394, Consumer Act

* RA 8792, E-Commerce Law

CASE: Pharmaceutical and Health Care Association of the Philippines vs.

Secretary of Health Duque (GR 173034, 9 Oct 2007)

Sections 6-9 of EO 51, Milk Code, authorizes the DOH to control the purpose
of the information and to whom such information may be disseminated to ensure
that the information would reach pregnant women, mothers of infants, and health
professionals and workers in the health care system is restricted to scientific and
factual matters and shall not create a belief that bottlefeeding is equivalent or
superior to breastfeeding. However, Section 11 of the R&R prohibits the
advertisement and promotion of materials and activities for breastmilk substitutes.

Held: The advertising and promotion of breast milk substitute falls within
the ambit of commercial speech, a separate category of speech which is not accorded
the same level of protection as that given to other constitutionally guaranteed forms
of expression but is nonetheless entitled to protection. An absolute ban on
advertising is unduly restrictive and is more than necessary to further the avowed
governmental interest of promoting the health of infants and young children.

CASE: Disini vs. Secretary of Justice, (GR 203335, 11 Feb 2014)

 Section 4 (c) (3) of RA 10175, Anti-Cybercrime Act, makes “unsolicited
commercial communications” as constituting a cybercrime offense. It prohibits the
transmission of commercial electronic communication, also known as “spam”, with
the use of computer system which seeks to advertise, sell, or offer for sale products
and services unless there is prior consent from the recipient.

Held: Invalid. Unsolicited advertisements are legitimate forms of expression.

There have been unsolicited ads by mail even before the arrival of computers. To
prohibit the transmission of unsolicited ads would deny a person’s right to receive
his own emails, even unsolicited commercial acts addressed to him. Besides,
commercial ads do not reduce the efficiency of the computer. Commercial speech is
a separate category of speech which is not accorded the same level of protection as
that given to the constitutionally guaranteed forms of expression, but is nonetheless
entitled to protection. The State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression.

FREEDOM OF THE PRESS

“Our liberty depends on the freedom of the press, and that cannot be limited
without being lost.” - Thomas Jefferson

“Freedom of the press is not just important to democracy, it is democracy.”

- Walter Cronkite

4 ASPECTS OF FREE PRESS

1. Freedom from prior restraint

2. Freedom from subsequent punishment
3. Freedom of access to information
4. Freedom of circulation

CASE: Disini vs . Secretary of Justice, (GR 203335, 11 Feb 2014)

Section 4 (b) (3) RA 10175, Anti-Cybercrime Act, makes computer-related

identity theft as constituting a cybercrime offense. Petitioners fear that this section
violates the freedom of the press in that journalists would be hindered from
accessing the unrestricted user account of a person in the news to secure
information about him that could be published.

Held: Valid. This is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, theft of identity information must be intended for
an illegitimate purpose. Moreover, acquiring and disseminating information made
public by the user himself cannot be regarded as theft.
PEACEFUL ASSEMBLY AND PETITION FOR REDRESS OF GRIEVANCES

CASE: Primicias vs. Mayor Fugoso, (GR L-1800, 27 Jan 1948)

Primicias, a campaign manager of the Coalesced Minority Parties, applied

for the issuance of a permit to hold rally at Plaza Miranda on Sunday, November
16, 1947. The Mayor’s refusal to issue the permit prompted Primicias to file
mandamus to compel the Mayor to issue the permit.

Held: The Administrative Code does not confer unfettered discretion of

mayors to refuse or grant the permit, but only the DISCRETION in issuing the
permit to determine or specify the streets or public places where the assembly,
parade or procession may pass or the meeting may be held. (citing Cox vs. New
Hampshire, 3 US 569, 1941). As the law is construed by the Court, the licensing
authorities are strictly limited, in the issuances of licenses, to a consideration of the
time, place and manner of the assembly, with a view to conserving public
convenience. Mandamus is granted. The mayor is ordered to issue the
corresponding permit.

CASE: Navarro vs. Mayor Villegas, (GR 31687, 26 Feb 1970)

The mayor offered the applicant to hold the rally on a weekday or in the
Sunken Garden, instead of Plaza Miranda. The date applied for falls on a weekday
and a public assembly on that day would cause great disruption in the area.

Held: The mayor possessed discretion to determine or specify the streets or

public plaza to be used for the assembly in order to secure convenient use thereof by
others and provide adequate and proper policing to minimize the risks of disorder
and maintain public safety and order. The mayor has not denied nor absolutely
refused to issue permit. He has stated his willingness to grant permits on weekdays
and holidays when they would not cause unnecessarily great disruption of the
normal activities of the community. He even offered the Sunken Garden as an
alternative venue for the demonstration.

Note: The ruling in this case has been modified in Reyes vs. Bagatsing, infra.)

CASE: Ignacio vs. Mayor Ela, (GR L-6858, 31 May 1956)

Jehovah’s Witness members asked for the use of public plaza. The mayor
instead allowed the use of the northwestern part corner of the plaza but not the use
of the kiosks, which are located near a Catholic Church. The mayor believed that
the kiosks are for official purposes.
 Held: There was no refusal to issue the permit. The mayor has discretion to
provide for an alternative venue. The kiosks are located near a Catholic Church,
which the Jehovah’s Witness members had been criticizing in their publications.

CASE: J.B.L. Reyes vs. Bagatsing, (GR L-65366, 9 Nov 1983

Retired SC Justice JBL Reyes, in behalf of the Anti-Bases Coalition, sought a

permit from Manila Mayor for the use of Luneta Field and Roxas Boulevard in
front of the US Embassy on October 26, 1983, from 2-5 p.m.. The march was to
proceed from Luneta to the gate of the US Embassy where a short program would
be held. The mayor refused citing intelligence reports against the advisability of the
rally at such time and place, and that Ordinance 7294, in accord with the Vienna
Convention, prohibits rallies within 500-feet radius from any foreign mission or
chancery.

Held: The permit should be granted. To justify limitations of freedom of

assembly, it must satisfy the clear and present danger test. The burden of proof as to
the existence of such danger is on the mayor. Also, there is no showing that the
distance between the gate and the chancery is 500 feet. And even if it is, again it
must be tested using the clear and present danger rule.

The Supreme Court issued guidelines in the issuance of rally permits BP 880
codifies the guidelines set by the Supreme Court in this case.

GUIDELINES IN THE ISSUANCE OF RALLY PERMITS (To the extent that

there may be inconsistencies between this resolution and that of Navarro vs.
Villegas, (supra,), that case is pro tanto modified.

1. Applicants for a permit to hold an assembly should inform the licensing authority
of the date, the public place where and the time when it will take place. If it were a
public place, only the consent of the owner or the one entitled to its legal possession
is required.

2. The application should be well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the
permit or to its grant but at another public place.

3. It is an indispensable condition to such refusal or modification that the clear and

present danger test be the standard of the decision reached.

4. If the licensing authority is of the view that there is such an imminent or grave
danger of a substantive evil, the applicants must be heard on the matter.
5. Thereafter, the decision of the licensing authority, whether favorable or adverse,
must be transmitted to the applicants at the earliest opportunity.

6. Thus, if the applicants are so minded, then, they can have recourse to the proper
judicial authority.

Related Laws:

* BP 880, Public Assembly Act of 1985. BP 880 is a codification of the guidelines laid
down by the SC in Reyes vs. Bagatsing.

* RA 7160, Section 21, Local Government Code of 1991

CASE: David v Macapagal-Arroyo, GR 171396, 3 May 2006

Various groups questioned the constitutionality of President Arroyo’s

Proclamation 1017 and General Order 5 on the ground that they violate the
constitutional rights of the people, especially the right to liberty and this, while the
people celebrate People Power’s 20th Anniversary.

