ADDITIONAL CASE: OBSCENITY challengers, and remanded the case back to the district court to
determine the whether the statutes specific application to nude
BARNES V. GLEN THEATER (NUDE DANCERS)
DOCTRINE: The requirement for the nude dancers to wear pasties-as
provided by Indianas public indecency statute does not violate the First
Amendment. What is prohibited is nudity in general and not the eroticism. The
court stated that when speech and non speech elements are combined in the
same course of conduct, a sufficiently important governmental interest can
justify incidental limitations. The statute passed the OBrien test even though
it limited expressive activity.
RECIT-READY: A plurality of the Supreme Court of the United States found
that although nude dancing was entitled protection under the First Amendment
as expressive content, Indiana did not infringe upon the First Amendment
rights of the bars or the dancers by imposing certain restrictions. Two
establishments in South Bend, Indiana, including Glen Theatre, Inc., and
dancers employed at the establishments, challenged an Indiana statute that
made it illegal to dance in the nude as a violation of their First Amendment
right to freedom of expression. The Supreme Court held that the statute was
narrowly tailored to further a substantial governmental purpose, thus it was
constitutional.
FACTS:
The Kitty Kat Lounge is a business in South Bend, Indiana, that
exhibits dancing for customer entertainment and sells alcoholic
beverages. Glen Theatre, Inc., (Glen Theatre) has a business location
in South Bend, Indiana, as well. Glen Theatre purveys adult
entertainment which, in addition to movies and books, includes nude
and seminude performances and showings of the female body through
glass panels. (at 563.) An Indiana statute passed in 1988 (the
statute) made it illegal to appear nude in a public place.
As a result, dancers at the Kitty Kat Lounge and Glen Theatre have to
wear pasties and G-Strings when dancing to avoid violating the
Indiana public nudity statute. Darlene Miller, a dancer at the Kitty Kat
Lounge, and Gayle Ann Marie Sutro, a performer at Glen Threatre,
both wished to dance nude in the course of their employment at the
South Bend establishments because, for one reason, they believe
they would make more money doing so. (at 563.) As a result, the
Kitty Kat Lounge, Glen Theatre, and the dancers (the challengers)
sued the state of Indiana in federal district court to enjoin enforcement
of Indianas public nudity statute, arguing that it violated their First
Amendment right to freedom of expression which encompasses the
right to nude, erotic dancing.
The case rose to the Seventh Circuit Court of Appeals once before
this matter, which ruled on the overbreadth argument posed by the
dancing by the challenging performers violated the First Amendment.
The Northern District of Indiana found upon remand that the type of
dancing the challengers aspired to perform was not protected by the
First Amendment.
On appeal for the second time, the Seventh Circuit Court of Appeals
ruled en banc that nonobscene nude dancing performed for
entertainment is expression protected by the First Amendment, and
that the public indecency statute was an improper infringement of that
expressive activity because its purpose was to prevent the message
of eroticism and sexuality conveyed by the dancers. (at 565.) The
Supreme Court granted certiorari to examine the state of Indianas
claim that its public nudity statute did not violate the First Amendment
rights of the challengers.
ISSUE: WHETHER OR NOT THE PUBLIC NUDITY STATUTE VIOLATED
THE FIRST AMENDMENT RIGHTS
HELD: NO
RATIO:
Rehnquist, C.J., delivered an opinion of the court, in which OConnor
and Kennedy, JJ., joined.
There were several steps to the inquiry into whether the Indiana public
nudity statute violated the First Amendment rights of the dancers by
forbidding the nude dancing that they wished to practice at the South
Bend establishments.
First, the Court had to determine whether public nude dancing was the
type of expressive conduct protected by the First Amendment at all.
The Courts plurality opinion found that a string of prior Supreme Court
cases support the conclusion of the Court of Appeals that nude
dancing of the kind sought to be performed here is expressive conduct
within the outer perimeters of the First Amendment, though only
marginally so. (at 566.)
Then, the Court had to examine whether the public nudity statutes
restriction on expression was permitted under the First Amendment.
The statute did not criminalize nude dancing specifically, but all nudity
in public. The ban on nude dancing at places like the Kitty Kat Lounge
and Glen Theatre was accomplished indirectly by the general
prohibition on public nudity. Because the statute banned nudity of any
kind in public, it is what is classified by the Supreme Court as a time,
place, or manner restriction on expression.
Incidental time, place, or manner restrictions on expressive conduct
or symbolic speech combining speech and non speech elements in
 public forums are evaluated under the Supreme Courts rule
in United States v. OBrien, (at 567), which requires:
1. The regulation is within the constitutional power of the
Government;
2. The regulation furthers an important or substantial
governmental interest;
3. The governmental interest is unrelated to the suppression of
free expression;
4. The incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of
that interest.
The Supreme Court has long upheld the traditional police power of
the states to provide for the public health, safety, and morals as a
basis for laws and regulations. Furthermore, Indianas public nudity
statute furthered order and morality, a substantial government interest,
as demonstrated by a long history of public indecency prohibitions in
U.S. statutes and other ancient sources of law. Thus, the first two
prongs of the OBrien test were satisfied.
The reason for the Indiana law was also unrelated to the suppression
of freedom of expression, because nudity is not inherently related to
expression, and the Court had previously rejected a notion of
expressive conduct under which virtually any person engaging in any
conduct is expressing an idea that would trigger the First
Amendments protections. The argument that Indiana was trying to
suppress the expression of an erotic message was unconvincing, as
the requirement that the dancers don pasties and G-strings does not
deprive the dance of whatever erotic message it conveys; it simply
makes the message slightly less graphic, and the perceived evil that
Indiana seeks to address is not erotic dancing, but public nudity. (at
571.) The law did not ban erotic dancing but public nudity, and its effect
on erotic nude dancing the challengers wished to perform was merely
incidental, satisfying the third prong of the OBrien test.
Given that the interest served by the Indiana statute was the promotion
of public order and morals by way of a prohibition on public nudity, the
statutory prohibition is not a means to some greater end, but an end
in itself. (at 572.) Therefore, the law was narrowly tailored to further
the governmental interest at hand. By satisfying the OBrien test,
Indianas public indecency statute [was] justified despite its incidental
limitations on some expressive activity, in this case nude erotic
dancing. (at 568.)
Scalia, J., wrote an opinion concurring in the judgment. Justice Scalia
agreed that the Indiana public nudity statute was constitutional, but for
different reasons than the plurality opinion. According to Scalia, the
First Amendment only protects expressive conduct as opposed to
say, actual speech or the freedom of the press when the
government prohibits conduct precisely because of its communicative
attributes. (at 577. ) Given the long history of public nudity laws in
Indiana and abroad, there is no evidence that Indianas public nudity
statute was targeting nudity for its communicative attributes. On its
face, the law does not target expression at all, but merely the act of
being nude in public. As such, the public nudity statute does not
implicate the First Amendment at all, and the statute was merely a
regulation on general conduct. Scalia also did not endorse the view
that the promotion of public order and morals was an important
governmental interest supported by Supreme Court precedent.
Souter, J., concurring in the judgment. Justice Souter found that the
dancing at issue with the challengers was expressive content
protected by the First Amendment, with eroticism being the primary
feeling expressed. The opinion also found the OBrien test mentioned
by the plurality was the proper test for evaluating the constitutionality
of the Indiana public nudity statute. However, Justice Souter wrote a
separate opinion to argue that the law was constitutional not on the
possible sufficiency of societys moral views to justify the limitations at
issue, but on the States substantial interest in combating the
secondary effects of adult entertainment establishments of the sort
typified by respondents establishments. (at 582.) Justice Souter
thought there was significant empirical evidence and Supreme Court
precedent supporting the view that there are harmful secondary
effects from adult entertainment establishments, such as crime and
urban deterioration. This interest was unrelated to the suppression of
the expression in erotic dancing, and thus was an alternative way to
satisfy the third part of the OBrien test from that posed by the plurality
opinion.
White, J., wrote a dissenting opinion joined by JJ., Marshall,
Blackmun, and Stevens. Justice White agreed with the other justices
that the nude dancing at issue was entitled to protection under the First
Amendment as expressive conduct. Dancing is an ancient art form
and inherently embodies the expression and communication of ideas
and emotions. (at 587.) However, Justice White found that the law
specifically targeted expressive activity, and was not a law prohibiting
general conduct. In such a case, the law should be unconstitutional
absent a compelling state interest supporting the statute, a different
standard than the OBrientest. The primary reason for prohibiting
nudity in public, such as at parks and beaches, is to protect others
from offense. (at 591.) Such protection from offense could not
possibly be the purpose of preventing nude dancing in theaters and
barrooms since the viewers are exclusively consenting adults who pay
money to see these dances. (at 591.) Therefore, the law did not
further a compelling state interest, and was unconstitutional.
 FCC V. PACIFIVA FOUNDATION (MONOLOGUE ON RADIO- FILTHY
WORDS: AUTHORITY OF FCC TO REGULATE INDECENT CONTENT)
Obscenity on Radio: Stricter rules on obscenity must be followed
especially because of its pervasive quality and the interest in the protection
of children. The prohibition against censorship denies the Commission
power to edit proposed programs in advance and to excise material
considered inappropriate. HOWEVER, the prohibition has never been
construed to deny the commission the power to review the content of
COMPLETED broadcasts in the performance of its regulatory powers. The
commission has the right to take not of past program content when
considering a licensee's renewal application.
