Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12592 March 8, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
FELIPE BUSTOS, ET AL., defendants-appellants.

Kincaid and Perkins for appellants.

Acting Attorney-General Paredes, for appellee.

MALCOLM, J.:

This appeal presents the specific question of whether or not the defendants and appellants are guilty of a libel of
Roman Punsalan, justice of the peace of Macabebe and Masantol, Province of Pampanga. The appeal also submits
the larger question of the attitude which the judiciary should take interpreting and enforcing the Libel Law in
connection with the basic prerogatives of freedom of speech and press, and of assembly and petition. For a better
understanding, the facts in the present appeal are the first narrated in the order of their occurrence, then certain
suggestive aspects relative to the rights of freedom of speech and press and of assembly and petition are
interpolated, then the facts are tested by these principles, and, finally, judgment is rendered.

First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga assembled, and prepared
and signed a petition to the Executive Secretary through the law office of Crossfield and O'Brien, and five individuals
signed affidavits, charging Roman Punsalan, justice of the peace of Macabebe and Masantol, Pampanga, with
malfeasance in office and asking for his removal. Crossfield and O'Brien submitted this petition and these affidavits
with a complaint to the Executive Secretary. The petition transmitted by these attorneys was signed by thirty-four
citizens apparently of considerable standing, including councilors and property owners (now the defendants), and
contained the statements set out in the information as libelous. Briefly stated the specific charges against the justice of
the peace were.

1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the justice of the peace,
who first told her that he would draw up complaint for P5; afterwards he said he would take P3 which she paid; also
kept her in the house for four days as a servant and took from her two chickens and twelve "gandus;"

2. That Valentin Sunga being interested in a case regarding land which was on trial before the justice of the peace,
went to see the justice of the peace to ascertain the result of the trial, and was told by the justice of the peace that if
he wished to win he must give him P50. Not having this amount, Sunga gave the justice nothing, and a few days later
was informed that he had lost the case. Returning again to the office of the justice of the peace in order to appeal, the
justice told him that he could still win if he would pay P50;

3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day of the trial the justice
called him over to his house, where he secretly gave him (Quiambao) P30; and the complaint was thereupon shelved.

The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial District requesting
investigation, proper action, and report. The justice of the peace was notified and denied the charges. The judge of
first instance found the first count not proved and counts 2 and 3 established. In view of this result, the judge, the
Honorable Percy M. Moir, was of the opinion "that it must be, and it is hereby, recommended to the Governor-General
that the respondent be removed from his position as justice of the peace of Macabebe and Masantol, Province of
Pampanga, and it is ordered that the proceedings had in this case be transmitted to the Executive Secretary."

Later the justice of the peace filled a motion for a new trial; the judge of first instance granted the motion and
reopened the hearing; documents were introduced, including a letter sent by the municipal president and six
councilors of Masantol, Pampanga, asserting that the justice of the peace was the victim of prosecution, and that one
Agustin Jaime, the auxiliary justice of the peace, had instituted the charges for personal reasons; and the judge of first
instance ordered a suppression of the charges against Punsalan and acquitted him the same. Attorneys for
complainants thereupon appealed to the Governor-General, but whether the papers were forwarded to the Governor-
General as requested the record does not disclose.

Criminal action against the petitioners, now become the defendants, was instituted on October 12, 1916, by virtue of
the following information:

That on or about the month of December, 1915, in the municipality of Macabebe, Pampanga, P. I., the said
accused, voluntarily, illegally, and criminally and with malicious intent to prejudice and defame Mr. Roman
Punsalan Serrano who was at said time and place justice of the peace of Macabebe and Masantol of this
province, wrote, signed, and published a writing which was false, scandalous, malicious, defamatory, and
libelous against the justice of the peace Mr. Roman Punsalan Serrano, in which writing appear among other
things the following:

That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on account of the
conduct observed by him heretofore, a conduct highly improper of the office which he holds, is found to be a
public functionary who is absolutely unfair, eminently immoral and dangerous to the community, and
consequently unworthy of the office.

That this assertion of the undersigned is evidenced in a clear and positive manner by facts so certain, so
serious, and so denigrating which appear in the affidavits attached hereto, and by other facts no less serious,
but which the undersigned refrain from citing herein for the sake of brevity and in order not to bother too much
the attention of your Honor and due to lack of sufficient proof to substantiate them.

That should the higher authorities allow the said justice of the peace of this town to continue in his office, the
protection of the rights and interests of its inhabitants will be illusory and utopic; rights and interest solemnly
guaranteed by the Philippine Bill of Rights, and justice in this town will not be administered in accordance with
law.

That on account of the wrongful discharge of his office and of his bad conducts as such justice of the peace,
previous to this time, some respectable citizens of this town of Macabebe were compelled to present an
administrative case against the said Roman Punsalan Serrano before the judge of first instance of Pampanga,
in which case there were made against him various charges which were true and certain and of different
characters.

That after the said administrative case was over, the said justice of the peace, far from charging his bad and
despicable conduct, which has roused the indignation of this town of Macabebe, subsequently performed the
acts abovementioned, as stated in the affidavits herewith attached, as if intending to mock at the people and
to show his mistaken valor and heroism.'