Held:

1. On Proclamation 1017 empowering the President to call on the AFP to prevent or

suppress lawless violence. This is constitutional. The proclamation is sustained by
Section 18, Article VII of the Constitution.

2. On Proclamation 1017 giving the President express or implied powers to issue

decrees, and to direct AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees issued by the President. These are ultra vires and
unconstitutional. The President has no power to issue decrees. That power belongs
to Congress. The President cannot order the military to enforce all laws, such as
customs law, family and property relations, obligations and contracts. She can only
order the military to enforce laws pertinent to its duty to suppress lawless violence.

3. On G.O. 5 providing a standard by which the AFP and PNP should implement
Proclamation 1017, i.e., “whatever is necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence. This is constitutional.
There is nothing in GO 5 which authorizes the AFP and PNP to commit acts beyond
what is necessary and appropriate to suppress and prevent lawless violence. GO 5
set the limitation in pursuing the President’s order. Otherwise, such acts are illegal.

4. On G.O. 5’s prohibiting “acts of terrorism”. This is unconstitutional. “Terrorism”

has not yet been defined and made punishable by Congress.
5. On the warrantless arrest of Randy David and Ronald Llamas. This is
unconstitutional in the absence of proof that they were committing acts of lawless
violence, invasion or rebellion and violating BP 880 on public assembly. The acts do
not fall under warrantless arrests allowed by Rule 113, Section 5 of the Rules of
Court. David and Llamas were just in a rally to commemorate the 20th Anniversary
of the People Power Revolution. All that the arresting officers could invoke was
their observation that some rallyists were wearing “Oust Gloria” T-shirts. David
was not even wearing the subject T-shirt and, even if was wearing it, such fact is
insufficient to charge him with inciting sedition. Also, there was insufficient
evidence for the charge of violation of BP 880 as it was not even shown that David
was the leader of the rally. Not only was their right against warrantless arrested
violated, but also their right to peaceably assemble.

6. On the dispersal of the rallies of the KMU and other groups. This is
unconstitutional. Public assembly is not a crime. It is guaranteed under Section 4,
Article III of the Constitution. It cannot be limited, much less denied, unless there is
a clear and present danger. Moreover, the authority to regulate assemblies is lodged
with local government units. They can issue or revoke permits after due notice and
hearing on the determination of clear and present danger. Here, petitioners were
not even notified and heard on the revocation of said permits. The first time they
learned of it was at the time of the dispersal. Such is a fatal defect. A democratic
government must be fair, reasonable and according to procedure.

7. On the search and seizure of the Daily Tribune. This is illegal and
unconstitutional. Pursuant to Section 2, Article III of the Constitution, Rule 126 of
the Rules of Court requires that search warrant be served upon probable cause
determined personally by a judge (Sec.4); that search warrant must be served in the
presence of the lawful occupant (Sec. 8); and that the warrant must be served in the
daytime (Sec. 9). All these procedural requirements were lacking. Not only that, it
violates freedom of the press. Such closure is in the nature of prior restraint or
censorship abhorrent to the freedom of the press guaranteed under the fundamental
law.

CASE: Bayan v Ermita, GR 169838, 25 Apr 2006

Petitioners assail BP 880, either in toto or some sections of the law (Sections,
4, 5, 6, 12, 13(a) and 14(a), as well as the policy of Calibrated Preemptive Response
(CPR) issued in a statement of Executive Secretary Ermita. They seek to stop the
violent dispersals of rallies under the “no permit, no rally” policy and the CPR
policy announced by the Ermita.

Held:

1. On BP 880. It is constitutional/ It does not prohibit, but merely regulates public

assemblies and rallies. They are content-neutral regulations of the time, place and
manner of holding public assemblies. BP 880 is a codification of the guidelines laid
down by the SC in Reyes vs. Bagatsing. Permits can only be denied if there is a clear
and present danger to public order, safety, morals, health or convenience. This is a
recognized exception even under the Universal Declaration of Human Rights and
the International Covenant on Civil and Political Rights.

2. On Freedom Parks. The designation of freedom parks is mandatory. Section 15 of

BP 880 requires local government units (LGUs) to designate at least one “freedom
park” in their territorial jurisdiction which, as far as practicable, shall be centrally
located within the poblacion where demonstrations and meetings may be held at any
time without need of any prior restraint. In the Philippines, only Cebu has declared
a freedom park (Fuente Osmena). The Sunken Garden in Manila has been
converted into a golf course. Under BP 880, permit is not required if the assembly
shall be held in the following places: freedom parks, private property, in which case
only the consent of the owner or legal possessor is required; and government-owned
and operated school campuses (subject to R&R of the school). Here, the SC gives
LGUs a deadline of 30 days from receipt of this promulgation within which to
designate specific freedom parks as provided under BP 880. Otherwise, all open
public places in the LGUs shall be considered as freedom parks.

3. On CPR. It is unconstitutional, insofar as it would purport to differ from or in

lieu of maximum tolerance, is null and void, and the police are enjoined to refrain
from using it and to strictly observe the requirements of “maximum tolerance”, i.e.,
the highest degree of restraint that the military, police and other peacekeeping
authorities shall observe during a public assembly or in the dispersal of the same.

HECKLER’S VETO – is a term coined by Professor Harry Kelvin of the University

of Chicago. It refers to the suppression of speech by the government because of a
possible violent reaction by the heckler. It is the government that vetoes the
speaker because of the reaction of the heckler. This occurs when a speaker’s right is
curtailed by the government in order to prevent a listener’s behavior to preserve the
peace.

In the US, case law regarding the Heckler’s Veto is mixed. Most findings say
that the speaker’s speech cannot be preemptively stopped due to fear of heckling by
the listeners. However, in the immediate face of violence, authorities can ask the
speaker to cease his speech in order to satisfy the hecklers.

In Feiner vs. NY, (340 US 315, 1951), the SC (thru CJ Vinson) held that
public officers acted within their power in arresting a speaker if the arrest was
“motivated solely by a proper co`ncern for the preservation of order and protection
of the general welfare.

But in Hill vs. Colorado, (530 US 703, 2000), the SC (thru Justice Souter)
rejected the Heckler’s Veto and finding the governmental grant of power to hecklers
to be constitutionally problematic in cases when “the regulations allowed a single
private actor (heckler) to unilaterally silence a speaker.” (Note that it was also in
this case that the SC ruled (6-3) that the First Amendment right to free speech was
not violated by a Colorado law limiting protest, education, distribution of literature,
or counseling within 8 feet of a person entering a healthcare facility).

UNPROTECTED SPEECH AND EXPRESSION

In US vs. Schenck, the US Supreme Court (thru Justice Holmes), quoting

Thomas Jefferson, wrote that “the freedom of speech does not include the right to
shout fire inside a crowded moviehouse.”

ALARMING AND SCANDALOUS SPEECH AND EXPRESSION

Related Laws

* Article 155. Alarm and Scandal, Revised Penal Code (RPC).

Four acts punishable in this article:

1. Discharging firearm, rocket, firecracker or other explosives in any town or public

place calculated to cause alarm and danger
2. Instigating or taking an active part in any charivari or other disorderly meeting
offensive to another or prejudicial to public tranquility
3. Disturbing the peace while wandering about at night or while engaged in any
other nocturnal amusements
4. Causing any disturbance or scandal in public places while intoxicated or
otherwise, which are only slight and not tumultuous under Art. 153, RPC)

* Article 200. Grave Scandal, RPC. Offending against decency, customs by any
higly scandalous conduct not falling under any article of the revised Penal Code.