DOCTRINE: The prohibition, however, has never been construed to deny the
Commission the power to review the content of completed broadcasts in the
performance of its regulatory duties. The Commission found the language
used in the monologue as "patently offensive," though not necessarily
obscene. American jurisprudence provides that the commission is not
prevented from canceling the license of a broadcaster who persists in a course
of improper programming. It is within the Commissions power to regulate the
broadcast of obscene, indecent or profane language.
Broadcast media have established a uniquely pervasive presence in the
lives of the people. Furthermore, broadcasting is uniquely accessible to
children. These thereby justify that there is government interest in regulation
of an otherwise protected expression in order to promote the welfare of its
youth.
RECIT-READY: The Supreme Court of the United States (Supreme Court)
held that the Federal Communications Commission (FCC) may regulate radio
broadcasts that are indecent, but not obscene after the FCC received a
complaint from a listener who heard an indecent broadcast while driving with
his son. A broadcast of patently offensive words dealing with sex and excretion
may, under the First Amendment of the United States Constitution
(Constitution), be regulated because of its content since such words offend for
the same reasons obscenity offends and broadcasting is uniquely available to
children.
FACTS: In an afternoon weekday broadcast, the Respondent, Pacifica
Foundations New York radio station (Respondent), aired a twelve-minute
radio program called Filthy Words by George Carlan. This monologue
contained indecent words, but warned of the content immediately before airing
the show. A listener who was driving with his son complained about the
indecent radio show. In response to the complaint, the Petitioner, the FCC
(Petitioner), issued a Declaratory Order granting the complaint and holding that
Respondent could have been the subject of administrative sanctions.
However, the Petitioner did not issue formal sanctions. The Petitioner
explained that its regulation of certain words depicting sexual and erectory
activity was designed to channel them to times of day when children most
likely would not be exposed. The Court of Appeals overturned the Petitioners
Order.
ISSUE: WHETHER THE PETITIONERS DECLARATORY ORDER
VIOLATES THE FIRST AMENDMENT OF THE CONSTITUTION?
HELD: No. Judgment of the Court of Appeals reversed.
RATIO: There is no such absolute rule that the First Amendment of the
Constitution prohibits all governmental regulation that depends on the content
of speech. Here, the words at issue offend for the same reasons obscenity
offends. Because the content of the radio shows broadcast was vulgar,
offensive, and shocking, that speech is not entitled to absolute conditional
protection. Further, the context of the broadcast must be considered to
determine whether the Petitioners action was constitutionally permissible. To
say that one may avoid further offense by turning off the radio when he hears
indecent language is inappropriate. Additionally, broadcasting is uniquely
available to children especially during the time of day when the monologue
was aired. Therefore, a broadcast of patently offensive words dealing with sex
and excretion may, under the First Amendment of the Constitution, be
regulated.
The Supreme Court ultimately concluded that the FCC did have the power to
regulate indecent content, focusing much of its opinion on the need to
protect children from such content. The Court held that the FCC could use its
regulatory power to channel indecent material to times when children are less
likely to be exposed to it.
As the Court highlighted, indecent speech, unlike obscene speech, is
protected by the First Amendment. Therefore, in order to regulate it, the
government must have a compelling interest and use the least restrictive
means to further that interest. Despite the high level of scrutiny afforded to
issues of free speech, the Court emphasized that broadcasting has
traditionally received the most limited First Amendment protection in terms of
communication platforms.
To explain the distinction, the Court pointed to the pervasiveness of
broadcasting and the potential exposure to children. As the Court explained,
The broadcast media have established a uniquely pervasive presence in the
lives of all Americans. Patently offensive, indecent material presented over the
airwaves confronts the citizen, not only in public, but also in the privacy of the
home, where the individuals right to be left alone plainly outweighs the First
Amendment rights of an intruder.
The Court further highlighted that questionable content can be easily accessed
by children, despite parents best efforts to shield them from it. It noted,
Broadcasting is uniquely accessible to children, even those too young to read.
Although Cohens written message might have been incomprehensible to a
first grader, Pacificas broadcast could have enlarged a childs vocabulary in
an instant.
Given these concerns, the Supreme Court concluded that the FCC was
justified in regulating indecent content.
DISSENT. The First Amendment of the Constitution protects the speech aired
in the broadcast. The Supreme Court allows the government to prevent minors
from gaining access to materials that are not obscene.
The constitutional questions could have been avoided by holding that
Congress intended, by using the word indecent, to prohibit nothing more
than obscene speech.
CONCURRENCE. The Petitioner sought to channel the broadcast to hours
when the fewest children would be listening. This strongly supports the
Petitioners holding. Broadcasting comes into the home where people have the
right not to be assaulted by uninvited and offensive sights and sounds.
DISCUSSION. Here the Supreme Court allows the government to rely on
captive audience rationales when applied to the home.
RENTON V. PLAYTIME THEATER (PROHIBITION OF ADULT THEATER
FROM 1000 FT OF RESIDENTIAL ZONE, CHURCH PARK, OR 1 MILE
FROM SCHOOL)
Zoning legislation: dealing with adult entertainment that does not ban adult
theaters altogether is not invalid being properly analyzed as a form of time,
place and manner of regulation. "Content-neutral time, place and manner
regulations are acceptable so long as they are designed to serve a
substantial government interest an do not unreasonably limit alternative
avenues of communication.
DOCTRINE: The Renton ordinance does not completely prohibit adult
theaters. It is a form of time, place, and manner regulation, which is acceptable
as long as it is designed to serve a substantial governmental interest and does
not unreasonably limit alternative avenues of communication. It is aimed not
at the content of the films shown at "adult motion picture theatres," but rather
at the secondary effects of such theaters on the surrounding community. It was
created to prevent crime, protect the city's retail trade, maintain property
values, and generally "protect and preserve the quality of the citys
neighborhoods, commercial districts, and the quality of urban life.
RECIT-READY: The Petitioner, City of Renton (Petitioner), passed a zoning
code restricting the location of adult movie stores within the city. The court held
that a regulation that is content-based on its face may be considered content
neutral if it is motivated by a permissible content-neutral purpose.
FACTS:
The Petitioners zoning code prohibited adult movie theaters from
locating themselves within 1,000 feet of any residential area, church,
park or school.
However, they were not completely banned from the city.
Resolution said that such businesses would have a severe impact on
surrounding businesses and residences.
Respondents wanted to use two theaters in a proscribed zone to show
adult films.
ISSUE: Is this zoning ordinance a violation of First Amendment freedom of
speech rights of the Respondent, Playtime Theaters, Inc. (Respondent)?
HELD. No.
RATIO: The Petitioner had a substantial interest in avoiding the secondary
effects of the adult stores and also allows the stores to be located in other
areas of town. Thus, it is a constitutional content-neutral regulation.
Court analyzes this under Young v. American Mini Theaters.
o Like the ordinance in American Mini Theaters, this residence
does not ban adult theaters altogether, but just provides for
where they can be located.
o This is therefore a time, place, and manner regulation. (First
step)
Court has long held that regulations enacted for the purpose of
restraining speech on the basis of its content presumptively violate the
first amendment. However, TPM regulations are acceptable so long
as they are designed to serve a substantial gov't interest and do not
unreasonably limit alternative avenues of communications.
o Renton ordinance does not fit neatly into either the "content-
based" nor "content-neutral" category.
It targets only adult theaters.
But, city claims it doesn't really care about the content
so much as the secondary effects of the adult theaters
on the community.
o District Court's finding that the predominant interest was in
secondary effects, not content, is enough to establish that the
city's ordinance was unrelated to suppression of free
expression.
 Ordinance is designed to prevent crime, protect trade,
maintain property values, and preserve quality of life,
not to suppress unpopular views.
o Therefore, it is completely consistent with our definition of
"content-neutral" speech.
Court decided that this type of zoning ordinance should be analyzed
under the standards applicable to content neutral TPM regulations.
Appropriate inquiry here, therefore, is whether the Renton ordinance
is designed to serve a substantial gov't interest and allows for
reasonable alternative avenues of communication.
o It is clear that the ordinance meets this standard.
"A city's interest in attempting to preserve the quality
of urban life is one that must be accorded high
respect."
o COA held that because it was enacted w/o the benefit of
studies relating to the particular problems or needs of Renton,
the justifications were conclusory and speculative.
This is an unnecessarily high burden of proof.
Renton relied heavily on the experiences of other
cities such as Seattle. Renton was entitled to rely on
these other experiences.
o There is also no constitutional defect in the method chosen by
Renton to further its substantial interests.
It is not the Court's function to determine the wisdom
of the city's decision.
Renton ordinance is narrowly tailored specifically to
target the category of theaters shown to produce
unwanted secondary effects.
o Respondents also argue that the Renton ordinance is "under-
inclusive" in that it fails to regulate other kinds of adult
businesses that are likely to produce similar secondary
effects.
However, there is no evidence of any other adult
businesses other than theaters.
In addition, that Renton chose first to address the
potential problems created by one particular kind of
adult business in no way suggests that the city has
"singled out" adult theaters for discriminatory
treatment.
o Finally, turning to the issue of whether the ordinance allows
for reasonable alternative avenues of communication:
Court notes that more than 5% of the entire area of
Renton is still open to use as adult theater sites.
Respondents argue that practically none of this land
is currently for sales or lease and that it is not
commercially viable.
Court says respondents must fend for
themselves in the real estate market.
