Section 4.
No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances.
NEAR v. MINNESOTA (1931) by Chief Justice
Hughes
DOCTRINE: It is the chief purpose of the guaranty to
prevent previous restraints upon publication.
A Minnesota statute declares that one who engages "in
the business of regularly and customarily producing,
publishing," etc., "a malicious, scandalous and
defamatory newspaper, magazine or other periodical," is
guilty of a nuisance, and authorizes suits, in the name of
the State, in which such periodicals may be abated and
their publishers enjoined from future violations.
The complaint alleged that the The Saturday Press, on
September 24, 1927, and on eight subsequent dates in
October and November, 1927, published and circulated
editions of that periodical which were "largely devoted to
malicious, scandalous and defamatory articles" There
have been too many men in this city and especially those
in official life, who HAVE been taking orders and
suggestions from JEW GANGSTERS, therefore we
HAVE Jew Gangsters, practically ruling Minneapolis.
Judgment was thereupon entered adjudging that "the
newspaper, magazine and periodical known as The
Saturday Press," as a public nuisance, "be and is hereby
abated." The Judgment perpetually enjoined the
defendants "from producing, editing, publishing,
circulating, having in their possession, selling or giving
away any publication whatsoever which is a malicious,
scandalous or defamatory newspaper, as defined by law,"
First, The statute, said the state court, "is not directed at
threatened libel, but at an existing business which,
generally speaking, involves more than libel." It is aimed
at the distribution of scandalous matter as "detrimental to
public morals and to the general welfare," tending "to
disturb the peace of the community" and "to provoke
assaults and the commission of crime. The judgment in
this case proceeded upon the mere proof of publication.
The statute permits the defense not of the truth alone, but
only that the truth was published with good motives and
for justifiable ends.
Second. The statute is directed not simply at the
circulation of scandalous and defamatory statements with
regard to private citizens, but at the continued publication
by newspapers and periodicals of charges against public
officers of corruption, malfeasance in office, or serious
neglect of duty.
Third. The object of the statute is not punishment, in the
ordinary sense, but suppression of the offending
newspaper or periodical
Fourth. The statute not only operates to suppress the
offending newspaper or periodical, but to put the
publisher under an effective censorship
If we cut through mere details of procedure, the operation
and effect of the statute, in substance, is that public
authorities may bring the owner or publisher of a
newspaper or periodical before a judge upon a charge of
conducting a business of publishing scandalous and
defamatory matter -- in particular, that the matter consists
of charges against public officers of official dereliction --
and, unless the owner or publisher is able and disposed to
bring competent evidence to satisfy the judge that the
charges are true and are published with good motives and
for justifiable ends, his newspaper or periodical is
suppressed and further publication is made punishable as
a contempt
The exceptional nature of its limitations places in a
strong light the general conception that liberty of the
press, historically considered and taken up by the Federal
Constitution, has meant, principally, although not
exclusively, immunity from previous restraints or
censorship
MR. JUSTICE BUTLER, dissenting.
In this case, there was previous publication made in the
course of the business of regularly producing malicious,
scandalous and defamatory periodicals. The business and
publications unquestionably constitute an abuse of the
right of free press. The statute denounces the things done
as a nuisance on the ground, as stated by the state
supreme court, that they threaten morals, peace and good
order.
NEW YORK TIMES v. US (1971), Per Curiam
DOCTRINE: "Any system of prior restraints of
expression comes to this Court bearing a heavy
presumption against its constitutional validity."
We granted certiorari in these cases in which the United
States seeks to enjoin the New York Times and the
Washington Post from publishing the contents of a
classified study entitled "History of U.S. Decision-
Making Process on Viet Nam Policy."
"Any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its
constitutional validity."
The Government "thus carries a heavy burden of
showing justification for the imposition of such a
restraint." The Government had not met that burden. We
agree.
MR. JUSTICE BLACK, with whom MR. JUSTICE
DOUGLAS joins, concurring.
In the First Amendment, the Founding Fathers gave the
free press the protection it must have to fulfill its
essential role in our democracy. The press was to serve
the governed, not the governors. The Government's
power to censor the press was abolished so that the press
would remain forever free to censure the Government.
The press was protected so that it could bare the secrets
of government and inform the people. Only a free and
unrestrained press can effectively expose deception in
government. And paramount among the responsibilities
of a free press is the duty to prevent any part of the
government from deceiving the people and sending them
off to distant lands to die of foreign fevers and foreign
shot and shell. In my view, far from deserving
condemnation for their courageous reporting, the New
York Times, the Washington Post, and other newspapers
should be commended for serving the purpose that the
Founding Fathers saw so clearly. In revealing the
workings of government that led to the Vietnam war, the
newspapers nobly did precisely that which the Founders
hoped and trusted they would do.
In other words, we are asked to hold that, despite the
First Amendment's emphatic command, the Executive
Branch, the Congress, and the Judiciary can make laws
enjoining publication of current news and abridging
freedom of the press in the name of "national security."
The guarding of military and diplomatic secrets at the
expense of informed representative government provides no
real security for our Republic.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE
BLACK joins, concurring.
These disclosures may have a serious impact. But that is no
basis for sanctioning a previous restraint on the press. The
dominant purpose of the First Amendment was to prohibit the
widespread practice of governmental suppression of
embarrassing information. The present cases will, I think, go
down in history as the most dramatic illustration of that
principle. A debate of large proportions goes on in the Nation
over our posture in Vietnam. That debate antedated the
disclosure of the contents of the present documents. The latter
are highly relevant to the debate in progress. Secrecy in
government is fundamentally anti-democratic, perpetuating
bureaucratic errors. Open debate and discussion of public
issues are vital to our national health. On public questions,
there should be "uninhibited, robust, and wide-open" debate.
MR. JUSTICE BRENNAN, concurring.
The entire thrust of the Government's claim throughout these
cases has been that publication of the material sought to be
enjoined "could," or "might," or "may" prejudice the national
interest in various ways. But the First Amendment tolerates
absolutely no prior judicial restraints of the press predicated
upon surmise or conjecture that untoward consequences may
result.
MR. JUSTICE STEWART, with whom MR. JUSTICE
WHITE joins, concurring.
The hallmark of a truly effective internal security system
would be the maximum possible disclosure, recognizing that
secrecy can best be preserved only when credibility is truly
maintained I am convinced that the Executive is correct with
respect to some of the documents involved. But I cannot say
that disclosure of any of them will surely result in direct,
immediate, and irreparable damage to our Nation or its
people.
MR. JUSTICE WHITE, with whom MR. JUSTICE
STEWART joins, concurring.
The United States has not satisfied the very heavy burden that
it must meet to warrant an injunction against publication in
these cases, at least in the absence of express and
appropriately limited congressional authorization for prior
restraints in circumstances such as these.
Congress has addressed itself to the problems of protecting
the security of the country and the national defense from
unauthorized disclosure of potentially damaging information.
It has not, however, authorized the injunctive remedy against
threatened publication. It has apparently been satisfied to rely
on criminal sanctions and their deterrent effect on the
responsible, as well as the irresponsible, press.
MR. JUSTICE MARSHALL, concurring.
The issue is whether this Court or the Congress has the power
to make law.
It is clear that Congress has specifically rejected passing
legislation that would have clearly given the President the
power he seeks here and made the current activity of the
newspapers unlawful. When Congress specifically declines to
make conduct unlawful, it is not for this Court to redecide
those issues -- to overrule Congress
Either the Government has the power under statutory grant to
use traditional criminal law to protect the country or, if there
is no basis for arguing that Congress has made the activity a
crime, it is plain that Congress has specifically refused to
grant the authority the Government seeks from this Court. In
either case, this Court does not have authority to grant the
requested relief. It is not for this Court to fling itself into
every breach perceived by some Government official, nor is
it for this Court to take on itself the burden of enacting law,
especially a law that Congress has refused to pass.
MR. CHIEF JUSTICE BURGER, dissenting.
These cases are not simple for another and more immediate
reason. We do not know the facts of the cases. No District
Judge knew all the facts. No Court of Appeals judge knew all
the facts. No member of this Court knows all the facts.
It seems reasonably clear now that the haste precluded
reasonable and deliberate judicial treatment of these cases,
and was not warranted. The precipitate action of this Court
aborting trials not yet completed is not the kind of judicial
conduct that ought to attend the disposition of a great issue.
MR. JUSTICE HARLAN, with whom THE CHIEF
JUSTICE and MR. JUSTICE BLACKMUN join,
dissenting.
"[T]he very nature of executive decisions as to foreign policy
is political, not judicial. Such decisions are wholly confided
by our Constitution to the political departments of the
government, Executive and Legislative. Even if there is some
room for the judiciary to override the executive
determination, it is plain that the scope of review must be
exceedingly narrow. I can see no indication in the opinions of
either the District Court or the Court of Appeals in the Post
litigation that the conclusions of the Executive were given
even the deference owing to an administrative agency, much
less that owing to a co-equal branch of the Government
operating within the field of its constitutional prerogative.
MR. JUSTICE BLACKMUN, dissenting.
Two federal district courts, two United States courts of
appeals, and this Court -- within a period of less than three
weeks from inception until today -- have been pressed into
hurried decision of profound constitutional issues on
inadequately developed and largely assumed facts without the
careful deliberation that, one would hope, should characterize
the American judicial process.
FREEDMAN v. MARYLAND (1965) by Brennan
Appellant was convicted of exhibiting a motion picture
without submitting it to the Maryland State Board of Censors
for prior approval, despite his contention that the motion
picture censorship statute unconstitutionally impaired
freedom of expression.
Appellant argues that 2 constitutes an invalid prior restraint
because, in the context of the remainder of the statute, it
presents a danger of unduly suppressing protected expression.
He focuses particularly on the procedure for an initial
decision by the censorship board, which, without any judicial
participation, effectively bars exhibition of any disapproved
film unless and until the exhibitor undertakes a time-
consuming appeal to the Maryland courts and succeeds in
having the Board's decision reversed.
Applying the settled rule of our cases, we hold that a
noncriminal process which requires the prior submission of a
pg. 2
film to a censor avoids constitutional infirmity only if it takes
place under procedural safeguards designed to obviate the
dangers of a censorship system. First, the burden of proving
that the film is unprotected expression must rest on the
censor.
Second, while the State may require advance submission of
all films, in order to proceed effectively to bar all showings
of unprotected films, the requirement cannot be administered
in a manner which would lend an effect of finality to the
censor's determination whether a film constitutes protected
expression. Only a procedure requiring a judicial
determination suffices to impose a valid final restraint.
It is readily apparent that the Maryland procedural scheme
does not satisfy these criteria. First, once the censor
disapproves the film, the exhibitor must assume the burden of
instituting judicial proceedings and of persuading the courts
that the film is protected expression. Second, once the Board
has acted against a film, exhibition is prohibited pending
judicial review, however protracted. Under the statute,
appellant could have been convicted if he had shown the film
after unsuccessfully seeking a license, even though no court
had ever ruled on the obscenity of the film. Third, it is
abundantly clear that the Maryland statute provides no
assurance of prompt judicial determination. We hold,
therefore, that appellant's conviction must be reversed. The
Maryland scheme fails to provide adequate safeguards
against undue inhibition of protected expression, and this
renders the 2 requirement of prior submission of films to
the Board an invalid previous restraint.
AYER PRODUCTIONS v. CAPULONG (1988) by
Feliciano
Petitioner Hal McElroy an Australian film maker, and his
movie production company, Petitioner Ayer Productions pty
Ltd. (Ayer Productions), envisioned, sometime in 1987, the
for commercial viewing and for Philippine and international
release, the histolic peaceful struggle of the Filipinos at
EDSA (Epifanio de los Santos Avenue) entitled "The Four
Day Revolution.
Enrile refused participation in the film. petitioners acceded to
this demand and the name of private respondent Enrile was
deleted from the movie script, and petitioners proceeded to
film the projected motion picture.
Enrile filed a complaint hat petitioners' production of the
mini-series without private respondent's consent and over his
objection, constitutes an obvious violation of his right of
privacy.
Respondent court issued a writ of Preliminary Injunction
against the petitioners.
Petitioners' claim that in producing and "The Four Day
Revolution," they are exercising their freedom of speech and
of expression protected under our Constitution. Private
respondent, upon the other hand, asserts a right of privacy
and claims that the production and filming of the projected
mini- series would constitute an unlawful intrusion into his
privacy which he is entitled to enjoy.
The Court would once more stress that this freedom includes
the freedom to film and produce motion pictures and to
exhibit such motion pictures in theaters or to diffuse them
through television. The counter-balancing of private
respondent is to a right of privacy.
The right of privacy cannot be invoked resist publication and
dissemination of matters of public interest. The interest
sought to be protected by the right of privacy is the right to be
free from unwarranted publicity, from the wrongful
publicizing of the private affairs and activities of an
individual which are outside the realm of legitimate public
concern.
"The Four Day Revolution" does not, in the circumstances of
this case, constitute an unlawful intrusion upon private
respondent's "right of privacy." It may be observed at the
outset that what is involved in the instant case is a prior and
direct restraint on the part of the respondent Judge upon the
exercise of speech and of expression by petitioners.
The subject matter of "The Four Day Revolution" is one of
public interest and concern. The extent of the intrusion upon
the life of private respondent Juan Ponce Enrile that would be
entailed by the production and exhibition of "The Four Day
Revolution" would, therefore, be limited in character. The
right of privacy of a "public figure" is necessarily narrower
than that of an ordinary citizen. Private respondent has not
retired into the seclusion of simple private citizenship. he
continues to be a "public figure.
The line of equilibrium in the specific context of the instant
case between the constitutional freedom of speech and of
expression and the right of privacy, may be marked out in
terms of a requirement that the proposed motion picture must
be fairly truthful and historical in its presentation of events.
There must, in other words, be no knowing or reckless
disregard of truth in depicting the participation of private
respondent in the EDSA Revolution.
EASTERN v. DANS (1985) by Gutierrez, Jr
This petition was filed to compel the respondents to allow the
reopening of Radio Station DYRE
which had been summarily closed on grounds of national
security. The petitioner contended that it was denied due
process when it was closed on the mere allegation that the
radio station was used to incite people to sedition.
The case has become moot and academic. However, for the
guidance of inferior courts and administrative tribunals
exercising quasi-judicial functions, the Court issues the
following guidelines:
All forms of media, whether print or broadcast, are entitled to
the broad protection of the freedom of speech and expression
clause. The test for limitations on freedom of expression
continues to be the clear and present danger rule that
words are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring
about the substantive evils that the lawmaker has a right to
prevent.
The clear and present danger test, however, does not lend
itself to a simplistic and all embracing interpretation
applicable to all utterances in all forums. Broadcasting has to
be licensed. Airwave frequencies have to be allocated among
qualified users. A broadcast corporation cannot simply
appropriate a certain frequency without regard for
government regulation or for the rights of others. All forms of
communication are entitled to the broad protection of the
freedom of expression clause. Necessarily, however, the
freedom of television and radio broadcasting is somewhat
lesser in scope than the freedom accorded to newspaper and
print media.
The transistor radio is found everywhere. The television set is
also becoming universal. Their message may be
simultaneously received by a national or regional audience of
pg. 3
listeners including the indifferent or unwilling who happen to
be within reach of a blaring radio or television set. The clear
and present danger test, therefore, must take the particular
circumstances of broadcast media into account.
The government has a right to be protected against broadcasts
which incite the listeners to violently overthrow it. Radio and
television may not be used to organize a rebellion or to signal
the start of widespread uprising. At the same time, the people
have a right to be informed. Radio and television would have
little reason for existence if broadcasts are limited to bland,
obsequious, or pleasantly entertaining utterances. Since they
are the most convenient and popular means of disseminating
varying views on public issues, they also deserve special
protection.
The freedom to comment on public affairs is essential to the
vitality of a representative democracy. Broadcast stations
deserve the special protection given to all forms of media by
the due process and freedom of expression clauses of the
Constitution.
TEEHANKEE, J., concurring:
The main opinion reaffirms in language unmistakable that
broadcast media (radio and television) while subject to
government licensing (for allocation of the use of airwaves
and frequencies) and regulation (considering their pervasive
presence and instant impact) are equally protected by the
preferred freedoms of speech and of the press and by the
rudimentary requirements of due process against arbitrary
deprivation of life, liberty and property; that the basic
standard for restricting or punishing the exercise of these
preferred freedoms is the clear and present danger test
danger of a serious and imminent evil sought to be prevented;
that the summary closure in October, 1980 of petitioner's
radio station ("definitely attended by complete absence of any
hearing before or after the closure itself ") violated its
constitutional rights and must therefore be declared null and
void, and consequently, the writ of mandatory injunction for
the reopening of the station, as prayed for, must issue.
ALEXANDER v. UNITED STATES (1993) by Chief
Justice Rehnquist
DOCTRINE: The First Amendment does not prohibit either
stringent criminal sanctions for obscenity offenses or
forfeiture of expressive materials as punishment for criminal
conduct.
After a full criminal trial, petitioner, the owner of numerous
businesses dealing in sexually explicit materials, was
convicted of, inter alia, violating federal obscenity laws and
the Racketeer Influenced and Corrupt Organizations Act
(RICO). The obscenity convictions, based on a finding that
seven items sold at several stores were obscene, were the
predicates for his RICO convictions. In addition to imposing
a prison term and fine, the District Court ordered petitioner,
as punishment for the RICO violations, to forfeit his
businesses and almost $9 million acquired through
racketeering activity. In affirming the forfeiture order, the
Court of Appeals rejected petitioner's arguments that RICO's
forfeiture provisions constitute a prior restraint on speech and
are overbroad. The court also held that the forfeiture did not
violate the Eighth Amendment, concluding that
proportionality review is not required of any sentence less
than life imprisonment without the possibility of parole. It did
not consider whether the forfeiture was disproportionate or
"excessive."
RICO's forfeiture provisions, as applied here, did not violate
the First Amendment.
The forfeiture here is a permissible criminal punishment,
not a prior restraint on speech. The distinction between prior
restraints and subsequent punishments is solidly grounded in
this Court's cases. The term "prior restraint" describes orders
forbidding certain communications that are issued before the
communications occur.
However, the order here imposes no legal impediment to
petitioner's ability to engage in any expressive activity; it just
prevents him from financing those activities with assets
derived from his prior racketeering offenses. RICO is
oblivious to the expressive or nonexpressive nature of the
assets forfeited. Petitioner's assets were forfeited because
they were directly related to past racketeering violations.
To hold that the forfeiture order in this case constituted a
prior restraint would have the exact opposite effect: It would
blur the line separating prior restraints from subsequent
punishments to such a degree that it would be impossible to
determine with any certainty whether a particular measure is
a prior restraint or not.
JUSTICE KENNEDY, with whom JUSTICE
BLACKMUN and JUSTICE STEVENS join, and with
whom JUSTICE SOUTER joins as to Part II, dissenting.
The admitted design and the overt purpose of the forfeiture in
this case are to destroy an entire speech business and all its
protected titles, thus depriving the public of access to lawful
expression. This is restraint in more than theory. It is
censorship all too real.
Relying on the distinction between prior restraints and
subsequent punishments, ante, at 548, 553-554, the majority
labels the forfeiture imposed here a punishment and
dismisses any further debate over the constitutionality of the
forfeiture penalty under the First Amendment. Our cases do
recognize a distinction between prior restraints and
subsequent punishments, but that distinction is neither so
rigid nor so precise that it can bear the weight the Court
places upon it to sustain the destruction of a speech business
and its inventory as a punishment for past expression.
Whatever one might label the RICO forfeiture provisions at
issue in this case, be it effective, innovative, or Draconian,
1963 was not designed for sensitive and exacting application.
What is happening here is simple: Books and films are
condemned and destroyed not for their own content but for
the content of their owner's prior speech
What is at work in this case is not the power to punish an
individual for his past transgressions but the authority to
suppress a particular class of disfavored speech. The
forfeiture provisions accomplish this in a direct way by
seizing speech presumed to be protected along with the
instruments of its dissemination, and in an indirect way by
threatening all who engage in the business of distributing
adult or sexually explicit materials with the same disabling
measures.
NEWSOUNDS BROADCASTING v. DY (2009) by Tinga
Petitioners are authorized by law to operate radio stations in
Cauayan City, and had been doing so for some years
undisturbed by local authorities. Beginning in 2002,
respondents in their official capacities have taken actions,
whatever may be the motive, that have impeded the ability of
petitioners to freely broadcast, if not broadcast at all. These
actions have ranged from withholding permits to operate to
the physical closure of those stations under color of legal
pg. 4
authority
The bare acts of closing the radio stations or preventing their
operations as an act of prior restraint against speech,
expression or of the press. Prior restraint refers to official
governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination.
While any system of prior restraint comes to court bearing a
heavy burden against its constitutionality, not all prior
restraints on speech are invalid.
It emerges then that there exists tension between petitioners
right to free expression, and respondents authority by law to
regulate local enterprises. What are the rules of adjudication
that govern the judicial resolution of this controversy?
That the acts imputed against respondents constitute a prior
restraint on the freedom of expression of respondents who
happen to be members of the press is clear enough. There is a
long- standing tradition of special judicial solicitude for free
speech, meaning that governmental action directed at
expression must satisfy a greater burden of justification than
governmental action directed at most other forms of behavior
Because of the preferred status of the constitutional rights of
speech, expression, and the press, such a measure is vitiated
by a weighty presumption of invalidity. Indeed, any system of
prior restraints of expression comes to this Court bearing a
heavy presumption against its constitutional validity. . . . The
Government 'thus carries a heavy burden of showing
justification for the enforcement of such restraint. There is
thus a reversal of the normal presumption of validity that
inheres in every legislation.
At the same time, jurisprudence distinguishes between a
content-neutral regulation, i.e., merely concerned with the
incidents of the speech, or one that merely controls the time,
place or manner, and under well defined standards; and a
content-based restraint or censorship, i.e., the restriction is
based on the subject matter of the utterance or speech.
Content-based laws are generally treated as more suspect
than content-neutral laws because of judicial concern with
discrimination in the regulation of expression. Content-
neutral regulations of speech or of conduct that may amount
to speech, are subject to lesser but still heightened scrutiny.
Ostensibly, the act of an LGU requiring a business of proof
that the property from which it operates has been zoned for
commercial use can be argued, when applied to a radio
station, as content-neutral since such a regulation would
presumably apply to any other radio station or business
enterprise within the LGU. However, the circumstances of
this case dictate that we view the action of the respondents as
a content-based restraint.
The Court is of the position that the actions of the
respondents warrant heightened or strict scrutiny from the
Court, the test which we have deemed appropriate in
assessing content-based restrictions on free speech, as well as
for laws dealing with freedom of the mind or restricting the
political process, of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal protection.
The burden lies with the government to establish such
compelling reason to infringe the right to free expression.
INC V. CA (1996) by Puno
Petitioner Iglesia ni Cristo, a duly organized religious
organization, has a television program entitled "Ang Iglesia
ni Cristo" aired on Channel 2 every Saturday and on Channel
13 every Sunday. The program presents and propagates
petitioner's religious beliefs, doctrines and practices often
times in comparative studies with other religions.