INCITING TO REBELLION OR SEDITION

Related Laws:

* Article 138, RPC, Inciting to Rebellion

* Article 142, RPC, Inciting to Sedition)

CASE: Espuelas vs. People, (GR. L-2990, 17 Dec 1957)

Espuelas had his picture taken, making it appear that he committed suicide
by hanging himself, when in truth and in fact, he was merely standing on a barrel.
He sent copies of the photo to newspapers with a suicide note wherein he made it to
appear that is was written by a fictitious suicide, Alberto Reveniera and addressed
the latter’s supposed wife. The letter explained that he committed suicide because he
did not like and was ashamed of President Roxas’ administration because of the
situation in Central Luzon and Leyte. He asked his supposed wife to inform
President Truman and Churchill that the Philippine government is infested with
Hitlers and Mussolinis and expressed that he had “ no power to put under “juez de
cuchillo”all the Roxas people now in power.”

Held: He was found guilty of seditious libel. The SC, citing US and English
cases held that “writings which tend to overthrow or undermine the security of the
government or to weaken the confidence of the people in the government are against
the public peace, and are criminal not only because they tend to incite a breach of
the peace but because they are conducive to the destruction of the very government
itself. Accused letter suggested the decapitation of Roxas and all of his officials. He
called the government one of crooks and dirty persons infested with Nazis and
Fascists. He conveyed an idea no other than bloody, violent and non-peaceful
methods to free the government from the administration of Roxas and his men.

CASE: Corro vs. Lising (GR 69899, 15 Jul 1985)

In 1983, RTC QC Judge, upon application filed by Lt. Col. Castillo issued a
warrant authorizing search and seizure of printed copies of Manila Times. They are
said to be subversive documents which foments distrust and hatred against the
government. Lt. Laguio added that they contain articles inciting to sedition. Upon
serving the warrant, the military closed down the publication,

Held: Search and seizure warrant is invalid. There is no probable cause that
these material are subversive and mere conclusion of law. Such closure is the nature
of prior restraint or censorship abhorrent to the freedom of the press. 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.

LIBEL, SLANDER, BLACKMAIL AND OTHER FORMS OF DEFAMATION

Related Laws:

* Articles 353-355, RPC, Libel. A public and malicious imputation of a crime, vice
or defect, real or imaginary, or any act, omission, condition, status or circumstances
tending to cause the dishonor, discredit or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.

Elements of Libel:
1. Imputation of a wrong against another person.
2. Publication of the imputation.
3. Person defamed is identifiable by a third person
4. With malice, bad faith (no good faith or good motive)

* Article 354, Privileged Communication. A fair and true report, made in good
faith, without any comments or remarks, of any judicial, legislative or official
proceedings which are not of confidential nature” is an exception to libel.

1. Absolute – it bars any action. Freedom from liability with or without malice.
Example: Speeches of members of Congress made in the exercise of their
official functions.

2. Conditional / Qualified / Quasi-privilege – Communications made in good faith

without malice or in which one has a duty, public, personal or private, either
legal, judicial, political, moral or social, made to a person having a
corresponding interest or duty. Examples: a reporter’s factual, fair and true
report without comments or remarks; a teachers’ report on the conduct or
behavior of their students; supervisor’s or manager’s evaluation on the
conduct or performance of the employees.

* Article 356, RPC, Blackmail. Threatening to publish a libel concerning a person or

the parent, spouse, child or other members of his family, or preventing the
publication of such libel for a compensation or money consideration.

* Article 358, RPC, Slander. Oral Defamation.

* Article 363, RPC, Incriminating Innocent Person. Any act constituting perjury
directly incriminates or imputes to an innocent person the commission of a crime.

* Article 364, RPC, Intriguing Against Honor. Any intrigue which has for its
principal purpose to blemish the honor or reputation of a person

CASE: Belen vs. People, GR 21120, 13 Feb 2017

Belen, a practicing lawyer, sued his uncle for estafa before the Office of the
City Prosecutor (OCP). After submission of affidavits in the preliminary
investigation, Belen requested Fiscal Lagman for a clarificatory hearing. However,
Fiscal Lagman, without acting on the request, dismissed the case. Aggrieved, Belen
filed an Omnibus Motion for Reconsideration (OMR) and furnished in a sealed
envelope copies of the OMR to his uncle and to the Justice Secretary. Fiscal Lagman
first learned of the existence of the OMR from the son of Belen’ s uncle. Fiscal
Lagman requested the receiving section of the OCP for a copy of the said OMR.
Thereafter, Fiscal Lagman filed a complaint for libel on the basis of the defamatory
allegations in the OMR. Belen was found guilty for libel but argued on appeal that
there was lack of publication on the ground that the defamatory matter was made
known to third person only because prosecution witnesses were staff in the OCP and
were able to read his OMR.

Held: Petitioner is guilty of libel. Publication in libel means making the

defamatory matter, after it has been written, known to someone other than the
person to whom it has been written. A communication of the defamatory matter to
the person defamed alone cannot injure his reputation though it may wound his self-
esteem, for a man’s reputation is not the good opinion he has of himself, but the
estimation in which other hold him. In the same vein, a defamatory letter contained
in a closed envelope addressed to another constitutes sufficient publication if the
offender parted with its possession in such a way that it can be read by person other
than the offended party. If a sender of a libelous communication knows or has good
reasons to believe that it will be intercepted before reaching the person defamed,
there is sufficient publication.

CASE: Lopez vs. CA, GR L-2654, 31 Jul 1970

Petitioner is the publisher of the Manila Chronicle published an article,

“Hoax of the Year,” a story which pictured the state of the people in Babuyan
Islands. It turned out to be false. Attached to the story is a photo of a different
person with the same name “Fidel G. Cruz”. The newspaper noticed the error and
published an erratum on the story. Nevertheless, the petitioner was sued for libel.

Held: The petitioner is liable for the mistake but not guilty for libel as there
was no bad faith. Erratum was promptly made by the newspaper. A newspaper
should not be made to account to a point of suppression for honest mistakes or
imperfection in the choice of words. But this rectification or clarification does not
wipe out the responsibility arising from the publication of the first article, although
it may and should mitigate it.

CASE: Borjal vs. CA, GR 126466, 14 Jan 1999

Borjal is a columnist of Philippine Star who published an article that a “self-

proclaimed hero of the EDSA Revolution goes around organizing seminars and
conferences for a huge fee. A conference organized with shady deals seems to have a
lot of trash tucked inside his closet.” Wenceslao reacted to the article and filed a
criminal case for libel against Borjal and Soliven (publisher), insisting that he was
the “organizer” being alluded to in the article.

Held: The petitioners were acquitted. In order to maintain a libel suit, it is

essential that the victim be identifiable although it is not necessary that he be
named. It is also not sufficient that the offended party recognized himself as the
person attacked or defamed, but it must be shown that at least a third person could
identify him as the object of libelous publication. Regrettable, these requisites have
not been complied with here. Borjal did not disclose the identity of the “organizer”
since these only contained an enumeration of names, It did not even mention
Wenceslao’s name. Even Wenceslao himself entertained doubt that he was the
person spoken of in Borjal’s columns. Identification is grossly inadequate when even
the alleged offended party is himself unsure that he was the object of the verbal
attack (citing Kunkle vs. Cablenews American, GR l-16488, 8 Feb 1922)

CASE: Disini vs . Secretary of Justice, (GR 203335, 11 Feb 2014

Section 4 (c) (4), of RA 10175, Anti-Cybercrime Act, makes “libel committed

through the use of a computer system or any similar means which may be devised in
the future” as constituting a cybercrime offense. Petitioners lament the libel
provisions of the penal code and the cybercrime law carry a requirement of
‘presumed malice” even if latest jurisprudence already replaces it with “actual
malice” as a basis for conviction. They argue that inferring “presumed malice” from
the accused infringes on his constitutionally guaranteed freedom of expression.