DISSENT. The ordinance places restrictions on establishments based on the
content of the expression within it. Therefore, this is a content-based
regulation.
DISCUSSION. Because the ordinance does not ban the adult theaters
completely, it is not content-based. As a content-neutral regulation it is subject
to the time, place, manner analysis where a regulation is constitutional as long
as it serves a substantial governmental interest and does not unreasonably
limit alternative avenues of communication.
BETHEL SCHOOL DISTRICT V. FRASER (STUDENT SPEECH
NOMINATING OTHER STUDENT AT ASSEMBLY; DISRUPTIVE
CONDUCT RULE)
Obscenity in School: The first amendment does not prevent the school
district from disciplining students in giving offensively lewd and indecent
speech at a school assembly. The use of an offensive form of expression
may not be prohibited to adults making a political point but it does not follow
that the same latitude must be permitted to children in public school.
DOCTRINE: The first amendment guarantees wide freedom in matter of adult
public discourse but it does not follow that simply because offensive
expression may not be prohibited to adults in making a political point, the same
would be permitted to children in public school. It would be highly proper for
public school education to prohibit the use of vulgar and offensive terms in
public discourse. Nothing in the constitution prohibits the regulation of certain
modes of expressionsespecially to schools. The schools must not only teach
what is confined in books and the curriculum but also shared values of a
civilized social order mediums are the teachers as well as their parents.
Jurisprudence acknowledged limitationsin reaching unlimited audience
where the speech is sexually explicit [Ginsberg v. New York]. The court also
recognizes the interest in protecting minors from exposure to vulgar and
offensive spoken language [FCC v. Pacifica Foundation].
RECIT-READY: The Respondent, Fraser (Respondent), a student at Bethel
High School, made a speech in front of an assembly that was considered to
be lewd. In reaction to the speech, he was suspended from school. The
Respondent brought suit to enjoin the punishment, stating that his speech was
given within his First Amendment constitutional rights. The court held that while
students are afforded the First Amendment freedoms of speech and
expression, they are still answerable for their actions when they are offensive
to others.
Facts.
In Bethel, Matthew Fraser, a public high school student, gave a
nominating speech for a classmate who was running for an office in
student government. The speech, which occurred during school hours
at an assembly as part of a school-sponsored educational program,
was attended by approximately 600 students. During Frasers speech,
he made numerous sexual innuendos and references, causing the
audience to react in a variety of ways; some appeared confused and
embarrassed, while others yelled and made obscene gestures.
Prior to the student assembly, two educators warned Fraser that he
should not give the speech and that if he did, serious consequences
would result. After Fraser delivered the controversial speech, the
schools assistant principal told him that by doing so he violated the
schools policy prohibiting the use of obscene language. As
punishment, school officials suspended Fraser for three days and
removed his name from the list of possible graduation commencement
speakers.
Disagreeing with his punishment, Fraser first went through the school
boards grievance procedure, at which the hearing officer determined
that the discipline that Fraser was subjected to was legitimate. Next,
Fraser, through his father, filed suit in a federal trial court in
Washington State, alleging that officials infringed on his First
Amendment right to freedom of speech. The court addressed three
legal issues: first, that officials violated Frasers free speech rights;
second, that the discipline policy that prohibited the speech was
unconstitutionally vague and overbroad; and third, that officials
violated the Due Process Clause of the Fourteenth Amendment in
removing Frasers name from the list of graduation speakers. The
court granted Fraser monetary damages and ordered the school board
to allow him to speak at the graduation.
The school appealed the case to the Ninth Circuit, which affirmed in
favor of Fraser. The Ninth Circuit maintained that Frasers speech was
no different from the student speech in Tinker v. Des Moines
Independent Community School District (1969). In Tinker, the
Supreme Court held that school officials could not discipline students
who wore black armbands to protest the Vietnam War based solely on
the fear that the students would cause a disruption.
Further, the Ninth Circuit rejected the schools following three
arguments. First, the court rejected the notion that Frasers speech
differed from the passive speech in Tinker because his speech
actually caused a disruption. Second, the court disagreed that officials
had the responsibility to protect minors from lewd and indecent
language. Third, the court did not think that officials had the authority
to control speech that occurred during a school-sponsored event.
ISSUE: WHETHER OR NOT THE DISCIPLINE OF FRASER VIOLATED THE
FREE SPEECH CLAUSE OF THE FIRST AMENDMENT OR THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
whether the First Amendment rights of students are completely
unfettered when they are at school or when their conduct may be
offensive to their classmates and school officials.
HELD: NO. Chief Justice Burger (J. Burger). In a 7-to-2 decision, the Supreme
Court reversed the Ninth Circuits decision and agreed with the schools
arguments.
RATIO: For the majority, J. Burger opined that the undoubted freedom to
advocate unpopular and controversial views in schools and classrooms must
be balanced against
Specifically, the Court held that the discipline of Fraser did not violate the Free
Speech Clause of the First Amendment or the Due Process Clause of
the Fourteenth Amendment. Under the First Amendment, the Court reasoned
that officials could discipline Frasers lewd and indecent speech. Although
Tinker established that students should be afforded free expression rights
while at school, the Court explained that their rights are not equivalent to an
adults freedom of speech. Moreover, the Court pointed out that the sexual
content of Frasers speech was distinguishable from the non disruptive,
political speech that was at issue in Tinker.
Tinker v. Des Moines Independent School Board, the court held
that students do not shed their constitutional rights at the school gate.
In that case, the Court said that the First Amendment gave students
the right to wear black armbands to school to protest the Vietnam War.
The Court added that because schools are responsible for instilling certain
values in students, officials at schools should be able to teach students about
what is not socially acceptable speech. In a related case, the Supreme Court
held in FCC v. Pacifica Foundation (1978) that the state has an interest in
protecting children from vulgar and offensive language. The Court noted that
on the one hand, while school officials should allow controversial views to be
expressed, on the other, they must balance this interest with those of other
students who may be offended by certain language.
Turning to the Fourteenth Amendment, the Court decided that officials did not
violate Frasers due process rights.
First, the Court was of the opinion that a schools disciplinary policy
does not need to be as descriptive as a criminal code, because such
a policy does not impose criminal sentences. As such, the Court
indicated that as a result of his two-day suspension, Fraser was
afforded the appropriate level of due process procedures.
 Second, the Court found that Fraser received ample notice that his
inappropriate speech could result in punishment. In fact, the Court
determined not only that school officials had an anti obscenity rule, but
also that they provided Fraser with sufficient warning of the
consequences of his actions.
In upholding the rights of school officials to place limits on student expressive
activities in school settings, Fraser is important because it acknowledges that
they are responsible for more than simply passing on educational information
and can expect students to behave in ways that are not disruptive to school
activities.
Chief Justice Burger wrote for the majority. He pointed out that there was
a huge difference between the protest in Tinker, which dealt with a major issue
of public policy, and the lewdness of Fraser's speech. "The purpose of public
education in America is to teach fundamental values," he wrote. "These
fundamental valuesmustinclude consideration of the political sensibilities
of other students."
Burger conceded that the First Amendment might permit the use of an
offensive form of expression by an adult making a political point, but "the same
latitude of expression is not permitted to children in a public school."
DISSENT: Justices Stevens and Marshall dissented. Stevens wrote, "I believe
a strong presumption in favor of free expression should apply whenever an
issue of this kind is arguable."
IMPACT: Along with Hazelwood School District et al. v. Kuhlmeier et
al (1988), a case involving a school district that censored a student newspaper,
the Bethel case shows the Court re-examining the issue of student expression
in the schools and finding that certain limits on expression are permitted by the
First Amendment.
HAZELWOOD V. KUHLMEIER (PRINCIPAL PROHIBITING ARTICLES IN
HIGH SCHOOL PAPER)
Obscenity in School: Schools have the authority to censor if it could affect
the education of others. This case led that the censorship in the schools was
only acceptable if it were for "valid educational purpose." Stricter rules
should be followed for speech in school because of the nature of the
community that is involved and the relationship between school and
parents.
DOCTRINE: First Amendment rights of students in the public schools are not
automatically coextensive with the rights of adults in other settings, and must
be applied in light of the special characteristics of the school environment. A
school need not tolerate student speech that is inconsistent with its basic
educational mission, even though the government could not censor similar
speech outside the school.
The school newspaper here cannot be characterized as a forum for public
expression. School facilities may be deemed to be public forums only if school
authorities have, by policy or by practice, opened the facilities for
indiscriminate use by the general public, or by some segment of the public,
such as student organizations.
RECIT-READY: The case concerned the censorship of two articles in The
Spectrum, the student newspaper of Hazelwood East High School in St. Louis
County, Missouri, in 1983. When the school principal removed an article
concerning divorce and another concerning teen pregnancy, the student
journalists sued, claiming that their First Amendment rights had been violated.
A lower court sided with the school, but its decision was overturned by the U.S.
Court of Appeals for the Eighth Circuit, which sided with the students. The
court held that public school curricular student newspapers that have not been
established as forums for student expression are subject to a lower level
of First Amendment protection than independent student expression or
newspapers established (by policy or practice) as forums for student
expression.
FACTS:
Students enrolled in the Journalism II class at Hazelwood East High
School were responsible for writing and editing the school's paper The
Spectrum. Two of the articles submitted for publication in the final
edition of the paper contained stories on divorce and teenage
pregnancy. The divorce article featured a story about a girl who
blamed her father's actions for her parents' divorce. The teenage
pregnancy article featured stories in which pregnant students at
Hazelwood East shared their experiences.