Sometime in the months of September, October and
November 1992 petitioner submitted to the respondent Board
of Review for Moving Pictures and Television the VTR tapes
of its TV program Series Nos. 116, 119, 121 and 128. The
Board classified the series as "X" or not for public viewing
on the ground that they "offend and constitute an attack
against other religions which is expressly prohibited by law."
Deeply ensconced in our fundamental law is its hostility
against all prior restraints on speech, including religious
speech. Hence, any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with
furrowed brows. It is the burden of respondent Board to
overthrow this presumption. If it fails to discharge this
burden, its act of censorship will be struck down. It failed in
the case at bar
An examination of the evidence, especially Exhibits "A," "A-
1," "B," "C," and "D" will show that the so-called "attacks"
are mere criticisms of some of the deeply held dogmas and
tenets of other religions. The videotapes were not viewed by
the respondent court as they were not presented as evidence.
Yet they were considered by the respondent court as indecent,
contrary to law and good customs, hence, can be prohibited
from public viewing under section 3(c) of PD 1986. This
ruling clearly suppresses petitioner's freedom of speech and
interferes with its right to free exercise of religion.
In x-rating the TV program of the petitioner, the respondents
failed to apply the clear and present danger rule. The
constitutional guaranty of free exercise and enjoyment of
religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right
can be justified like other restraints on freedom of expression
on the ground that there is a clear and present danger of any
substantive evil which the State has the right to prevent.
The records show that the decision of the respondent Board,
affirmed by the respondent appellate court, is completely
bereft of findings of facts to justify the conclusion that the
subject video tapes constitute impermissible attacks against
another religion.
Prior restraint on speech, including religious speech, cannot
be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a
reality already on ground.
Presently in the United States, the clear and present danger
test is not applied to protect low value speeches such as
obscene speech, commercial speech and defamation. Be that
as it may, the test is still applied to four types of speech:
speech that advocates dangerous ideas, speech that provokes
a hostile audience reaction, out of court contempt and release
of information that endangers a fair trial. Hence, even
following the drift of American jurisprudence, there is reason
to apply the clear and present danger test to the case at bar
which concerns speech that attacks other religions and could
readily provoke hostile audience reaction. It cannot be
doubted that religious truths disturb and disturb tenribly.
"The teaching of cases is that, because only a judicial
determination in an adversary proceeding ensures the
necessary sensitivity to freedom of expression only a
procedure requiring a judicial determination suffices to
impose a valid final restraint." While the thesis has a lot to
commend itself, we are not ready to hold that it is
pg. 5
unconstitutional for Congress to grant an administrative body
quasi-judicial power to preview and classify TV programs
and enforce its decision subject to review by our courts
In order for there to be due process of law, the action of the
[Director of Posts] must be subject to revision by the courts
in case he had abused his discretion or exceeded his authority
the Decision of the respondent Court of Appeals dated March
24, 1995 is affirmed insofar as it sustained the jurisdiction of
the respondent MTRCB to review petitioner's TV program
entitled "Ang Iglesia ni Cristo
PANGANIBAN, J., concurring:
For who will determine whether a given canned material is
religious or not, and therefore whether it can be publicly
exhibited or not without its passing through the Board? I
would prefer that the State, which is constitutionally
mandated to be neutral, continue to exercise the power to
make such determination, rather than leave it up to the
producer, maker or exhibitor of such material, who/which,
because of vested interests would, in the normal course, be
understandably biased in his/its own favor.
It is precisely because the State as parens patriae is "called
upon to manifest an attitude of caring for the welfare of the
young" that I vote for the retention of the State's power of
review and prohibition via the MTRCB.
In exercising its prerogatives, the MTRCB cannot act
absolutely or whimsically. It must act prudently. And it can
do so ONLY if it exercizes its powers of review and
prohibition according to a standard and/or a limit. May I
respectfully point out however that there is an even more
appropriate standard in the Philippine context proffered by
the law itself, and that is "contemporary Philippine cultural
values." This standard under the law, should be used in
determining whether a film or video program is "(a) immoral,
(b) indecent, (c) contrary to law and/or good custom, and (d)
injurious to the prestige of the Republic of the Philippines or
its people.
On the other hand, when the question is whether the material
being reviewed "encourages the commission of violence or of
a wrong or crime" per the enumeration contained in Sec. 3-c,
the "clear and present danger" principle should be applied as
the standard in place of the "dangerous tendency" rule.
PADILLA, J., concurring and dissenting:
I disagree with that part of the majority opinion which
upholds the power of respondent Board to subject to prior
restraint petitioner's religious television programs.
It should by now be undisputably recognized and firmly
rooted in this country that there can be no prior restraints on
the exercise of free speech expression or religion unless such
exercise poses a clear and present danger of a substantive evil
which the State has the right and even the duty to prevent.
It is far better for the individual to live in a climate of free
speech and free expression devoid of prior restraints, even at
the risk of occasional excesses of such freedoms than to exist
in an ambiance of censorship which is always a step closer to
autocracy and dictatorship.
MENDOZA, J., concurring:
Censorship may be allowed only in anarrow class of cases
involving pornography, excessive violence, and danger to
national security. Even in these cases, only courts can
prohibit the showing of a film or the broadcast of a program.
In all other cases, the only remedy against speech which
creates a clear and present danger to public interests is
through subsequent punishment
Considering the potentiality for harm which motion pictures
and TV programs may have especially on the young, all
materials may validly be required to be submitted for review
before they may be shown or broadcast. However, the final
determination of the character of the materials cannot be left
to an administrative agency. That judicial review of
administrative action is available does not obviate the
constitutional objection to censorship
Neither court, however, had any evidence to support its
conclusions, because this case was submitted by the parties
solely on the basis of memoranda. What the majority of this
Court call facts (pp. 16-17) are simply the opinions of
members of the Board that the video tapes contain attacks on
the Catholic religion. The clear and present danger test has
been devised for use in criminal prosecutions for violations of
laws punishing certain types of utterances. While the test has
been applied to the regulation of the use of streets and parks
surely a form of prior restraint - its use in such context can be
justified on the ground that the content of the speech is not
the issue. But when the regulation concerns not the time,
place or manner of speech but its content (i.e., it is content-
based) the clear and present danger test simply cannot be
applied. This is because a determination whether an utterance
has created a clear and present danger to public interests
requires a factual record.
The problem with the censorship law. It in effect places on
the producer or exhibitor the burden of going to court and of
showing that his film or program is constitutionally protected
MELO, J., concurring and dissenting:
Any prior restriction upon a religious expression would be a
restriction on the right of religion. We recognize the role and
the deep influence that religion plays in our community.
Freedom of religion and expression is the rule and its
restriction, the exception. Any prior restriction on the
exercise of the freedom to profess religious faith and the
propagation thereof will unduly diminish that religion's
authority to spread what it believes to be the sacred truth. The
State can exercise no power to restrict such right until the
exercise thereof traverses the point that will endanger the
order of civil society
VITUG, J., dissenting:
Recent events indicate recurrent violent incidents between
and among communities with diverse religious beliefs and
dogma. The danger is past mere apprehension; it has become
a virtual reality and now prevalent in some parts of the world.
When I particularly ponder on the magnitude of the power of
a television set, I find it more prudent to have a deferment of
an exhibition that may be perceived to be contrary to
decency, morality, good customs or the law until, at least, the
courts are given an opportunity to pass upon the matter than
rely merely on the availability of retribution for actual injury
sustained. A delay is not too high a price to pay for a possible
damage to society that may well tum out to be incalculable
and lasting.
KAPUNAN, J., concurring and dissenting:
I cannot agree with its opinion that respondent Board of
Review for Motion pictures and Television (now MTRCB)
has the power to review petitioner's TV program "Ang Iglesia
pg. 6
ni Cristo.
religious freedom is a fundamental right entitled to the
highest priority and amplest protection among human rights.
Because of its exalted position in our hierarchy of civil rights,
the realm of religious belief is generally insulated from state
action, and state interference with such belief is allowed only
in extreme cases.
The censor's cut poses a peculiar danger because it altogether
skirts time-honored judicial tests and standards utilized in
determining those forms of expression that fall within the
area of protected speech or expression, and because, as
between prior restraints and the subsequent sanctions meted
after proof of violation of specific penal statutes, the former
prevents the speech or expression from entering the
marketplace of ideas.
More significantly, under the specific facts and circumstances
of the case confronting us, what is sought to be kept out of
the marketplace of ideas is not only ordinary speech or
expression, two constitutional values which already enjoy
primacy among our civil rights, but also religious speech or
expression utilizing the medium of television.
A regulation neutral on its face poses free exercise problems
when it creates or has the potential of imposing undue
burdens on religion
We are faced with a case of censorship and restraint which, I
stated earlier, touches upon one of the most private and
sensitive of domains: the realm of religious freedom, thought
and expression. In this domain, sharp differences may arise
such that the tenets of one individual may seem the "rankest
error" to his neighbor.
However, the determination of the question as to whether or
not such vilification, exaggeration or fabrication falls within
or lies outside the boundaries of protected speech or
expression is a judicial function which cannot be arrogated by
an administrative body such as a Board of censors.
I share with Justice Mendoza's view that the majority's
pronouncement would in effect place on the producer or
exhibitor the burden of going to court and of showing that his
film or program is constitutionally protected. This throws
overboard the fundamental tenet that any act that restrains
speech is presumed invalid and it is the burden of the censor
to overthrow this presumption.
DAVID v. ARROYO (2006) by Sandoval-Gutierrez
On February 24, 2006, as the nation celebrated the 20 th
Anniversary of the Edsa People Power I, President Arroyo
issued PP 1017 declaring a state of national emergency.
Do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the
laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a
State of National Emergency.
Assembly means a right on the part of the citizens to meet
peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of
expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent. In other
words, like other rights embraced in the freedom of
expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the
prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of
such place, and not for the assembly itself, may be validly
required.
The ringing truth here is that petitioner David, et al. were
arrested while they were exercising their right to peaceful
assembly. They were not committing any crime, neither was
there a showing of a clear and present danger that warranted
the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and
violation of BP 880 were mere afterthought.
On the basis of the above principles, the Court likewise
considers the dispersal and arrest of the members of KMU et
al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacaangs
directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the
principle that freedom of assembly 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. Tolerance is the rule and limitation is the exception.
Only upon a showing that an assembly presents a clear and
present danger that the State may deny the citizens right to
exercise it. Indeed, respondents failed to show or convince
the Court that the rallyists committed acts amounting to
lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and
unprotected assemblies was eliminated.
They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination
of the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their
permits.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another
facet of freedom of speech i.e., the freedom of the press.
Petitioners narration of facts, which the Solicitor General
failed to refute, established the following: first, the Daily
Tribunes offices were searched without warrant; second, the
police operatives seized several materials for publication;
third, the search was conducted at about 1:00 o clock in the
morning of February 25, 2006; fourth, the search was
conducted in the absence of any official of the Daily Tribune
except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune
offices.
Thereafter, a wave of warning came from government
officials. Presidential Chief of Staff Michael Defensor was
quoted as saying that such raid was meant to show a strong
presence, to tell media outlets not to connive or do anything
that would help the rebels in bringing down this government.
Director General Lomibao further stated that if they do not
follow the standards and the standards are if they would
contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No.
1017 we will recommend a takeover. National
Telecommunications Commissioner Ronald Solis urged
television and radio networks to cooperate with the
government for the duration of the state of national
emergency. He warned that his agency will not hesitate to
pg. 7
recommend the closure of any broadcast outfit that violates
rules set out for media coverage during times when the
national security is threatened
The search is illegal. Not only that, the search violated
petitioners freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by
its media.
The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government
officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen
that he may speak only if allowed to do so, and no more and
no less than what he is permitted to say on pain of
punishment should he be so rash as to disobey
Freedom to comment on public affairs is essential to the
vitality of a representative democracy. It is the duty of the
courts to be watchful for the constitutional rights of the
citizen, and against any stealthy encroachments thereon. The
motto should always be obsta principiis.
CHAVEZ v. GONZALES (2008) by Puno
Secretary Gonzales ordered the National Bureau of
Investigation (NBI) to go after media organizations found to
have caused the spread, the playing and the printing of the
contents of a tape of an alleged wiretapped conversation
involving the President about fixing votes in the 2004
national elections. Gonzales said that he was going to start
with Inq7.net, a joint venture between the Philippine Daily
Inquirer and GMA7 television network, because by the very
nature of the Internet medium, it was able to disseminate the
contents of the tape more widely. The NTC issued this press
release: warned that their broadcast/airing of such false
information and/or willful misrepresentation shall be just
cause for the suspension, revocation and/or cancellation of
the licenses or authorizations issued to the said companies.
While all forms of communication are entitled to the broad
protection of freedom of expression clause, the freedom of
film, television and radio broadcasting is somewhat lesser in
scope than the freedom accorded to newspapers and other
print media, as will be subsequently discussed.
Thus, all speech are not treated the same. Some types of
speech may be subjected to some regulation by the State
under its pervasive police power, in order that it may not be
injurious to the equal right of others or those of the
community or society. The difference in treatment is expected
because the relevant interests of one type of speech, e.g.,
political speech, may vary from those of another, e.g.,
obscene speech. Distinctions have therefore been made in the
treatment, analysis, and evaluation of the permissible scope
of restrictions on various categories of speech.
Moreover, the techniques of reviewing alleged restrictions on
speech (overbreadth, vagueness, and so on) have been
applied differently to each category, either consciously or
unconsciously. A study of free speech jurisprudencewhether
here or abroadwill reveal that courts have developed different
tests as to specific types or categories of speech in concrete
situations; i.e., subversive speech; obscene speech; the speech
of the broadcast media and of the traditional print media;
libelous speech; speech affecting associational rights; speech
before hostile audiences; symbolic speech; speech that affects
the right to a fair trial; and speech associated with rights of
assembly and petition
Generally, restraints on freedom of speech and expression are
evaluated by either or a combination of three tests, i.e., (a) the
dangerous tendency doctrine which permits limitations on
speech once a rational connection has been established
between the speech restrained and the danger contemplated;
b) the balancing of interests tests, used as a standard when
courts need to balance conflicting social values and
individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a
given situation of type of situation; and (c) the clear and
present danger rule which rests on the premise that speech
may be restrained because there is substantial danger that the
speech will likely lead to an evil the government has a right
to prevent. This rule requires that the evil consequences
sought to be prevented must be substantive, extremely serious
and the degree of imminence extremely high.
As articulated in our jurisprudence, we have applied either
the dangerous tendency doctrine or clear and present
danger test to resolve free speech challenges. More recently,
we have concluded that we have generally adhered to the
clear and present danger test.
Much has been written on the philosophical basis of press
freedom as part of the larger right of free discussion and
expression. Its practical importance, though, is more easily
grasped. It is the chief source of information on current
affairs. It is the most pervasive and perhaps most powerful
vehicle of opinion on public questions. It is the instrument by
which citizens keep their government informed of their
needs, their aspirations and their grievances. It is the sharpest
weapon in the fight to keep government responsible and
efficient. Without a vigilant press, the mistakes of every
administration would go uncorrected and its abuses
unexposed.
Its contribution to the public weal makes freedom of the press
deserving of extra protection. Indeed, the press benefits from
certain ancillary rights. The productions of writers are
classified as intellectual and proprietary. Persons who
interfere or defeat the freedom to write for the press or to
maintain a periodical publication are liable for damages, be
they private individuals or public officials.
Philippine jurisprudence, even as early as the period under
the 1935 Constitution, has recognized four aspects of
freedom of the press. These are (1) freedom from prior
restraint; (2) freedom from punishment subsequent to
publication; (3) freedom of access to information; and (4)
freedom of circulation.
Considering that petitioner has argued that respondents press
statement constitutes a form of impermissible prior restraint,
a closer scrutiny of this principle is in order, as well as its
sub-specie of content-based (as distinguished from content-
neutral) regulations.
The determination in every case of whether there is an
impermissible restraint on the freedom of speech has always
been based on the circumstances of each case, including the
nature of the restraint. And in its application in our
jurisdiction, the parameters of this principle have been etched
on a case-to-case basis, always tested by scrutinizing the
governmental issuance or act against the circumstances in
which they operate, and then determining the appropriate test
with which to evaluate.
Prior restraint refers to official governmental restrictions on
the press or other forms of expression in advance of actual
publication or dissemination. Freedom from prior restraint is
largely freedom from government censorship of publications,
pg. 8
whatever the form of censorship, and regardless of whether it
is wielded by the executive, legislative or judicial branch of
the government.
Certain previous restraints may be permitted by the
Constitution, but determined only upon a careful evaluation
of the challenged act as against the appropriate test by which
it should be measured against.
A distinction has to be made whether the restraint is (1) a
content- neutral regulation, i.e., merely concerned with the
incidents of the speech, or one that merely controls the time,
place or manner, and under well defined standards; or (2) a
content- basedrestraint or censorship, i.e., the restriction is
based on the subject matter of the utterance or speech.
When the speech restraints take the form of a content-
neutral regulation, only a substantial governmental interest
is required for its validity. Because regulations of this type
are not designed to suppress any particular message, they are
not subject to the strictest form of judicial scrutiny but an
intermediate approach somewhere between the mere
rationality that is required of any other law and the
compelling interest standard applied to content-based
restrictions. The test is called intermediate because the
Court will not merely rubberstamp the validity of a law but
also require that the restrictions be narrowly-tailored to
promote an important or significant governmental interest
that is unrelated to the suppression of expression. The
intermediate approach has been formulated in this manner:
On the other hand, a governmental action that restricts
freedom of speech or of the press based on content is given
the strictest scrutiny in light of its inherent and invasive
impact. Only when the challenged act has overcome the clear
and present danger rule will it pass constitutional muster,
with the government having the burden of overcoming the
presumed unconstitutionality.
Unless the government can overthrow this presumption, the
content-based restraint will be struck down. With respect to
content-based restrictions, the government must also show
the type of harm the speech sought to be restrained would
bring about especially the gravity and the imminence of the
threatened harm otherwise the prior restraint will be invalid.
Prior restraint on speech based on its content cannot be
justified by hypothetical fears, but only by showing a
substantive and imminent evil that has taken the life of a
reality already on ground.
Also, the incidental restriction on speech must be no greater
than what is essential to the furtherance of that interest. A
restriction that is so broad that it encompasses more than
what is required to satisfy the governmental interest will be
invalidated. The regulation, therefore, must be reasonable and
narrowly drawn to fit the regulatory purpose, with the least
restrictive means undertaken.
Thus, when the prior restraint partakes of a content-neutral
regulation, it is subjected to an intermediate review. A
content-based regulation, however, bears a heavy
presumption of invalidity and is measured against the clear
and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague.
The dichotomy between print and broadcast media traces its
origins in the United States. There, broadcast radio and
television have been held to have limited First Amendment
protection, and U.S. Courts have excluded broadcast media
from the application of the strict scrutiny standard that they
would otherwise apply to content-based restrictions.
According to U.S. Courts, the three major reasons why
broadcast media stands apart from print media are: (a) the
scarcity of the frequencies by which the medium operates
[i.e., airwaves are physically limited while print medium may
be limitless]; (b) its pervasiveness as a medium; and (c) its
unique accessibility to children. Because cases involving
broadcast media need not follow precisely the same approach
that [U.S. courts] have applied to other media, nor go so far
as to demand that such regulations serve compelling
government interests, they are decided on whether the
governmental restriction is narrowly tailored to further a
substantial governmental interest, or the intermediate test.
Philippine jurisprudence has also echoed a differentiation in
treatment between broadcast and print media. Nevertheless, a
review of Philippine case law on broadcast media will show
thatas we have deviated with the American conception of the
Bill of Rights we likewise did not adopt en masse the U.S.
conception of free speech as it relates to broadcast media,
particularly as to which test would govern content-based
prior restraints.
Our cases show two distinct features of this dichotomy.
First, the difference in treatment, in the main, is in the
regulatory scheme applied to broadcast media that is not
imposed on traditional print media, and narrowly confined to
unprotected speech (e.g., obscenity, pornography, seditious
and inciting speech), or is based on a compelling government
interest that also has constitutional protection, such as
national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast
media is subjected to, the Court has consistently held that the
clear and present danger test applies to content-based
restrictions on media, without making a distinction as to
traditional print or broadcast media.
This is not to suggest, however, that the clear and present
danger rule has been applied to all cases that involve the
broadcast media. The rule applies to all media, including
broadcast, but only when the challenged act is a content-
based regulation that infringes on free speech, expression and
the press
To recapitulate, a governmental action that restricts freedom
of speech or of the press based on content is given the
strictest scrutiny, with the government having the burden of
overcoming the presumed unconstitutionality by the clear and
present danger rule. This rule applies equally to all kinds of
media, including broadcast media.
This outlines the procedural map to follow in cases like the
one at bar as it spells out the following: (a) the test; (b) the
presumption; (c) the burden of proof; (d) the party to
discharge the burden; and (e) the quantum of evidence
necessary
On the basis of the records of the case at bar, respondents
who have the burden to show that these acts do not abridge
freedom of speech and of the press failed to hurdle the clear
and present danger test. It appears that the great evil which
government wants to prevent is the airing of a tape recording
in alleged violation of the anti- wiretapping law.
We rule that not every violation of a law will justify
straitjacketing the exercise of freedom of speech and of the
press. Our laws are of different kinds and doubtless, some of
them provide norms of conduct which even if violated have
only an adverse effect on a persons private comfort but does
pg. 9
not endanger national security. There are laws of great
significance but their violation, by itself and without more,
cannot support suppression of free speech and free press. In
fine, violation of law is just a factor, a vital one to be sure,
which should be weighed in adjudging whether to restrain
freedom of speech and of the press. The totality of the
injurious effects of the violation to private and public interest
must be calibrated in light of the preferred status accorded by
the Constitution and by related international covenants
protecting freedom of speech and of the press.
We slide to the issue of whether the mere press statements of
the Secretary of Justice and of the NTC in question constitute
a form of content-based prior restraint that has transgressed
the Constitution. In resolving this issue, we hold that it is not
decisive that the press statements made by respondents were
not reduced in or followed up with formal orders or circulars.
It is sufficient that the press statements were made by
respondents while in the exercise of their official functions
Any act done, such as a speech uttered, for and on behalf of
the government in an official capacity is covered by the rule
on prior restraint. The concept of an act does not limit itself
to acts already converted to a formal order or official circular.
Otherwise, the non formalization of an act into an official
order or circular will result in the easy circumvention of the
prohibition on prior restraint
GMA v. COMELEC (2014) by Peralta
DOCTRINE: Drastically curtailing the ability of a candidate
to effectively reach out to the electorate would unjustifiably
curtail his freedom to speak as a means of connecting with
the people.
The five (5) petitions before the Court put in issue the alleged
unconstitutionality of Section 9 (a) of COMELEC Resolution
No. 9615 (Resolution) limiting the broadcast and radio
advertisements of candidates and political parties for national
election positions to an aggregate total of one hundred twenty
(120) minutes and one hundred eighty (180) minutes,
respectively.