Held: Valid but only insofar as the cybercrime law penalizes the author of
the libelous statement or article. Libel is an unprotected speech, and the government
has a right to protect individuals from defamation. The prosecution has the burden
of proving the presence of actual malice or “malice in fact” in instances where such
element is required to establish guilt. The defense of absence of actual malice, even
when the statement turns out to be false, is available where the offended party is a
public official or a public figure. Since the penal code and implicitly, the cybercrime
law mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of “malice” to convict the author of a defamatory
statement where the offended party is a public figure. But where the offended party
is a private individual, the prosecution need not prove the presence of a malice. The
law explicitly presumes the existence of malice from the defamatory character of the
assailed statement. For his defense, the accused must show that he has a justifiable
reason for the defamatory statement even it was in fact true.

FIGHTING WORDS – these are words which by the very utterance inflict injury or
tend to incite an immediate breach of peace. (Chaplinsky vs.New Hampshire,
315 US 568, 1942)

HATE WORDS – speech that offends, threatens, or insults groups based on race,
color, religion, national origin, sexual orientation, disability of other traits.

In the U.S., the Supreme Court acknowledged the offensive nature of hate
speeches but has been reluctant to impose broad restriction on it. Instead, they
impose “narrowly tailored” limits in speech that is regarded as hateful; and like
fighting words, hate words are those which by their utterances inflict injury or tend
to incite an immediate breach of the peace.

MAJOR U.S. CASES ON HATE SPEECH

1. Terminiello vs. Chicago, (337 US 1, 1949) (thru Justice Douglas; 5-4 decision,)

A defrocked Catholic priest was sued for his anti-Semitic views which were
regularly published in newspapers and on radio. Held: Freedom of speech is
protected against censorship or punishment. There is no room under the
Constitution for a more restrictive period.

2. Brandenburg vs. Ohio, (395 US 444, 1969)

A Ku Klux Klan (KKK) member was sued for recommending the overthrow
of the government. Held: The constitutional guarantee of free speech and of free
press do not permit a State to forbid or prescribe advocacy of the use of force or law
violation except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action.

3. Nationalist Socialist Party of America (Nazis) vs. Skokie, (432 US 43, 1977)

The government tried to stop the Nazi march in court, citing Skokie City ban
on wearing Nazi uniforms and displaying swastikas. Held: The Skokie ban violates
the First Amendment of the Constitution.

4. R.A.V. vs. City of St. Paul, (505 US 377, 1992)

A teenager burned a makeshift cross on the lawn of an African-American

couple. He was arrested and charged for violation of the city’s Bias-Motivated
Crime Ordinance which banned symbols that arouses anger, alarm or resentment in
others on the basis of race, color, creed, religion or gender. Held: The Ordinance is
excessively broad citing Terminiello vs. Chigago (1969, supra.)

5. Snyder vs. Phelps, ( 562 US 443, 2012)

Reverend Phelps of the Baptist Church picketed the funeral of Shepard using
slurs against homosexuals. The family of Shepard sued the Church for intentional
affliction of emotional distress. Held: SC upheld the right to picket. Contribution to
public discourse may be negligible.

6. Virginia vs. Black, (538 US 343, 2003) (J. O’Connors)

Again, on cross burning. Held: The State may choose to prohibit only those
forms of intimidation that are most likely to inspire fear of bodily harm.
7. Texas vs. Johnson, ( 491 US 397, 1989)

After a march through the streets, Johnson burned the US flag to protest
President Reagan’s policy. He was convicted of desecration of a venerated object in
violation of a Texas statue. Held: Johnson’s burning of the flag was expressive
conduct protected by the First Amendment. SC invalidated the state law
prohibitions on desecrating US flag.

OBSCENITY

Related Law:

* Article 201, RPC, Immoral Doctrines, Obscene Publications and Indecent Shows.

STANDARDS / TESTS FOR OBSCENITY

1. Hicklin Test / Isolated Passage Test, (Regina vs. Hicklin, 1868 English case; Sir
Alexander James Edmund Cockburn, 10th Baronet)

The test is “whether the tendency of the matter charged as obscenity is to

deprave and corrupt those whose minds are open to such influences, and into whose
hands a publication of this sort may fall.” This doctrine was used in US and UK
until it was rejected in US vs. One Book Called Ulysses (6 Dec 1933), a case dealing
with freedom of expression. At issue in that case was whether or not the novel of
James Joyce was obscene. Joyce was famous for his experimental use of language
and exploration of new literary methods including interior monologue, use of a
complex network of parallels, and invented words, puns and allusions. Judge
Woolsey’s trial court opinion is now more widely known and often cited as an
erudite and discerning affirmation of literary free expression. He opined that: “The
literature is not obscene even if there are isolated passages of nudity, sex or offensive
language if it does not promote lust.” This test is also known as the Isolated Passage
Test.

2. Roth Test / Dominant Theme Test / Average Person Test / Contemporary

Community Standard Test / Social Redeeming Value Test (Roth vs. US, 354 US 476,
1957).

In a 6-3 decision of the Supreme Court, Justice Brennan wrote for the Court
that “Sex and obscenity are not synonymous.” It repudiated the Hicklin Test stating
that “judging obscenity by the effect of isolated passages upon the most susceptible
persons, might well encompass materials legitimately treating with sex, and so it
must be rejected as unconstitutionally restrictive of the freedoms of speech and
press.”
 Here, the SC defined “obscenity” more strictly as:

a. “a material whose dominant theme taken as a whole appeals to the

prurient interest of the average person, applying contemporary standards.” Both
US and Philippine jurisprudence adopt this test in several cases and is referred to
under different labels: Dominant Theme Test (in Gonzalez vs. Kalaw Katigbak,
supra.); Average Person Test (Miller vs. California, 413 US 15, 1973);
Contemporary Community Standard (People vs. Kottinger, supra.), or

b. “a material which for its dominant theme has no social redeeming value
but only appeals to the prurient interest.” The test is “whether the work, taken as a
whole lacks serious literary, artistic, political or scientific value (Miller vs.
California (supra.)

3. Relative Obscenity Test / Average Person “Child” Test

CASE: Soriano vs. Laguardia, (GR 164785, 29 Apr 2009)

Soriano, host of Ang Dating Daan used on television language which

MTRCB found unsuitable for television. Hence, he was suspended. He claims prior
restraint and contends that the language he used was only a figure of speech.

Held: The language can be treated as obscene, at least with respect to the
“average child”. Hence, it is, in this context, unprotected speech. The language may
not appeal to the prurient interest of an adult. But the problem with the statement
was that “they were uttered in a TV program that is rated “G” or for general
viewership, and on prime time, or in a time slot that would likely reach even the
eyes and ears of children.”

CASE: Federal Communications Commission (FCC) vs. Pacifica

Foundation, (438 US 726, 1978). This is a landmark US case that defined the power
of FCC over indecent materials as applied to broadcasting.

The “7 Dirty Words” (shit, piss, fuck, cunt, cocksucker, motherfucker, tits)
are seven English-language words that comedian George Carlin listed in 1972 in his
monologue / stand-up comedy routine “Seven Words you can never say on
television.” At that time, these words were considered inappropriate and unsuitable
for broadcast in the public airwaves in the US, whether radio or television.

Held: The routine was “indecent but not obscene.” The SC by a 5-4 decision
recognized that the government had a strong interest in shielding children from
potentially offensive material and ensuring that unwarranted speech does not
intrude on the privacy of one’s home. It upheld FCC’s power to regulate media,
citing two government interests:
1. the uniquely pervasive nature of these broadcasts allows them to seep into “the
privacy of the home” without the consent of the viewer; and
2. Broadcasts are uniquely accessible to children whose “vocabulary could be
enlarged in an instant” by hearing indecent or profane language.

These two concerns were sufficient “to justify special treatment of indecent
broadcasting. SC stated that FCC had the authority to prohibit such broadcasts
during hours when children were likely to be among the audience.