All of this has been written and published by the accused with deliberate purpose of attacking the virtue,
honor, and reputation of the justice of the peace, Mr. Roman Punsalan Serrano, and thus exposing him to
public hatred contempt, and ridicule. All contrary to law.

It should be noted that the information omits paragraphs of the petition mentioning the investigation before the judge
of first instance, the affidavits upon which based and concluding words, "To the Executive Secretary, through the
office of Crossfield and O'Brien."

The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez, Juan S. Alfonso,
Restituto Garcia, and Manuel Mallari, guilty and sentenced each of them to pay a fine of P10 and one thirty-second
part of the costs, or to suffer subsidiary imprisonment in case of insolvency. New attorneys for the defense, coming
into the case, after the handing down of the decision, file on December 16, 1916, a motion for a new trial, the principal
purpose of which was to retire the objection interposed by the then counsel for the defendants to the admission of
Exhibit A consisting of the entire administrative proceedings. The trial court denied the motion. All the defendants,
except Melecio S. Sabado and Fortunato Macalino appealed making the following assignments of error:
 1. The court erred in overruling the motion of the convicted defendants for a new trial.

2. The court erred in refusing to permit the defendants to retire the objection in advertently interposed by their
counsel to the admission in evidence of the expediente administrativo out of which the accusation in this case
arose.

3. The court erred in sustaining the objection of the prosecution to the introduction in evidence by the accused
of the affidavits upon which the petition forming the basis of the libelous charge was based.

4. The court erred in not holding that the alleged libelous statement was unqualifiedly privileged.

5. The court erred in assuming and impliedly holding that the burden was on the defendants to show that the
alleged libelous statements were true and free from malice.

6. The court erred in not acquitting the defendants.

7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable doubt. This is
especially true of all the defendants, except Felipe Bustos, Dionisio Mallari, and Jose T. Reyes.

We have thus far taken it for granted that all the proceedings, administrative and judicial, were properly before this
court. As a matter of fact counsel for defendants in the lower court made an improvident objection to the admission of
the administrative proceedings on the ground that the signatures were not identified and that the same was
immaterial, which objection was partially sustained by the trial court. Notwithstanding this curious situation by reason
of which the attorney for the defense attempted to destroy through his objection the very foundation for the justification
of his clients, we shall continue to consider all the proceedings as before us. Not indicating specifically the reason for
this action, let the following be stated: The administrative proceedings were repeatedly mentioned during the trial.
These proceedings were the basis of the accusation, the information, the evidence, and the judgment rendered. The
prosecution cannot be understood without knowledge of anterior action. Nothing more unjust could be imagined than
to pick out certain words which standing by themselves and unexplained are libelous and then by shutting off all
knowledge of facts which would justify these words, to convict the accused. The records in question are attached to
the rollo, and either on the ground that the attorneys for the defense retired the objection to the introduction of the
administrative proceedings by the prosecution, or that a new trial should have been had because under section 42 of
the Code of Criminal Procedure "a case may be reopened on account of errors at law committed at the trial," or
because of the right of this court to call in such records as are sufficiently incorporated into the complaint and are
essential to a determination of the case, or finally, because of our conceded right to take judicial notice of official
action in administrative cases and of judicial proceedings supplemental to the basis action, we examine the record as
before us, containing not alone the trial for libel, but the proceedings previous to that trial giving rise to it. To this
action, the Government can not explain for it was the prosecution which tried to incorporate Exhibit A into the record.

With these facts pleading justification, before testing them by certain principles which make up the law of libel and
slander, we feel warranted in seizing the opportunity to intrude an introductory and general discussion of freedom of
speech and press and assembly and petition in the Philippine Islands. We conceive that the time is ripe thus to clear
up certain misapprehensions on the subject and to place these basic rights in their proper light.

Turning to the pages of history, we state nothing new when we set down that freedom of speech as cherished in
democratic countries was unknown in the Philippine Islands before 1900. A prime cause for revolt was consequently
ready made. Jose Rizal in "Filipinas Despues de Cien Años" (The Philippines a Century Hence, pages 62 et seq.)
describing "the reforms sine quibus non," which the Filipinos insist upon, said: "

The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines
free and by instituting Filipinos delegates.

The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means invariably in exposing the
wants of the Filipino people demanded "liberty of the press, of cults, and associations." (See Mabini, La Revolucion
Filipina.) The Malolos Constitution, the work of the Revolutionary Congress, in its Bill of Rights, zealously guarded
freedom of speech and press and assembly and petition.
Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the people of these
Islands and won at so dear a cost, should now be protected and carried forward as one would protect and preserve
the covenant of liberty itself.

Next comes the period of American-Filipino cooperative effort. The Constitution of the United States and the State
constitutions guarantee to the right of freedom of speech and press and the right of assembly and petition. We are
therefore, not surprised to find President McKinley in that Magna Charta of Philippine Liberty, the Instructions to the
Second Philippine Commission, of April 7, 1900, laying down the inviolable rule "That no law shall be passed
abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for a redress of grievances."