Section 9 (a) of COMELEC Resolution No. 9615, with its
adoption of the "aggregate-based" airtime limits
unreasonably restricts the guaranteed freedom of speech and
of the press.
Political speech is one of the most important expressions
protected by the Fundamental Law. "[F]reedom of speech, of
expression, and of the press are at the core of civil liberties
and have to be protected at all costs for the sake of
democracy." Accordingly, the same must remain unfettered
unless otherwise justified by a compelling state interest.
The assailed rule on "aggregate-based" airtime limits is
unreasonable and arbitrary as it unduly restricts and
constrains the ability of candidates and political parties to
reach out and communicate with the people. Here, the
adverted reason for imposing the "aggregate-based" airtime
limits - leveling the playing field - does not constitute a
compelling state interest which would justify such a
substantial restriction on the freedom of candidates and
political parties to communicate their ideas, philosophies,
platforms and programs of government.
It is also particularly unreasonable and whimsical to adopt the
aggregate-based time limits on broadcast time when we
consider that the Philippines is not only composed of so
many islands. There are also a lot of languages and dialects
spoken among the citizens across the country. Accordingly,
for a national candidate to really reach out to as many of the
electorates as possible, then it might also be necessary that he
conveys his message through his advertisements in languages
and dialects that the people may more readily understand and
relate to. To add all of these airtimes in different dialects
would greatly hamper the ability of such candidate to express
himself - a form of suppression of his political speech.
Drastically curtailing the ability of a candidate to effectively
reach out to the electorate would unjustifiably curtail his
freedom to speak as a means of connecting with the people.
PEOPLE v. PEREZ (1923) by Malcolm
DOCTRINE: Criticism, no matter how severe, on the
Executive, the Legislature, and the Judiciary, is within the
range of liberty of speech, unless the intention and effect be
seditious
Isaac Perez, the municipal secretary of Pilar, Sorsogon, and
Fortunato Lodovice, a citizen of that municipality, happening
to meet on the morning of April 1, 1992, in the presidencia of
Pilar, they became engaged in a discussion regarding the
administration of Governor-General Wood, which resulted in
Perez shouting a number of times: "The Filipinos, like
myself, must use bolos for cutting off Wood's head for having
recommended a bad thing for the Filipinos, for he has killed
our independence."
It is our opinion that the law infringed in this instance is not
Article 256 of the Revised Penal Code but rather a portion of
the Treason and Sedition Law. In other words, as will later
appear, we think that the words of the accused did not so
much tend to defame, abuse, or insult, a person in authority,
as they did to raise a disturbance in the community.
In criminal law, there are a variety of offenses which are not
directed primarily against individuals, but rather against the
existence of the State, the authority of the Government, or the
general public peace. The offenses created and defined in Act
No. 292 are distinctly of this character. Among them is
sedition, which is the raising of commotions or disturbances
in the State. It is a revolt against legitimate authority. Though
the ultimate object of sedition is a violation of the public
peace or at least such a course of measures as evidently
engenders it, yet it does not aim at direct and open violence
against the laws, or the subversion of the Constitution
It is of course fundamentally true that the provisions of Act
No. 292 must not be interpreted so as to abridge the freedom
of speech and the right of the people peaceably to assemble
and petition the Government for redress of grievances.
Criticism is permitted to penetrate even to the foundations of
Government. Criticism, no matter how severe, on the
Executive, the Legislature, and the Judiciary, is within the
range of liberty of speech, unless the intention and effect be
seditious. But when the intention and effect of the act is
seditious, the constitutional guaranties of freedom of speech
and press and of assembly and petition must yield to punitive
measures designed to maintain the prestige of constituted
authority, the supremacy of the constitution and the laws, and
the existence of the State
DENNIS v. US (1951) by Chief Justice Vinson
Petitioners were indicted in July, 1948, for violation of the
conspiracy provisions of the Smith Act. The indictment
charged the petitioners with willfully and knowingly
conspiring (1) to organize as the Communist Party of the
United States of America a society, group and assembly of
persons who teach and advocate the overthrow and
pg. 10
destruction of the Government of the United States by force
and violence, and (2) knowingly and willfully to advocate
and teach the duty and necessity of overthrowing and
destroying the Government of the United States by force and
violence. The indictment further alleged that 2 of the Smith
Act proscribes these acts and that any conspiracy to take such
action is a violation of 3 of the Act.
One of the bases for the contention that the means which
Congress has employed are invalid takes the form of an
attack on the face of the statute on the grounds that, by its
terms, it prohibits academic discussion of the merits of
Marxism-Leninism, that it stifles ideas and is contrary to all
concepts of a free speech and a free press.
Such a charge is in strict accord with the statutory language,
and illustrates the meaning to be placed on those words.
Congress did not intend to eradicate the free discussion of
political theories, to destroy the traditional rights of
Americans to discuss and evaluate ideas without fear of
governmental sanction. Rather Congress was concerned with
the very kind of activity in which the evidence showed these
petitioners engaged.
The rule we deduce from these cases is that, where an offense
is specified by a statute in nonspeech or nonpress terms, a
conviction relying upon speech or press as evidence of
violation may be sustained only when the speech or
publication created a "clear and present danger" of attempting
or accomplishing the prohibited crime, e.g., interference with
enlistment.
In this case, we are squarely presented with the application of
the "clear and present danger" test, and must decide what that
phrase imports
Overthrow of the Government by force and violence is
certainly a substantial enough interest for the Government to
limit speech. Indeed, this is the ultimate value of any society,
for if a society cannot protect its very structure from armed
internal attack, it must follow that no subordinate value can
be protected. If, then, this interest may be protected, the
literal problem which is presented is what has been meant by
the use of the phrase "clear and present danger" of the
utterances bringing about the evil within the power of
Congress to punish.
Obviously, the words cannot mean that, before the
Government may act, it must wait until the putsch is about to
be executed, the plans have been laid and the signal is
awaited. If Government is aware that a group aiming at its
overthrow is attempting to indoctrinate its members and to
commit them to a course whereby they will strike when the
leaders feel the circumstances permit, action by the
Government is required.
We are in accord with the court below, which affirmed the
trial court's finding that the requisite danger existed. The
mere fact that, from the period 1945 to 1948, petitioners'
activities did not result in an attempt to overthrow the
Government by force and violence is, of course, no answer to
the fact that there was a group that was ready to make the
attempt.
We hold that 2(a)(1), 2(a)(3) and 3 of the Smith Act do not
inherently, or as construed or applied in the instant case,
violate the First Amendment and other provisions of the Bill
of Rights, or the First and Fifth Amendments because of
indefiniteness. Petitioners intended to overthrow the
Government of the United States as speedily as the
circumstances would permit. Their conspiracy to organize the
Communist Party and to teach and advocate the overthrow of
the Government of the United States by force and violence
created a "clear and present danger" of an attempt to
overthrow the Government by force and violence. They were
properly and constitutionally convicted for violation of the
Smith Act.
MR. JUSTICE FRANKFURTER, concurring in
affirmance of the judgment.
The right of a government to maintain its existence -- self-
preservation -- is the most pervasive aspect of sovereignty.
Free speech is subject to prohibition of those abuses of
expression which a civilized society may forbid.
The demands of free speech in a democratic society, as well
as the interest in national security are better served by candid
and informed weighing of the competing interests, within the
confines of the judicial process, than by announcing dogmas
too inflexible for the non-Euclidian problems to be solved.
Full responsibility for the choice cannot be given to the
courts. Courts are not representative bodies. They are not
designed to be a good reflex of a democratic society. Their
judgment is best informed, and therefore most dependable,
within narrow limits. Their essential quality is detachment,
founded on independence. Primary responsibility for
adjusting the interests which compete in the situation before
us of necessity belongs to the Congress.
First, Free-speech cases are not an exception to the principle
that we are not legislators, that direct policymaking is not our
province. How best to reconcile competing interests is the
business of legislatures, and the balance they strike is a
judgment not to be displaced by ours, but to be respected
unless outside the pale of fair judgment.
Second, "The truth is that the 'clear and present danger' test is
an oversimplified judgment unless it takes account also of a
number of other factors: the relative seriousness of the danger
in comparison with the value of the occasion for speech or
political activity; the availability of more moderate controls
than those which the state has imposed, and perhaps the
specific intent with which the speech or activity is launched.
No matter how rapidly we utter the phrase 'clear and present
danger,' or how closely we hyphenate the words, they are not
a substitute for the weighing of values. They tend to convey a
delusion of certitude when what is most certain is the
complexity of the strands in the web of freedoms which the
judge must dissentangle." It is a familiar experience in the
law that new situations do not fit neatly into legal
conceptions that arose under different circumstances to
satisfy different needs.
Third, not every type of speech occupies the same position on
the scale of values. There is no substantial public interest in
permitting certain kinds of utterances.
The defendants have been convicted of conspiring to organize
a party of persons who advocate the overthrow of the
Government by force and violence. The jury has found that
the object of the conspiracy is advocacy as "a rule or
principle of action," "by language reasonably and ordinarily
calculated to incite persons to such action," and with the
intent to cause the overthrow "as speedily as circumstances
would permit." On any scale of values which we have
hitherto recognized, speech of this sort ranks low.
MR. JUSTICE JACKSON, concurring.
I think reason is lacking for applying the clear and present
pg. 11
danger test to this case. If we must decide that this Act and
its application are constitutional only if we are convinced that
petitioner's conduct creates a "clear and present danger" of
violent overthrow, we must appraise imponderables,
including international and national phenomena which baffle
the best informed foreign offices and our most experienced
politicians. We would have to foresee and predict the
effectiveness of Communist propaganda, opportunities for
infiltration, whether, and when, a time will come that they
consider propitious for action, and whether and how fast our
existing government will deteriorate. No doctrine can be
sound whose application requires us to make a prophecy of
that sort in the guise of a legal decision. The judicial process
simply is not adequate to a trial of such far-flung issues. The
answers given would reflect our own political predilections,
and nothing more.
The basic rationale of the law of conspiracy is that a
conspiracy may be an evil in itself, independently of any
other evil it seeks to accomplish. So far does this doctrine
reach that it is well settled that Congress may make it a crime
to conspire with others to do what an individual may lawfully
do on his own.
The defense of freedom of speech or press has often been
raised in conspiracy cases, because, whether committed by
Communists, by businessmen, or by common criminals, it
usually consists of words written or spoken, evidenced by
letters, conversations, speeches or documents.
Communication is the essence of every conspiracy, for only
by it can common purpose and concert of action be brought
about or be proved.
Having held that a conspiracy alone is a crime and its
consummation is another, it would be weird legal reasoning
to hold that Congress could punish the one only ifthere was
"clear and present danger" of the second.
MR. JUSTICE BLACK, dissenting.
I want to emphasize what the crime involved in this case is,
and what it is not. These petitioners were not charged with an
attempt to overthrow the Government. The charge was that
they agreed to assemble and to talk and publish certain ideas
at a later date: the indictment is that they conspired to
organize the Communist Party and to use speech or
newspapers and other publications in the future to teach and
advocate the forcible overthrow of the Government.
No matter how it is worded, this is a virulent form of prior
censorship of speech and press, which I believe the First
Amendment forbids. I would hold 3 of the Smith Act
authorizing this prior restraint unconstitutional on its face and
as applied.
MR. JUSTICE DOUGLAS, dissenting.
here is a statute which makes a seditious conspiracy
unlawful. Petitioners, however, were not charged with a
"conspiracy to overthrow" the Government. They were
charged with a conspiracy to form a party and groups and
assemblies of people who teach and advocate the overthrow
of our Government by force or violence and with a
conspiracy to advocate and teach its overthrow by force and
violence.
So far as the present record is concerned, what petitioners did
was to organize people to teach and themselves teach the
Marxist-Leninist doctrine
The Act, as construed, requires the element of intent -- that
those who teach the creed believe in it. The crime then
depends not on what is taught, but on who the teacher is. That
is to make freedom of speech turn not on what is said, but on
the intent with which it is said.
But the analogy is close when the illegality is made to turn on
intent, not on the nature of the act. We then start probing
men's minds for motive and purpose; they become entangled
in the law not for what they did, but for what they thought;
they get convicted not for what they said, but for the purpose
with which they said it.
I repeat that we deal here with speech alone, not with speech
plus acts of sabotage or unlawful conduct. Not a single
seditious act is charged in the indictment. To make a lawful
speech unlawful because two men conceive it is to raise the
law of conspiracy to appalling proportions.
Full and free discussion has indeed been the first article of
our faith. We have founded our political system on it. It has
been the safeguard of every religious, political, philosophical,
economic, and racial group amongst us. We have counted on
it to keep us from embracing what is cheap and false; we
have trusted the common sense of our people to choose the
doctrine true to our genius and to reject the rest. This has
been the one single outstanding tenet that has made our
institutions the symbol of freedom and equality. We have
deemed it more costly to liberty to suppress a despised
minority than to let them vent their spleen. We have above all
else feared the political censor. We have wanted a land where
our people can be exposed to all the diverse creeds and
cultures of the world.
There comes a time when even speech loses its constitutional
immunity. Speech innocuous one year may at another time
fan such destructive flames that it must be halted in the
interests of the safety of the Republic. That is the meaning of
the clear and present danger test. When conditions are so
critical that there will be no time to avoid the evil that the
speech threatens, it is time to call a halt. Otherwise, free
speech which is the strength of the Nation will be the cause
of its destruction.
Yet free speech is the rule, not the exception. The restraint to
be constitutional must be based on more than fear, on more
than passionate opposition against the speech, on more than a
revolted dislike for its contents. There must be some
immediate injury to society that is likely if speech is allowed.
This record, however, contains no evidence whatsoever
showing that the actscharged, viz., the teaching of the Soviet
theory of revolution with the hope that it will be realized,
have created any clear and present danger to the Nation
That ruling is, in my view, not responsive to the issue in the
case. We might as well say that the speech of petitioners is
outlawed because Soviet Russia and her Red Army are a
threat to world peace.
US v. OBRIEN (1968) by Chief Justice Warren
O'Brien burned his Selective Service registration certificate
before a sizable crowd in order to influence others to adopt
his anti-war beliefs. He was indicted, tried, and convicted for
violating 50 U.S.C.App. 462(b), a part of the Universal
Military Training and Service Act, subdivision (3) of which
applies to any person "who forges, alters, knowingly destroys,
knowinglymutilates, or in any manner changes any such
certificate . . . ," the words italicized herein having been
added by amendment in 1965.
We note at the outset that the 1965 Amendment plainly does
not abridge free speech on its face. Amended 12(b)(3), on
pg. 12
its face, deals with conduct having no connection with
speech. It prohibits the knowing destruction of certificates
issued by the Selective Service System, and there is nothing
necessarily expressive about such conduct. The Amendment
does not distinguish between public and private destruction,
and it does not punish only destruction engaged in for the
purpose of expressing views
This Court has held that, when "speech" and "nonspeech"
elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the
nonspeech element can justify incidental limitations on First
Amendment freedoms.
Whatever imprecision inheres in these terms, we think it clear
that a government regulation is sufficiently justified if it is:
(OBrien Test)
1. Within the constitutional power of the Government;
2. If it furthers an important or substantial
governmental interest;
3. If the governmental interest is unrelated to the
suppression of free expression
4. If the incidental restriction on alleged First
Amendment freedoms is no greater than is essential
to the furtherance of that interest
In conclusion, we find that, because of the Government's
substantial interest in assuring the continuing availability of
issued Selective Service certificates, because amended
462(b) is an appropriately narrow means of protecting this
interest and condemns only the independent
noncommunicative impact of conduct within its reach, and
because the noncommunicative impact of O'Brien's act of
burning his registration certificate frustrated the
Government's interest, a sufficient governmental interest has
been shown to justify O'Brien's conviction.
BLUE RIBBON COMMITTEE v. MAJADUCON (2003)
by Ynares-Santiago
During the public hearings conducted by the Senate Blue
Ribbon Committee (hereafter called the Committee) on the
alleged mismanagement of funds of the AFP-Retirement and
Separation Benefits System, it appeared that the AFP-RSBS
purchased a lot in General Santos City, designated as Lot X,
MR-1160, for P10,500.00 per square meter from private
respondent Atty. Nilo J. Flaviano. However, the deed of sale
filed with the Register of Deeds indicated that the purchase
price of the lot was only P3,000.00 per square meter.
The Committee thereafter caused the service of a subpoena to
respondent Atty. Flaviano, directing him to appear and testify
before it. Respondent refused to appear at the hearing.
Instead, he filed a petition for prohibition and preliminary
injunction with prayer for temporary restraining order with
the Regional Trial Court of General Santos City. Judge
Majaducon of the RTC issued the TRO against the Senate
Blue Ribbon Committee.
A petition for certiorari was filed alleging that Judge
Majaducon committed grave abuse of discretion.
On January 13, 1999, the newspaper, The Philippine Star
published a news report on the filing by the Committee with
this Court of the petition for certiorari which was docketed
as G.R. No. 136760.The news report quoted portions of the
petition filed by the Committee, alleging that Regional Trial
Court Judge Majaducon was guilty of gross ignorance of the
rules and procedures when he issued the temporary
restraining order and the writ of preliminary injunction
because, under the principle of separation of powers, courts
cannot interfere with the exercise by the legislature of its
authority to conduct investigations in aid of legislation.
As a reaction to the news report, Judge Majaducon initiated a
charge for indirect contempt against Senator Aquilino
Pimentel, several news reporters, and the Philstar executive
editor.
Petitioner Pimentel contends that he had no participation in
the publication in the Philippine Star of excerpts from the
Committees petition for certiorari. Even assuming arguendo
that it was within his control, he pointed out that he could not
have prevented the editors and writers of the newspaper from
publishing the same, lest he violate their constitutional right
of free expression. Indeed, the report by the Philippine Star of
the filing of the petition and the reproduction of its contents
was a legitimate exercise of press freedom.
Verily, it does not appear that Pimentel caused the publication
in the Philippine Star of the fact of filing of the petition for
certiorari by the Committee and the reproduction of excerpts
thereof. He had no right to choose which news articles will
see print in the newspaper. Rather, it is the publisher thereof
which decides which news events will be reported in the
broadsheet. In doing so, it is allowed the widest latitude of
choice as to what items should see the light of day so long as
they are relevant to a matter of public interest, pursuant to its
right of press freedom.
The statement that respondent Judge was grossly ignorant of
the rules of law and procedure does not constitute improper
conduct that tends to impede, obstruct or degrade the
administration of justice. As correctly argued by petitioner,
the phrase gross ignorance of the rules of law and procedure
is ordinarily found in administrative complaints and is a
necessary description to support a petition which seeks the
annulment of an order of a judge wherein basic legal
principles are disregarded.
The power to declare a person in contempt of court must be
exercised on the preservative, not vindictive principle, and on
the corrective and not retaliatory idea of punishment. A judge,
as a public servant, should not be so thin-skinned or sensitive
as to feel hurt or offended if a citizen expresses an honest
opinion about him which may not altogether be flattering to
him. After all, what matters is that a judge performs his duties
in accordance with the dictates of his conscience and the light
that God has given him
ROXAS v. ZUZUARREGUI (2007), Per Curiam
In a Resolution1 dated 26 September 2006, the Court En Banc
ordered Atty. Romeo G. Roxas to explain in writing why he
should not be held in contempt of court and subjected to
disciplinary action when he, in a letter 2 dated 13 September
2006 addressed to Associate Justice Minita V. Chico-Nazario
with copies thereof furnished the Chief Justice and all the
other Associate Justices, intimated that Justice Nazario
decided G.R. No. 152072 and No. 152104 on considerations
other than the pure merits of the case, and called the Supreme
Court a "dispenser of injustice. The decision referred to in
the letter is the Courts decision 3 in these consolidated cases
where Attys. Roxas and Santiago N. Pastor were ordered to
return, among others, to Antonio de Zuzuarregui, Jr., et al. the
amount of P17,073,224.84. On 7 June 2006, the Office of
then Chief Justice Artemio V. Panganiban received from
Roxas a letter (with enclosures)13 dated 6 June 2006 which
contained, inter alia, the following:
pg. 13
After reviewing the records of these cases, We firmly stand
by our decision which Atty. Roxas described to be unjust,
unfair and impossible, and arrived at through considerations
other than the pure merits of the case. Atty. Roxass
insistence that said decision did not meet the standards or
adhered to the basic characteristics of fair and just decision,
such as objectivity, neutrality and conformity to the laws and
the Constitution, is simply without basis. The fact that the
decision was not in his favor does not mean that the same
was contrary to our laws and was not rendered in a fair and
impartial manner.
It is to be noted that prior to his letter dated 13 September
2006, Atty. Roxas wrote then Chief Justice Artemio V.
Panganiban asking for an immediate investigation of "how
such an impossible decision was rendered at all and to
sanction the perpetrators thereon." It is to be stressed that
then Chief Justice Panganiban was a member of the Division
who concurred in the ponencia written by Justice Nazario.
The former and the other three members 23 of the Division did
not find anything illegal, unjust or unfair about the decision;
otherwise, they would have registered their dissents. There
was none. The decision was arrived at after a thorough
deliberation of the members of the Court.
Atty. Roxas faulted the Supreme Court when "(o)ur two
Motions for Reconsiderations were unceremoniously denied
via Minute Resolutions without addressing at all the merits of
our very solid arguments. We cannot help but observe the
High Courts resort to technicalities (that a second motion for
reconsideration is a prohibited pleading) if only for it to avoid
meeting the merits and arguments directly."
It is settled that the Court is not duty-bound to render signed
Decisions all the time. It has ample discretion to formulate
Decisions and/or minute Resolutions, provided a legal basis
is given, depending on its evaluation of a case. 24 In the case
before us, after going over the motion for reconsideration
filed by Roxas and Pastor, we did not find any substantial
argument that would merit the modification of our decision
and that would require an extended resolution since the basic
issues had already been passed upon.
In his letter subject of this contempt proceeding, Atty. Roxas
accused Justice Nazario of deciding the case through
"considerations other than the pure merits of the case." He
averred that "we will never understand what moved the
Honorable Justice to decide as she did and what forces and
influences caused her to reason out her decision in such an
unfair and unjust manner as to compromise the reputation,
integrity and dignity itself of the Supreme Court, as a
venerable institution of justice." He then ended by mocking
her when he said "sleep well if you still can" and that her
"earthly life will [be] judged by the Supreme Dispenser of
Justice where only the merits of Your Honors life will be
relevant and material and where technicalities can shield no
one from his or her wrongdoings."
As to the Court, supposedly the last vanguard and bulwark of
justice, he likewise accuses it of making itself, wittingly or
unwittingly, a party to the wrongdoing by giving official and
judicial sanction and conformity to the unjust claims of the
adverse party. He added: "This is an unjust and unfair
decision, to say the least. x x x We cry out in disbelief that
such an impossible decision could spring forth from the
Supreme Court, the ultimate administrator and last bulwark
of justice. As it stands, instead of being an administrator of
justice, the Supreme Court is ironically a dispenser of
injustice."