To ensure their privacy, the girls' names were changed in the article.
The school principal felt that the subjects of these two articles were
inappropriate. He concluded that journalistic fairness required that the
father in the divorce article be informed of the story and be given an
opportunity to comment. He also stated his concerns that simply
changing the names of the girls in the teenage pregnancy article may
not be sufficient to protect their anonymity and that this topic may not
be suitable for the younger students. As a result, he prohibited these
articles from being published in the paper.
Because there was no time to edit the paper if it were to go to press
before the end of the school year, entire pages were eliminated. The
student journalists then brought suit to the U.S. District Court for the
Eastern District of Missouri, alleging that their First Amendment rights
to freedom of speech had been violated.
 The U.S. District Court concluded that they were not. The students
appealed to the U.S. Court of Appeals for the Eighth Circuit, which
reversed the ruling, stating that the students' rights had been violated.
The school appealed to the U.S. Supreme Court, which granted
certiorari.
Lower Court: Eighth Circuit. The decision of the principal to prohibit
the publishing of certain student articles deemed to be inappropriate
violates the student journalists' First Amendment free speech rights.
ISSUE: WHETHER OR NOT THE DECISION OF A PRINCIPAL TO
PROHIBIT THE PUBLISHING OF CERTAIN ARTICLES, WHICH HE DEEMS
INAPPROPRIATE, IN THE SCHOOL NEWSPAPER VIOLATED THE
STUDENT JOURNALISTS' FIRST AMENDMENT RIGHT OF FREEDOM OF
SPEECH
HELD: NO. Supreme Court Ruling: Reversed the decision of the Eighth
Circuit. The decision of the school principal to prohibit the publishing of certain
articles deemed to be inappropriate does not violate the student journalists'
First Amendment right of freedom of speech.
RATIO:
The U.S. Supreme Court held that the principal's actions did not violate
the students' free speech rights. The Court noted that the paper was
sponsored by the school and, as such, the school had a legitimate
interest in preventing the publication of articles that it deemed
inappropriate and that might appear to have the imprimatur of the
school.
Specifically, the Court noted that the paper was not intended as a
public forum in which everyone could share views; rather, it was a
limited forum for journalism students to write articles pursuant to the
requirements of their Journalism II class, and subject to appropriate
editing by the school.
MAJORITY: The majority of the justices held that the school principal
was entitled to censor the articles. The majority opinion, written by
Associate Justice Byron White, stated that officials had never intended
the school paper to be a public forum, as underground publications
were in past cases. White went on to say that educators do not infringe
on First Amendment rights when exercising control over student
speech in school-sponsored activities, "so long as their actions are
reasonably related to legitimate pedagogical concerns". The court
established that the student publication could be regulated by school
officials, and that they "reserved the forum for its intended purpose, as
a supervised learning experience for journalism students"
o A school need not tolerate student speech that is inconsistent
with its basic educational mission, even though the
government could not . ... (Judicial action to protect students'
rights is justified) only when the decision to censor a school-
sponsored publication, theatrical production or other vehicle
of student expression has no valid educational purpose.
The decision overrode the precedent set in the Tinker case, which had
permitted censorship of student speech only if it violated the rights of
other students or threatened to cause a campus disruption. The
majority opinion in Hazelwood held that this case was different. The
majority opinion said that school administrators are not required to
tolerate speech that is contrary to the school's academic mission,and
continued:
o The question [of] whether the First Amendment requires a
school to tolerate particular student speechthe question we
addressed in Tinkeris different from the question whether
the First Amendment requires a school affirmatively to
promote particular student speech. The former question
addresses educators' ability to silence students' personal
expression that happens to occur on the school premises. The
latter question concerns educators' authority over school
sponsored publications, theatrical productions, and other
expressive activities that students, parents, and members of
the public might reasonably perceive to bear the imprimatur of
the school.
In a footnote, the court clarified that the ruling did not necessarily apply
at the collegiate level.
DISSENT:
Associate Justice William J. Brennan, Jr. wrote a dissenting opinion,
in which he was joined by Associate Justices Thurgood Marshall
and Harry Blackmun, who often took liberal positions on First
Amendment issues. In his opinion, Brennan expressed concern about
the message the majority ruling would send to students, writing:
o The young men and women of Hazelwood East expected a
civics lesson, but not the one the Court teaches them
today...Such unthinking contempt for individual rights is
intolerable from any state official. It is particularly insidious
from (a school principal) to whom the public entrusts the task
of inculcating in its youth an appreciation for the cherished
democratic liberties that our constitution guarantees.
IMPACT:
The case established the standard that personnel must meet to limit
students' freedom of expression in secondary schools. As
representatives of the state, school administrators can censor,
restrain, or refuse to publish school-sponsored student expression if
it interferes with the requirements of school discipline, interferes with
students' rights, interferes with academic propriety, generates health
 or welfare concerns, or is deemed obscene or vulgar. This extends to
theatrical productions, public speeches in an assembly environment,
and publications produced as part of curricular activity, such as a
student newspaper. The Supreme Court majority termed these
reasons "legitimate pedagogical concerns".
This standard does not, however, apply to personal or non-school-
sponsored communication, such as off-campus publications, unless
that communication interferes with school discipline or the rights of
others. The Hazelwood case established student newspapers as
"limited public forums". This means schools may exercise prior
restraint regarding the "style and content" of a student
newspaper so long as their action is "not unreasonable",
whereas there previously had to be compelling evidence to warrant
censorship. Separate cases also established what constituted school
activities, such as in-class parties and art created by students at the
behest of teachers.
In response to the ruling, some students created web-based
publications not subsidized by the school. Some individual states
have also responded with laws designating student newspapers as
public forums and offering them greater First Amendment protection.
FERNANDO V. CA (SEIZURE OF PORN FROM MUSIC FAIR)
DOCTRINE: As obscenity is an unprotected speech which the State has the
right to regulate, the State in pursuing its mandate to protect, as parens patriae,
the public from obscene, immoral and indecent materials must justify the
regulation or limitation. There is no perfect definition of obscenity but the
latest word is that of Miller v. California.
Article 201 of the Revised Penal Code: To be held liable, the prosecution must
prove that (a) the materials, publication, picture or literature are obscene; and
(b) the offender sold, exhibited, published or gave away such materials.
Necessarily, that the confiscated materials are obscene must be proved. The
law does not require that a person be caught in the act of selling, giving away
or exhibiting obscene materials to be liable, for as long as the said materials
are offered for sale, displayed or exhibited to the public. In the present case,
we find that petitioners are engaged in selling and exhibiting obscene
materials.
FACTS:
Acting on reports of sale and distribution of pornographic materials,
officers of the Philippine National Police CIDG conducted police
surveillance on the store bearing the name of Gaudencio E. Fernando
Music Fair (Music Fair).
On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of
Manila, Branch 19, issued Search Warrant No. 99-1216 for violation
of Article 201 of the Revised Penal Code against petitioner Gaudencio
E. Fernando and a certain Warren Tingchuy.
The warrant ordered the search of the store for copies of New Rave,
Hustler, IOU magazine, and VHS tapes.
On the same day, police officers of the PNP-CIDG NCR served the
warrant on Rudy Estorninos, who, according to the prosecution,
introduced himself as the store attendant of Music Fair. The police
searched the premises and confiscated twenty-five (25) VHS tapes
and ten (10) different magazines, which they deemed pornographic.
All appellants pled not guilty to the offenses charged. They waived
their right to present evidence. The RTC acquitted Tingchuy for lack
of evidence to prove his guilt, but convicted herein petitioners
Fernando and Estorninos.
The CA affirmed the decision. The petitioners sought for review in the
SC on certiorari and assailed the CA decision.
o They assigned the following errors:
Respondent court erred in convicting petitioner
Fernando even if he was not present at the time of the
raid
Respondent erred in convicting petitioner Estorninos
who was not doing anything illegal at the time of the
raid.
Petitioners contend that the prosecution failed to prove that at the time
of the search, they were selling pornographic materials. Fernando
contends that since he was not charged as the owner of an
establishment selling obscene materials, the prosecution must prove
that he was present during the raid and that he was selling the said
materials. Estorninos, on the other hand, insists that he was not an
attendant in Music Fair, nor did he introduce himself so.
The Solicitor General counters that owners of establishments selling
obscene publications are expressly held liable under Article 201, and
petitioner Fernandos ownership was sufficiently proven. As the
owner, according to the Solicitor General, Fernando was naturally a
seller of the prohibited materials and liable under the Information.
ISSUE: WHETHER THE APPELLATE COURT ERRED IN AFFIRMING THE
PETITIONERS CONVICTION.
HELD: No. Petition dismissed.
RATIO:
As obscenity is an unprotected speech which the State has the right
to regulate, the State in pursuing its mandate to protect, as parens
patriae, the public from obscene, immoral and indecent materials must
justify the regulation or limitation.
 One such regulation is Article 201 of the Revised Penal Code. To be
held liable, the prosecution must prove that
o (a) the materials, publication, picture or literature are obscene;
and
o (b) the offender sold, exhibited, published or gave away such
materials. Necessarily, that the confiscated materials are
obscene must be proved.
People v. Kottinger:.obscenity as something which is offensive to
chastity, decency or delicacy. The test to determine the existence of
obscenity is, 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.