4. National Character Test

Executive Order which created the defunct Board of Review for Motion
Pictures and Television (BRMPT) was made as reference in discretion assigned to
the Board “applying contemporary Filipino cultural values” as standard.

In Gonzalez vs. Kalaw Katigbak, (GR L-69500, 22 Jul 1985), the Supreme
Court held that “the widest scope of freedom is to be given to the adventurous and
imaginative exercise of the human spirit in the sensitive area of human personality.
What is seen or perceived by an artist is entitled to respect, unless there is a showing
that the product of his talent may be considered obscene. (Citing Kingsley vs.
Regents, 360 US 684, 695, 1959).

Query (Fr. Bernas): May obscenity in the internet be banned? US jurisprudence

suggests that they can be banned. But attempts to regulate sex, which does not come
under the definition of obscenity, for the purpose of protecting minors, have failed
on the argument that the regulation deprives adults of shows which do not come
under the definition of obscenity and are therefore LGEITIMATE FOR ADULTS.
(Bernas, J., Philippine Constitution: A Comprehensive Reviewer, 2011 Ed, Manila:
Rex Bookstore, pp. 78179). Illustrative Cases: Reno vs. ACLU, (521 US 844, 1997);
Ashcroft vs. Free Speech Coalition, (535 US 234, 2002); US vs. American Library
Association, 539 US 194, 2008)

GUIDELINES / PROCEDURE IN SEARCH AND SEIZURE OF OBSCENE

MATERIALS (Pita vs. CA, GR 80806, 5 Oct 1989)

1. A criminal charge must be brought against the person for purveying

pornographic materials.

2. A warrant must be obtained from the judge. There must be probable cause
determined by the judge.

3. The materials confiscated must be brought to the court in the prosecution of the
accused for the crime charged.
4. The court shall determine if the confiscated items are indeed pornographic or
obscene.

5. Then, a judgment of conviction or acquittal shall be rendered by the court.

LIMITATIONS ON FREE SPEECH

A. INTELLECTUAL PROPERTY RIGHT

There is an apparent conflict between copyright and freedom of speech. The

existence of an exclusive right to prevent a person from reproducing copyrighted
work is deemed a violation of the constitutional right of free speech. The perceived
conflict between freedom of speech and copyright is best understood using the
concept known as “idea-expression dichotomy”. Under this principle, copyright
protects the form in which a work is expressed but does not protect the underlying
ideas or information in the work. As an example, a cartoonist may have the idea of a
rich man falling in love with a poor lady as a plot for his comic serial. But this idea
of a rich man cannot be copyrighted. What can be copyrighted are the characters
and their dialogue in his comic serial which are the expression of his idea. In other
words, when applying the idea-expression dichotomy, the object of maintaining
dialogue is preserved because no exclusive right could be exercised over ideas. At
the same time, copyright’s exclusive exploitation of works is likewise preserved
because expression of these ideas remains protected by copyright. Hence, the objects
of the freedom of speech or expression and copyright are preserved. (Fider, Alex
Ferdinand, “Copyright as a Limitation of Freedom of Expression, Media Asia Vo.
29, No. 4, 2003, Singapore: Asian Media Information and Communication Center
(AMIC), http//www.amic.org.sg).

Related Laws:

* RA 8293, Intellectual Property Code of 1997 (IPC)

* New Civil Code (NCC), Articles 721
* Textbook Printing Laws and International Treatises on Copyright

COPYRIGHT – is the statutory protection of an artist’s or writer’s work giving the

creator (or the holder of the copyright) the right to regulate the publication,
multiplication or use of the copyrighted material for a certain period of time. It is an
incorporeal right, i.e., the right to something intangible (Gilbert Law Summaries,
Law Dictionary, Florida: Hancourt Brace and Company, 1997, p.65).

Works are protected by the sole fact of creation, irrespective of their mode or
form of expression, as well as of their content, quality and purpose” (Art. 172.2,
IPC). It subsists from the moment of creation. Copyright is a set of prerogatives
conferring on the authors of literary and artistic work control over the public
exploitation of their works and ensuring them remuneration to which they are
entitled in consideration of their creative work.

The format or mechanics of a TV show is not copyrightable. (Joaquin vs.

Drilon, GR 108946, 28 Jun 1999)

INFRINGEMENT - Infringement is a trespass on a private domain owned and

occupied by the owner of a copyright and, therefore, protected by law. It consists in
the doing by any person, without the consent of the owner of the copyright, of
anything the sole right to do which is conferred by law on the owner of the
copyright. In infringement, it is not necessary that the whole or even a large portion
of the work shall have been copied. “It is no defense that the pirate did not know
whether or not she was infringing of any copyright; she at least knew that what she
was copying was not hers, and she copied at her peril.” (Habana vs. Robles, (GR
131522, 19 Jul 1999; Columbia Pictures vs. CA, GR 110318, 28 Aug 1996, citing
Copyright and Literary Property Sec.94, 18 CJS 217).

PLAGIARISM – It is the representation of another author’s language thoughts,

ideas, or expressions as one’s own original work, with or without the consent of the
original author, and incorporating it into your work without full acknowledgment.
It may be intentional, reckless or unintentional, it is considered academic dishonesty
and a breach of journalistic ethics. (Wikipedia)

FAIR USE (Sec. 185.1, IPC) – A legal doctrine that permits limited use of
copyrighted material without having to first acquire permission from the copyright
holder. Fair use includes criticism, comment, news reporting, teaching including
multiple copies for classroom use, research and similar purposes

There are four factors of fair use:

1. the purpose and character of your use

2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken
4. the effect of the use upon the potential market

DECOMPILATION – The reproduction of the code and translation of forms of the

computer program to achieve the interoperability of an independently created
computer program with other programs may also constitute fair use. (Sec. 189, IPC;
Teodoro, Luis and Rosalinda Katabay, Mass Media laws and Regulations in the
Philippines, 3rd ed., Pasig City: CRCF and AMICC, 2003).

B. FAIR ADMINISTRATION OF JUSTICE

 Limitations to press freedom may arise from State and public interest in the
fair administration of justice. When press freedom obstructs the fair administration
of justice, one may be held liable for contempt.

Relevant Law:

* Rule 71, Section 3(d), Rules of Court. The following may be punished for
contempt: “any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice.”

SUB JUDICE - a general term to describe the fact that an issue is before a court for
its determination. (Sibal, Jose Agaton, Philippine Legal Encyclopedia, QC: Central
Lawbook, 1986, p. 1001. Anyone who publishes comments on a sub judice case or
pending suit which may obstruct the fair administration of justice may be held
liable for contempt.

FAIR COMMENT – is privileged communication to criticize and comment on

matters of public interest without being liable for defamation or libel provided that
the comment is an honest expression of opinion and free of malice. (republic Real
Estate Corp., vs. Jimenez-David; GR 134677, 19 Jun 2001).

PREJUDICIAL PUBLICITY - A violation of procedural due process in judicial

proceedings where adverse publicity influenced the court’s decision. “To warrant a
finding of prejudicial publicity, there must be allegation and proof that the judge
has been influenced not simply that they might be influenced, by the barrage of
publicity.” (Webb vs. De Leon, GR 121039-45, 25 Jan 1999).

CASE: Cabansag vs. Fernandez, (GR L-8974, 18 Oct 1957)

Due to long delay in the rearing of the case because of untranscribed

stenographic notes, Cabansag wrote a letter to Presidential Complaint and Action
Commission PCAC stating that that the delay was due to “careful maneuvers of
tactical lawyers”. The opposing lawyers asked the court to cite Cabansag in
contempt because the letter seeks to influence the court. The issue centers on the
clash between the right to petition the government for redress of grievances and the
independence of the Judiciary.