In his letter of explanation, Atty. Roxas extended apologies to
Justice Nazario, to the other members of the High Court and
to the High Court itself as a revered institution and ultimate
dispenser of justice. He said he was merely exercising his
right to express a legitimate grievance or articulate a bona
fide and fair criticism of the Honorable Courts ruling. He
explained that his criticism of the assailed ruling was done in
good faith with no intention whatsoever to offend any
member, much less tarnish the image of the Court. Instead of
resorting to public criticism through media exposure, he
chose to ventilate his criticism in a very discreet and private
manner by writing a personal letter confined to the hallowed
halls of the Court and within bounds of decency and
propriety.
We find the explanations of Atty. Roxas unsatisfactory. The
accusation against Justice Nazario is clearly without basis.
The attack on the person of Justice Nazario has caused her
pain and embarrassment. His letter is full of contemptuous
remarks tending to degrade the dignity of the Court and erode
public confidence that should be accorded it.
To prevent liability from attaching on account of his letter, he
invokes his rights to free speech and privacy of
communication. The invocation of these rights will not,
however, free him from liability. As already stated, his letter
contained defamatory statements that impaired public
confidence in the integrity of the judiciary. The making of
contemptuous statements directed against the Court is not an
exercise of free speech; rather, it is an abuse of such right.
Unwarranted attacks on the dignity of the courts cannot be
disguised as free speech, for the exercise of said right cannot
be used to impair the independence and efficiency of courts
or public respect therefor and confidence therein. 25 Free
expression must not be used as a vehicle to satisfy ones
irrational obsession to demean, ridicule, degrade and even
destroy this Court and its magistrates.26
This Court does not curtail the right of a lawyer, or any
person for that matter, to be critical of courts and judges as
long as they are made in properly respectful terms and
through legitimate channels. This Court in In re:
Almacen27said:
Moreover, every citizen has the right to comment upon and
criticize the actuations of public officers. This right is not
diminished by the fact that the criticism is aimed at a judicial
authority, or that is it articulated by a lawyer. Such right is
especially recognized where the criticism concerns a
concluded litigation, because then the courts actuation are
thrown open to public consumption.
Courts and judges are not sacrosanct. They should and expect
critical evaluation of their performance. For like the
executive and the legislative branches, the judiciary is rooted
in the soil of democratic society, nourished by the periodic
appraisal of the citizen whom it is expected to serve. Well-
recognized therefore is the right of a lawyer, both as an
officer of the court and as a citizen, to criticize in properly
respectful terms and through legitimate channels the acts of
courts and judges. Hence, as a citizen and as officer of the
pg. 14
court, a lawyer is expected not only to exercise the right, but
also to consider it his duty to avail of such right. No law may
abridge this right. Nor is he professionally answerable for a
scrutiny into the official conduct of the judges, which would
not expose him to legal animadversion as a citizen.
But it is the cardinal condition of all such criticism that it
shall be bona fide and shall not spill over the walls of
decency and propriety. A wide chasm exists between fair
criticism, on the one hand, and abuse and slander of courts
and the judges thereof, on the other. Intemperate and unfair
criticism is a gross violation of the duty of respect to courts.
It is such a misconduct that subjects a lawyer to disciplinary
action.
In the case at bar, we find the statements made by Atty. Roxas
to have been made mala fides and exceeded the boundaries of
decency and propriety. By his unfair and unfounded
accusation against Justice Nazario, and his mocking of the
Court for allegedly being part of a wrongdoing and being a
dispenser of injustice, he abused his liberty of speech.
In resume, we find that respondent Ilustre has transcended the
permissible bounds of fair comment and criticism to the
detriment of the orderly administration of justice in her letters
addressed to the individual Justices quoted in the show-cause
Resolution of this court en banc, particularly the under lined
portions thereof; in the language of the charges she filed
before the Tanodbayan quoted and underscored in the same
Resolution; in her statements, conduct, acts and charges
against the Supreme Court and/or the official actions of the
justices concerned and her ascription of improper motives to
them; and in her unjustified outburst that she can no longer
expect justice from this Court. The fact that said letters are
not technically considered pleadings, nor the fact that they
were submitted after the main petition had been finally
resolved does not detract from the gravity of the contempt
committed. The constitutional right of freedom of speech or
right to privacy cannot be used as a shield for contemptuous
acts against the Court.
FORTUN v. QUINSAYAS (2013) by Carpio
Petitioner is the counsel for Datu Andal Ampatuan, Jr.
(Ampatuan, Jr.), the principal accused in the murder cases.
Atty. Quinsayas, et al. filed a pending disbarment complaint
against petitioner before this Court.
Petitioner alleged that on 22 November 2010, GMA News
TV internet website posted an article, written by Dedace,
entitled "Mangudadatu, others seek disbarment of Ampatuan
lawyer," a portion of which reads:
On even date, Inquirer.net, the website of PDI, also published
an article, written by Torres, which according to petitioner
also stated details of the disbarment case, as follows:
"Respondent Atty. Fortun had astutely embarked in an
untiring quest to obstruct, impede and degrade the
administration of justice by filing countless causes of action,
all in the hope of burying the principal issue of his clients
participation or guilt in the murder of 57 people that ill- fated
day of November 23, 2009," the petitioners said.
Petitioner further alleged that on 23 November 2010, PhilStar
published an article, written by Punay, which gave details of
the disbarment allegations, thus:
"Attorney Fortun used and abused legal remedies available
and allowed under under the rules, muddled the issues and
diverted the attention away from the main subject matter of
the cases, read the complaint.
Further, petitioner alleged that on 23 November 2010,
Channel 23 aired on national television a program entitled
"ANC Presents: Crying for Justice: the Maguindanao
Massacre." Drilon, the programs host, asked questions and
allowed Atty. Quinsayas to discuss the disbarment case
against petitioner, including its principal points. Petitioner
was allegedly singled out and identified in the program as the
lead counsel of the Ampatuan family.
Petitioner alleged that Atty. Quinsayas, et al. actively
disseminated the details of the disbarment complaint against
him in violation of Rule 139-B of the Rules of Court on the
confidential nature of disbarment proceeding. The public
circulation of the disbarment complaint against him exposed
this Court and its investigators to outside influence and public
interference.
Section 18, Rule 139-B of the Rules of Court provides:
Section 18. Confidentiality. - Proceedings against attorneys
shall be private and confidential. However, the final order of
the Supreme Court shall be published like its decisions in
other cases
Section 18, Rule 139-B of the Rules of Court is not a
restriction on the freedom of the press.1wphi1 If there is a
legitimate public interest, media is not prohibited from
making a fair, true, and accurate news report of a disbarment
complaint. In the absence of a legitimate public interest in a
disbarment complaint, members of the media must preserve
the confidentiality of disbarment proceedings during its
pendency. Disciplinary proceedings against lawyers must still
remain private and confidential until their final
determination. Only the final order of this Court shall be
published like its decisions in other cases.
The Court recognizes that "publications which are privileged
for reasons of public policy are protected by the
constitutional guaranty of freedom of speech." As a general
rule, disbarment proceedings are confidential in nature until
their final resolution and the final decision of this Court. In
this case, however, the filing of a disbarment complaint
against petitioner is itself a matter of public concern
considering that it arose from the Maguindanao Massacre
case. The interest of the public is not on petitioner himself
but primarily on his involvement and participation as defense
counsel in the Maguindanao Massacre case.
Since the disbarment complaint is a matter of public interest,
legitimate media had a right to publish such fact under
freedom of the press. The Court also recognizes that
respondent media groups and personalities merely acted on a
news lead they received when they reported the filing of the
disbarment complaint.
Atty. Quinsayas is bound by Section 18, Rule 139-B of the
Rules of Court both as a complainant in the disbarment case
against petitioner and as a lawyer. As a lawyer and an officer
of the Court, Atty. Quinsayas is familiar with the confidential
nature of disbarment proceedings. However, instead of
preserving its confidentiality, Atty. Quinsayas disseminated
copies of the disbarment complaint against petitioner to
members of the media which act constitutes contempt of
court.
FREE SPEECH AND ELECTIONS
Article IX-C, Section 4 of the Constitution, which provides:
pg. 15
Section 4. The [COMELEC] may, during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and
other public utilities, media of communication or
information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections.
SANIDAD v. COMELEC (1990) by Medialdea (Plebiscite)
DOCTRINE: Media practitioners exercising their freedom
of expression during plebiscite periods are neither the
franchise holders nor the candidates.
On October 23, 1989, Republic Act No. 6766, entitled "AN
ACT PROVIDING FOR AN ORGANIC ACT FOR THE
CORDILLERA AUTONOMOUS REGION" was enacted
into law. Pursuant to said law, the City of Baguio and the
Cordilleras which consist of the provinces of Benguet,
Mountain Province, Ifugao, Abra and Kalinga-Apayao, all
comprising the Cordillera Autonomous Region, shall take
part in a plebiscite for the ratification of said Organic Act.
Pablito V. Sanidad, who claims to be a newspaper columnist
of the "OVERVIEW" for the BAGUIO MIDLAND
COURIER, a weekly newspaper circulated in the City of
Baguio and the Cordilleras, assailed the constitutionality of
Section 19 of Comelec Resolution No. 2167, which provides:
Section 19. Prohibition on columnists, commentators or
announcers. During the plebiscite campaign period, on the
day before and on the plebiscite day, no mass media
columnist, commentator, announcer or personality shall use
his column or radio or television time to campaign for or
against the plebiscite issues.
Petitioner believes that said provision of COMELEC
Resolution No. 2167 constitutes a prior restraint on his
constitutionally-guaranteed freedom of the press and further
imposes subsequent punishment for those who may violate it
because it contains a penal provision.
COMELEC argues that it is a valid implementation of the
power of the Comelec to supervise and regulate media during
election or plebiscite periods as enunciated in Article IX-C,
Section 4 of the 1987 Constitution of the Republic of the
Philippines. It is stated further by respondent that Resolution
2167 does not absolutely bar petitioner from expressing his
views and/or from campaigning for or against the Organic
Act. He may still express his views or campaign for or
against the act through the Comelec space and airtime.
However, it is clear from Art. IX-C of the 1987 Constitution
that what was granted to the Comelec was the power to
supervise and regulate the use and enjoyment of franchises,
permits or other grants issued for the operation of
transportation or other public utilities, media of
communication or information to the end that equal
opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information
campaigns and forums among candidates are ensured. The
evil sought to be prevented by this provision is the possibility
that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or
radio or television time. This is also the reason why a
"columnist, commentator, announcer or personality, who is a
candidate for any elective office is required to take a leave of
absence from his work during the campaign period.
However, neither Article IX-C of the Constitution nor Section
11 (b), 2nd par. of R.A. 6646 can be construed to mean that
the Comelec has also been granted the right to supervise and
regulate the exercise by media practitioners themselves of
their right to expression during plebiscite periods. Media
practitioners exercising their freedom of expression during
plebiscite periods are neither the franchise holders nor the
candidates. In fact, there are no candidates involved in a
plebiscite. Therefore, Section 19 of Comelec Resolution No.
2167 has no statutory basis.
The evil sought to be prevented in an election which led to
Our ruling in that case does not obtain in a plebiscite. In a
plebiscite, votes are taken in an area on some special political
matter unlike in an election where votes are cast in favor of
specific persons for some office. In other words, the
electorate is asked to vote for or against issues, not candidates
in a plebiscite.
Anent respondent Comelec's argument that Section 19 of
Comelec Resolution 2167 does not absolutely bar petitioner-
columnist from expressing his views and/or from
campaigning for or against the organic act because he may do
so through the Comelec space and/or Comelec
radio/television time, the same is not meritorious. While the
limitation does not absolutely bar petitioner's freedom of
expression, it is still a restriction on his choice of the forum
where he may express his view. No reason was advanced by
respondent to justify such abridgement. We hold that this
form of regulation is tantamount to a restriction of petitioner's
freedom of expression for no justifiable reason.
Plebiscite issues are matters of public concern and
importance. The people's right to be informed and to be able
to freely and intelligently make a decision would be better
served by access to an unabridged discussion of the issues,
including the forum. The people affected by the issues
presented in a plebiscite should not be unduly burdened by
restrictions on the forum where the right to expression may
be exercised. Comelec spaces and Comelec radio time may
provide a forum for expression but they do not guarantee full
dissemination of information to the public concerned because
they are limited to either specific portions in newspapers or to
specific radio or television times.
GONZALES v. COMELEC (1969) by Fernando
Petitioners challenged the validity of two new sections now
included in the Revised Election Code, under Republic Act
No. 4880, which was approved and took effect on June 17,
1967, prohibiting the too early nomination of candidates and
limiting the period of election campaign or partisan political
activity
Free speech
free speech and free press may be identified with the liberty
to discuss publicly and truthfully any matter of public interest
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 fordamages, or contempt proceedings
unless there be a clear and present danger of substantive evil
that Congress has a right to prevent.
Two tests that may supply an acceptable criterion for
permissible restriction. Thus: "These are the 'clear and
pg. 16
present danger' rule and the 'dangerous tendency' rule. The
first, as interpreted in a number of cases, means that the evil
consequence of the comment or utterance must be extremely
serious and the degree of imminence extremely high' before
the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented." It has
the advantage of establishing according to the above decision
"a definite rule in constitutional law. It provides the criterion
as to what words may be public established."
The Cabansag case likewise referred to the other test, the
"dangerous tendency" rule and explained it thus: "If the
words uttered create a dangerous tendency which the state
has a right to prevent, then such words are punishable. It is
not necessary that some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms. Nor is it necessary
that the language used be reasonably calculated to incite
persons to acts of force, violence, or unlawfulness. It is
sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which the
legislative body seeks to prevent.
The clear and present danger test then as a limitation on
freedom of expression is justified by the danger or evil a
substantive character that the state has a right to prevent.
Unlike the dangeroustendency doctrine, the danger must not
only be clear but also present. The term clear seems to point
to a causal connection with the danger of the substantially
evil arising from the utterance questioned. Present refers to
the time element. It used to be identified with imminent and
immediate danger. The danger must not only be probable but
very likely inevitable.
Freedom of assembly
This right is a necessary consequence of our republican
institution and complements the right of free speech.
Assembly means a right on the part of citizens to meet
peaceably for consultation in respect to public affairs. The
very idea of a government, republican in form, implies a right
on the part of its citizens to meet peaceably for consultation
in respect to public affairs and to petition for redress of
grievances.
The most natural privilege of man, next to the right of acting
for himself, is that of combining his exertions with those of
his fellow creatures and of acting in common with them. The
right of association therefore appears to me almost
inalienable in its nature as the right of personal liberty. No
legislator can attack it without impairing the foundation of
society.
Right to association
It is indispensable not only for its enhancing the respect that
should be accorded a human personality but equally so for its
assurance that the wishes of any group to oppose whatever
for the moment is the party in power and with the help of the
electorate to set up its own program of government would not
be nullified or frustrated. Nonetheless, the Constitution limits
this particular freedom in the sense that there could be an
abridgment of the right to form associations or societies when
their purposes are "contrary to law". It is submitted that it is
another way of expressing the clear and present danger rule
for unless an association or society could be shown to create
an imminent danger to public safety, there is no justification
for abridging the right to form association societies
RA No. 4880
In considering whether it is violative of any of the above
rights, we cannot ignore of course the legislative declaration
that its enactment was in response to a serious substantive
evil affecting the electoral process, not merely in danger of
happening, but actually in existence, and likely to continue
unless curbed or remedied. To assert otherwise would be to
close one's eyes to the realities of the situation. Nor can we
ignore the express legislative purpose apparent in the proviso
"that simple expressions of opinion and thoughts concerning
the election shall not be considered as part of an election
campaign," and in the other proviso "that nothing herein
stated shall be understood to prevent any person from
expressing his views on current political problems or issues,
or from mentioning the names of the candidates for public
office whom he supports." Such limitations qualify the entire
provision restricting the period of an election campaign or
partisan political activity.
Prohibition of too early nomination of candidates
The right of association is affected. Political parties have less
freedom as to the time during which they may nominate
candidates; the curtailment is not such, however, as to render
meaningless such a basic right. Their scope of legitimate
activities, save this one, is not unduly narrowed. Neither is
there infringement of their freedom to assemble. They can do
so, but not for such a purpose. We sustain in validity. We do
so unanimously.
Limitation on the period of election campaign or partisan
political activity
It is a well-settled principle that stricter standard of
permissible statutory vagueness may be applied to a statute
having inhibiting effect on speech. Where the statutory
provision then operates to inhibit the exercise of individual
freedom affirmatively protected by the Constitution, the
imputation of vagueness sufficient to invalidate the statute is
inescapable.
The constitutional objections are thus formidable. It cannot
be denied that the limitations thus imposed on the
constitutional rights of free speech and press, of assembly,
and of association cut deeply, into their substance. This on the
one hand.
On the other, it cannot be denied either that evils substantial
in character taint the purity of the electoral process. There can
be under the circumstances then no outright condemnation of
the statute. It could not be said to be unwarranted, much less
arbitrary. There is need for refraining from the outright
assumption that the constitutional infirmity is apparent from a
mere reading thereof.
Acts constituting election campaign or partisan political
activity:
(a) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or
against a party or candidate; - VALID
(b) holding political conventions, caucuses, conferences,
meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any campaign
or propaganda for or against a candidate or party; - VALID
(c) making speeches, announcements or commentaries or
holding interviews for or against the election or any party or
candidate for public office; - VOID
(d) publishing or distributing campaign literature or
pg. 17
materials; - VOID
(e) directly or indirectly soliciting votes and/or undertaking
any campaign or propaganda for or against any party; - VOID
(f) giving, soliciting, or receiving contributions for election
campaign purposes, either directly or indirectly - VALID
*VOIDlacks one more affirmative vote for a declaration of
unconstitutionality.
SANCHEZ, J., concurring and dissenting:
Congress we must stress, has put up an untried measure to
solve the problematic situation. Deduction then is the only
avenue open: for Congress, to determine the necessity for the
law; for the Court, its validity. The possibility of its
inefficaciousness is not remote. But so long as a remedy
adopted by Congress, as far as can logically be assumed,
measures up to the standard of validity, it stands.
We give our imprimatur to Section 50-A. We may not tag as
unconstitutional 50-B, and its subsections (a), (b) and (f). We
fear no serious evil with their enforcement. They do not
offend the constitutionally protected speech and press
freedoms, and rights of peaceable assembly and association.
The latter must yield. The proscriptions set forth in all of
them are clear-cut, not open to reasonable doubt, nor easily
susceptible to unreasonable interpretation. Public interest and
welfare authorize their incorporation into the statute books.
Lawful discussion
The conduct involved in the discussion as to make it illegal is
not clearly defined at all. The implication then is that what is
prohibited is discussion which in the view of another may
mean political campaign or partisan political activity. The
speaker or writer becomes captive under the vigilant but
whimsical senses of each listener or reader. His words
acquire varying shades of forcefullness, persuasion and
meaning to suit the convenience of those interpreting them. A
position becomes solicitation. As admonition becomes a
campaign or propaganda.
As worded in R.A. 4880, prohibited discussion could cover
the entire spectrum of expression relating to can candidates
and political parties. No discussion is safe. Every political
discussion becomes suspect. No one can draw an indisputable
dividing line between lawful and unlawful discussion. More
so that statutory restraint falls upon any person whether or
not a voter or candidate.
The line drawn to distinguish unauthorized "political activity"
or "election campaign" specifically, a speech designed to
promote the candidacy of a person from a simple expression
of opinion on current political problems is so tenuous as to be
indistinguishable.
To play safe, he would be compelled to put reins on his words
for fear that they may stray beyond the protected area of
"simple expression". The offshoot could only be a continuous
and pervasive restraint on all forms of discussion which
might time within the purview of the statute.
The objectionable quality of vagueness and over breadth does
not depend upon absence of fair notice to a criminally
accused or upon unchanneled delegation of legislative
powers, but upon the danger of tolerating, in the area of first
amendment freedoms, the existence of a penal statute
susceptible of sweeping and improper application.... These
freedoms are delicate and vulnerable as well as supremely
precious in our society. The threat of sanctions way deter
their exercise almost as the actual application of the
sanctions. Because the first amendment freedoms need
breathing space to survive, government may regulate in the
area only With narrow specificity.
CASTRO, J., dissenting:
The "dangerous tendency" and "clear and present danger"
doctrines, it should not escape notice, were fashioned in the
course of testing legislation of a particular type legislation
limiting speech expected to have deleterious consequences on
the security and public order of the community.
The essential difference between the two doctrines related to
the degree of proximity of the apprehended danger which
justified the restriction upon speech. The "dangerous
tendency" doctrine permitted the application of restrictions
once a rational connection between the speech restrained and
the danger apprehended the "tendency" of one to create
the other was shown. The "clear and present danger" rule,
in contrast, required the Government to defer application of
restrictions until the apprehended danger was much more
visible until its realization was imminent and nigh at hand.
The latter rule was thus considerably more permissive of
speech than the former, in contexts for the testing of which
they were originally designed. In other types of contexts,
however, where the "substantive evil" which Congress seeks
to avoid or mitigate does not relate to the maintenance of
public order in society, the adequacy or perhaps even the
relevancy of these doctrines cannot be casually assumed. It
would appear to me that one of these contexts would be that
where the legislation under constitutional attack interferes
with the freedom of speech and assembly in a more
generalized way and where the effect of speech
and assembly in terms of the probability of realization of a
specific danger is not susceptible even of impressionistic
calculation.
I believe that Sections 50-A and 50-B come within such
context. Congress enacted these provisions not because it
feared that speeches and assemblies in the course of election
campaigns would, probably or imminently, result in a direct
breach of public order or threaten national security. Sections
50-A and 50-B explicitly recognize that such speech and
assembly are lawful while seeking to limit them in point of
time.
In enunciating a standard premised on a judicial balancing of
the conflicting social values and individual interests
competing for ascendancy in legislation which restricts
expression, the court in Douds laid the basis for what has
been called the "balancing-of-interests" test which has found
application in more recent decisions of the U.S. Supreme
Court. Briefly stated, the "balancing" test requires a court to
take conscious and detailed consideration of the interplay of
interests observable in a given situation or type of situation.
In the actual application of the "balancing-of-interests" test,
the crucial question is: how much deference should be given
to the legislative judgment?
Applying the "balancing-of-interests" test or approach
outlined above, I am persuaded that Congress did not exceed
constitutional limits in enacting Section 50-A. In sum and
substance, it is my considered view that Section 50-B of the
Revised Election Code constitutes an unconstitutional
abridgment of the freedoms of speech, of the press, of
peaceful assembly, and of lawful association.
NATIONAL PRESS CLUB v. COMELEC (1992) by
Feliciano (Elections)
pg. 18
The statutory text that petitioners ask us to strike down as
unconstitutional is that of Section 11 (b) of Republic Act No.
6646, known as the Electoral Reforms Law of 1987:
Thus, 11(b) states:
Prohibited Forms of Election Propaganda. In addition to the
forms of election propaganda prohibited in Section 85 of
Batas Pambansa Blg. 881, it shall be unlawful:
... .
(b) for any newspapers, radio broadcasting or television
station, or other mass media, or any person making use of the
mass media to sell or to give free of charge print space or air
time for campaign or other political purposes except to the
Commission as provided under Section 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for
any elective public office shall take a leave of absence from
his work as such during the campaign period.