Also, that which shocks the ordinary and common sense of men as
an indecency. The disclaimer was whether a picture is obscene or
indecent must depend upon the circumstances of the case, and that
ultimately, the question is to be decided by the judgment of the
aggregate sense of the community reached by it.
Go Pin: If such pictures, sculptures and paintings are shown in art
exhibits and art galleries for the cause of art, to be viewed and
appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not
exactly for arts sake but rather for commercial purposes. In other
words, the supposed artistic qualities of said pictures were being
commercialized so that the cause of art was of secondary or minor
importance. Gain and profit would appear to have been the main, if
not the exclusive consideration in their exhibition; and it would not be
surprising if the persons who went to see those pictures and paid
entrance fees for the privilege of doing so, were not exactly artists and
persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes, but
rather people desirous of satisfying their morbid curiosity and taste,
and lust, and for love [of] excitement, including the youth who because
of their immaturity are not in a position to resist and shield themselves
from the ill and perverting effects of these pictures
Padan: An actual exhibition of the sexual act, preceded by acts of
lasciviousness, can have no redeeming feature. In it, there is no room
for art. One can see nothing in it but clear and unmitigated obscenity,
indecency, and an offense to public morals, inspiring and causing as
it does, nothing but lust and lewdness, and exerting a corrupting
influence specially on the youth of the land.
Katigbak: the Court measures obscenity in terms of the dominant
theme of the material taken as a whole rather than in isolated
passages.
Pita v. Court of Appeals, concerning alleged pornographic
publications, the Court recognized that Kottinger failed to afford a
conclusive definition of obscenity, and that both Go Pin and Padan y
Alova raised more questions than answers such as, whether the
absence or presence of artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, determine what art is; or that if they find inspiration in
the exhibitions, whether such exhibitions cease to be obscene. Go Pin
and Padan y Alova gave too much latitude for judicial arbitrament,
which has permitted ad lib of ideas and two-cents worths among
judges as to what is obscene or what is art.
The Court in Pita also emphasized the difficulty of the question and
pointed out how hazy jurisprudence is on obscenity and
how jurisprudence actually failed to settle questions on the
matter. Significantly, the dynamism of human civilization does not
help at all. It is evident that individual tastes develop, adapt to wide-
ranging influences, and keep in step with the rapid advance of
civilization. It seems futile at this point to formulate a perfect definition
of obscenity that shall apply in all cases.
There is no perfect definition of obscenity but the latest word is that
of Miller v. California which established basic guidelines, to wit:
o (a) whether to the average person, applying contemporary
standards would find the work, taken as a whole, appeals to
the prurient interest;
o (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable state law; and
o (c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
But, it would be a serious misreading of Miller to conclude that the trier
of facts has the unbridled discretion in determining what is patently
offensive. No one will be subject to prosecution for the sale or
exposure of obscene materials unless these materials depict or
describe patently offensive hard core sexual conduct. Ie offensive
descriptions of sex acts.
What remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and on
the judges sound discretion.
In this case, the trial court found the confiscated materials obscene
and the Court of Appeals affirmed such findings. Findings of fact of the
Court of Appeals affirming that of the trial court are accorded great
respect, even by this Court, unless such findings are patently
unsupported by the evidence on record or the judgment itself is based
on misapprehension of facts.
Did petitioners participate in the distribution and exhibition of obscene
materials? We emphasize that mere possession of obscene materials,
without intention to sell, exhibit, or give them away, is not punishable
under Article 201, considering the purpose of the law is to prohibit the
 dissemination of obscene materials to the public. The offense in any
of the forms under Article 201 is committed only when there is
publicity. The mayors permit shows that Fernando was the owner of
the store.
Petitioner Estorninos is likewise liable as the store attendant actively
engaged in selling and exhibiting the obscene materials. Prosecution
witness Police Inspector Tababan, who led the PNP-CIDG NCR that
conducted the search, identified him as the store attendant upon
whom the search warrant was served.
ADDITIONAL CASE: ASSEMBLY AN PETITION
Definition of Public Assembly- The law refers to "rally, demonstration,
march, parade, procession or any other form of mass or concerted action held
in a public place." So it does not cover any and all kinds of gatherings. It
regulates the exercise of the right to peaceful assembly and petition only to the
extent needed to avoid a clear and present danger of the substantive evils
Congress has the right to prevent. There is, likewise, no prior restraint, since
the content of the speech is not relevant to the regulation.
NAVARRO V. VILLEGAS (ASSEMBLIES AT PLAZA MIRANDA ON
WEEKENDS; SUNKEN GARDEN AS ALTERNATIVE)
DOCTRINE: The mayor possessed reasonable discretion to determine or
specify the streets of public places to be used for the assembly in order to
secure convenient use thereof by other and provide adequate and proper
policing to minimize the risk of disorder and maintain public safety and order.
Public rally at Plaza Miranda poses a clear and present danger of public
disorders, which is why rallies there will be allowed only on weekends and
holidays
The City Mayor offered the Sunken Gardens, instead of Plaza Miranda, as
venue for an assembly.
FACTS:
The Mayor of the City of Manila (Villegas) expressly stated his
willingness to grant permits for peaceful assemblies at Plaza Miranda
during Saturdays, Sundays and holidays when they would not cause
unnecessarily great disruption of the normal activities of the
community and has further offered Sunken Gardens as an alternative
to Plaza Miranda as the site of demonstration sought to be held that
afternoon.
The Mayor believes that a public rally at Plaza Miranda, as to
compared to one at the Sunken Gardens as he suggested, poses a
clearer and more imminent danger of public disorders, breaches of the
peace, criminal acts, and even bloodshed as an aftermath of such
assemblies, and petitioner has manifested that it has no means of
preventing such disorders.
On February 24, 1970, the petitioner, acting in behalf of the Movement
of a Democratic Philippines, wrote a letter to the respondent, the
Mayor of the city of Manila, applying to hold a rally at Plaza Miranda
February 26, 1970, from 4-11pm.
On the same day, the respondent wrote a reply, denying his request
on the grounds that, the have temporarily adopted the policy of not
issuing any permit for the used of Plaza Miranda for rallies or
demonstration during weekdays due to the events that happened from
the past week.
On the same letter, the respondent gave the petitioner an option to
use the Sunken Garden near Intamuros for its rally, and for it to be
held earlier for it to end before dark.
The petitioner filed suit contesting the Mayors action on the ground
that it violates the petitioners right to peaceable assemble and petition
the government for redress of grievances (ART. 3, sec 1(8)) and of the
petitioners right to the equal protection of the law (art. 3, sec. 1).
ISSUE:
WHETHER OR NOT THE RESPONDENTS ACT ON DENYING THE
REQUEST OF THE PETITIONER VIOLATES THE PETITIONERS
RIGHT TO PEACEABLE ASSEMBLY AND RIGHT TO THE EQUAL
PROTECTION OF THE LAW.
HELD: NO.
RATIO:
The right of peaceable assemble is subject to regulation under the
police power of the state.
The right to freedom of speech and peaceful assembly, though
granted by the Constitution, is not absolute for it may be regulated in
order that it may not be injurious to the equal enjoyment of others
having an equal right of community and society, This power may be
exercised under the police power of the state, which is the power of
the state, which is the power to prescribe regulations to promote the
health, morals, peace, education, and good order, safety and general
welfare of the people.
While the privilege of the citizen to use streets and parks for
communication may be regulated in the interest of all, said privilege is
not absolute. It must be exercised in subordination to the general
comfort and convenience and in consonance with peace and good
order, but it must not guise of regulation be abridged or denied.
Every time that such assemblies are announced, the community is
placed in such a state of fear and tension that offices are closed early
and employees dismissed, storefronts boarded up, classes
 suspended, and transportation disrupted, to the general detriment of
the public.
Petitioner has failed to show a clear specific legal duty on the part of
Mayor to grant petitioners application for permit unconditionally.
Thus, the Court denied the writ prayed for by Navarro and dismissed
their petition.
PBM EMPLOYEES V. PBM (HEIRARCHY OF RIGHTS)
DOCTRINE: The primacy if human rights, freedom of expression, of peaceful
assembly and petition for redress of grievances-over property rights should be
sustained. To regard the demonstration against the police officers, not against
the employer, as evidence of bad faith, a violation of the CBA and a cause for
the dismissal from employment of the demonstrating employees, stretches
unduly the compass of the CBA, and is a potent means of inhibiting speech
and therefore inflicts a moral as well as mortal wound on the constitutional
guarantees of free-expression of peaceful assembly and petition.
In airing their concerns regarding the excesses of the Pasig police, employees
of the Philippine Blooming Mills decided to stage a mass demonstration at the
Malacaang. The Company feared of losses to be incurred from 6 am to 2
pm.
Facts:
On March 1, 1969, members of the Philippine Blooming Mills
Employees Organization (PBMEO) desired to stage a mass
demonstration on March 4, 1969 in protest against the alleged abuse
of the Pasig police. Employees informed the company, Philippine
Blooming Mills Co. (PBM) that workers from the 1st (6am-2pm), 2nd
(7am-4pm), and 3rd (8am-5pm) shifts would participate in such
demonstration at Malacanang.
A meeting on March 3 was held at the company canteen wherein the
company recognized inalienable right of union given to workers but
company management emphasized that the demonstration should not
prejudice normal operation of the company.