The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August 29, 1916,
in the nature of organic acts for the Philippines, continued this guaranty. The words quoted are not unfamiliar to
students of Constitutional Law, for they are the counterpart of the first amendment to the Constitution of the United
States, which the American people demanded before giving their approval to the Constitution.

We mention the foregoing facts only to deduce the position never to be forgotten for an instant that the guaranties
mentioned are part and parcel of the Organic Law — of the Constitution — of the Philippine Islands.

These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries with all the
applicable jurisprudence of great English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100;
Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these principles? Volumes would inadequately answer. But
included are the following:

The interest of society and the maintenance of good government demand a full discussion of public affairs.
Completely liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision
of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-
skinned with reference to comment upon his official acts. Only thus can the intelligence and the dignity of the
individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than
the State, so must expected criticism be born for the common good. Rising superior to any official or set of officials, to
the Chief of Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public
opinion should be the constant source of liberty and democracy. (See the well considered cases of Wason vs. Walter,
4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)

The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of
the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for
proper comment. If the people cannot criticize a justice of the peace or a judge the same as any other public officer,
public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be
tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hang suspended over the
individual who dares to assert his prerogative as a citizen and to stand up bravely before any official. On the contrary,
it is a duty which every one owes to society or to the State to assist in the investigation of any alleged misconduct. It is
further the duty of all who know of any official dereliction on the part of a magistrate or the wrongful act of any public
officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of Mr.
Justice Gayner, who contributed so largely to the law of libel. "The people are not obliged to speak of the conduct of
their officials in whispers or with bated breath in a free government, but only in a despotism." (Howarth vs. Barlow
[1906], 113 App. Div., N. Y., 510.)

The right to assemble and petition is the necessary consequence of republican institutions and the complement of the
part of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to
public affairs. Petition means that any person or group of persons can apply, without fear of penalty, to the appropriate
branch or office of the government for a redress of grievances. The persons assembling and petitioning must, of
course, assume responsibility for the charges made.

Public policy, the welfare of society, and the orderly administration of government have demanded protection for
public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of
privilege.
 The doctrine of privileged communications rests upon public policy, 'which looks to the free and unfettered
administration of justice, though, as an incidental result, it may in some instances afford an immunity to the
evil-disposed and malignant slanderer.' (Abbott vs. National Bank of Commerce, Tacoma [1899], 175 U. S.,
409, 411.)

Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified privilege, it is
as the words suggest a prima facie privilege which may be lost by proof of malice. The rule is thus stated by Lord
Campbell, C. J.

A communication made bona fide upon any subject-matter in which the party communicating has an interest,
or in reference to which has a duty, is privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be slanderous and actionable.
(Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.)

A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in
regard to the character or conduct of a public official when addressed to an officer or a board having some interest or
duty in the matter. Even when the statements are found to be false, if there is probable cause for belief in their
truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual.
But the statements must be made under an honest sense of duty; a self-seeking motive is destructive. Personal injury
is not necessary. All persons have an interest in the pure and efficient administration of justice and of public affairs.
The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good faith
believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere
fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the
person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some
natural and honest mistake as to the respective functions of various officials such unintentional error will not take the
case out of the privilege.

In the usual case malice can be presumed from defamatory words. Privilege destroy that presumption. The onus of
proving malice then lies on the plaintiff. The plaintiff must bring home to the defendant the existence of malice as the
true motive of his conduct. Falsehood and the absence of probable cause will amount to proof of malice. (See White
vs. Nicholls [1845], 3 How., 266.)

A privileged communication should not be subjected to microscopic examination to discover grounds of malice or
falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged communications. The
ultimate test is that of bona fides. (See White vs. Nicholls [1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick.
[Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72; Street Foundations of Legal Liability, vol. 1, pp. 308, 309; Newell,
Slander and Libel, various citations; 25 Cyc. pages 385 et seq.)

Having ascertained the attitude which should be assumed relative to the basic rights of freedom of speech and press
and of assembly and petition, having emphasized the point that our Libel Law as a statute must be construed with
reference to the guaranties of our Organic Law, and having sketched the doctrine of privilege, we are in a position to
test the facts of this case with these principles.

It is true that the particular words set out in the information, if said of a private person, might well be considered
libelous per se. The charges might also under certain conceivable conditions convict one of a libel of a government
official. As a general rule words imputing to a judge or a justice of the peace dishonesty or corruption or incapacity or
misconduct touching him in his office are actionable. But as suggested in the beginning we do not have present a
simple case of direct and vicious accusations published in the press, but of charges predicated on affidavits made to
the proper official and thus qualifiedly privileged. Express malice has not been proved by the prosecution. Further,
although the charges are probably not true as to the justice of the peace, they were believed to be true by the
petitioners. Good faith surrounded their action. Probable cause for them to think that malfeasance or misfeasance in
office existed is apparent. The ends and the motives of these citizens— to secure the removal from office of a person
thought to be venal — were justifiable. In no way did they abuse the privilege. These respectable citizens did not
eagerly seize on a frivolous matter but on instances which not only seemed to them of a grave character, but which
were sufficient in an investigation by a judge of first instance to convince him of their seriousness. No undue publicity
was given to the petition. The manner of commenting on the conduct of the justice of the peace was proper. And
finally the charges and the petition were submitted through reputable attorneys to the proper functionary, the
Executive Secretary. In this connection it is sufficient to note that justices of the peace are appointed by the Governor-
General, that they may be removed by the Governor-General upon the recommendation of a Judge of First Instance,
or on the Governor-General's own motion, and that at the time this action took place the Executive Bureau was the
office through which the Governor-General acted in such matter. (See Administrative Code of 1917, secs. 203 and
229, in connection with the cases of U. S. vs. Galesa [1915], 31 Phil., 365, and of Harrison vs. Bush, 5 E. and B., 344,
holding that where defendant was subject to removal by the sovereign, a communication to the Secretary of State was
privileged.)