On the other hand, the Omnibus Election Code provisions
referred to in 11(b) read:
SEC. 90. Comelec space. - The Commission shall procure
space in at least one newspaper of general circulation in
every province or city: Provided, however, That in the
absence of said newspaper, publication shall be done in any
other magazine or periodical in said province or city, which
shall be known as Comelec Space wherein candidates can
announce their candidacy. Said space shall be allocated, free
of charge, equally and impartially by the Commission among
all candidates within the area in which the newspaper is
circulated. (Sec. 45, 1978 EC).
SEC. 92. Comelec time. - The Commission shall procure
radio and television time to be known as Comelec Time
which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and
television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as
to provide radio or television time, free of charge, during the
period of the campaign. (Sec. 46, 1978 EC)
The objective which animates Section 11 (b) is the
equalizing, as far as practicable, the situations of rich and
poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign "war chests."
Section 11 (b) prohibits the sale or donation of print space
and air time "for campaign or other political purposes" except
to the Commission on Elections ("Comelec"). Upon the other
hand, Sections 90 and 92 of the Omnibus Election Code
require the Comelec to procure "Comelec space" in
newspapers of general circulation in every province or city
and "Comelec time" on radio and television stations. Further,
the Comelec is statutorily commanded to allocate "Comelec
space" and "Comelec time" on a free of charge, equal and
impartial basis among all candidates within the area served
by the newspaper or radio and television station involved.
That objective is of special importance and urgency in a
country which, like ours, is characterized by extreme
disparity in income distribution between the economic elite
and the rest of society, and by the prevalence of poverty, with
the bulk of our population falling below that poverty line.
The Comelec has thus been expressly authorized by the
Constitution to supervise or regulate the enjoyment or
utilization of the franchises or permits for the operation of
media of communication and information. The fundamental
purpose of such "supervision or regulation" has been spelled
out in the Constitution as the ensuring of "equal opportunity,
time, and space, and the right to reply," as well as uniform
and reasonable rates of charges for the use of such media
facilities, in connection with "public information campaigns
and forums among candidates."
Withal, the rights of free speech and free press are not
unlimited rights for they are not the only important and
relevant values even in the most democratic of polities. In our
own society, equality of opportunity to proffer oneself for
public office, without regard to the level of financial
resources that one may have at one's disposal, is clearly an
important value. No presumption of invalidity arises in
respect of exercises of supervisory or regulatory authority on
the part of the Comelec for the purpose of securing equal
opportunity among candidates for political office, although
such supervision or regulation may result in some limitation
of the rights of free speech and free press.
The Court considers that Section 11 (b) has not gone outside
the permissible bounds of supervision or regulation of media
operations during election periods.
Firstly, Section 11 (b) is limited in the duration of its
applicability and enforceability in time to election periods.
Secondly, and more importantly, Section 11 (b) is limited in
its scope of application to apply only to the purchase and
sale, including purchase and sale disguised as a donation, of
print space and air time for "campaign or other political
purposes."
The points that may appropriately be underscored are that
Section 11 (b) does not cut off the flow of media reporting,
opinion or commentary about candidates, their qualifications
and platforms and promises. Newspaper, radio broadcasting
and television stations remain quite free to carry out their
regular and normal information and communication
operations. Section 11 (b) does not authorize any intervention
and much less control on the part of Comelec in respect of
the content of the normal operations of media, nor in respect
of the content of political vertisements which the individual
candidates are quite free to present within their respective
allocated Comelec time and Comelec space. There is here no
"officious functionary of [a] repressive government" dictating
what events or ideas reporters, broadcasters, editors or
commentators may talk or write about or display on TV
screens. There is here no censorship, whether disguised or
otherwise. What Section 11 (b), viewed in context, in fact
does is to limit paid partisan political advertisements to for a
other than modern mass media, and to "Comelec time" and
"Comelec space" in such mass media.
Section 11 (b) does, of course, limit the right of free speech
and of access to mass media of the candidates themselves.
The limitation, however, bears a clear and reasonable
connection with the constitutional objective of equal
opportunity. It is precisely in the unlimited purchase of print
space and radio and television time that the resources of the
financially affluent candidates are likely to make a crucial
difference
The paid political advertisement introjected into the
electronic media and repeated with mind- deadening
frequency, are commonly intended and crafted, not so much
to inform and educate as to condition and manipulate, not so
much to provoke rational and objective appraisal of
candidates' qualifications or programs as to appeal to the non-
intellective faculties of the captive and passive audience. The
right of the general listening and viewing public to be free
from such intrusions and their subliminal effects is at least as
pg. 19
important as the right of candidates to advertise themselves
through modern electronic media and the right of media
enterprises to maximize their revenues from the marketing of
"packaged" candidates.
DAVIDE, JR., J.: concurring:
It is in this area, particularly in the use of television, radio
and newspaper, that a poor candidate will not be able to
compete with his opulent opponents who have all the
resources to buy prime television and radio time and full
pages of leading newspapers. With radio and television
propaganda, the wealthy candidates, even as they leisurely
relax in their homes, offices or hotel suites, can reach every
nook and cranny of their municipality, city, province, district
or even the entire Philippines and be seen or heard at any
time of the day and night. During the contracted hours, their
paid hacks can concentrate on dishonoring the poor and
hapless opponent by hurling innuendoes of defects or vice.
With newspaper advertisements, the wealthy candidates can
reach thousands of readers daily. A worse scenario obtains
where the rich candidates themselves fully or substantially
own or operate a television or radio station, or publish
newspapers. On the other hand, to a poor candidate, the
campaign period would sadly prove to be insufficient for him
to campaign in every barangay, even if he is running for a
municipal position. Thus, not only would he already be at a
disadvantage insofar as visibility and presentation of his
issues or program of government are concerned, he would
have no opportunity to rebut whatever lies his opponents may
spread nor the chance to clear himself of false accusations.
This provision, understood in the light of Section 4, Article
IX-C of the Constitution, is a reasonable regulation enacted
to accomplish the desired objectives and purposes earlier
mentioned. It neither constitutes proscribed abridgment of the
freedom of expression nor prohibits free speech; it merely
provides the rules as to the manner, time and place for its
exercise during a very limited period.
PADILLA, J.: concurring:
In line with the objective of providing equal opportunity to
all candidates, the questioned provision is intended to act as
an equalizer between the rich and poor candidates. As it is,
the moneyed candidate has the funds to engage in a myriad of
campaign activities. To allow the rich candidates to have free
reign over the use of media for their campaign would result in
an unfair advantage over the poor candidates who have no
funds or have meager funds to secure print space and air
time, and yet, they may be equally qualified and deserving
candidates.
GUTIERREZ, JR., J., dissenting:
Section 11(b) of R.A. No. 6646 will certainly achieve one
result keep the voters ignorant of who the candidates are
and what they stand for.
We owe it to the masses to open all forms of communication
to them during this limited campaign period. A candidate to
whom columnists and radio-television commentators owe
past favors or who share their personal biases and convictions
will get an undue amount of publicity. Those who incur the
ire of opinion makers cannot counteract negative reporting by
buying his own newspaper space or airtime for the airing of
his refutations.
I reject the idea that canned publicity in a so-called Comelec
hour or Comelec corner can replace the fresh, imaginative,
and personal appeal of advertisements espousing a cause or
reaching a particular audience.
Section 11(b) of R.A. No. 6646 is censorship pure and
simple. It is particularly reprehensible because it is imposed
during the limited period of the election campaign when
information is most needed. Moreover, the mere thought that
published materials are supervised by a government office is
enough to turn the reader off. Only faithful followers who
already know for whom they are voting will bother to read
the statements of their chosen candidate in the Comelec
corner of the newspapers.
We should not allow the basic freedom of expression to be
sacrificed at the alter of infinitely lesser fears and concerns.
Under the clear and present danger rule not only must the
danger be patently clear and pressingly present but the evil
sought to be avoided must be so substantive as to justify a
clamp over one's mouth or, a writing instrument to be stilled.
CRUZ, J., dissenting:
The lawful objective of Section 11(b) may be readily
conceded. The announced purpose of the law is to prevent
disparity between the rich and the poor candidates by denying
both of them access to the mass media and thus preventing
the former from enjoying an undue advantage over the latter.
But in constitutional law, the end does not justify the means.
To pursue a lawful objective, only a lawful method may be
employed even if it may not be the best among the suggested
options. In my own view, the method here applied falls far
short of the constitutional criterion. I believe that the
necessary reasonable link between the means employed and
the purpose sought to be achieved has not been proved and
that the method employed is unduly oppressive.
The financial disparity among the candidates is a fact of life
that cannot be corrected by legislation except only by the
limitation of their respective expenses to a common
maximum.
The flaw in the prohibition under challenge is that while the
rich candidate is barred from buying mass media coverage, it
nevertheless allows him to spend his funds on other campaign
activities also inaccessible to his straitened rival. Thus, the
rich candidate may hold as many rallies and meetings as he
may desire or can afford, using for the purpose the funds he
would have spent for the prohibited mass media time and
space. The number of these rallies and meetings, which also
require tremendous expense, cannot be matched by the poor
candidate, but the advantage of the rich candidate in this case
is not similarly prohibited. By the same token, the rich
candidates may visit more houses, send more letters, make
more telephone appeals, distribute more campaign materials,
incurring for all these more expenses than the poor candidates
can afford. But these advantages are allowed by the law
because they do not involve the use of mass media space and
time.
The proposed distribution of COMELEC time and space is
hardly workable, considering the tremendous number of
candidates running all over the country for the offices of
President of the Philippines, Vice-President, senators,
representatives, provincial governors, vice-governors,
provincial board members, city mayors, vice-mayors and
councilors, and municipal mayors, vice-mayors and
councilors. Allocation of equal time and space among the
candidates would involve administrative work of
unmanageable proportions, and the possibility as well of
unequal distribution, whether deliberate or unintentional, that
might create more serious problems than the problem at hand.
pg. 20
But the most important objection to Section 11(b) is that it
constitutes prior restraint on the dissemination of ideas. In a
word, it is censorship. It is that officious functionary of the
repressive government who tells the citizen that he may speak
only if allowed to do so, and no more and no less than what
he is permitted to say on pain of punishment should he be so
rash as to disobey.
I am certain the Court shares the apprehensions of the sober
elements of our society over the acute disadvantage of the
poor candidates vis-a-vis a wealthy opponent determined to
win at all cost (which he can afford). However, for all its
anxiety to solve this disturbingly widespread difficulty, it is
inhibited, as all of us must be, by the mandate of the
Constitution to give untrammeled rein to the dissemination
and exchange of ideas concerning the elections.
PARAS, J., dissenting:
The majority says that the purpose of the political
advertisement provision is to prevent those who have much
money from completely overwhelming those who have little.
This is gross errors because should the campaign for votes be
carried out in other fora (for example, rallies and meetings)
the rich candidate can always be at a great advantage over his
less fortunate opponent. And so the disparity feared will
likewise appear in campaigns other than through media. It is
alleged also that the candidate with money can purchase for
himself several full page advertisements, making his poor
opponents really poor in more ways than one. This is not
realistic for the poor opponents may, for certain reasons be
given or favored with advertisements free of charge, and
money will not be needed in this case. And yet under the
statute in question, even free or gratuitous advertisements in
print, in radio or in television are included in the prohibition.
And then again, it is contended by the majority that a poor
candidate can still make use of media by consenting to
interviews and news reports about this campaign, which
interviews and reports are, according to the majority still
allowable. But then these interviews and news reports are still
subtle advertisements and they can be had if a candidate
deliberately looks for media practitioners to inner view him
or to write about him. If the majority is to be consistent, these
interviews and news reports should also be disallowed.
ADIONG v. COMELEC (1992) by Gutierrez, Jr
The specific issue in this petition is whether or not the
Commission on Elections (COMELEC) may prohibit the
posting of decals and stickers on "mobile" places, public or
private, and limit their location or publication to the
authorized posting areas that it fixes.
The petition is impressed with merit. The COMELEC's
prohibition on posting of decals and stickers on "mobile"
places whether public or private except in designated areas
provided for by the COMELEC itself is null and void on
constitutional grounds.
First the prohibition unduly infringes on the citizen's
fundamental right of free speech enshrined in the
Constitution (Sec. 4, Article III). There is no public interest
substantial enough to warrant the kind of restriction involved
in this case.
We have adopted the principle that debate on public issues
should be uninhibited, robust, and wide open and that it may
well include vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials. Too many
restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our
elections will truly be free, clean and honest. We have also
ruled that the preferred freedom of expression calls all the
more for the utmost respect when what may be curtailed is
the dissemination of information to make more meaningful
the equally vital right of suffrage.
The determination of the limits of the Government's power to
regulate the exercise by a citizen of his basic freedoms in
order to promote fundamental public interests or policy
objectives is always a difficult and delicate task. The so-
called balancing of interests individual freedom on one
hand and substantial public interests on the other is made
even more difficult in election campaign cases because the
Constitution also gives specific authority to the Commission
on Elections to supervise the conduct of free, honest, and
orderly elections.
When faced with border line situations where freedom to
speak by a candidate or party and freedom to know on the
part of the electorate are invoked against actions intended for
maintaining clean and free elections, the police, local officials
and COMELEC, should lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's
power to regulate are not antagonistic. There can be no free
and honest elections if in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed.
Even as the Court sustained the regulation of political
advertisements, with some rather strong dissents, in National
Press Club, we find the regulation in the present case of a
different category. The promotion of a substantial
Government interest is not clearly shown.
The posting of decals and stickers in mobile places like cars
and other moving vehicles does not endanger any substantial
government interest. There is no clear public interest
threatened by such activity so as to justify the curtailment of
the cherished citizen's right of free speech and expression.
Under the clear and present danger rule not only must the
danger be patently clear and pressingly present but the evil
sought to be avoided must be so substantive as to justify a
clamp over one's mouth or a writing instrument to be stilled.
Significantly, the freedom of expression curtailed by the
questioned prohibition is not so much that of the candidate or
the political party. The regulation strikes at the freedom of an
individual to express his preference and, by displaying it on
his car, to convince others to agree with him. A sticker may
be furnished by a candidate but once the car owner agrees to
have it placed on his private vehicle, the expression becomes
a statement by the owner, primarily his own and not of
anybody else.
Second the questioned prohibition premised on the statute
and as couched in the resolution is void for overbreadth.
A statute is considered void for overbreadth when "it
offends the constitutional principle that a governmental
purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by means
which sweep unnecessarily broadly and thereby invade the
area of protected freedoms."
The resolution prohibits the posting of decals and stickers not
more than eight and one-half (8- 1/2) inches in width and
fourteen (14) inches in length in any place, including mobile
places whether public or private except in areas designated
by the COMELEC. Verily, the restriction as to where the
decals and stickers should be posted is so broad that it
encompasses even the citizen's private property, which in this
case is a privately-owned vehicle.
pg. 21
Third the constitutional objective to give a rich candidate
and a poor candidate equal opportunity to inform the
electorate as regards their candidacies, mandated by Article
II, Section 26 and Article XIII, section 1 in relation to Article
IX (c) Section 4 of the Constitution, is not impaired by
posting decals and stickers on cars and other private vehicles.
Compared to the paramount interest of the State in
guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal
significance.
It is to be reiterated that the posting of decals and stickers on
cars, calesas, tricycles, pedicabs and other moving vehicles
needs the consent of the owner of the vehicle. Hence, the
preference of the citizen becomes crucial in this kind of
election propaganda not the financial resources of the
candidate. Whether the candidate is rich and, therefore, can
afford to doleout more decals and stickers or poor and
without the means to spread out the same number of decals
and stickers is not as important as the right of the owner to
freely express his choice and exercise his right of free speech.
The owner can even prepare his own decals or stickers for
posting on his personal property. To strike down this right
and enjoin it is impermissible encroachment of his liberties.
The prohibition on posting of decals and stickers on "mobile"
places whether public or private except in the authorized
areas designated by the COMELEC becomes censorship
which cannot be justified by the Constitution.
CRUZ, J.: concurring:
Instead of limiting the dissemination of information on the
election issues and the qualifications of those vying for public
office, what the Commission on Elections should concentrate
on is the education of the voters on the proper exercise of
their suffrages. This function is part of its constitutional duty
to supervise and regulate elections and to prevent them from
deteriorating into popularity contests where the victors are
chosen on the basis not of their platforms and competence but
on their ability to sing or dance, or play a musical instrument,
or shoot a basketball, or crack a toilet joke, or exhibit some
such dubious talent irrelevant to their ability to discharge a
public office. The public service is threatened with
mediocrity and indeed sheer ignorance if not stupidity. That is
the problem the Commission on Elections should try to
correct instead of wasting its time on much trivialities as
where posters shall be allowed and stickers should not be
attached and speeches may be delivered.
ABS-CBN v. COMELEC (2000) by Panganiban
Assailing Commission on Elections (Comelec) en banc
Resolution No. 98-1419 dated April 21, 1998. In the said
Resolution, the poll body
"RESOLVED to approve the issuance of a restraining order
to stop ABS-CBN or any other groups, its agents or
representatives from conducting such exit survey and to
authorize the Honorable Chairman to issue the same."
The Resolution was issued by the Comelec allegedly upon
"information from [a] reliable source that ABS-CBN (Lopez
Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections x x x and to make [an]
exit survey of the x x x vote during the elections for national
officials particularly for President and Vice President, results
of which shall be [broadcast] immediately."
An exit poll is a species of electoral survey conducted by
qualified individuals or groups of individuals for the purpose
of determining the probable result of an election by
confidentially asking randomly selected voters whom they
have voted for, immediately after they have officially cast
their ballots. The results of the survey are announced to the
public, usually through the mass media, to give an advance
overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history,
exit polls had not been resorted to until the recent May 11,
1998 elections.
Admittedly, no law prohibits the holding and the reporting of
exit polls. The question can thus be more narrowly defined:
May the Comelec, in the exercise of its powers, totally ban
exit polls? In answering this question, we need to review
quickly our jurisprudence on the freedoms of speech and of
the press.
The freedoms of speech and of the press should all the more
be upheld when what is sought to be curtailed is the
dissemination of information meant to add meaning to the
equally vital right of suffrage. We cannot support any ruling
or order "the effect of which would be to nullify so vital a
constitutional right as free speech." When faced with
borderline situations in which the freedom of a candidate or a
party to speak or the freedom of the electorate to know is
invoked against actions allegedly made to assure clean and
free elections, this Court shall lean in favor of freedom. For
in the ultimate analysis, the freedom of the citizen and the
State's power to regulate should not be antagonistic. There
can be no free and honest elections if, in the efforts to
maintain them, the freedom to speak and the right to know
are unduly curtailed.
True, the government has a stake in protecting the
fundamental right to vote by providing voting places that are
safe and accessible. It has the duty to secure the secrecy of
the ballot and to preserve the sanctity and the integrity of the
electoral process. However, in order to justify a restriction of
the people's freedoms of speech and of the press, the state's
responsibility of ensuring orderly voting must far outweigh
them.
These freedoms have additional importance, because exit
polls generate important researchdata which may be used to
study influencing factors and trends in voting behavior. An
absolute prohibition would thus be unreasonably restrictive,
because it effectively prevents the use of exit poll data not
only for election-day projections, but also for long-term
research.
Comelec justifies its assailed Resolution as having been
issued pursuant to its constitutional mandate to ensure a free,
orderly, honest, credible and peaceful election. While
admitting that "the conduct of an exit poll and the broadcast
of the results thereof [are] x x x an exercise of press
freedom," it argues that "[p]ress freedom may be curtailed if
the exercise thereof creates a clear and present danger to the
community or it has a dangerous tendency." It then contends
that "an exit poll has the tendency to sow confusion
considering the randomness of selecting interviewees, which
further make[s] the exit poll highly unreliable. The
probability that the results of such exit poll may not be in
harmony with the official count made by the Comelec x x x is
ever present. In other words, the exit poll has a clear and
present danger of destroying the credibility and integrity of
the electoral process."
Such arguments are purely speculative and clearly untenable.
First, by the very nature of a survey, the interviewees or
participants are selected at random, so that the results will as
pg. 22
much as possible be representative or reflective of the general
sentiment or view of the community or group polled. Second,
the survey result is not meant to replace or be at par with the
official Comelec count. It consists merely of the opinion of
the polling group as to who the electorate in general has
probably voted for, based on the limited data gathered from
polled individuals. Finally, not at stake here are the credibility
and the integrity of the elections, which are exercises that are
separate and independent from the exit polls. The holding and
the reporting of the results of exit polls cannot undermine
those of the elections, since the former is only part of the
latter. If at all, the outcome of one can only be indicative of
the other.
The Comelec's concern with the possible noncommunicative
effect of exit polls -- disorder and confusion in the voting
centers -- does not justify a total ban on them. Undoubtedly,
the assailed Comelec Resolution is too broad, since its
application is without qualification as to whether the polling
is disruptive or not. Concededly, the Omnibus Election Code
prohibits disruptive behavior around the voting centers. There
is no showing, however, that exit polls or the means to
interview voters cause chaos in voting centers. Neither has
any evidence been presented proving that the presence of exit
poll reporters near an election precinct tends to create
disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection
of exit poll data and their use for any purpose. The valuable
information and ideas that could be derived from them, based
on the voters' answers to the survey questions will forever
remain unknown and unexplored. Unless the ban is
restrained, candidates, researchers, social scientists and the
electorate in general would be deprived of studies on the
impact of current events and of election-day and other factors
on voters' choices.
The absolute ban imposed by the Comelec cannot, therefore,
be justified. It does not leave open any alternative channel of
communication to gather the type of information obtained
through exit polling. On the other hand, there are other valid
and reasonable ways and means to achieve the Comelec end
of avoiding or minimizing disorder and confusion that may
be brought about by exit surveys.
SWS v. COMELEC (2001) by Mendoza
Petitioners brought this action for prohibition to enjoin the
Commission on Elections from enforcing 5.4 of R.A. No.
9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published
fifteen (15) days before an election and surveys affecting
local candidates shall not be published seven (7) days before
an election.
For reasons hereunder given, we hold that 5.4 of R.A. No.
9006 constitutes an unconstitutional abridgment of freedom
of speech, expression, and the press.
5.4 lays a prior restraint on freedom of speech, expression,
and the press by prohibiting the publication of election survey
results affecting candidates within the prescribed periods of
fifteen (15) days immediately preceding a national election
and seven (7) days before a local election. Because of the
preferred status of the constitutional rights of speech,
expression, and the press, such a measure is vitiated by a
weighty presumption of invalidity. Indeed, any system of
prior restraints of expression comes to this Court bearing a
heavy presumption against its constitutional validity. . . . The
Government thus carries a heavy burden of showing
justification for the enforcement of such restraint. There is
thus a reversal of the normal presumption of validity that
inheres in every legislation.
the grant of power to the COMELEC under Art. IX-C, 4 is
limited to ensuring equal opportunity, time, space, and the
right to reply as well as uniform and reasonable rates of
charges for the use of such media facilities for public
information campaigns and forums among candidates
What test should then be employed to determine the
constitutional validity of 5.4? OBrien Test. This is so far the
most influential test for distinguishing content-based from
content-neutral regulations and is said to have become
canonical in the review of such laws. It is noteworthy that the
OBrien test has been applied by this Court in at least two
cases. Under this test, even if a law furthers an important or
substantial governmental interest, it should be invalidated if
such governmental interest is not unrelated to the suppression
of free expression. Moreover, even if the purpose is unrelated
to the suppression of free speech, the law should nevertheless
be invalidated if the restriction on freedom of expression is
greater than is necessary to achieve the governmental purpose
in question.