Company representatives were adamant that if workers failed to report
to work on March 4, it would amount to the violation of the Collective
Bargaining Agreement as an illegal strike. A subsequent meeting in
the same day echoed the first meeting with the company urging the
union to just allow workers from 2nd and 3rd shift to participate but the
union replied that it was too late to change their plans.
Around 400 PBM employees continued with demonstration and even
sent a letter to the company requesting that day shift employees be
excused to join the demonstration. However, PBM still issued a charge
against the union, particularly its officers and first shift employees, for
violating their CBA and certain sections of the now repealed RA 875
or Act to Promote Industrial Peace. Meanwhile, the union replied that
it had not violated the CBA as prior notice was given to the company
regarding the protest.
The Court of Industrial Relations found PBMEO guilty of bargaining in
bad faith and unfair labor practice with the consequence of losing
employment.
ISSUE: W/N PBM AND CIR DECISION WAS VIOLATIVE OF THE PBM
EMPLOYEES RIGHT TO PEACEABLY ASSEMBLE
HELD: YES. Petition Granted.
RATIO:
The Bill of Rights is designed to preserve the ideals of liberty, equality
and security against the assaults of opportunism, the expediency of
the passing hour, the erosion of small encroachments, and the scorn
and derision of those who have no patience with general principles.
In the pithy language of Justice Jackson, the purpose of the Bill of
Rights is to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials,
and to establish them as legal principles to be applied by the courts.
Ones rights to life, liberty and property to free speech, or free press,
freedom of worship and assembly, and other fundamental rights may
not be submitted to a vote; they depend on the outcome of no
elections. Laski proclaimed that the happiness of the individual, not
the well-being of the State, was the criterion by which its behaviour
was to be judged. Is interest, not its power, set the limits to the
authority it was entitled to exercise.
The freedoms of expressions and of assembly as well as the right to
petition are included among the immunities reserved by the sovereign
people, in the rhetorical aphorism of Justice Holmes, to protect the
ideas that we abhor or hate more than the ideas we cherish; or as
Socrates insinuated, not only to protect the minority who want to talk,
but also to benefit the majority who refuse to listen. And as Justice
Douglas cogently stresses it, the liberties of one are not safe unless
the liberties of all are protected.
The rights of free expression, free assembly and petition, are not only
civil rights but also political rights essential to mans enjoyment of his
life, to his happiness and to his full and complete fulfillment. Thru
these freedoms, the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive
public officers. The citizen is accorded these rights so that he can
appeal to the appropriate governmental officers or agencies for
redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.

Property and property rights can be lost thru prescription; but human
rights are imprescriptible. If human rights are extinguished by the
passage of time, then the Bill of Rights is a useless attempt to limit the
power of government and ceases to be an efficacious shield against
the tyranny of officials, of majorities, of the influential and powerful,
and of oligarchs political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; and such
priority gives these liberties the sanctity and the sanction not
permitting dubious intrusions. The superiority of these freedoms over
property rights is underscored by the fact that a mere reasonable or
rational relation between the means employed by the law and its
object or purpose that the law is neither arbitrary nor discriminatory
nor oppressive would suffice to validate a law which restricts or
impairs property rights. On the other hand, a constitutional or valid
infringement of human rights requires a more stringent criterion
namely existence of a grave and immediate danger of a substantive
evil which the State has the right to prevent.
The freedoms of speech and of the press, as declared in New York
Times v. Sullivan, as well as of peaceful assembly and of petition for
redress of grievances are absolute when directed against public
officials or when exercised in relation to our right to choose the men
and women by whom we shall be governed.
The demonstration held by petitioners before the Malacaang was
against alleged abuses of some Pasig policemen, not against their
employer; said demonstration was purely and completely an exercise
of their freedom of expression in general and of their right of assembly
and petition for redress of grievances in particular before the
appropriate governmental agency, the Chief Executive, again the
police officers of the municipality of Pasig. They exercise their civil
and political rights for their mutual aid protection from what they
believe were police excesses. As a matter of fact, it was the duty of
PBM Co. to protect petitioners from the harassment of local police
officers. It was to the interest of PBM to rally to the defense of, and
take up the cudgels for, its employees so that they can report to work
free from harassment, vexation or peril and as consequence perform
more efficiently their respective tasks, enhance its productivity as well
as profits. Herein the employer did not even offer to intercede for its
employees with the local police.
In seeking sanctuary behind their freedom of expression as well as
their right of assembly and of petition against alleged persecution of
local officialdom, the employees and laborers of PBM were fighting for
their very survival, utilizing only the weapons afforded them by the
Constitution the untrammelled enjoyment of their basic human
rights. The pretension of the employer that it would suffer loss or
damage by reason of the absence of its employees from 6 am to 2 pm,
is a plea for the preservation merely of their property rights.
To regard the demonstration against police officers, not against the
employer, as evidence of bad faith in collective bargaining and hence
a violation of the collective bargaining agreement and a cause for the
dismissal from employment of the demonstrating employees,
stretches unduly the compass of the collective bargaining agreement,
is a potent means of inhibiting speech and therefore inflicts a moral
as well as mortal wound on the constitutional guarantees of free
expression, of peaceful assembly and of petition.
It has been likewise established that a violation of a constitutional right
divests the court of jurisdiction; and as a consequence, its judgment is
null and void and confers no rights. Relief from a criminal conviction
secured at the sacrifice of constitutional liberties, may be obtained
through habeas corpus proceedings even long after the finality of the
judgment. Thus, habeas corpus is the remedy to obtain the release of
an individual, who is convicted by final judgment through a forced
confession, which violated his constitutional right against self-
incrimination; or who is denied the right to present evidence in his
defense as a deprivation of his liberty without due process of law, even
after the accused has already served sentence for 22 years.
JBL REYES V. MAYOR BAGATSING (RALLY FROM LUNETA TO NEAR
US EMBASSY)
Clear and Present Danger Test applied- In the absence of a clear and
present danger of a substantive evil to a legitimate public interest, there was
no justification then to deny the exercise of the constitutional rights of free
speech and peaceable assembly. It is settled law that as to public places,
especially so as to parks and streets, there is freedom of access, Nor is their
use dependent on who is the applicant for the permit, whether an individual
or a group.
DOCTRINE: A peaceful march and rally from Luneta park to the gates of the
US Embassy.
(1) The 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.
(2) If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required.
(3) Application for permit should be filed well ahead in time to enable
the public official concerned to appraise whether there may be valid
objections to the grant but at another place. It is an indispensable
condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the
 view that there is such imminent and grave danger of a substantive
evil, the applicants must be heard on the matter.
(4) Decision of the licensing authority must be transmitted to the
applicants at the earliest opportunity.
Free speech, like free press, is the liberty to discuss publicly and truthfully
matters of public concern without censorship or punishment. The mayor failed
to show the clear and present danger in denying their request to hold a rally
near the US embassy.
The Anti-Bases Coalition planned to hold a peaceful march and rally. It would
start in Luneta Park and end at the gates of the US Embassy. After the march,
a program would follow whereby two brief speeches were to be delivered.
However, the City Mayor did not act on the request of organization for permit.
FACTS:
Retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition,
sought a permit from the City of Manila to hold a peaceful march and
rally on October 26, 1983 from 2:00 to 5:00 in the afternoon. The route
is from the Luneta, a public park, to the gates of the US Embassy
which is two blocks away. The march would be attended by the local
and foreign participants of such conference.
A short program would be held after the march. During the program,
there would be a delivery of two brief speeches. After which, a petition
based on the resolution adopted on the last day by the International
Conference for General Disarmament, World Peace and the Removal
of All Foreign Military Bases held in Manila, would be presented to a
representative of the Embassy or any of its personnel who may be
there so that it may be delivered to the US Ambassador.
The Mayor of the City of Manila however intruded by not acting on the
request of the organization for permit. Rather, he suggested with the
recommendation of the police authorities that a permit may be issued
for the rally if it would be held at the Rizal Coliseum. As such, Reyes,
on behalf of the organization, filed a suit for mandamus.
ISSUE: WHETHER OR NOT THE RALLYISTS SHOULD BE GRANTED THE
PERMIT
HELD: YES. Reyes petition was granted.
RATIO:
The Court is called upon to protect the exercise of the cognate rights
to free speech and peaceful assembly, arising from the denial of a
permit. The Constitution is quite explicit that [n]o law shall be passed
abridging the freedom of speech, or of the press, or the right of the
people peaceably to assemble and petition the Government for
redress of grievances. Free speech, like free press, may be identified
with the liberty to discuss publicly and truthfully any matter of public
concern without censorship or punishment. There is to be then no
previous restraint on the communication of views or subsequent
liability whether in libel suits, prosecution for sedition, or action for
damages, or contempt proceedings unless there be a clear and
present danger of a substantive evil that the State has a right to
prevent.
Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and
freedom of expression, of a clear and present danger of a substantive
evil that the State has a right to prevent. It is not to be limited, much
less denied, except on a showing, as is the case with freedom of
expression, of a clear and present danger of a substantive evil that the
State has a right to prevent.
Even prior to the 1935 Constitution, Justice Malcolm had occasion to
stress that it is a necessary consequence of our republican institutions
and complements the right of free speech.
Reiterating the ruling in Thomas v. Collins, the American Supreme
Court held that it was not by accident or coincidence that the rights to
freedom of speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All these rights,
while not identical, are inseparable. In every case, therefore, where
there is a limitation placed on the exercise of the right, the judiciary is
called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this
right, so fundamental to the maintenance of democratic institutions, is
the danger, of a character both grave and imminent, of a serious evil
to public safety, public morals, public health, of other legitimate public
interest.