The present facts are further essentially different from those established in other cases in which private individuals
have been convicted of libels of public officials. Malice, traduction, falsehood, calumny, against the man and not the
officer, have been the causes of the verdict of guilty. (See U. S. vs. Senado [1909], 14 Phil., 338, 339; U. S. vs.
Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil., 595.)

The Attorney-General bases his recommendation for confirmation on the case of the United States vs. Julio Bustos
([1909], 13 Phil., 690). The Julio Bustos case, the Attorney-General says, is identical with the Felipe Bustos case, with
the exception that there has been more publicity in the present instance and that the person to whom the charge was
made had less jurisdiction than had the Secretary of Justice in the Julio Bustos case. Publicity is immaterial if the
charge against Punsalan is in fact a privileged communication. Moreover, in the Julio Bustos case we find wild
statements, with no basis in fact, made against reputable members of the judiciary, "to persons who could not furnish
protection." Malicious and untrue communications are not privileged. A later case and one more directly in point to
which we invite especial attention is United States vs. Galeza ([1915], 31 Phil., 365). (Note alsoYancey vs.
Commonwealth [1909], 122 So. W., 123.)

We find the defendants and appellants entitled to the protection of the rules concerning qualified privilege, growing out
of constitutional guaranties in our bill of rights. Instead of punishing citizens for an honest endeavor to improve the
public service, we should rather commend them for their good citizenship. The defendants and appellants are
acquitted with the costs de officio. So ordered.

Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES,
INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY,
THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET
AL., respondents.

Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and
Rene Saguisag for petitioners.

The Solicitor General for respondents.

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction
is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano,
Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No.
19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business
addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and
printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and
distribution of the said newspapers, as well as numerous papers, documents, books and other written literature
alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum"
newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the
seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge
Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates,
substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos,
Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People
v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for
hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary
mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the
aforementioned case until final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this
manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without
having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before
impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in the court
that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the
seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search
of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The
existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the
words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the
power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the
purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that
while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only
on June 16, 1983 or after the lapse of a period of more than six [6] months.

Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due
diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable
time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus:

Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that
the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been
raided.

The climate of the times has given petitioners no other choice. If they had waited this long to bring their
case to court, it was because they tried at first to exhaust other remedies. The events of the past
eleven fill years had taught them that everything in this country, from release of public funds to release
of detained persons from custody, has become a matter of executive benevolence or largesse

Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like
Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the
return at least of the printing equipment and vehicles. And after such a letter had been sent, through
Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they
were further encouraged to hope that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124,
Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or
chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently
negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting
the charge of laches against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of
the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search
warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr.
and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does
not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question.

1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the
applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of
the Rules of Court .6 This objection, however, may properly be considered moot and academic, as petitioners
themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by
respondent judge of Col. Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6,
Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed
to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants
pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed
therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20-
82[b] which states:
 Which have been used, and are being used as instruments and means of committing the crime of
subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19
Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued
because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for
respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the
places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who
headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was
applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the
opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he
issued Warrant No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it
has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This
would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued,
and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has
also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the
warrant as to the place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed
against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J.
Burgos Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search
warrant, to wit:

Sec. 2. Personal Property to be seized. — A search warrant may be issued for the search and seizure
of the following personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits of the offense; and

[c] Property used or intended to be used as the means of committing an offense.

The above rule does not require that the property to be seized should be owned by the person against whom the
search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted
Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by
one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore,
is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or
possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the
articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under
Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the
owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which
tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill
Co. v. Castillo9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature
becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a
tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the
owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were
placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property
susceptible to seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla
Intelligence Officer of the P.C. Metrocom.10 The application was accompanied by the Joint Affidavit of Alejandro M.
Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the
premises prior to the filing of the application for the search warrants on December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis
for the finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of
the 1973 Constitution which provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the offense are in the place sought to be searched. And
when the search warrant applied for is directed against a newspaper publisher or editor in connection with the
publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a
specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere
generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession
or has in his control printing equipment and other paraphernalia, news publications and other documents which were
used and are all continuously being used as a means of committing the offense of subversion punishable under
Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such
particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave
error for respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of
Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that
the premises above- mentioned and the articles and things above-described were used and are continuously being
used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the
Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after
examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no
less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of
First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because
the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of
probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in
Alvarez case.

Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in
the nature of general warrants. The search warrants describe the articles sought to be seized in this wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables,
communications/recording equipment, tape recorders, dictaphone and the like used and/or connected
in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and
facsimile of prints related to the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives
and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire
Movement and April 6 Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive
materials and propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

2] DATSUN pick-up colored white with Plate No. NKV 969

 3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong
Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In
like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search
warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with
the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in
question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord
between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions
to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan
Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress
any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger
to state security.

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the
"We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed,
with the further result that the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed
under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they have been
sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the
property of any person, natural or artificial, engaged in subversive activities against the government and its duly
constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of
National Defense." It is doubtful however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos
himself denied the request of the military authorities to sequester the property seized from petitioners on December 7,
1982. Thus:

The President denied a request flied by government prosecutors for sequestration of the WE FORUM
newspaper and its printing presses, according to Information Minister Gregorio S. Cendana.

On the basis of court orders, government agents went to the We Forum offices in Quezon City and
took a detailed inventory of the equipment and all materials in the premises.

Cendaña said that because of the denial the newspaper and its equipment remain at the disposal of
the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter
dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated
February 11, 1983, Minister Romulo stated:

2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close
the paper's printing facilities and confiscate the equipment and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on
December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory
injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered
released to petitioners. No costs.

SO ORDERED.

U.S. Supreme Court

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

New York Times Co. v. Sullivan

No. 39
Argued January 6, 1964

Decided March 9, 1964*

376 U.S. 254

CERTIORARI TO THE SUPREME COURT OF ALABAMA

Syllabus

Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he
had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared
over the names of the four individual petitioners and many others. The advertisement included
statements, some of which were false, about police action allegedly directed against students who
participated in a civil rights demonstration and against a leader of the civil rights movement;
respondent claimed the statements referred to him because his duties included supervision of the
police department. The trial judge instructed the jury that such statements were "libelous per se," legal
injury being implied without proof of actual damages, and that, for the purpose of compensatory
damages, malice was presumed, so that such damages could be awarded against petitioners if the
statements were found to have been published by them and to have related to respondent. As to
punitive damages, the judge instructed that mere negligence was not evidence of actual malice, and
would not justify an award of punitive damages; he refused to instruct that actual intent to harm or
recklessness had to be found before punitive damages could be awarded, or that a verdict for
respondent should differentiate between compensatory and punitive damages. The jury found for
respondent, and the State Supreme Court affirmed.

Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public official
for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the
statement was made with knowledge of its falsity or with reckless disregard of whether it was true or
false. Pp. 376 U. S. 265-292.

(a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil
action, is "state action" under the Fourteenth Amendment. P. 376 U. S. 265.

(b) Expression does not lose constitutional protection to which it would otherwise be entitled because it
appears in the form of a paid advertisement. Pp. 376 U. S. 265-266.

Page 376 U. S. 255

(c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an
award of damages for false statements unless "actual malice" -- knowledge that statements are false
or in reckless disregard of the truth -- is alleged and proved. Pp. 376 U. S. 279-283.

(d) State court judgment entered upon a general verdict which does not differentiate between punitive
damages, as to which, under state law, actual malice must be proved, and general damages, as to
which it is "presumed," precludes any determination as to the basis of the verdict, and requires
reversal, where presumption of malice is inconsistent with federal constitutional requirements. P. 376
U. S. 284.
(e) The evidence was constitutionally insufficient to support the judgment for respondent, since it
failed to support a finding that the statements were made with actual malice or that they related to
respondent. Pp. 376 U. S. 285-292.

273 Ala. 656, 144 So.2d 25, reversed and remanded.

Page 376 U. S. 256

MR. JUSTICE BRENNAN delivered the opinion of the Court.

We are required in this case to determine for the first time the extent to which the constitutional
protections for speech and press limit a State's power to award damages in a libel action brought by a
public official against critics of his official conduct.

Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery,
Alabama. He testified that he was

"Commissioner of Public Affairs, and the duties are supervision of the Police Department, Fire
Department, Department of Cemetery and Department of Scales."

He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama
clergymen, and against petitioner the New York Times Company, a New York corporation which
publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County
awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the
Supreme Court of Alabama affirmed. 273 Ala. 656, 144 So.2d 25.

Respondent's complaint alleged that he had been libeled by statements in a full-page advertisement
that was carried in the New York Times on March 29, 1960. [Footnote 1] Entitled "Heed Their Rising
Voices," the advertisement began by stating that,

"As the whole world knows by now, thousands of Southern Negro students are engaged in widespread
nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by
the U.S. Constitution and the Bill of Rights."

It went on to charge that,

"in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by
those who would deny and negate that document which the whole world looks upon as setting the
pattern for modern freedom. . . ."

Succeeding

Page 376 U. S. 257

paragraphs purported to illustrate the "wave of terror" by describing certain alleged events. The text
concluded with an appeal for funds for three purposes: support of the student movement, "the
struggle for the right to vote," and the legal defense of Dr. Martin Luther King, Jr., leader of the
movement, against a perjury indictment then pending in Montgomery.
The text appeared over the names of 64 persons, many widely known for their activities in public
affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading
"We in the south who are struggling daily for dignity and freedom warmly endorse this appeal,"
appeared the names of the four individual petitioners and of 16 other persons, all but two of whom
were identified as clergymen in various Southern cities. The advertisement was signed at the bottom of
the page by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South,"
and the officers of the Committee were listed.

Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis
of respondent's claim of libel. They read as follows:

Third paragraph:

"In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps,
their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas
ringed the Alabama State College Campus. When the entire student body protested to state authorities
by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission."

Sixth paragraph:

"Again and again, the Southern violators have answered Dr. King's peaceful protests with intimidation
and violence. They have bombed his home, almost killing his wife and child. They have

Page 376 U. S. 258

assaulted his person. They have arrested him seven times -- for 'speeding,' 'loitering' and similar
'offenses.' And now they have charged him with 'perjury' -- a felony under which they could imprison
him for ten years. . . ."

Although neither of these statements mentions respondent by name, he contended that the word
"police" in the third paragraph referred to him as the Montgomery Commissioner who supervised the
Police Department, so that he was being accused of "ringing" the campus with police. He further
claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking
of the dining hall in order to starve the students into submission. [Footnote 2] As to the sixth
paragraph, he contended that, since arrests are ordinarily made by the police, the statement "They
have arrested [Dr. King] seven times" would be read as referring to him; he further contended that the
"They" who did the arresting would be equated with the "They" who committed the other described
acts and with the "Southern violators." Thus, he argued, the paragraph would be read as accusing the
Montgomery police, and hence him, of answering Dr. King's protests with "intimidation and violence,"
bombing his home, assaulting his person, and charging him with perjury. Respondent and six other
Montgomery residents testified that they read some or all of the statements as referring to him in his
capacity as Commissioner.

It is uncontroverted that some of the statements contained in the two paragraphs were not accurate
descriptions of events which occurred in Montgomery. Although Negro students staged a
demonstration on the State Capitol steps, they sang the National Anthem and not "My

Page 376 U. S. 259

Country, 'Tis of Thee." Although nine students were expelled by the State Board of Education, this was
not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the
Montgomery County Courthouse on another day. Not the entire student body, but most of it, had
protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually
all the students did register for the ensuing semester. The campus dining hall was not padlocked on
any occasion, and the only students who may have been barred from eating there were the few who
had neither signed a preregistration application nor requested temporary meal tickets. Although the
police were deployed near the campus in large numbers on three occasions, they did not at any time
"ring" the campus, and they were not called to the campus in connection with the demonstration on
the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times,
but only four, and although he claimed to have been assaulted some years earlier in connection with
his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there
was such an assault.

On the premise that the charges in the sixth paragraph could be read as referring to him, respondent
was allowed to prove that he had not participated in the events described. Although Dr. King's home
had, in fact, been bombed twice when his wife and child were there, both of these occasions antedated
respondent's tenure as Commissioner, and the police were not only not implicated in the bombings, but
had made every effort to apprehend those who were. Three of Dr. King's four arrests took place before
respondent became Commissioner. Although Dr. King had, in fact, been indicted (he was subsequently
acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent
had nothing to do with procuring the indictment.

Page 376 U. S. 260

Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged
libel. [Footnote 3] One of his witnesses, a former employer, testified that, if he had believed the
statements, he doubted whether he "would want to be associated with anybody who would be a party
to such things that are stated in that ad," and that he would not reemploy respondent if he believed
"that he allowed the Police Department to do the things that the paper say he did." But neither this
witness nor any of the others testified that he had actually believed the statements in their supposed
reference to respondent. The cost of the advertisement was approximately $4800, and it was published
by the Times upon an order from a New York advertising agency acting for the signatory Committee.
The agency submitted the advertisement with a letter from A. Philip Randolph, Chairman of the
Committee, certifying that the persons whose names appeared on the advertisement had given their
permission. Mr. Randolph was known to the Times' Advertising Acceptability Department as a
responsible person, and, in accepting the letter as sufficient proof of authorization, it followed its
established practice. There was testimony that the copy of the advertisement which accompanied the
letter listed only the 64 names appearing under the text, and that the statement, "We in the south . . .
warmly endorse this appeal," and the list of names thereunder, which included those of the individual
petitioners, were subsequently added when the first proof of the advertisement was received. Each of
the individual petitioners testified that he had not authorized the use of his name, and that he had
been unaware of its use until receipt of respondent's demand for a retraction. The manager of the
Advertising Acceptability

Page 376 U. S. 261

Department testified that he had approved the advertisement for publication because he knew nothing
to cause him to believe that anything in it was false, and because it bore the endorsement of "a
number of people who are well known and whose reputation" he "had no reason to question." Neither
he nor anyone else at the Times made an effort to confirm the accuracy of the advertisement, either
by checking it against recent Times news stories relating to some of the described events or by any
other means.