First. Sec. 5.4 fails to meet criterion [3] of the OBrien test
because the causal connection of expression to the asserted
governmental interest makes such interest not unrelated to the
suppression of free expression. By prohibiting the publication
of election survey results because of the possibility that such
publication might undermine the integrity of the election, 5.4
actually suppresses a whole class of expression, while
allowing the expression of opinion concerning the same
subject matter by newspaper columnists, radio and TV
commentators, armchair theorists, and other opinion makers.
In effect, 5.4 shows a bias for a particular subject matter, if
not viewpoint, by preferring personal opinion to statistical
results. The constitutional guarantee of freedom of expression
means that the government has no power to restrict
expression because of its message, its ideas, its subject
matter, or its content. The inhibition of speech should be
upheld only if the expression falls within one of the few
unprotected categories.
Second. Even if the governmental interest sought to be
promoted is unrelated to the suppression of speech and the
resulting restriction of free expression is only incidental, 5.4
nonetheless fails to meet criterion [4] of the OBrien test,
namely, that the restriction be not greater than is necessary to
further the governmental interest. As already stated, 5.4 aims
at the prevention of last-minute pressure on voters, the
creation of bandwagon effect, junking of weak or losing
candidates, and resort to the form of election cheating called
dagdag-bawas. Praiseworthy as these aims of the regulation
might be, they cannot be attained at the sacrifice of the
fundamental right of expression, when such aim can be more
narrowly pursued by punishing unlawful acts, rather than
speech because of apprehension that such speech creates the
danger of such evils
To summarize then, we hold that 5.4 is invalid because (1) it
imposes a prior restraint on the freedom of expression, (2) it
is a direct and total suppression of a category of expression
even though such suppression is only for a limited period,
and (3) the governmental interest sought to be promoted can
be achieved by means other than the suppression of freedom
of expression.
SWS v. COMELEC (2015) by Leonen
pg. 23
Commission on Elections (COMELEC) Resolution No. 9674
directed Social Weather Stations, Inc. (SWS) and Pulse Asia,
Inc. (Pulse Asia), as well as "other survey firms of similar
circumstance"4 to submit to COMELEC the names of all
commissioners and payors of all surveys published from
February 12, 2013 to April 23, 2013, including those of their
"subscribers."
Surveys, far from being a passive "snapshot of many
viewpoints held by a segment of the population at a given
time,"90 can warp existing public opinion and can mould
public opinion. They are constitutive. Published election
surveys offer valuable insight into public opinion not just
because they represent it but more so because they also tend
to make it.
Appreciating this tendency to both entrench and marginalize
is of acute relevance in the context of Philippine political
reality. This is the same reality that our policymakers,
primarily the framers of the Constitution, have seen fit to
address.
In any case, the requirement of disclosing subscribers is
neither unduly burdensome nor onerous. Prior to the
promulgation of Resolution No. 9674, survey firms are
already understood to be bound by the requirement to
disclose those who commission or pay for published election
surveys. Petitioners have been complying with this without
incident since the Fair Election Act was enacted in 2001.
After more than a decade of compliance, it is odd for
petitioners to suddenly assail the disclosure requirement as
unduly burdensome or onerous.
To reiterate, the inclusion of published election surveys in a
statute that regulates election propaganda and other means
through which candidates may shape voter preferences is
itself telling of the recognition that published election
surveys, too, may influence voter preferences. This inclusion
is similarly telling of a recognition that, left unregulated,
election surveys can undermine the purposes of ensuring
"fair" elections. These recognitions are embedded in the Fair
Election Act; they are not judicial constructs. In adjudicating
with these as bases, this court is merely adhering to the
legislative imperative.
Concededly, what are involved here are not election
propaganda per se. Election surveys, on their face, do not
state or allude to preferred candidates. As a means, election
surveys are ambivalent. To an academician, they are an
aggrupation of data. To a journalist, they are matters for
reportage. To a historian, they form part of a chronicle.
Election surveys thus become unambiguous only when
viewed in relation to the end for which they are employed. To
those whose end is to get a candidate elected, election
surveys, when limited to their own private consumption, are a
means to formulate strategy. When published, however, the
tendency to shape voter preferences comes into play. In this
respect, published election surveys partake of the nature of
election propaganda. It is then declarative speech in the
context of an electoral campaign properly subject to
regulation. Hence, Section 5.2 of the Fair Election Acts
regulation of published surveys.
We thus proceed to evaluate Resolution No. 9674s
requirement of disclosing the names of subscribers to election
surveys in light of the requisites for valid regulation of
declarative speech by private entities in the context of an
election campaign:
First, the text of Section 5.2(a) of the Fair Election Act
supports the inclusion of subscribers among those persons
who "paid for the survey[.]"106 Thus, Resolution No. 9674 is a
regulation finding basis in statute.
COMELEC correctly points out that in Section 5.2(a) of the
Fair Election Act, those who "commissioned" and those who
"paid for" the published survey are separated by the
disjunctive term "or."107 This disassociates those who
"commissioned" from those who "paid for" and identifies
them as alternatives to each other.108 Section 5.2(a) thus
requires the disclosure of two (2) classes of persons: "[first,]
those who commissioned or sponsored the survey; and
[second,] those who paid for the survey."109
The second class makes no distinction between those who
pay for a specific survey and those who pay for election
surveys in general. Indeed, subscribers do not escape the
burden ofpaying for the component articles comprising a
subscription. They may pay for them in aggregate, but they
pay for them just the same. From the text of Section 5.2(a),
the legislative intent or regulatory concern is clear: "those
who have financed, one way or another, the [published]
survey"110 must be disclosed.
Second, not only an important or substantial state interest but
even a compelling one reasonably grounds Resolution No.
9674s inclusion of subscribers to election surveys. Thus,
regardless of whether an intermediate or strict standard is
used, Resolution No. 9674 passes scrutiny.
It is settled that constitutionally declared principles are a
compelling state interest:
Compelling governmental interest would include
constitutionally declared principles. We have held, for
example, that "the welfare of children and the States
mandate to protect and care for them, as parens patriae,
constitute a substantial and compelling government interest in
regulating . . . utterances in TV broadcast."111
Here, we have established that the regulation of election
surveys effects the constitutional policy, articulated in Article
II, Section 26, and reiterated and affirmed in Article IX-C,
Section 4 and Article XIII, Section 26 of the 1987
Constitution, of "guarantee[ing] equal access to opportunities
for public service[.]"112
Resolution No. 9674 addresses the reality that an election
survey is formative as it is descriptive. It can be a means to
shape the preference of voters and, thus, the outcome of
elections. In the hands of those whose end is to get a
candidate elected, it is a means for such end and partakes of
the nature of election propaganda. Accordingly, the
imperative of "fair" elections impels their regulation.
Lastly, Resolution No. 9674 is "narrowly tailored to meet the
objective of enhancing the opportunity of all candidates to be
heard and considering the primacy of the guarantee of free
pg. 24
expression"113 and is "demonstrably the least restrictive
means to achieve that object."114
While it does regulate expression (i.e., petitioners
publication of election surveys), it does not go so far as to
suppress desired expression. There is neither prohibition nor
censorship specifically aimed at election surveys. The
freedom to publish election surveys remains. All Resolution
No. 9674 does is articulate a regulation as regards the manner
of publication, that is, that the disclosure of those who
commissioned and/or paid for, including those subscribed to,
published election surveys must be made.
Petitioners claim that "[i]f Resolution No. 9674 is allowed to
stand, survey firms will no longer be able to operate because
they will not have enough clients and will not be financially
sustainable"130 is too speculative and conjectural to warrant
our consideration. The assumption is that persons who want
to avail of election survey results will automatically be
dissuaded from doing so when there is a requirement of
submission of their names during the campaign period. This
is neither self-evident, nor a presumption that is susceptible
to judicial notice. There is no evidence to establish a causal
connection.
Petitioners free speech rights must be weighed in relation to
the Fair Election Acts purpose of ensuring political equality
and, therefore, the speech of others who want to participate
unencumbered in our political spaces. On one hand, there are
petitioners right to publish and publications which are
attended by the interests of those who can employ published
data to their partisan ends. On the other, there is regulation
that may effect equality and, thus, strengthen the capacity of
those on societys margins or those who grope for resources
to engage in the democratic dialogue. The latter fosters the
ideals of deliberative democracy. It does not trump the
former; rather, it provides the environment where the survey
groups free speech rights should reside.
OSMEA v. COMELEC (1998) by Mendoza (Review of
NPC v. COMELEC)
This is a petition for prohibition, seeking a reexamination of
the validity of 11(b) of R.A. No. 6646, the Electoral Reforms
Law of 1987, which prohibits mass media from selling or
giving free of charge print space or air time for campaign or
other political purposes, except to the Commission on
Elections. NPC v. COMELEC upheld the validity of 11(b) of
R.A. No. 6646 against claims that it abridged freedom of
speech and of the press. In urging a reexamination of that
ruling, petitioners claim that experience in the last five years
since the decision in that case has shown the undesirable
effects of the law because the ban on political advertising has
not only failed to level the playing field, [but] actually
worked to the grave disadvantage of the poor candidate[s] by
depriving them of a medium which they can afford to pay for
while their more affluent rivals can always resort to other
means of reaching voters like airplanes, boats, rallies,
parades, and handbills.
The term political ad ban, when used to describe 11(b) of
R.A. No. 6646, is misleading, for even as 11(b) prohibits the
sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself
allocate to the candidates space and time in the media. There
is no suppression of political ads but only a regulation of the
time and manner of advertising.
There is no total ban on political ads, much less restriction on
the content of the speech. Given the fact that print space and
air time can be controlled or dominated by rich candidates to
the disadvantage of poor candidates, there is a substantial or
legitimate governmental interest justifying exercise of the
regulatory power of the COMELEC under Art. IX- C, 4 of
the Constitution. The provisions in question involve no
suppression of political ads. They only prohibit the sale or
donation of print space and air time to candidates but require
the COMELEC instead to procure space and time in the mass
media for allocation, free of charge, to the candidates. In
effect, during the election period, the COMELEC takes over
the advertising page of newspapers or the commercial time of
radio and TV stations and allocates these to the candidates.
The State can prohibit campaigning outside a certain period
as well as campaigning within a certain place. For unlimited
expenditure for political advertising in the mass media skews
the political process and subverts democratic self-
government. What is bad is if the law prohibits campaigning
by certain candidates because of the views expressed in the
ad. Content regulation cannot be done in the absence of any
compelling reason.
The main purpose of 11(b) is regulatory. Any restriction on
speech is only incidental, and it is no more than is necessary
to achieve its purpose of promoting equality of opportunity in
the use of mass media for political advertising. The
restriction on speech, as pointed out in NPC, is limited both
as to time and as to scope.
The OBrien Test is used for content-neutral restrictions.
A government regulation is sufficiently justified if it is within
the constitutional power of the Government, if it furthers an
important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incident restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest.
Justice Panganibans dissent invokes the clear-and-present-
danger test and argues that media ads do not partake of the
real substantive evil that the state has a right to prevent and
that justifies the curtailment of the peoples cardinal right to
choose their means of expression and of access to
information. The clear-and-present-danger test is not,
however, a sovereign remedy for all free speech problems. As
has been pointed out by a thoughtful student of constitutional
law, it was originally formulated for the criminal law and
only later appropriated for free speech cases. For the criminal
law is necessarily concerned with the line at which innocent
preparation ends and a guilty conspiracy or attempt begins.
Clearly, it is inappropriate as a test for determining the
constitutional validity of laws which, like 11(b) of R.A. No.
6646, are not concerned with the content of political ads but
only with their incidents. To apply the clear-and-present-
danger test to such regulatory measures would be like using a
sledgehammer to drive a nail when a regular hammer is all
that is needed.
The reason for this difference in the level of justification for
the restriction of speech is that content-based restrictions
distort public debate, have improper motivation, and are
usually imposed because of fear of how people will react to a
particular speech. No such reasons underlie content-neutral
regulations, like regulations of time, place and manner of
holding public assemblies under B.P. Blg. 880, the Public
pg. 25
Assembly Act of 1985. Applying the OBrien test in this case,
we find that 11(b) of R.A. No. 6646 is a valid exercise of the
power of the State to regulate media of communication or
information for the purpose of ensuring equal opportunity,
time and space for political campaigns; that the regulation is
unrelated to the suppression of speech; that any restriction on
freedom of expression is only incidental and no more than is
necessary to achieve the purpose of promoting equality.
The Court is just as profoundly aware as anyone else that
discussion of public issues and debate on the qualifications of
candidates in an election are essential to the proper
functioning of the government established by our
Constitution. But it is precisely with this awareness that we
think democratic efforts at reform should be seen for what
they are: genuine efforts to enhance the political process
rather than infringements on freedom of expression.
DIOCESE OF BACOLOD v. COMELEC (2015) by
Leonen
On February 21, 2013, petitioners posted two (2) tarpaulins
within a private compound housing the San Sebastian
Cathedral of Bacolod. Each tarpaulin was approximately six
feet (6') by ten feet (10') in size. They were posted on the
front walls of the cathedral within public view. The first
tarpaulin contains the message "IBASURA RH Law"
referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject
of the present case. 4 This tarpaulin contains the heading
"Conscience Vote" and lists candidates as either "(Anti-RH)
Team Buhay" with a check mark, or "(Pro-RH) Team Patay"
with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No.
10354, otherwise known as the RH Law.6Those who voted
for the passing of the law were classified by petitioners as
comprising "Team Patay," while those who voted against it
form "Team Buhay":7
On February 22, 2013, respondent Atty. Mavil V. Majarucon,
in her capacity as Election Officer of Bacolod City, issued a
Notice to Remove Campaign Materials8 addressed to
petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulins removal within three
(3) days from receipt for being oversized. COMELEC
Resolution No. 9615 provides for the size requirement of two
feet (2) by three feet (3).
Concerned about the imminent threat of prosecution for their
exercise of free speech, petitioners initiated this case through
this petition for certiorari and prohibition with application for
preliminary injunction and temporary restraining order.
COMELEC had no legal basis to regulate expressions made
by private citizens
The violation of the constitutional right to freedom of speech
and expression
Petitioners contend that the assailed notice and letter for the
removal of the tarpaulin violate their fundamental right to
freedom of expression. On the other hand, respondents
contend that the tarpaulin is an election propaganda subject to
their regulation pursuant to their mandate under Article IX-C,
Section 4 of the Constitution. Thus, the assailed notice and
letter ordering itsremoval for being oversized are valid and
constitutional
Size does matterFirst, it enhances efficiency in
communication. A larger tarpaulin allows larger fonts which
make it easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for passengers
inside moving vehicles to read its content. Compared with the
pedestrians, the passengers inside moving vehicles have
lesser time to view the content of a tarpaulin. The larger the
fonts and images, the greater the probability that it will catch
their attention and, thus, the greater the possibility that they
will understand its message.
Second, the size of the tarpaulin may underscore the
importance of the message to the reader. From an ordinary
persons perspective, those who post their messages in larger
fonts care more about their message than those who carry
their messages in smaller media. The perceived importance
given by the speakers, in this case petitioners, to their cause is
also part of the message. The effectivity of communication
sometimes relies on the emphasis put by the speakers and
onthe credibility of the speakers themselves. Certainly, larger
segments of the public may tend to be more convinced of the
point made by authoritative figures when they make the effort
to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces,
therefore, may translate to more opportunities to amplify,
explain, and argue points which the speakers might want to
communicate. Rather than simply placing the names and
images of political candidates and an expression of support,
larger spaces can allow for brief but memorable presentations
of the candidates platforms for governance. Larger spaces
allow for more precise inceptions of ideas, catalyze reactions
to advocacies, and contribute more to a more educated and
reasoned electorate. A more educated electorate will increase
the possibilities of both good governance and accountability
in our government.
These points become more salient when it is the electorate,
not the candidates or the political parties, that speaks.
This court has held free speech and other intellectual
freedoms as "highly ranked in our scheme of constitutional
values."193 These rights enjoy precedence and primacy. This
primordial right calls for utmost respect, more so "when what
may be curtailed is the dissemination of information to make
more meaningful the equally vital right of suffrage
Not all speech are treated the same.
We distinguish between politicaland commercial speech.
Political speech refers to speech "both intended and received
as a contribution to public deliberation about some issue,"
"foster[ing] informed and civicminded deliberation." On the
other hand, commercial speech has been defined as speech
that does "no more than propose a commercial transaction."
The expression resulting from the content of the tarpaulin is,
however, definitely political speech. In Justice Brions
dissenting opinion, he discussed that "[t]he content of the
tarpaulin, as well as the timing of its posting, makes it subject
of the regulations in RA 9006 and Comelec Resolution No.
9615." He adds that "[w]hile indeed the RH issue, by itself,is
not an electoralmatter, the slant that the petitioners gave the
issue converted the non-election issue into a live election one
hence, Team Buhay and Team Patay and the plea to support
one and oppose the other."
While the tarpaulin may influence the success or failure of
the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin was
not paid for or posted "in return for consideration" by any
candidate, political party, or party-list group.
Content-based regulation
pg. 26
 COMELEC contends that the order for removal of the
tarpaulin is a content-neutral regulation. The order was made
simply because petitioners failed to comply with the
maximum size limitation for lawful election propaganda. On
the other hand, petitioners argue that the present size
regulation is content-based as it applies only to political
speech and not to other forms of speech such as commercial
speech
As pointed out by petitioners, the interpretation of
COMELEC contained in the questioned order applies only to
posters and tarpaulins that may affect the elections because
they deliver opinions that shape both their choices. It does not
cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what
kind of expression of non-candidates will be adjudged as
"election paraphernalia." There are no existing bright lines to
categorize speech as election-related and those that are not.
As pointed out by petitioners, the interpretation of
COMELEC contained in the questioned order applies only to
posters and tarpaulins that may affect the elections because
they deliver opinions that shape both their choices. It does not
cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what
kind of expression of non-candidates will be adjudged as
"election paraphernalia." There are no existing bright lines to
categorize speech as election-related and those that are not.
Even with the clear and present danger test, respondents
failed to justify the regulation. There is no compelling and
substantial state interest endangered by the posting of the
tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their
private property. The size of the tarpaulin does not affect
anyone elses constitutional rights.
Content-based restraint or censorship refers to restrictions
"based on the subject matter of the utterance or speech." In
contrast, content-neutral regulation includes controls merely
on the incidents of the speech such as time, place, or manner
of the speech.
Intermediate approach for content-neutral regulations
If we apply the test for content-neutral regulation, the
questioned acts of COMELEC will not pass the three
requirements for evaluating such restraints on freedom of
speech. "When the speech restraints take the form of a
content-neutral regulation, only a substantial governmental
interest is required for its validity," and it is subject only to
the intermediate approach.
This intermediate approach is based on the test that we have
prescribed in several cases. A content-neutral government
regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government;
[2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incident
restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.
On the first requisite, it is not within the constitutional
powers of the COMELEC to regulate the tarpaulin. As
discussed earlier, this is protected speech by petitioners who
are non-candidates. On the second requirement, not only
must the governmental interest be important or substantial, it
must also be compelling as to justify the restrictions made.
Compelling governmental interest would include
constitutionally declared principles.
The third requisite is likewise lacking. We look not only at
the legislative intent or motive in imposing the restriction, but
more so at the effects of such restriction, if implemented. The
restriction must not be narrowly tailored to achieve the
purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech. In this case, the size
regulation is not unrelated to the suppression of speech.
Limiting the maximum sizeof the tarpaulin would render
ineffective petitioners message and violate their right to
exercise freedom of expression.
When private speech amounts to election paraphernalia
The requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during
electoral campaigns.Thus clearly, regulation of speech in the
context of electoral campaigns made by candidates or the
members of their political parties or their political parties
may be regulated as to time, place, and manner.
Regulation of speech in the context of electoral campaigns
made by persons who are not candidates or who do not speak
as members of a political party which are, taken as a whole,
principally advocacies of a social issue that the public must
consider during elections is unconstitutional. Such regulation
is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate
including those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by
a private citizen which will not amount toan election
paraphernalia to be validly regulated by law. Regulation of
election paraphernalia will still be constitutionally valid if it
reaches into speech of persons who are not candidates or who
do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech
that, taken as a whole, has for its principal object the
endorsement of a candidate only. The regulation
(a) should be provided by law,
(b) reasonable,
(c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and
considering the primacy of the guarantee of free
expression, and
(d) demonstrably the least restrictive means to achieve that
object.
The regulation must only be with respect to the time, place,
and manner of the rendition of the message. In no situation
may the speech be prohibited or censored onthe basis of its
content. For this purpose, it will notmatter whether the speech
is made with or on private property.
This is not the situation, however, in this case for two
reasons. First, as discussed, the principal message in the twin
tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice
Antonio Carpio, the present law Section 3.3 of Republic
Act No. 9006 and Section 6(c) of COMELEC Resolution No.
9615 if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins
without any relation to the distance from the intended average
audience will be arbitrary. At certain distances, posters
measuring 2 by 3 feet could no longer be read by the general
public and, hence, would render speech meaningless. It will
pg. 27
amount to the abridgement of speech with political
consequences.
EJERCITO v. COMELEC (2014) by Peralta
With respect to the second cause of action, [San Luis]
presented Exhibits B-1 to B-4, which are submissions equality between and among aspirants with deep pockets
made by the ABS-CBN Corporation as mandated by Section
6 of Republic Act No. 9006 (RA 9006 or the Fair Election
Act), implemented through Section 9 (a) of Resolution No.
9615. Exhibit B-3 is an Advertising Contract between
ABS-CBN Corporation and Scenema Concept International,
Inc. (SCI). The Contract contains the signature of
[Ejercito] signifying his acceptance of the donation by SCI,
the latter represented by its Executive Vice President, Ms.
Maylyn Enriquez. The Contract contains the signature of
[Ejercito] signifying his acceptance of the donation by SCI,
the latter represented by its Executive Vice President, Ms.
Maylyn Enriquez.
Ejercito claims that the advertising contracts between ABS-
CBN Corporation and Scenema Concept International, Inc.
were executed by an identified supporter without his
knowledge and consent as, in fact, his signature thereon was
obviously forged. Even assuming that such contract benefited
him, Ejercito alleges that he should not be penalized for the
conduct of third parties who acted on their own without his
consent. Citing Citizens United v. Federal Election
Commission83 decided by the US Supreme Court, he argues
that every voter has the right to support a particular candidate
in accordance with the free exercise of his or her rights of
speech and of expression, which is guaranteed in Section 4,
Article III of the 1987 Constitution. 84 He believes that an
advertising contract paid for by a third party without the
candidates knowledge and consent must be considered a
form of political speech that must prevail against the laws
suppressing it, whether by design or inadvertence. Further,
Ejercito advances the view that COMELEC Resolution No.