What is guaranteed by the Constitution is peaceable assembly. One
may not advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution frowns on
disorder or tumult attending a rally or assembly. Resort to force is
ruled out and outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in US v. Apurado, [i]t is rather
to be expected that more or less disorder will mark the public assembly
of the people to protest against grievances whether real or imaginary,
because on such occasions, feeling is always wrought to a high pitch
of excitement, and the greater the grievances and the more intense
the feeling, the less perfect, as a rule, will be the disciplinary control of
the leaders over their irresponsible followers. It bears repeating that
for the constitutional right to be invoked, riotous conduct, injury to
 property, and acts of vandalism must be avoided. To give free rein to
ones destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty is our
scheme of values.
It is settled law that as to public places, especially so as to parks and
streets, there is freedom of access. Nor is their use dependent on who
is the applicant for the permit, whether an individual or a group. If it
were, then the freedom of access becomes discriminatory access,
giving rise to an equal protection question. The principle under
American doctrines was given utterance by Chief Justice Hughes in
these words: The question, if the rights of free speech and peaceable
assembly are to be preserved, is not as to the auspices under which
the meeting is held but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects.
There could be danger to public peace and safety if such a gathering
were marked by turbulence. That would deprive it of its peaceful
character. Even then, only the guilty parties should be held
accountable. It is true that the licensing official, here respondent
Mayor, is not devoid of discretion in determining whether or not a
permit would be granted. While prudence requires that there be a
realistic appraisal not of what may possibly occur but of what may
probably occur, given all the relevant circumstances, still the
assumption especially so where the assembly is scheduled for a
specific public place is that the permit must he for the assembly
being held there. The exercise of such a right, in the language of
Justice Roberta, speaking for the American Supreme Court, is not to
be abridged on the plea that it may be exercised in some other place.
The 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 private place, only the consent of
the owner or the one entitled to its legal possession is required. Such
application should be filed 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. It
is an indispensable condition to such refusal or modification that the
clear and present danger tests be the standard for the decision
reached. If he is of the view that there is such an imminent sad grave
danger of a substantive evil, the applicants must be heard on the
matter. Thereafter, his decision, whether favourable or adverse, must
be transmitted to them at the earliest opportunity. Thus, if so minded,
they can have recourse to the proper judicial authority.
Free speech and peaceable assembly, along with other intellectual
freedom, are highly ranked in our scheme of constitutional values. It
cannot be too strongly stressed that on the judiciary even more so
than on the other departments rests the grave and delicate
responsibility of assuring respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been felicitously termed by Justice Holmes as
the sovereign prerogative of judgment. Nonetheless, the
presumption must be to incline the weight of the scales of justice on
the side of suds rights, enjoying as they do precedence and primacy.
MALABANAN V. RAMENTO (STUDENT ASSEMPLY)
DOCTRINE: The assembly was held in private premises, hence, only the
consent of the owner is required. Students continue to enjoy the freedom to
express their views without shedding their constitutional rights at the school
gate. Hence, they may express their opinion except by conduct that is
disruptive of classes.Principles to Guide Schools:
1. Right to assembly and speech are guaranteed to students.
2. Discussion cannot be subjected to prior restraint or subsequent
punishment.
3. Assemblies in school: permit must be sought from authorities who
are devoid of power to deny requests arbitrarily, although there may
be conditions as to the time and place.
4. Violation: penalty be proportionate.
Student leaders at the Gregorio Araneta University, after holding the meeting,
marched towards the Life Science building using megaphones and giving
utterance to language severely critical of the school authorities. Classes were
disturbed while the non-academic personnels work was interrupted.
Facts:
Petitioners organized a meeting, being officers of the Supreme
Student Council of Gregorio Araneta University Foundation. They
were granted the permit to hold a meeting from 8:00 a.m. to 12:00 p.m.
on August 27, 1982 at the Veterinary Medicine and Animal Science
basketball court. However, they held the general assembly at the
second floor lobby of the VMAS, contrary to what is stated in the
permit.
During the gathering, they manifested their opposition to the proposed
merger of the Institute of Animal Science with the Institute of
Agriculture, in a vehement and vigorous language.
After the assembly, at around 10:30 a.m., they marched toward the
Life Science building and continued their rally, using megaphones and
giving utterance to language severely critical of the University
authorities. As a result, classes were disturbed aside from the work of
non-academic employees within hearing distance.
 The petitioners were placed under preventive suspension for their
failure to explain the holding of an illegal assembly in front of the Life
Science building.
Respondent, the Director of NCR of the Ministry of Education, Culture
and Sports, found the petitioners guilty of the charge of having violated
paragraph 146(c) of the Manual for Private Schools, more specifically
their holding of an illegal assembly which was characterized by the
violation of the permit granted resulting in the disturbance of classes
and oral defamation.
ISSUE: WHETHER OR NOT THE SUSPENSION OF STUDENTS FOR ONE
ACADEMIC YEAR WAS VIOLATIVE OF THE CONSTITUTIONAL RIGHTS
OF FREEDOM OF ASSEMBLY AND FREE SPEECH?
HELD: NO
necessarily their exercise to discuss matters affecting their welfare or
involving public interest is not subjected to previous restraint or
subsequent punishment unless there be a showing of clear and
present danger to a substantive evil that the State has a right to
prevent. The peaceable character of an assembly could be lost,
however, by an advocacy or disorder. If assembly is to be held in
school premises, permit must be sought from its school authorities
who are devoid to deny such request. In granting such permit, there
may be conditions as to the time and place of an assembly to avoid
disruption of classes or stoppage of work of non-academic personnel.
However, in violation of terms, penalty incurred should not be
disproportionate to the offense.
RATIO
It is true that petitioners held the rally at a place other than that
specified in the permit and continued it longer than the time allowed.
Undeniably too, they did disturb the classes and caused the work of
the non-academic personnel to be left undone. Such undesirable
consequence could have been avoided by their holding the assembly
in the basketball court as indicated in the permit. Nonetheless,
suspending them for one year is out of proportion to their misdeed.
As declared by the Court in Reyes v. Bagatsing, the invocation of the
right to freedom of peaceable assembly carries with it the implication
that the right to free speech has likewise been disregarded. Both are
embraced in the concept of freedom of expression which is identified
with the liberty to discuss publicly and truthfully, any matter of public
interest without censorship or punishment and which is not to be
limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that the state has a right to prevent.
Petitioners are entitled to invoke their rights to peaceable assembly
and free speech. They enjoy like the rest of the citizens, the freedom
to express their views and communicate their thoughts to those
disposed to listen in gatherings such as in this case. They do not shed
their constitutional rights to freedom of speech or expression at the
schoolhouse gate. While, therefore, the authority of educational
institutions over the conduct of students must be recognized, it cannot
go so far as to be violative of constitutional safeguards. On a more
specific level, there is persuasive force to this formulation in Tinker v.
Des Moines Community School District: The principal use to which
the schools are dedicated is to accommodate students during
prescribed hours for the purpose of certain types of activities. Among
those activities is personal intercommunication among the students.
This is not only an inevitable part of the process. A students rights do
not embrace merely the classroom hours. When he is in the cafeteria
or on the playing field, or on campus during the authorized hours, he
may express his opinions, even on controversial subjects like the
conflict in Vietnam, if he does so without materially and substantially
interfering with the requirements of appropriate discipline in the
operation of the school and without colliding with the rights of others.
But conduct by the student, in class or out of it, which for any reason
whether it stems from time, place or type of behaviour materially
disrupts classwork or involves substantial disorder or invasion of the
rights of others is not immunized by the constitutional guarantee of
freedom of speech.
If in the course of such demonstration with an enthusiastic audience
goading them on, utterances, extremely critical, at times even vitriolic,
were let loose, that is quite understandable. Student leaders are
hardly the timid, diffident types. They are likely to be assertive and
dogmatic. They would be ineffective if during a rally they speak in the
guarded and judicious language of the academe. At any rate, even a
sympathetic audience is not disposed to accord full credence to their
fiery exhortations. They take into account the excitement of the
occasion, the propensity of speakers to exaggerate, the exuberance
of youth.
The rights to peaceable assembly and free speech are guaranteed
students of educational institutions. Necessarily, their exercise to
discuss matters affecting their welfare or involving public interest is not
to be subjected to previous restraint or subsequent punishment unless
there be a showing of a clear and present danger to a substantive evil
that the State has a right to prevent. As a corollary, the utmost leeway
and scope is accorded the content of the placards displayed or
utterances made. The peaceable character of an assembly could be
lost, however, by an advocacy of disorder under the name of dissent,
whatever grievances that may be aired being susceptible to correction
through the ways of the law. If the assembly is to be held in school
premises, permit must be sought from its school authorities, who are
devoid of the power to deny such request arbitrarily or unreasonably.
 In granting such permit, there may be conditions as to the time and
place of the assembly to avoid disruption of classes or stoppage of
work of the non-academic personnel. Even if, however, there be
violations of its terms, the penalty incurred should not be
disproportionate to the offense.
Petitioners cannot be totally absolved for the events. There was
violation of the terms of the permit. Accordingly, they could be
disciplined.