Alabama law denies a public officer recovery of punitive damages in a libel action brought on account
of a publication concerning his official conduct unless he first makes a written demand for a public
retraction and the defendant fails or refuses to comply. Alabama Code, Tit. 7, § 914. Respondent
served such a demand upon each of the petitioners. None of the individual petitioners responded to
the demand, primarily because each took the position that he had not authorized the use of his name
on the advertisement, and therefore had not published the statements that respondent alleged had
libeled him. The Times did not publish a retraction in response to the demand, but wrote respondent a
letter stating, among other things, that "we . . . are somewhat puzzled as to how you think the
statements in any way reflect on you," and "you might, if you desire, let us know in what respect you
claim that the statements in the advertisement reflect on you." Respondent filed this suit a few days
later without answering the letter. The Times did, however, subsequently publish a retraction of the
advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the
publication charged him with

"grave misconduct and . . . improper actions and omissions as Governor of Alabama and Ex-Officio
Chairman of the State Board of Education of Alabama."

When asked to explain why there had been a retraction for the Governor but not for respondent, the

Page 376 U. S. 262

Secretary of the Times testified:

"We did that because we didn't want anything that was published by The Times to be a reflection on
the State of Alabama, and the Governor was, as far as we could see, the embodiment of the State of
Alabama and the proper representative of the State, and, furthermore, we had by that time learned
more of the actual facts which the and purported to recite and, finally, the ad did refer to the action of
the State authorities and the Board of Education, presumably of which the Governor is the ex-officio
chairman. . . ."

On the other hand, he testified that he did not think that "any of the language in there referred to Mr.
Sullivan."

The trial judge submitted the case to the jury under instructions that the statements in the
advertisement were "libelous per se," and were not privileged, so that petitioners might be held liable if
the jury found that they had published the advertisement and that the statements were made "of and
concerning" respondent. The jury was instructed that, because the statements were libelous per
se, "the law . . . implies legal injury from the bare fact of publication itself," "falsity and malice are
presumed," "general damages need not be alleged or proved, but are presumed," and "punitive
damages may be awarded by the jury even though the amount of actual damages is neither found nor
shown." An award of punitive damages -- as distinguished from "general" damages, which are
compensatory in nature -- apparently requires proof of actual malice under Alabama law, and the
judge charged that
"mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify
an award of exemplary or punitive damages."

He refused to charge, however, that the jury must be "convinced" of malice, in the sense of "actual
intent" to harm or "gross negligence and recklessness," to make such an award, and he also refused to
require that a verdict for respondent differentiate between compensatory and punitive damages. The
judge rejected petitioners' contention

Page 376 U. S. 263

that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and
Fourteenth Amendments.

In affirming the judgment, the Supreme Court of Alabama sustained the trial judge's rulings and
instructions in all respects. 273 Ala. 656, 144 So.2d 25. It held that,

"where the words published tend to injure a person libeled by them in his reputation, profession, trade
or business, or charge him with an indictable offense, or tend to bring the individual into public
contempt,"

they are "libelous per se"; that "the matter complained of is, under the above doctrine, libelous per
se, if it was published of and concerning the plaintiff", and that it was actionable without "proof of
pecuniary injury . . . . such injury being implied." Id. at 673, 676, 144 So.2d at 37, 41. It approved the
trial court's ruling that the jury could find the statements to have been made "of and concerning"
respondent, stating:

"We think it common knowledge that the average person knows that municipal agents, such as police
and firemen, and others, are under the control and direction of the city governing body, and, more
particularly, under the direction and control of a single commissioner. In measuring the performance or
deficiencies of such groups, praise or criticism is usually attached to the official in complete control of
the body."

Id. at 674-675, 144 So.2d at 39. In sustaining the trial court's determination that the verdict was not
excessive, the court said that malice could be inferred from the Times' "irresponsibility" in printing the
advertisement while

"the Times, in its own files, had articles already published which would have demonstrated the falsity
of the allegations in the advertisement;"

from the Times' failure to retract for respondent while retracting for the Governor, whereas the falsity
of some of the allegations was then known to the Times and "the matter contained in the
advertisement was equally false as to both parties", and from the testimony of the Times' Secretary
that,

Page 376 U. S. 264

apart from the statement that the dining hall was padlocked, he thought the two paragraphs were
"substantially correct."Id. at 686-687, 144 So.2d at 50-51. The court reaffirmed a statement in an
earlier opinion that "There is no legal measure of damages in cases of this character." Id. at 686, 144
So.2d at 50. It rejected petitioners' constitutional contentions with the brief statements that "The First
Amendment of the U.S. Constitution does not protect libelous publications," and "The Fourteenth
Amendment is directed against State action, and not private action." Id. at 676, 144 So.2d at 40.

Because of the importance of the constitutional issues involved, we granted the separate petitions for
certiorari of the individual petitioners and of the Times. 371 U.S. 946. We reverse the judgment. We
hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide
the safeguards for freedom of speech and of the press that are required by the First and Fourteenth
Amendments in a libel action brought by a public official against critics of his official conduct. [Footnote
4] We

Page 376 U. S. 265

further hold that, under the proper safeguards, the evidence presented in this case is constitutionally
insufficient to support the judgment for respondent.