947685 distinguishes between contribution and
expenditure and makes no proscription on the medium or
amount of contribution.86 He also stresses that it is clear from
COMELEC Resolution No. 9615 that the limit set by law
applies only to election expenditures of candidates and not to
contributions made by third parties. For Ejercito, the fact that
the legislature imposes no legal limitation on campaign
donations is presumably because discussion of public issues
and debate on the qualifications of candidates are integral to
the operation of the government.
In tracing the legislative history of Sections 100, 101, and
103 of the OEC, it can be said, therefore, that the intent of
our lawmakers has been consistent through the years: to
regulate not just the election expenses of the candidate but
also of his or her contributor/supporter/donor as well as by
including in the aggregate limit of the formers election
expenses those incurred by the latter. The phrase those
incurred or caused to be incurred by the candidate is
sufficiently adequate to cover those expenses which are
contributed or donated in the candidates behalf. By virtue of
the legal requirement that a contribution or donation should
bear the written conformity of the candidate, a
contributor/supporter/donor certainly qualifies as any person
authorized by such candidate or treasurer. Ubi lex non
distinguit, nec nos distinguere debemus. 126 (Where the law
does not distinguish, neither should We.) There should be no
distinction in the application of a law where none is
indicated.
The inclusion of the amount contributed by a donor to the
candidates allowable limit of election expenses does not
trample upon the free exercise of the voters rights of speech
and of expression under Section 4, Artticle III of the
Constitution. As a content-neutral regulation,127 the laws
concern is not to curtail the message or content of the
advertisement promoting a particular candidate but to ensure
and those with less financial resources. Any restriction on
speech or expression is only incidental and is no more than
necessary to achieve the substantial governmental interest of
promoting equality of opportunity in political advertising. It
bears a clear and reasonable connection with the
constitutional objectives set out in Section 26, Article II,
Section 4, Article IX-C, and Section 1, Art. XIII of the
Constitution.128 Indeed, to rule otherwise would practically
result in an unlimited expenditure for political advertising,
which skews the political process and subverts the essence of
a truly democratic form of government.
RAPPLER v. BAUTISTA (2016) by Carpio
Petitioner's demand to exercise the right to live stream the
debates is a contractual right of petitioner under the MOA.
Under Part VI (C), paragraph 19 of the MOA, the Lead
Networks are expressly mandated to "allow the debates they
have produced to be shown or streamed on other
websites," but "subject to copyright
conditions or separate negotiations with the Lead
Networks." The use of the word "or" means that compliance
with the "copyright conditions" is sufficient for petitioner to
exercise its right to live stream the debates in its website.
Under the MOA, the Lead Networks are mandated to
promote the debates for maximum audience. 9 The MOA
recognizes the public function of the debates and the need
for the widest possible dissemination of the debates. The
MOA has not reserved or withheld the reproduction of
the debates to the public but has in fact expressly allowed
the reproduction of the debates "subject to copyright
conditions." Thus, petitioner may live stream the debate in
its entirety by complying with the "copyright conditions,"
including the condition that "the source is clearly indicated"
and that there will be no alteration, which means that the
streaming will include the proprietary graphics used by the
Lead Networks. If petitioner opts for a clean feed without the
proprietary graphics used by the Lead Networks, in order for
petitioner to layer its own proprietary graphics and text on the
same, then petitioner will have to negotiate separately with
the Lead Networks. Similarly, if petitioner wants to alter the
debate audio by deleting the advertisements, petitioner will
also have to negotiate with the Lead Network
Once the conditions imposed under Section 184.1(c) of the
IPC are complied with, the information - in this case the live
audio of the debates -now forms part of the public domain.
There is now freedom of the press to report or publicly
disseminate the live audio of the debates. In fact, the MOA
recognizes the right of other mass media entities, not parties
to the MOA, to reproduce the debates subject only to the
same copyright conditions. The freedom of the press to report
and disseminate the live audio of the debates, subject to
compliance with Section 184.1(c) of the IPC, can no longer
be infringed or subject to prior restraint. Such freedom of the
press to report and disseminate the live audio of the debates is
now protected and guaranteed under Section 4, Article III of
the Constitution, which provides that "[N]o law shall be
passed abridging the freedom x x x of the press."
The presidential and vice-presidential debates are held
primarily for the benefit of the electorate to assist the
electorate in making informed choices on election day.
pg. 28
Through the conduct of the national debates among
presidential and vice-presidential candidates, the electorate
will have the "opportunity to be informed of the candidates'
qualifications and track record, platforms and programs, and
their answers to significant issues of national concern."10 The
political nature of the national debates and the public's
interest in the wide availability of the information for the
voters' education certainly justify allowing the debates to be
shown or streamed in other websites for wider dissemination,
in accordance with the MOA.
1-UTAK v. COMELEC (2015) by Reyes
Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 unduly infringe on the fundamental
right of the people to freedom of speech. Central to the
prohibition is the freedom of individuals, i.e., the owners of
PUVs and private transport terminals, to express their
preference, through the posting of election campaign material
in their property, and convince others to agree with them.
Pursuant to the assailed provisions of Resolution No. 9615,
posting an election campaign material during an election
period in PUVs and transport terminals carries with it the
penalty of revocation of the public utility franchise and shall
make the owner thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right
to free expression of the owners of PUVs and transport
terminals. As a result of the prohibition, owners of PUVs and
transport terminals are forcefully and effectively inhibited
from expressing their preferences under the pain of
indictment for an election offense and the revocation of their
franchise or permit to operate.
Significantly, the freedom of expression curtailed by the
questioned prohibition is not so much that of the candidate or
the political party. The regulation strikes at the freedom of
an individual to express his preference and, by displaying
it on his car, to convince others to agree with him. A
sticker may be furnished by a candidate but once the car
owner agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner, primarily his
own and not of anybody else. If, in the National Press
Club case, the Court was careful to rule out restrictions on
reporting by newspaper or radio and television stations and
commentators or columnists as long as these are not correctly
paid-for advertisements or purchased opinions with less
reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by
an individual person who pastes a sticker or decal on his
private property.15 (Emphases ours)
The COMELEC claims that while Section 7(g) items (5) and
(6) of Resolution No. 9615 may incidentally restrict the right
to free speech of owners of PUVs and transport terminals, the
same is nevertheless constitutionally permissible since it is a
valid content-neutral regulation. The Court does not agree.
A content-neutral regulation, i.e., which is merely concerned
with the incidents of the speech, or one that merely controls
the time, place or manner, and under well-defined
standards,16 is constitutionally permissible, even if it restricts
the right to free speech, provided that the following requisites
concur: first, the government regulation is within the
constitutional power of the Government; second, it furthers
an important or substantial governmental interest; third, the
governmental interest is unrelated to the suppression of free
expression; and fourth, the incidental restriction on freedom
of expression is no greater than is essential to the furtherance
of that interest.
It is conceded that Resolution No. 9615, including the herein
assailed provisions, furthers an important and substantial
governmental interest, i.e., ensuring equal opportunity, time
and space among candidates aimed at the holding of free,
orderly, honest, peaceful, and credible elections. It is further
conceded that the governmental interest in imposing the said
prohibition is unrelated to the suppression of free expression.
However, Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615, are not within the
constitutionally delegated power of the COMELEC under
Section 4, Article IX-C of the Constitution. Also, there is
absolutely no necessity to restrict the right to free speech of
the owners of PUVs and transport terminals.
Section 7(g) items (5) and (6) of Resolution No. 9615
likewise failed to satisfy the fourth requisite of a valid
content-neutral regulation, i.e., the incidental restriction on
freedom of expression is no greater than is essential to the
furtherance of that interest. There is absolutely no necessity
to restrict the right of the owners of PUVs and transport
terminals to free speech to further the governmental interest.
While ensuring equality of time, space, and opportunity to
candidates is an important and substantial governmental
interest and is essential to the conduct of an orderly election,
this lofty aim may be achieved sans any intrusion on the
fundamental right of expression.
The COMELEC further points out that PUVs and transport
terminals hold a "captive audience" - commuters who have
no choice but be subjected to the blare of political
propaganda. The COMELEC further claims that while
owners of privately owned PUVs and transport terminals
have a right to express their views to those who wish to
listen, they have no right to force their message upon an
audience incapable of declining to receive it.
The COMELEC's claim is untenable.
The captive-audience doctrine states that when a listener
cannot, as a practical matter, escape from intrusive speech,
the speech can be restricted. The "captive-audience" doctrine
recognizes that a listener has a right not to be exposed to an
unwanted message in circumstances in which the
communication cannot be avoided.
A regulation based on the captive-audience doctrine is in the
guise of censorship, which undertakes selectively to shield
the public from some kinds of speech on the ground that they
are more offensive than others. Such selective restrictions
have been upheld only when the speaker intrudes on the
privacy of the home or the degree of captivity makes it either
impossible or impractical for the unwilling viewer or auditor
to avoid exposure.
Thus, a government regulation based on the captive-audience
doctrine may not be justified if the supposed "captive
audience" may avoid exposure to the otherwise intrusive
speech. The prohibition under Section 7(g) items (5) and (6)
of Resolution No. 9615 is not justified under the captive-
audience doctrine; the commuters are not forced or
compelled to read the election campaign materials posted on
PUVs and transport terminals. Nor are they incapable of
declining to receive the messages contained in the posted
election campaign materials since they may simply avert their
eyes if they find the same unbearably intrusive.
Davao City Water District v. Aranjuez (2015) by Perez
On 8 November 2007, the officers and members of
pg. 29
NAMADACWAD held an Emergency General Assembly and
they agreed to wear NAMADACWAD t-shirts with
inscriptions stating, "CNA Incentive Ihatag Na, Dir.
Braganza Pahawa Na!" on the day of the anniversary.
Came the anniversary, officers and members sported t-shirts
with inscriptions "CNA Incentive Ihatag Na, Dir. Braganza
Pahawa Na!" at the beginning of the Fun Run at Victoria
Plaza at around 6:30 in the morning and continued to wear
the same inside the premises of the DCWD office during the
office hours. Also, one of the members of the Board of
Directors of NAMADACWAD Gregorio S. Cagula (Cagula),
with the help of some of its members, attached similar
inscriptions and posters of employees' grievances to a post in
the motor pool area, an area not among the officially
designated places5 for posting of grievances as prescribed by
DCWD's Office Memorandum6 dated 8 February 1996 and
pursuant to CSC Memorandum Circular No. 33, 7 Series of
1994 (MC No. 33).
DCWD primarily contends that CSC and the Court of
Appeals erred in ruling that the concerted mass action on 9
November 2007 is not prohibited under Resolution No.
021316. We disagree. DCWD relies on Resolution No.
021316, which states.
The operative phrases are "any collective activity" and "work
stoppage or service disruption." Without the intent at work
stoppage or service disruption, the concerted activity is not
prohibited. The time and place of the activity are not
determinative of the prohibition. Whether done within
government hours, a concerted activity is allowed if it is
without any intent at work stoppage.
We cannot isolate the provision of Section 6 of the Resolution
from definition of prohibited activity in Section 5 thereof. It
is erroneous to interpret the provisions in such a way that an
act not within the circumstances as defined under Section 5
can still be regarded as prohibited if done within government
hours. To subscribe to the argument of DCWD would in
effect expand the definition provided by Resolution No.
021316 on what constitutes a prohibited mass action.
It is clear that the collective activity of joining the fun run in
t-shirts with inscriptions on CNA incentives was not to effect
work stoppage or disrupt the service. As pointed out by the
respondents, they followed the advice of GM Gamboa "to be
there" at the fun run. Respondents joined, and did not disrupt
the fun run. They were in sports attire that they were allowed,
nay required, to wear. Else, government employees would be
deprived of their constitutional right to freedom of
expression.40 This, then, being the fact, we have to rule
against the findings of both the CSC and Court of Appeals
that the wearing of t-shirts with grievance inscriptions
constitutes as a violation of Reasonable Office Rules and
Regulations.
First off and as correctly pointed out by the charged officials
and members in their 19 November 2007 Reply Letter to
DCWD, they did not violate the 31 October 2007 Office
Memorandum issued by GM Gamboa relating to the proper
attire to be worn during the fun run. The Office
Memorandum was clear in its order that the participants are
free to wear any sports attire during the event. To reiterate,
the t-shirts they wore fall within the description of "any
sports attire" that the Memorandum allowed to be worn.
It is correct to conclude that those who enter government
service are subjected to a different degree of limitation on
their freedom to speak their mind; however, it is not
tantamount to the relinquishment of their constitutional right
of expression otherwise enjoyed by citizens just by reason of
their employment.45 Unarguably, a citizen who accepts public
employment "must accept certain limitations on his or her
freedom." But there are some rights and freedoms so
fundamental to liberty that they cannot be bargained away in
a contract for public employment. It is the Court's
responsibility to ensure that citizens are not deprived of these
fundamental rights by virtue of working for the government.
The GSIS case pronounced:
Government workers, whatever their ranks, have as much
right as any person in the land to voice out their protests
against what they believe to be a violation of their rights and
interests. Civil Service does not deprive them of their
freedom of expression. It would be unfair to hold that by
joining the government service, the members thereof have
renounced or waived this basic liberty. This freedom can be
reasonably regulated only but can never be taken away.
In simple paraphrase we say, regulation of the freedom of
expression is not removal of the constitutional right.
A.M. No. 01-4-03-SC September 13, 2001
This is a motion for reconsideration of the decision denying
petitioners' request for permission to televise and broadcast
live the trial of former President Estrada before the
Sandiganbayan. The motion was filed by the Secretary of
Justice, as one of the petitioners, who argues that there is
really no conflict between the right of the people to public
information and the freedom of the press, on the one hand,
and, on the other, the right of the accused to a fair trial; that if
there is a clash between these rights, it must be resolved in
favor of the right of the people and the press because the
people, as the repository of sovereignty, are entitled to
information; and that live media coverage is a safeguard
against attempts by any party to use the courts as instruments
for the pursuit of selfish interests.
On the other hand, former President Joseph E. Estrada
reiterates his objection to the live TV and radio coverage of
his trial on the ground that its allowance will violate the sub
judice rule and that, based on his experience with the
impeachment trial, live media coverage will only pave the
way for so-called "expert commentary" which can trigger
massive demonstrations aimed at pressuring the
Sandiganbayan to render a decision one way or the other. Mr.
Estrada contends that the right of the people to information
may be served through other means less distracting,
degrading, and prejudicial than live TV and radio coverage.
In lieu of live TV and radio coverage of the trial, the Court,
by the vote of eight (8) Justices, 2 has resolved to order the
audio-visual recording of the trial.
For the purpose of recording the proceedings, cameras will be
inconspicuously installed in the courtroom and the movement
of TV crews will be regulated, consistent with the dignity and
solemnity of the proceedings. The trial shall be recorded in its
entirety, except such portions thereof as the Sandiganbayan
may decide should not be held public pursuant to Rule 119,
21 of the Revised Rules of Criminal Procedure. No
comment shall be included in the documentary except
annotations which may be necessary to explain certain scenes
which are depicted. The audio-visual recordings shall be
pg. 30
made under the supervision and control of the Sandiganbayan
or its Division as the case may be.
For the purpose of recording the proceedings, cameras will be
inconspicuously installed in the courtroom and the movement
of TV crews will be regulated, consistent with the dignity and
solemnity of the proceedings. The trial shall be recorded in its
entirety, except such portions thereof as the Sandiganbayan
may decide should not be held public pursuant to Rule 119,
21 of the Revised Rules of Criminal Procedure. No
comment shall be included in the documentary except
annotations which may be necessary to explain certain scenes
which are depicted. The audio-visual recordings shall be
made under the supervision and control of the Sandiganbayan
or its Division as the case may be.
There are several reasons for such televised
recording.1awphil.net First, the hearings are of historic
significance. They are an affirmation of our commitment to
the rule that "the King is under no man, but he is under God
and the law." (Quod Rex non debet esse sub homine, sed sub
Deo et Lege.) Second, the Estrada cases involve matters of
vital concern to our people who have a fundamental right to
know how their government is conducted. This right can be
enhanced by audio visual presentation. Third, audio-visual
presentation is essential for the education and civic training
of the people.
Above all, there is the need to keep audio-visual records of
the hearings for documentary purposes. The recordings will
be useful in preserving the essence of the proceedings in a
way that the cold print cannot quite do because it cannot
capture the sights and sounds of events. They will be
primarily for the use of appellate courts in the event a review
of the proceedings, rulings, or decisions of the
Sandiganbayan is sought or becomes necessary. The accuracy
of the transcripts of stenographic notes taken during the trial
can be checked by reference to the tapes.
Professor Freund's observation is as valid today as when it
was made thirty years ago. It is perceptive for its recognition
of the serious risks posed to the fair administration of justice
by live TV and radio broadcasts, especially when emotions
are running high on the issues stirred by a case, while at the
same time acknowledging the necessity of keeping audio-
visual recordings of the proceedings of celebrated cases, for
public information and exhibition, after passions have
subsided.
A.M. No. 10-11-5-SC
Almost a year later or on November 19, 2010, the National
Union of Journalists of the Philippines (NUJP), ABS-CBN
Broadcasting Corporation, GMA Network, Inc., relatives of
the victims,[1] individual journalists[2] from various media
entities, and members of the academe [3] filed a petition before
this Court praying that live television and radio coverage of
the trial in these criminal cases be allowed, recording devices
(e.g., still cameras, tape recorders) be permitted inside the
courtroom to assist the working journalists, and reasonable
guidelines be formulated to govern the broadcast coverage
and the use of devices.
Petitioners state that the trial of the Maguindanao Massacre
cases has attracted intense media coverage due to the
gruesomeness of the crime, prominence of the accused, and
the number of media personnel killed. They inform that
reporters are being frisked and searched for cameras,
recorders, and cellular devices upon entry, and that under
strict orders of the trial court against live broadcast coverage,
the number of media practitioners allowed inside the
courtroom has been limited to one reporter for each media
institution.
Respecting the possible influence of media coverage on the
impartiality of trial court judges, petitioners correctly explain
that prejudicial publicity insofar as it undermines the right to
a fair trial must pass the totality of circumstances test,
applied in People v. Teehankee, Jr.[24] and Estrada v. Desierto,
[25]
that the right of an accused to a fair trial is not
incompatible to a free press, that pervasive publicity is
not per se prejudicial to the right of an accused to a fair trial,
and that there must be allegation and proof of the impaired
capacity of a judge to render a bias-free decision. Mere fear
of possible undue influence is not tantamount to actual
prejudice resulting in the deprivation of the right to a fair
trial.
Moreover, an aggrieved party has ample legal remedies. He
may challenge the validity of an adverse judgment arising
from a proceeding that transgressed a constitutional right. As
pointed out by petitioners, an aggrieved party may early on
move for a change of venue, for continuance until the
prejudice from publicity is abated, for disqualification of the
judge, and for closure of portions of the trial when
necessary. The trial court may likewise exercise its power of
contempt and issue gag orders.
One apparent circumstance that sets the Maguindanao
Massacre cases apart from the earlier cases is the
impossibility of accommodating even the parties to the cases
the private complainants/families of the victims and other
witnesses inside the courtroom. On public
trial, Estrada basically discusses:
Even before considering what is a reasonable number of the
public who may observe the proceedings, the peculiarity of
the subject criminal cases is that the proceedings already
necessarily entail the presence of hundreds of families. It
cannot be gainsaid that the families of the 57 victims and of
the 197 accused have as much interest, beyond mere
curiosity, to attend or monitor the proceedings as those of the
impleaded parties or trial participants. It bears noting at this
juncture that the prosecution and the defense have listed more
than 200 witnesses each.
The impossibility of holding such judicial proceedings in a
courtroom that will accommodate all the interested parties,
whether private complainants or accused, is unfortunate
enough. What more if the right itself commands that a
reasonable number of the general public be allowed to
witness the proceeding as it takes place inside the
courtroom.Technology tends to provide the only solution to
break the inherent limitations of the courtroom, to satisfy the
imperative of a transparent, open and public trial.
In so allowing pro hac vice the live broadcasting by radio and
television of the Maguindanao Massacre cases, the Court lays
down the following guidelines toward addressing the
concerns mentioned in Aquino and Estrada:
US v. Grace (1983) by White
Title 40 U.S.C. 13k prohibits the "display [of] any flag,
banner, or device designed or adapted to bring into public
notice any party, organization, or movement" in the United
States Supreme Court building or on its grounds, which are
defined to include the public sidewalks constituting the outer
pg. 31
boundaries of the grounds. One appellee was threatened with
arrest by Court police officers for violation of the statute
when he distributed leaflets concerning various causes on the
sidewalk in front of the Court. The other appellee was
similarly threatened with arrest for displaying on the
sidewalk a picket sign containing the text of the First
Amendment. Appellees then filed suit in Federal District
Court, seeking an injunction against enforcement of 13k
and a declaratory judgment that it was unconstitutional on its
face. The District Court dismissed the complaint for failure to
exhaust administrative remedies. The Court of Appeals, after
determining that such dismissal was erroneous, struck down
13k on its face as an unconstitutional restriction on First
Amendment rights in a public place.
Section 13k, as applied to the public sidewalks surrounding
the Court building, is unconstitutional under the First
Amendment
The First Amendment provides that "Congress shall make no
law . . . abridging the freedom of speech. . . ." [ Footnote 6]
There is no doubt that, as a general matter, peaceful picketing
and leafletting are expressive activities involving "speech"
protected by the First Amendment. It is also true that "public
places" historically associated with the free exercise of
expressive activities, such as streets, sidewalks, and parks,
are considered, without more, to be "public forums." In such
places, the government's ability to permissibly restrict
expressive conduct is very limited: the government may
enforce reasonable time, place, and manner regulations as
long as the restrictions "are content-neutral, are narrowly
tailored to serve a significant government interest, and leave
open ample alternative channels of communication."
Publicly owned or operated property does not become a
"public forum" simply because members of the public are
permitted to come and go at will. Although whether the
property has been "generally opened to the public" is a factor
to consider in determining whether the government has
opened its property to the use of the people for
communicative purposes, it is not determinative of the
question. We have regularly rejected the assertion that people
who wish "to propagandize protests or views have a
constitutional right to do so whenever and however and
wherever they please." There is little doubt that, in some
circumstances, the government may ban the entry on to
public property that is not a "public forum" of all persons
except those who have legitimate business on the premises.
The government, "no less than a private owner of property,
has the power to preserve the property under its control for
the use to which it is lawfully dedicated."
The prohibitions imposed by 13k technically cover the
entire grounds of the Supreme Court as defined in 40 U.S.C.
13p. [Footnote 8] That section describes the Court grounds
as extending to the curb of each of the four streets enclosing
the block on which the building is located. Included within
this small geographical area, therefore, are not only the
building, the plaza and surrounding promenade, lawn area,
and steps, but also the sidewalks. The sidewalks comprising
the outer boundaries of the Court grounds are
indistinguishable from any other sidewalks in Washington,
D.C., and we can discern no reason why they should be
treated any differently. [Footnote 9] Sidewalks, of course, are
among those areas of public property that traditionally have
been held open to the public for expressive activities, and are
clearly within those areas of public property that may be
considered, generally without further inquiry, to be public
forum property.