Held: Applying the clear and present danger test or the dangerous tendency
test, the SC held that it was far from the mind of Cabansag to put the court in
ridicule, or belittle or degrade it in the eyes of those to whom the letter was
addressed. He acted the way he did simply because he saw no other relief for the
early termination of his case.

CASE: People vs. Castelo and Abaya, (GR L-11816, 23 Apr 1962)
 A news story regarding an extortion attempt in the Monroy murder case was
published in the Manila Bulletin while said case was pending. The news story was
written by the editor, Abaya who gathered his information from a coffee shop where
he overheard and recorded the conversation. The news story came to the knowledge
of Judge Rilloraza who was trying the Monroy murder case. The judge found
Abaya guilty of indirect contempt. Abaya, for his defense, asserted freedom of the
press.

Held: No indirect contempt. Nothing in the story published, even in a slight

degree, indicate that the ultimate purpose of the reporter is to impede, obstruct, or
degrade the administration of justice. It was a mere narration of factual appraisal of
the negotiation and no comment whatsoever was made. The judge himself admitted
that he was not influenced by the report. The voice recording and pictures in the
place is immaterial as the investigation was conducted in a public place where
everyone can hear and see them.

Moreover, it was a privileged communication, even if the statement is

defamatory. The publisher need not be prosecuted upon the theory that he has done
it to serve public interest or promote public good. A fair and true report, made in
good faith, without any comments or remarks, of any judicial, legislative or official
proceedings which are not of confidential nature is privileged communication.

The SC made the following observation: Police are prone to investigate case
openly and publicly even if the purpose is merely to establish a probable cause that
they may warrant legal prosecution. This practice should be stopped not only
because of the preliminary character of the inquiry but specially to save consequent
annoyance or embarrassment, if not loss of reputation, on the part of those
investigated who may later turn out to be innocent.

CASE: People vs. Alarcon, (GR 46551, 12 Dec 1939) (Laurel, C.J.)

CFI, Pampanga rendered a decision convicting the accused of robbery in

band. Luis Taruc wrote a letter to the President denouncing the decision. A
reported got hold of the letter and caused it to be published in Tribune. The
columnist, Mangahas, was cited in contempt of court. Mangahas contended that he
was not the author of the letter.

Held. No contempt. The case had already been decided and became final, It
would be contemptuous if the newspaper columnist tended to obstruct, embarrass
or influence the court in the administration of justice in a pending suit or
proceedings.

CASE: Nestle Philippines vs. Sanchez, GR 75209, 30 Sep 1987)

 The Filipro Employees Labor Union intensified their pickets in front of the
Supreme Court where their case against their employer was pending. They
constructed provisional shelters along the sidewalks, set up kitchen and littered the
place. They used placards with slogans and were haranguing the court all day with
the use of loudspeakers. Their counsel, Atty. Espinas, was called by the SC to
immediately cease the demonstration which constitutes direct contempt of court.
Atty. Espinas apologized to the Court and assured it will not be repeated. He
explained to the picketers that the case would be delayed if the picket continues. The
picketers heeded his advise.

Held The SC accepted the apologies and forgo the imposition of the sanction.
The Court realized that the picketers are not lawyers and are not knowledgeable in
the intricacies of law. But it reminded the members of the bar that it is their duty as
officers of the court to apprise their clients on matters of decorum and proper
attitude toward courts of justice. The contempt charges were dismissed. But
henceforth, no demonstrations or pickets intended to pressure or influence the
courts into acting one way or the other on pending cases shall be allowed in the
vicinity and /or within the premises of any and all courts in the Philippines.

CASE: Roque vs. Chief of Staff, AFP, (GR 214986, 15 Feb 2017)

This refers to the “Jeffrey/Jennifer Laude” murder case handled by Atty.

Roque. He, together with media reporters, went to the military base. Due to
altercation with the military, the AFP announced to the media that they would file a
disbarment case against him. Thereafter, on November 4, 2014, the AFP made a
Press Statement that “the AFP filed a verified disbarment complaint before the IBP
against Atty. Roque for violation of the Code of Professional Responsibility.” Atty.
Roque assails AFP’s act and filed contempt charges against the AFP for repeatedly
and publicly threatening him with disbarment, in violation of the confidentiality
rule in disbarment proceedings.

Held: Given this case’s factual milieu, the balance is served by the denying
the petition. At the time the AFP made Press Statement, there was no disbarment
case filed against Atty. Roque. Therefore, there was no proceeding to keep private.
Besides, the Press Statement does not divulge anything that merits punishment for
contempt. It is a brief, unembellished report that a complaint has been filed. It does
not divulge any act or character trait on the part of Atty. Roque that damage his
reputation. When a lawyer conducts his cases in a public manner, it would be an
abuse of the court’s contempt powers to stifle the subject of his attention. A lawyer
who uses the public for and as his battleground cannot expect to be protected from
public scrutiny. The Court must strike a balance between protecting officers of the
court from harassment on one hand, and the interests of freedom of speech on the
other.
C. FAIR CONDUCT OF ELECTIONS

Relevant Law:

* RA 9006, Fair Election Act. The purpose of the law is …“to guarantee or ensure
equal opportunity for public service including access to media time, space, …and
assure honest, orderly, honest, peaceful, credible elections.”

CASE: Badoy vs. Comelec, (GR L-32546, 17 Oct 1970)

Comelec issued a Resolution prohibiting the printing and publication of

comments or articles for or against a candidate, which are not paid, without
mentioning the names of all the other candidates with equal prominence. Petitioner
wants the Resolution be declared unconstitutional for being an undue abridgment of
the freedom of expression.

Held: The SC, in using the clear and present danger test and the balancing of
interest test, held that the Resolution is valid. There are other laws to compensate
with these minor limitations. The said restriction on free expression appears too
insignificant to create any appreciable dent on the person’s liberty of expression.

CASE: Sanidad assailed Section 19, of a Comelec resolution “prohibiting

media from campaigning for or against the issues during the plebiscite campaign
period” for the creation of the Cordillera Autonomous Region.

Held: Unconstitutional. It violates freedom of expression. Comelec has the

power to regulate franchises, but not prohibit free expression. Badoy vs. Ferrer case
is different. It regulated election activities. But the case at bar is about a plebiscite.
Issues are matters of public concern. The people have the right to information.

CASE: Adiong vs. Comelec, (GR 103956, 31 Mar 1992)

Comelec prohibited the posting of decals and stickers of candidates on

“mobile” places, public or private”.

Held: Unconstitutional. It infringes in freedom of speech. There is no clear

and present danger. It does not serve the purpose of equal opportunity. It is also
overbroad. It even encompassed the use of privately owned vehicles in violation of
the property right of the owner of the vehicle.

CASE:1-UTAK vs. Comelec, (GR 20620, 4 Apr 2015)

 Comelec Resolution 9615 prohibits the display and posting of any election
campaign material on public utility vehicles (PUV). Penalty for violation is a
revocation is revocation off the PUV’s franchise.

Held: This is a form of prior restraint on free expression and an invalid

content-neutral regulation, following the requisites of the O’Brien test. The Comelec
may only regulate the franchise or permit to operate, and not the ownership per se
of PUV and transport terminals. What constitutes a public utility for granting
franchise or permit is their use to serve the public like safety of passengers, routes
or zones of operation, maintenance of the vehicle, of reasonable fare rates, and other
charges. Otherwise it becomes a regulation, not on the franchise or permit to
operate PUV, but on the very ownership of the vehicle used for public transport.

CASE: ABS CBN vs. Comelec, (GR 133486, 28 Jan 2000)

Comelec banned “exit polls” because it has the tendency to sow confusion
and the exit polls are highly unreliable because of its random method of selecting
interviewees. The exit poll result may not be in harmony with the official count of
Comelec.