TOLENTINO V. SEC OF FINANCE (COOPERATIVES)
DOCTRINE: Exemption of taxes of cooperatives is not granted by the
Constitution. The VAT is not a regulation, nor impedes rights.
The Expanded Value-Added Tax Law was challenged by several petitions.
The Philippine Press Institute contends that the law discriminates against the
press after the law removed the exemption of the press from the VAT while
maintained those granted to others.
FACTS:
The value-added tax (VAT) is levied on the sale, barter or exchange
of goods and properties as well as on the sale or exchange of services.
It is equivalent to 10% of the gross selling price or gross value in
money of goods or properties sold, bartered or exchanged or of the
gross receipts from the sale or exchange of services. Republic Act No.
7716 seeks to widen the tax base of the existing VAT system and
enhance its administration by amending the National Internal Revenue
Code.
The petitoners, PPI, is a nonprofit organization of newspaper
publishers established for the improvement of journalism in the
Philippines. Petitioners question the law insofar as it has withdrawn
the exemption previously granted to the press under 103 (f) of the
NIRC. Even thought the exemption was subsequently restored by
administrative regulation with respect to the circulation income of
newspapers, the PPI presses its claim because of the possibility that
the exemption may still be removed by mere revocation of the
regulation of the Secretary of Finance.
What they contend is that by withdrawing the exemption previously
granted to print media transactions involving printing, publication,
importation or sale of newspapers, Republic Act No. 7716 has singled
out the press for discriminatory treatment and that within the class of
mass media the law discriminates against print media by giving
broadcast media favored treatment.
ISSUE: WON WITHDRAWING THE EXEMPTION IS DISCRIMINATORY
TOWARDS THE PRESS.
HELD: NO.
RATIO:
As a general proposition, the press is not exempt from the taxing
power of the State and that what the constitutional guarantee of free
press prohibits are laws which single out the press or target a group
belonging to the press for special treatment or which in any way
discriminate against the press on the basis of the content of the
publication, and RA 7716 is none of these.
It would suffice to say that since the law granted the press a privilege,
the law could take back the privilege anytime without offense to the
constitution. The reason is simple: by granting exemptions, the State
does not forever waive the exercise of its sovereign prerogative.
Indeed, in withdrawing the exemption, the law merely subjects the
press to the same tax burden to which other businesses have long ago
been subject.
The license tax in Grosjean v. American Press Co. was found to be
discriminatory because it was laid on the gross advertising receipts
only of newspapers whose weekly circulation was over 20,000, with
the result that the tax applied only to 13 out of 124 publishers in
Louisiana. These large papers were critical of Sen. Long who
controlled the state legislature which enacted the license tax. The
censorial motivation for the law was thus evident.
In Minneapolis Star & Tribune Co. v. Minnesota Commr of Revenue,
the tax was found to be discriminatory because although it could have
been made liable for the sales tax or in lieu thereof, for the use tax on
the privilege of using, storing, or consuming tangible goods, the press
was not. Instead the press was exempted from both taxes. It was
however later made to pay a special use tax on the cost of paper and
ink which made these items the only items subject to the use tax that
were component of goods to be sold at retail. The US SC held that
the differential treatment of the press suggests that the goal of
regulation is not related to suppression of expression, and such goal
is presumptively unconstitutional. It would therefore appear that even
a law that favors the press is constitutionally suspect.
The VAT is different. It is not a license tax. It is not a tax on the
exercise of a privilege; much less a constitutional right. It is imposed
on the sale, barter, lease or exchange of goods or properties or the
sale or exchange of services and the lease of properties purely for
revenue purposes. To subject the press to its payment is not to burden
the exercise of its right any more than to make the press pay income
tax or subject it to general regulation is not to violate its freedom under
the Constitution.
 ACOSTA V. CA (TEACHERS MASS DEMONSTRATION)
Rules on Assembly and Petition: I-A-H-D
1) Inform the licensing authority of the date, the public place
where and the time when it will take place (private place-only
consent of owner required)
2) Application- filed ahead of time to enable public official
concerned to appraise whether there may be valid objections
3) (Indispensable condition to refusal or modification that the CPD
test be the standard for the decision reached)
4) If public authority believes that there is an imminent and grave
danger of substantial evil, applicants must be heard on the
matter.
5) Decision must be transmitted at the earliest opportunity.
It bears stressing that suspension of public services, however temporary,
will inevitably derail services to the public, which is one of the reasons why
the right to strike is denied government employees.
FACTS:
Petitioners are teachers from different public schools in Metro Manila.
On various dates in September and October 1990, petitioners did not
report for work and instead, participated in mass actions by public
school teachers at the Liwasang Bonifacio for the purpose of
petitioning the government for redress of their grievances.
Petitioners were administratively charged with such offenses as grave
misconduct, gross neglect of duty, gross violation of civil service law,
rules and regulations and reasonable office regulations, refusal to
perform official duty, gross insubordination, conduct prejudicial to the
best interest of the service and absence without official leave.
Petitioners failed to answer these charges. Following the
investigations conducted by the DECS Investigating committees,
Secretary Cario found petitioners guilty as charged and ordered their
immediate dismissal from the service. Petitioners appealed and the
CSC modified the said orders of Secretary Cario to six (6) months
suspension without pay.
Appeal to CA: Denied
ISSUE: WHETHER OR NOT THERE WAS A VIOLATION OF THE
CONSTITUTIONAL RIGHT TO PEACEABLY ASSEMBLE AND PETITION
THE GOVERNMENT FOR REDRESS TO GRIEVANCES
HELD: NO
RATIO:
Petitioners contention are without merit. Citing Bangalisan v Court of
Appeals, the Supreme Court held that there was an undisputed fact of
absence and stoppage of public service by the petitioners and that
they were being penalized no because they exercised their right to
peaceable assembly and petition for redress of grievance but because
of their successive unauthorized and unilateral absences which
produced adverse effects upon their students for whose education
they are responsible. The actuations of petitioners definitely
constituted conduct prejudicial to the best interest of the service,
punishable under the Civil service law, rules and regulations.
These mass actions were to all intents and purposes a strike; they
constituted a concerted and unauthorized stoppage of, or absence
from, work which it was the teachers sworn duty to perform,
undertaken for essentially economic reasons.
The ability to strike is not essential to the right of association. In
the absence of statute, public employees do not have the right to
engage in concerted work stoppages for any purpose.
Further, herein petitioners, are being penalized not because they
exercised their right of peaceable assembly and petition for redress of
grievances but because of their successive unauthorized and
unilateral absences which produced adverse effects upon their
students for whose education they are responsible.
As aptly stated by the Solicitor General, It is not the exercise by the
petitioners of their constitutional right to peaceably assemble
that was punished, but the manner in which they exercised such
right which resulted in the temporary stoppage or disruption of
public service and classes in various public schools in Metro
Manila. For, indeed, there are efficient and non-disruptive
avenues, other than the mass actions in question, whereby
petitioners could petition the government for redress of
grievances.
It bears stressing that suspension of public services, however
temporary, will inevitably derail services to the public, which is
one of the reasons why the right to strike is denied government
employees. It may be conceded that the petitioners had valid
grievances and noble intentions in staging the mass actions, but that
will not justify their absences to the prejudice of innocent school
children. Their righteous indignation does not legalize an illegal work
stoppage.
PADER V. PEOPLE (PI: ORAL DEFAMATION)
DOCTRINE: The words of the petitioner constitute only slight oral defamation
since it was not a deliberate attack to damage the vice mayoral candidates
reputation, but it was due to his anger that arose from an incident coupled with
his drunkenness.
FACTS:
On April 20, 1995, at about 8:00 p.m., Atty. Benjamin C. Escolango
was conversing with his political leaders at the terrace of his house at
Morong, Bataan when petitioner appeared at the gate and shouted
Putang ina mo Atty.Escolango. Napakawalanghiya mo!
The latter was dumbfounded and embarrassed.
At that time,Atty. Escolango was a candidate for vice mayor of
Morong, Bataan in the elections of May 8, 1995.

ISSUE:WHETHER PETITIONER IS GUILTY OF SLIGHT OR SERIOUS

ORAL DEFAMATION

HELD: YES. Petitioner is guilty of slight oral defamation.

RATIO:
In resolving the issue, we are guided by a doctrine of ancient
respectability that defamatory words will fall under one or the other,
depending not only upon their sense, grammatical significance, and
accepted ordinary meaning judging them separately, but also upon the
special circumstances of the case, antecedents or relationship
between the offended party and the offender, which might tend to
prove the intention of the offender at the time.
Unquestionably, the words uttered were defamatory. Considering,
however, the factual backdrop of the case, the oral defamation was
only slight.
The parties were also neighbors; that petitioner was drunk at the time
he uttered the defamatory words; and the fact that petitioners anger
was instigated by what Atty. Escolango did when petitioners father
died. In which case, the oral defamation was not of serious or insulting
nature
In Reyes vs. People, we ruled that the expression putang ina mo is a
common enough utterance in the dialect that is often employed, not
really to slender but rather to express anger or displeasure.
In fact, more often, it is just an expletive that punctuates ones
expression of profanity.
We do not find it seriously insulting that after a previous incident
involving his father, a drunk Rogelio Pader on seeing Atty. Escolango
would utter words expressing anger.
Obviously, the intention was to show his feelings of resentment and
not necessarily to insult the latter. Being a candidate running for vice
mayor, occasional gestures and words of disapproval or dislike of his
person are not uncommon.