The inclusion of the public sidewalks within the scope of
13k's prohibition, however, results in the destruction of public
forum status that is at least presumptively impermissible.
Traditional public forum property occupies a special position
in terms of First Amendment protection, and will not lose its
historically recognized character for the reason that it abuts
government property that has been dedicated to a use other
than as a forum for public expression. Nor may the
government transform the character of the property by the
expedient of including it within the statutory definition of
what might be considered a nonpublic forum parcel of
property. The public sidewalks forming the perimeter of the
Supreme Court grounds, in our view, are public forums, and
should be treated as such for First Amendment purposes.
We are convinced, however, that the section, which totally
bans the specified communicative activity on the public
sidewalks around the Court grounds, [Footnote 10] cannot be
justified as a reasonable place restriction, primarily because it
has an insufficient nexus with any of the public interests that
may be thought to undergird 13k. Our reasons for this
conclusion will become apparent below, where we decide that
13k, insofar as its prohibitions reach to the public
sidewalks, is unconstitutional because it does not sufficiently
serve those public interests that are urged as its justification.
Section 13k was part of an 11-section statute, enacted in
1949, "[r]elating to the policing of the building and grounds
of the Supreme Court of the United States." Based on its
provisions and legislative history, it is fair to say that the
purpose of the Act was to provide for the protection of the
building and grounds and of the persons and property therein,
as well as the maintenance of proper order and decorum.
Section 6, 40 U.S.C. 13k, was one of the provisions
apparently designed for these purposes. At least, no special
reason was stated for its enactment.
We do not denigrate the necessity to protect persons and
property or to maintain proper order and decorum within the
Supreme Court grounds, but we do question whether a total
ban on carrying a flag, banner, or device on the public
sidewalks substantially serves these purposes. We thus
perceive insufficient justification for 13k's prohibition of
carrying signs, banners, or devices on the public sidewalks
surrounding the building. We hold that, under the First
Amendment, the section is unconstitutional as applied to
those sidewalks. Of course, this is not to say that those
sidewalks, like other sidewalks, are not subject to
reasonabletime, place, and manner restrictions, either by
statute or by regulations issued pursuant to 40 U.S.C. 131.
POLICARPIO v. ROLDAN (1962) by Concepcion
Plaintiff Lumen Policarpio seeks to recover P150,000.00, as
actual damages, P70,000, as moral damages, P60,000 as
correctional and exemplary damages, and P20,000, as
attorney's fees, aside from the costs, by reason of the
publication in the Saturday Mirror of August 11, 1956, and in
the Daily Mirror of August 13, 1956, of two (2) articles or
news items which are claimed to be per se defamatory,
libelous and false, and to have exposed her to ridicule,
jeopardized her integrity, good name and business and
official transactions, and caused her grave embarrassment,
untold and extreme moral, mental and physical anguish and
incalculable material, moral, professional and business
damages.
pg. 32
The title of the article of August 11, 1956 "WOMAN
OFFICIAL SUED" was given prominence with a 6-
column (about 11 inches) banner headline of one-inch types.
Admittedly, its sub-title "PCAC RAPS L. POLICARPIO
PIO ON FRAUD" printed in bold one-centimeter types, is
not true. Similarly, the statement in the first paragraph of the
article, to the effect that plaintiff "was charged with
malversation and estafa in complaints filed with the city
fiscal's office by the Presidential Complaint and Action
Commission" otherwise known as PCAC is untrue, the
complaints for said offenses having been filed by Miss
Reyes. Neither is it true that said "criminal action was
initiated as a result of current administrative, investigation",
as stated in the second paragraph of the same article.
Plaintiff maintains that the effect of these false statements
was to give the general impression that said investigation by
Col. Alba had shown that plaintiff was guilty, or, at least,
probably guilty of the crimes aforementioned, and that, as a
consequence, the PCAC had filed the corresponding
complaints with the city fiscal's office. She alleges, also, that
although said article indicates that the charges for
malversation and for estafa through falsification against her
referred, respectively, to the use by her of Unesco stencils
allegedly for private and personal purposes, and to the
collection of transportation expenses, it did not mention the
fact that the number of stencils involved in the charge was
only 18 or 20, that the sum allegedly misappropriated by her
was only P54, and that the falsification imputed to her was
said to have been committed by claiming that certain
expenses for which she had sought and secured
reimbursement were incurred in trips during the period from
July 1, 1955 to September 30, 1955, although the trips
actually were made, according to Miss Reyes, from July 8 to
August 31, 1955. By omitting these details, plaintiff avers,
the article of August 11, 1956, had the effect of conveying the
idea that the offenses imputed to her were more serious than
they really were. Plaintiff, likewise, claims that there are
other inaccuracies in the news item of August 13, 1956, but,
we do not deem it necessary to dwell upon the same for the
determination of this case.
It goes without saying that newspapers must enjoy a certain
degree of discretion in determining the manner in which a
given event should be presented to the public, and the
importance to be attached thereto, as a news item, and that its
presentation in a sensational manner is not per se illegal.
Newspaper may publish news items relative to judicial,
legislative or other official proceedings, which are not of
confidential nature, because the public is entitled to know the
truth with respect to such proceedings, which, being official
and non-confidential, are open to public consumption. But, to
enjoy immunity, a publication containing derogatory
information must be not only true, but, also, fair, and it must
be made in good faith and without any comments or remarks.
Defendants maintain that their alleged malice in publishing
the news items in question had not been established by the
plaintiff. However, Article 354 of the Revised Penal Code,
provides:
Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention
and justifiable motive for making it is shown,
except in the following cases:
1. A private communication made by any person to
another in the performance of any legal, moral or
social duty; and
2. A fair and true report, made in good faith,
without any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of
any other act performed by public officers in the
exercise of other functions.
In the case at bar, aside from containing information
derogatory to the plaintiff, the article published on August 11,
1956, presented her in a worse predicament than that in
which she, in fact, was. In other words, said article was not a
fair and true report of the proceedings there in alluded to.
What is more, its sub-title "PCAC RAPS L.
POLICARPIO ON FRAUD" is a comment or remark,
besides being false. Accordingly, the defamatory imputations
contained in said article are "presumed to be malicious".
Then too, how could defendants claim to have acted with
good intentions or justifiable motive in falsely stating that the
complaints had been filed with the Office of the City Fiscal
by the PCAC as a result of the administrative investigation of
Col. Alba? Either they knew the truth about it or they did not
know it. If they did, then the publication would be actually
malicious. If they did not or if they acted under a
misapprehension of the facts, they were guilty of negligence
in making said statement, for the consequences of which they
are liable solidarily (Articles 2176, 2194, 2208 and 2219 [I],
Civil Code of the Philippines; 17 R.C.L. sec. 95, p. 349).
We note that the news item published on August 13, 1956,
rectified a major inaccuracy contained in the first article, by
stating that neither Col. Alba nor the PCAC had filed the
aforementioned complaints with the city fiscal's office. It,
likewise, indicated the number of sheets of stencil involved in
said complaints. But, this rectification or clarification does
not wipe out the responsibility arising from the publication of
the first article, although it may and should mitigate it
LOPEZ v. CA (1970) by Fernando
Cruz was a sanitary officer in Babuyan Islands who made a
distress signal to a passing USAF plane, which dropped an
emergency kit with a radio. Cruz used the radio to contact
Manila, concocting a story that a mad killer was on the lose,
prompting the authorities to send a rescue squad. But the
story was a hoax as Cruz was simply looking for a way back
to Manila. An article was published by the Manila Chronicle
but it erroneously used the picture of another Cruz, a
businessman from Bulacan, who used for libel.
It is on the freedom of the press that petitioners would stake
their case to demonstrate that no action for libel would lie
arising from the publication of the picture of respondent Cruz
identified as responsible for the hoax of the year, when such
was not the case at all. It is easily understandable why. No
liability would be incurred if it could be demonstrated that it
comes within the well-nigh all embracing scope of freedom
of the press. Included therein is the widest latitude of choice
as to what items should see the light of day so long as they
are relevant to a matter of public interest, the insistence on
the requirement as to its truth yielding at times to
unavoidable inaccuracies attendant on newspapers and other
pg. 33
publications being subject to the tyranny of deadlines. If no
such showing could be plausibly made, however, it is difficult
to resist the conclusion that there was in fact the commission
of such quasi-delict.
"the repeal of the old Libel Law (Act No. 277) did not
abolish the civil action for libel." 3 A libel was defined in that
Act as a "malicious defamation, expressed either in writing,
printing, or by signs or pictures, or the like, ..., tending to
blacken the memory of one who is dead or to impeach the
honesty, virtue, or reputation, or publish the alleged or natural
defects of one who is alive, and thereby "pose him to public
hatred, contempt, or ridicule," 4 There was an express
provision in such legislation for a tort or a quasi-delict action
arising from libel.5 There is reinforcement to such a view in
the new Civil Code providing for the recovery of moral
damages for libel, slander or any other form of defamation.
The significance of the foregoing line of decisions impressive
for their consistency is quite obvious. No inroads on press
freedom should be allowed in the guise of punitive action
visited on what otherwise could be characterized as libel
whether in the form of printed words or a defamatory
imputation resulting from the publication of respondent's
picture with the offensive caption as in the case here
complained of. This is not to deny that the party responsible
invites the institution either of a criminal prosecution or a
civil suit. It must be admitted that what was done did invite
such a dire consequence, considering the value the law justly
places on a man's reputation. This is merely to underscore the
primacy that freedom of the press enjoys. It ranks rather high
in the hierarchy of legal values. If the cases moan anything at
all then, to emphasize what has so clearly emerged, they call
for the utmost care on the part of the judiciary to assure that
in safeguarding the interest of the party allegedly offended a
realistic account of the obligation of a news media to
disseminate information of a public character and to
comment thereon as well as the conditions attendant on the
business of publishing cannot be ignored.
. It is to the haven thus afforded by such a highly sympathetic
ruling to press freedom that petitioners would seek refuge.
The defamatory matter complained of in the Quisumbing
case appeared in the headline. It was without basis, as shown
by the text of the news item itself. Nonetheless, for the
reasons expressed with vigor and clarity by former Chief
Justice Paras, no liability was deemed incurred by the then
publisher of the Manila Chronicle A newspaper, it is stressed,
"should not be held to account to a point of suppression for
honest mistakes or imperfection in the choice of words
Here there was no pressure of a daily deadline to meet no
occasion to act with haste as the picture of respondent was
published in a weekly magazine. Moreover, there is the added
requirement of reasonable care imposed by such decision
which from the facts here found, appeared not to be satisfied.
It cannot be concluded then that the plea of petitioners is
sufficiently persuasive. The mandate of press freedom is not
ignored, but here it does not speak unequivocally. It is not
decisive of the basic issue. By itself, it does not have a
controlling significance. So we hold.
BORJAL v. CA (1999) by Bellosillo
Borjal, in his column with the Philippine Star called The
Jaywalker, wrote about anomalous activities about a certain
conference organizer, alleging that he engaged in dubious
ways, shady deals, and is thick faced. Wenceslao, the
organizer of the First National Conference on Land
Transport, thinking that the article is about him, filed a
complaint before the National Press Club, as well as a
criminal complaint for libel. The libel case was dismissed but
he later filed a civil case for damages, which the lower courts
granted in his favor.
The petition is impressed with merit. In order to
maintain a libel suit, it is essential that the victim be
identifiable although it is not necessary that he be named. It is
also not sufficient that the offended party recognized himself
as the person attacked or defamed, but it must be shown that
at least a third person could identify him as the object of the
libelous publication.[10] Regrettably, these requisites have not
been complied with in the case at bar.
We hold otherwise. These conclusions are at variance
with the evidence at hand. The questioned articles written by
Borjal do not identify private respondent Wenceslao as the
organizer of the conference. The first of
the Jaywalker articles which appeared in the 31 May 1989
issue of The Philippine Star yielded nothing to indicate that
private respondent was the person referred to therein. Surely,
as observed by petitioners, there were millions of "heroes" of
the EDSA Revolution and anyone of them could be "self-
proclaimed" or an "organizer of seminars and
conferences." As a matter of fact, in his 9 June 1989 column
petitioner Borjal wrote about the "so-called First National
Conference on Land Transportation whose principal
organizers are not specified" (italics supplied).[11] Neither did
the FNCLT letterheads[12] disclose the identity of the
conference organizer since these contained only an
enumeration of names where private respondent Francisco
Wenceslao was described as Executive Director and
Spokesman and not as a conference organizer.[13] The
printout[14] and tentative program[15] of the conference were
devoid of any indication of Wenceslao as organizer. The
printout which contained an article entitled "Who Organized
the NCLT?" did not even mention private respondent's name,
while the tentative program only denominated private
respondent as "Vice Chairman and Executive Director," and
not as organizer.
The third, fourth, fifth and sixth assigned errors all
revolve around the primary question of whether the disputed
articles constitute privileged communications as to exempt
the author from liability.
The trial court ruled that petitioner Borjal cannot hide
behind the proposition that his articles are privileged in
character under the provisions of Art. 354 of The Revised
Penal Code which state -
Art. 354. Requirement for publicity. - Every defamatory
imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is
shown, except in the following cases:
1) A private communication made by any person
to another in the performance of any legal,
moral or social duty; and,
2) A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official
pg. 34

proceedings which are not of confidential
nature, or of any statement, report or speech
delivered in said proceedings, or of any other
act performed by public officers in the
exercise of their functions.
Respondent court explained that the writings in
question did not fall under any of the exceptions described in
the above-quoted article since these were neither "private
communications" nor "fair and true report x x x without any
comments or remarks." But this is incorrect.
A privileged communication may be either absolutely
privileged or qualifiedly privileged. Absolutely privileged
communications are those which are not actionable even if
the author has acted in bad faith. Upon the other hand,
qualifiedly privileged communications containing defamatory
imputations are not actionable unless found to have been
made without good intention or justifiable motive. To this
genre belong "private communications" and "fair and true
report without any comments or remarks."
Indisputably, petitioner Borjals questioned writings are not
within the exceptions of Art. 354 of The Revised Penal
Code for, as correctly observed by the appellate court, they
are neither private communications nor fair and true report
without any comments or remarks. However this does not
necessarily mean that they are not privileged. To be sure, the
enumeration under Art. 354 is not an exclusive list of
qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise
privileged.
To reiterate, fair commentaries on matters of public interest
are privileged and constitute a valid defense in an action for
libel or slander. The doctrine of fair comment means that
while in general every discreditable imputation publicly made
is deemed false, because every man is presumed innocent
until his guilt is judicially proved, and every false imputation
is deemed malicious, nevertheless, when the discreditable
imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such
discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a
comment based on a false supposition. If the comment is an
expression of opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken, as long
as it might reasonably be inferred from the facts.
The declared objective of the conference, the
composition of its members and participants, and the manner
by which it was intended to be funded no doubt lend to its
activities as being genuinely imbued with public interest. An
organization such as the FNCLT aiming to reinvent and
reshape the transportation laws of the country and seeking to
source its funds for the project from the public at large cannot
dissociate itself from the public character of its mission. As
such, it cannot but invite close scrutiny by the media obliged
to inform the public of the legitimacy of the purpose of the
activity and of the qualifications and integrity of the
personalities behind it.
We reject this postulate. While, generally, malice can
be presumed from defamatory words, the privileged character
of a communication destroys the presumption of malice.
[32]
The onus of proving actual malice then lies on plaintiff,
private respondent Wenceslao herein. He must bring home to
the defendant, petitioner Borjal herein, the existence of
malice as the true motive of his conduct. Malice connotes ill
will or spite and speaks not in response to duty but merely to
injure the reputation of the person defamed, and implies an
intention to do ulterior and unjustifiable harm. Malice is bad
faith or bad motive. It is the essence of the crime of libel.
Furthermore, to be considered malicious, the libelous
statements must be shown to have been written or published
with the knowledge that they are false or in reckless disregard
of whether they are false or not. "Reckless disregard of what
is false or not" means that the defendant entertains serious
doubt as to the truth of the publication, or that he possesses a
high degree of awareness of their probable falsity. Even
assuming that the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove actual
malice. Errors or misstatements are inevitable in any scheme
of truly free expression and debate. Consistent with good
faith and reasonable care, the press should not be held to
account, to a point of suppression, for honest mistakes or
imperfections in the choice of language. There must be some
room for misstatement of fact as well as for
misjudgment. Only by giving them much leeway and
tolerance can they courageously and effectively function as
critical agencies in our democracy
VASQUEZ v. CA (1999) by Mendoza
The question for determination in this case is the liability for
libel of a citizen who denounces a barangay official for
misconduct in office.
To find a person guilty of libel under Art. 353 of the
Revised Penal Code, the following elements must be proved:
(a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity
of the person defamed; and (d) existence of malice. [11]
An allegation is considered defamatory if it ascribes to
a person the commission of a crime, the possession of a vice
or defect, real or imaginary, or any act, omission, condition,
status or circumstance which tends to dishonor or discredit or
put him in contempt, or which tends to blacken the memory
of one who is dead.[12]
There is publication if the material is communicated to
a third person.[13] It is not required that the person defamed
has read or heard about the libelous remark. What is material
is that a third person has read or heard the libelous statement,
for a mans reputation is the estimate in which others hold
him, not the good opinion which he has of himself.[14]
On the other hand, to satisfy the element of
identifiability, it must be shown that at least a third person or
a stranger was able to identify him as the object of the
defamatory statement.[15]
Finally, malice or ill will must be present. Art. 354 of
the Revised Penal Code provides:
Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive
for making it is shown, except in the following cases:
pg. 35
 1. A private communication made by any person
to another in the performance of any legal,
moral or security duty; and
2. A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official
proceedings which are not of confidential
nature, or of any statement, report or speech
delivered in said proceedings, or of any other
act performed by public officers in the
exercise of their functions.
In this case, there is no doubt that the first three elements are
present. The statements that Olmedo, through connivance
with NHA officials, was able to obtain title to several lots in
the area and that he was involved in a number of illegal
activities (attempted murder, gambling and theft of fighting
cocks) were clearly defamatory. There is no merit in his
contention that landgrabbing, as charged in the information,
has a technical meaning in law.[16] Such act is so alleged and
proven in this case in the popular sense in which it is
understood by ordinary people.
Nor is there any doubt that the defamatory remarks
referred to complainant and were published. Petitioner caused
the publication of the defamatory remarks when he made the
statements to the reporters who interviewed him.[18]
The question is whether from the fact that the
statements were defamatory, malice can be presumed so that
it was incumbent upon petitioner to overcome such
presumption. Under Art. 361 of the Revised Penal Code, if
the defamatory statement is made against a public official
with respect to the discharge of his official duties and
functions and the truth of the allegation is shown, the accused
will be entitled to an acquittal even though he does not prove
that the imputation was published with good motives and for
justifiable ends.[19]
In this case, contrary to the findings of the trial court, on
which the Court of Appeals relied, petitioner was able to
prove the truth of his charges against the barangay
official. His allegation that, through connivance with NHA
officials, complainant was able to obtain title to several lots at
the Tondo Foreshore Area was based on the letter [20] of NHA
Inspector General Hermogenes Fernandez to petitioners
counsel.
For that matter, even if the defamatory
statement is false, no liability can attach if it
relates to official conduct, unless the public
official concerned proves that the statement was
made with actual malice that is, with knowledge
that it was false or with reckless disregard of
whether it was false or not. This is the gist of the
ruling in the landmark case of New York Times v.
Sullivan,[25] which this Court has cited with
approval in several of its own decisions. [26] This is
the rule of actual malice. In this case, the
prosecution failed to prove not only that the
charges made by petitioner were false but also that
petitioner made them with knowledge of their
falsity or with reckless disregard of whether they
were false or not.
A rule placing on the accused the burden of
showing the truth of allegations of official
misconduct and/or good motives and justifiable
ends for making such allegations would not only
be contrary to Art. 361 of the Revised Penal
Code. It would, above all, infringe on the
constitutionally guaranteed freedom of
expression. Such a rule would deter citizens from
performing their duties as members of a self-
governing community. Without free speech and
assembly, discussions of our most abiding
concerns as a nation would be stifled. As Justice
Brandeis has said, public discussion is a political
duty and the greatest menace to freedom is an
inert people.[27]
TIME v. FIRESTONE (1976) by Rehnquist
After respondent had sought separate
maintenance, her husband, the scion of a wealthy
industrial family, filed a counterclaim for divorce
on grounds of extreme cruelty and adultery. The
court granted the counterclaim, stating that
"neither party is domesticated, within the meaning
of that term as used by the Supreme Court of
Florida," and that "the marriage should be
dissolved." On the basis of newspaper and wire
service reports and information from a bureau
chief and a "stringer," petitioner published in its
magazine an item reporting that the divorce was
granted
"on grounds of extreme cruelty and adultery."
After petitioner had declined to retract, respondent
brought this libel action in the state court. A jury
verdict for damages against petitioner was
ultimately affirmed by the Florida Supreme Court.
Petitioner claims that the judgment violates its
rights under the First and Fourteenth
Amendments.
. The standard enunciated in New York Times Co.
v. Sullivan, 376 U. S. 254, as later extended,
which bars media liability for defamation of a
public figure absent proof that the defamatory
statements were published with knowledge of
their falsity or in reckless disregard of the truth, is
inapplicable to the facts of this case. The standard
enunciated in New York Times Co. v.
Sullivan, 376 U. S. 254, as later extended, which
bars media liability for defamation of a public
pg. 36
figure absent proof that the defamatory statements
were published with knowledge of their falsity or
in reckless disregard of the truth, is inapplicable to
the facts of this case. The New York Times rule
does not automatically extend to all reports of
judicial proceedings regardless of whether the
party plaintiff in such proceedings is a public
figure who might be assumed to "have voluntarily
exposed [himself] to increased risk of injury from
defamatory falsehood." Gertz, supra at 418 U. S.
345. There is no substantial reason why one
involved in litigation should forfeit that degree of
protection afforded by the law of defamation
imply by virtue of being drawn into a courtroom.
No finding was ever made by the divorce court
that respondent was guilty of adultery as
petitioner had reported, and though petitioner
contends that it faithfully reproduced the precise
meaning of the divorce judgment, the jury's
verdict, upheld on appeal, rejected petitioner's
contention that the report was accurate.
In a case such as this, Gertz, supra, imposes the
constitutional limitations that (1) compensatory
awards "be supported by competent evidence
concerning the injury" and (2) liability cannot be
imposed without fault. Since Florida permits
damages awards in defamation actions based on
elements other than injury to reputation, and there
was competent evidence here to permit the jury to
assess the amount of such injury, the first of these
conditions was satisfied.
Since, however, there was no finding of fault on
the part of the petitioner in its publication of the
defamatory material, the second constitutional
limitation imposed by Gertz was not met. Though
the trial court's failure to submit the question of
fault to the jury does not, of itself, establish
noncompliance with the constitutional
requirement, none of the Florida courts that
considered this case determined that petitioner
was at fault.
pg. 37