Held: Exit polls, i.e., random polling of voters as they come out of the polling
booths, and the dissemination of their results through mass media constitute as an
essential part of freedoms of speech and the press. There is no clear and present
danger because the evils envisioned are merely speculative. No evidence that exit
poll results create disorder or confusion. The secrecy of the ballot is not
compromised as the contents of the ballot are not exposed. Revelation of voter’s
choice is voluntary, not compulsory. Narrowly tailored countermeasures may be
transcribed without transgressing the fundamental rights of people.

CASE: Comelec resolution, pursuant to Section 1, RA 9006 (Fair Election

Act) prohibits the “publication of surveys 15 days (national candidates) and 7 days
(local candidates before an election.” Its purpose is to prevent manipulation and
corruption of electoral process by unscrupulous and erroneous surveys just before
election.

Held: Both Section 1, RA 9006 and the Comelec Resolution are invalid.
Comelec’s power over media is limited to ensure equal opportunity, time, space and
the right to reply. For content-related regulations to be valid, it must pass the
O’Brien test which requires the following:

1. The regulation is within the constitutional power of the government.

2. It furthers an important or substantial government interest.
3. The government interest is unrelated to the suppression of free expression.
4. The incidental restriction on free speech is no greater than is essential to the
furtherance of that interest.

The restriction does not pass the 3rd and 4th requisites of the O’Brien test. It
imposes a prior restraint on free speech and free press. It is a direct, absolute and
substantial suppression of a category of expression even though such suppression is
only for a limited period. The government interest sought to be promoted can be
achieved by means other than suppression.

D. NATIONAL SECURITY (See also notes on Inciting to Rebellion and Sedition,

pp. 22-23)

Related Law: RA 1477 (Shield Law). This is an Act amending RA 53, entitled
‘An Act to exempt publishers, editors, columnists or reporters to any publication
from revealing the source of published news or information obtained in confidence,
except if the court or Congress finds that such revelation is demanded by the
security of the State. It removed “national interest” as one of the grounds for
exception. The amendment is in reaction to the decision of the Supreme in the case,
In Re: Parazo.

CASE: In Re: Parazo, (GR 082027, 3 Dec 1948)

Star reporter Parazo published a story about “Claim Leak in Bar Results.”
He was asked by the Supreme Court to disclose his source. He declined and cited
RA 53 for his defense. He alleged that RA 53 provides for non-revelation of the
sources of a reporter’s story. However, RA 53 provides for exceptions, i.e. when the
“court or Congress finds that such revelation is demanded by the national security
or interest of the State.” Parazo argued that the story did not involve national
security. His counsel also contended that the bill of Senator Sotto only contained
“national security”; and did not include “interest of the State.”

Held: The final bill which was passed into law included the phrase “interest
of the State”. This case involves national interest. The SC is one of the three
coordinate and independent branches or departments of the government under the
Constitution. It is tasked the fair administration of justice. It also administers the
Bar exams. It is necessary to keep the confidence of the people in this High Tribunal
as regards the discharge of its functions.

E. ACADEMIC FREEDOM

Related Laws:
* Article XIV, Section 5 (2), Constitution, “Academic Freedom shall be enjoyed in
all institutions of higher learning.” This provision does not include elementary and
high schools.

* RA 7662, Legal Education Act

ACADEMIC FREEDOM OF SCHOOLS

Four Essential “Freedoms” of a University (Frankfurter, J.):

Universities have freedom to determine for itself on academic grounds the

following:

1. who may teach

2. what to teach
3. how it shall be taught / how to teach
4. who may be admitted to study / whom to teach; the freedom to admit includes the
freedom to exclude. (Miriam College Foundation vs. CA, GR 127930, 15 Dec 2000)

CASE: Garcia vs. Faculty Admissions Committee, Loyola School of

Theology, (GR L-40779, 28 Nov 1975)

Petitioner insists that she be admitted and allowed to enroll to pursue her
masteral studies in the graduate program of the Loyola School of Theology. The
school refused admission.

Held: An institution of higher learning cannot be compelled to accept a

person demanding admission into its degree program. The school has a right to
determine the qualifications of the applicants who may be admitted. The Loyola
School of Theology is a seminary for the priesthood. Petitioner is admittedly and
obviously not studying for priesthood, she being a lay person and a woman. And
even assuming ex gratia argumenti that she is qualified to study for the priesthood,
there is still no duty on the part of the school to admit her, since the school has
clearly the discretion to turn down even qualified applicants due to limitations of
space, facilities, professors and optimum classroom size and component
considerations.

Case: U.P. Board of Regents vs.CA, (GR 134829, 31 Aug 1999)

A student presented her dissertation during the oral defense. She was asked
to revise her work, after which she was allowed to graduate. Later, it was discovered
that she plagiarized her dissertation. So U.P. withdrew the doctoral degree already
granted.
 Held: Valid. Academic freedom grants the University the exclusive
jurisdiction to determine to whom among its graduates it shall confer academic
recognition, based on its established standards.

CASE: Lupangco vs. CA, (GR 77372, 29 Apr 1988)

The Professional Regulation Commission (PRC) restricts reviewees from

attending review classes, briefing conferences or the like, and receiving hand out,
review materials, etc..

Held: PRC rules are unreasonable and arbitrary. It violates the academic
freedom of schools.

CASE: Pimentel vs. Legal Education Board (LEB), 9GR 242954, 10 Sep
2019)

Petitioners challenged the constitutionality of RA 7662, Legal Education Act,

and several LEB Memorandum Orders (MO) as they violate equal protection,
academic freedom and non-delegation of power. LEB contends that the purpose of
the law and MOs is to improve the quality of legal education.

Held:

The following MOs are declared UNCONSTITUTIONAL They usurp the

right of law schools’ academic freedom to determine for themselves the criteria who
to teach, what to teach, how to teach and whom to teach.

1. MO 7-2016, which requires all those seeking admissions to the basic law course to
take and pass a nationwide uniform law school admission test,” also known as the
Philsat;

2. MO 1-2011, Sec. 15, which requires law schools to refer to LEB for determination
of eligibility for admission all applicants who are graduates of foreign school; and,
which requires a specific number of units in English, Math and Social Science
subjects;

3. MO 1-2011, Sec. 6, which imposes that only those with basic law degree may be
admitted to graduate programs.

4. MO 17, Sec. 6, which mandatorily requires LL.M. degree as a minimum

requirement to teach in law schools and to hold the position of a law dean; and, as to
those who are exempted to such requirement on ground of expertise, the LEB, and
not the law schools, evaluates the teacher’s qualifications and prescribes their
employment status and classification, including the regulation of work hours;
5. MO 1-2011, which allows LEB to revoke permits or recognitions given to law
schools when LEB deems there is gross incompetence on the part of the deans and
professors;

6. MO 2, Sec. 24(C), which prescribes the activities in the law schools’

apprenticeship programs

Several other provisions of RA 7662 are declared unconstitutional and ultra

vires for granting LEB certain powers which encroached upon the constitutional
powers of the Supreme Court:

1. Requiring lawyers to attend continuing legal education.

2. Establishing a law practice internship as a requirement to take the bar exams.

ACADEMIC FREEDOM OF TEACHERS AND STUDENTS

This is the freedom of teachers or research workers in institutions of higher

learning to investigate and discuss the problems of his/her discipline and to express
his/her conclusions either through publications or in instructions of students
without interference from political or ecclesiastical authority, or from
administrative officials of the institution.

CAMPUS JOURNALISM

Related Law:

* RA 7079, Campus Journalism Act of 1991. This allows freedom to campus

journalists.

Sec. 6. The publication adviser is to be selected by the school administration from a

list of recommendees submitted by the publication staff and the function of the
adviser is limited to technical guidance.

Sec. 7. A member of the publication staff is granted security of tenure and cannot be
expelled solely on the basis of the performance of his/her duties in the student
publication.

CAMPUS ACTIVISM AND ASSEMBLY

CASE: Malabanan vs. Ramento, (GR L-62270, 21 May 1984)

 The student officers of the student council were granted by the school a
permit to hold a meeting inside a building in the campus from 8 a.m. to 12 p.m.. The
students instead held the meeting at the basketball court, then marched inside the
campus and beyond the area allowed by the permit. They were shouting, using
loudspeakers and uttering language critical of school authorities which resulted in
disturbance of classes. The students were suspended for one year.

Held: Disciplinary action may be taken against the students who violated
school rules. However, considering the importance of the right of assembly and
petition for redress of grievance, the penalty imposed is too severe. The students do
not shed their constitutional rights to free speech or expression at the schoolhouse
gate,” (Citing Justice Fortes in Tinker vs. Des Moines Community School District,
393 US 503, 1969). Their right to discuss matters affecting their welfare or involving
public interest is not subject to be subjected to prior restraint or subsequent
punishment unless there is clear and present danger. However, the peaceful
character of the assembly could be lost by an advocacy of disorder under the name
of dissent. If the assembly is to be held in school premises, permit must be sought
from school authorities, who are devoid of the power to deny such request
arbitrarily or unreasonably. In granting such permit, there may be conditions as to
the time and place of the assembly to avoid disruption of classes or stoppage of work
of the non-academic personnel. Even if, however, there may be violations of its
terms, the penalty incurred should not be disproportionate to the offense.

SC provided the following guidelines:

1. Schools may impose discipline for violation of reasonable rules of the school like,
in this case, disturbance in illegal assembly

2. But the right to assembly is a cherished right. It can only be limited if it passed
the clear and present danger test.

3. Not only must the rules be reasonable; the penalty for violation of the rules must
also be reasonable. The penalty must be commensurate to the act which violated the
rules. The penalty of refusing enrolment for performing the constitutional right to
freedom of assembly, albeit non-peacefully is too severe.

4. However, the school may refuse enrolment due to academic deficiency for failing
to meet the academic standards of the school (academic freedom). But such
standards must likewise be reasonable.

CASE: Non vs. Dames, (GR 89317, 20 May 1990)

The school denied the re-enrolment of students who joined a student

demonstration the following semester on the ground that the contract of the
students with the school had expired at the end of the previous semester.
 Held: The contract of the student with the school commences from the time
he enrolls up to the time he graduates.

F. OFFENDING THE RELIGIOUS FEELINGS

Related Law:

* Article 133, RPC. It penalizes any person “performing acts notoriously offensive
to the feelings of the faithful in a place devoted to religious worship or during the
celebration of a religious ceremony”.

Case: Celdran vs. People, (GR 220127, 21 Mar 2018)

Celdran entered the Manila Cathedral displaying a placard bearing the word
“DAMASO,” referring to the fictional character in Jose Riza’s Noli Me Tangere,
while ecumenical service was going on inside the church; wearing a black suit and a
hat shouting, “Bishops, stop involving yourself in politics”, thereby disrupting and
showing disrespect to an otherwise solemn celebration. Celdran’s defense; it did not
happen during the celebration of the Holy Mass.

Held: SC, citing a 1939 case, People vs. Basa, (GR L-46000, 25 May 1939),
“whether or not the act complained of is offensive to the religious feelings of the
Catholics, is a question of fact which must be judged only according to the feelings
of the Catholics and not those of other faithful ones, for it is possible that certain
acts may offend the feelings of those who profess a certain religion, while not
offensive to the feelings of those professing another religion.

G. FREEDOM OF SPEECH AND EXPRESSION VS. RIGHT TO PRIVACY

CASE: Lagunzad vs. Sotto vda. de Gonzalez, (GR L-32066, 6 Aug 1979)

Lagunzad, a newspaperman, produced a movie entitled “The Moises Padilla

Story.” It was based on the copyrighted but unpublished book of Rodriguez, entitled
“The Long Dark Nights in Negros.” The book narrates the events which culminated
in the murder of Padilla, a politician. There were portions in the movie which dealt
with the private life of Padilla and his family. It added scenes portraying a little
romance between Padilla and his girlfriend. The family of Padilla contends that
there is violation of their right to privacy. While it is true that petitioner had
purchased the rights of the book, that did not dispense with the need for prior
consent and authority from the deceased heirs to portray publicly episodes in the
deceased’s life and in that of his mother and members of his family.
 Petitioner raised the following arguments:

1. Lagunzad purchased the rights over the book.

Held: That does not dispense with the need for prior consent from the
deceased’s heirs to portray publicly episodes of the life of the deceased, his mother
and family. The right to protect the memory of the dead is also for the benefit of the
living.

2. Padilla is a public figure, therefore, the family has no property right over
the life of Padilla.

Held: Being a public figure does not ipso facto destroy in toto a person’s
right to privacy, especially when a little romance was included in the film.

3. Petitioner invokes his freedom of expression guaranteed by the

Constitution.

Held: Free speech and press can be limited by the clear and present danger
test, and also by the balancing of interest test. Between the right to privacy and the
freedom of speech, the SC, using the balancing of interest test, ruled in favor of the
right to privacy.

CASE: Ayer vs. Judge Capulong, (GR 82380, 29 Apr 1988)

An Australian production outfit intends to produce a film entitled, “A

Dangerous Life,” a reenactment of EDSA Revolution. Enrile objected and a TRO
was issued by the judge to enjoin petitioner from making the film. He argued that it
will violate his right to privacy.

Held: The SC, citing Dean Irene Cortes, ruled that the “Right to privacy, like
free speech, is not absolute. A limitation is permissible if the person is a PUBLIC
FIGURE and the information sought to be elicited from him or to be published
about him constitutes matters of PUBLIC CONCERN. SC made these findings;

1. People Power Revolution is of public interest and concern and does not
relate to the individual life and certainly not to the private life of Enrile.

2. Enrile is a “public figure.” Citing Professors Prosser and Keeton, SC held

explained a “public figure” is a person who, by his accomplishments, fame, or mode
of living, or by adopting a profession or calling which gives the public a legitimate
interest in his doings, his affairs, and his character, has become a “public
personage” – a celebrity.
 3. Unlike in Lagunzad vs. Sotto, there was no prior restraint to make the
film. In fact, the film was completed and exhibited. Here, the Judge issued a TRO.
The film is not yet completed and exhibited. This is prior restraint.

“I wholly disapprove of what you say, but I will defend to

the death your right to say it.” -Attributed to Voltaire
(Francois-Marie Arouet)

* Professor Reynaldo G. Lopez is a Political Law and Political Science professor and a bar reviewer
in several law schools and review centers. He teaches Political Law Review, Constitutional Law,
Public Corporation, Administrative Law, Law on Public Officers, Election Laws, Human Rights
Law, Public International Law, Media Law and Ethics, Comparative Politics and Governments,
Political Geography, Political Sociology, Political Economics, Geopolitics and Philippine
Government. He was a full associate professor and coordinator of the Political Science Department in
the University of Santo Tomas, head of the Political Law Department and Assistant Dean of Arellano
University School of Law; Branch Clerk of Court, Regional Trial Court (Branch 125), Senior
Partner of Ochoa Lopez Law Office, Associate Lawyer of Syquia Law Offices, Executive Assistant
III of the Department of Foreign Affairs in Manila.

*This lecture material is for the exclusive use of the students of Prof. Reynaldo G. Lopez in
Constitutional Law who are under a Modified Enhanced Community Quarantine (MECQ) #covid
19. Any unauthorized copy, publication, sale, redistribution or reproduction of this work constitutes
a violation and infringement of his rights under the Intellectual Property Code and other existing
copyright laws.