We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts
from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court -- that
"The Fourteenth Amendment is directed against State action, and not private action." That proposition
has no application to this case. Although this is a civil lawsuit between private parties, the Alabama
courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their
constitutional freedoms of speech and press. It matters not that that law has been applied in a civil
action and that it is common law only, though supplemented by statute. See, e.g., Alabama Code, Tit.
7, §§ 908-917. The test is not the form in which state power has been applied but, whatever the form,
whether such power has, in fact, been exercised. See Ex parte Virginia, 100 U. S. 339, 100 U. S. 346-
347; American Federation of Labor v. Swing. 312 U. S. 321.

The second contention is that the constitutional guarantees of freedom of speech and of the press are
inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements
were published as part of a paid, "commercial" advertisement. The argument relies on Valentine v.
Chrestensen, 316 U. S. 52, where the Court held that a city ordinance forbidding street distribution of
commercial and business advertising matter did not abridge the First Amendment freedoms, even as
applied to a handbill having a commercial message on one side but a protest against certain official
action, on the other. The reliance is wholly misplaced. The Court in Chrestensen reaffirmed the
constitutional protection for "the freedom of communicating

Page 376 U. S. 266

information and disseminating opinion"; its holding was based upon the factual conclusions that the
handbill was "purely commercial advertising" and that the protest against official action had been
added only to evade the ordinance.

The publication here was not a "commercial" advertisement in the sense in which the word was used
in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed
abuses, and sought financial support on behalf of a movement whose existence and objectives are
matters of the highest public interest and concern.See NAACP v. Button, 371 U. S. 415, 371 U. S. 435.
That the Times was paid for publishing the advertisement is as immaterial in this connection as is the
fact that newspapers and books are sold. Smith v. California, 361 U. S. 147, 361 U. S. 150; cf. Bantam
Books, Inc., v. Sullivan, 372 U. S. 58, 372 U. S. 64, n. 6. Any other conclusion would discourage
newspapers from carrying "editorial advertisements" of this type, and so might shut off an important
outlet for the promulgation of information and ideas by persons who do not themselves have access to
publishing facilities -- who wish to exercise their freedom of speech even though they are not members
of the press. Cf. Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452; Schneider v. State, 308 U. S. 147, 308
U. S. 164. The effect would be to shackle the First Amendment in its attempt to secure "the widest
possible dissemination of information from diverse and antagonistic sources." Associated Press v.
United States,326 U. S. 1, 326 U. S. 20. To avoid placing such a handicap upon the freedoms of
expression, we hold that, if the allegedly libelous statements would otherwise be constitutionally
protected from the present judgment, they do not forfeit that protection because they were published
in the form of a paid advertisement. [Footnote 5]

Page 376 U. S. 267

II

Under Alabama law, as applied in this case, a publication is "libelous per se" if the words "tend to
injure a person . . . in his reputation" or to "bring [him] into public contempt"; the trial court stated
that the standard was met if the words are such as to "injure him in his public office, or impute
misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust. . . ."
The jury must find that the words were published "of and concerning" the plaintiff, but, where the
plaintiff is a public official, his place in the governmental hierarchy is sufficient evidence to support a
finding that his reputation has been affected by statements that reflect upon the agency of which he is
in charge. Once "libel per se" has been established, the defendant has no defense as to stated facts
unless he can persuade the jury that they were true in all their particulars. Alabama Ride Co. v.
Vance, 235 Ala. 263, 178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124
So.2d 441, 457-458 (1960). His privilege of "fair comment" for expressions of opinion depends on the
truth of the facts upon which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala.
439, 450, 61 So. 345, 350 (1913). Unless he can discharge the burden of proving truth, general
damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual
malice is apparently a prerequisite to recovery of punitive damages, and the defendant may, in any
event, forestall a punitive award by a retraction meeting the statutory requirements. Good motives and
belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive
damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala.,
at 495, 124 So.2d at 458.

Page 376 U. S. 268

The question before us is whether this rule of liability, as applied to an action brought by a public
official against critics of his official conduct, abridges the freedom of speech and of the press that is
guaranteed by the First and Fourteenth Amendments.

Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that the
Constitution does not protect libelous publications. [Footnote 6] Those statements do not foreclose our
inquiry here. None of the cases sustained the use of libel laws to impose sanctions upon expression
critical of the official conduct of public officials. The dictum in Pennekamp v. Florida, 328 U. S.
331, 328 U. S. 348-349, that "when the statements amount to defamation, a judge has such remedy in
damages for libel as do other public servants," implied no view as to what remedy might
constitutionally be afforded to public officials. In Beauharnais v. Illinois, 343 U. S. 250, the Court
sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a
racial group and "liable to cause violence and disorder." But the Court was careful to note that it
"retains and exercises authority to nullify action which encroaches on freedom of utterance under the
guise of punishing libel"; for "public men are, as it were, public property," and "discussion cannot be
denied, and the right, as well as the duty, of criticism must not be stifled." Id. at 343 U. S. 263-264,
and n. 18. In the only previous case that did present the question of constitutional limitations upon the
power to award damages for libel of a public official, the Court was equally divided and the question
was not decided. Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642.

Page 376 U. S. 269

In deciding the question now, we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of state law. NAACP v. Button, 371 U.
S. 415, 371 U. S. 429. Like insurrection, [Footnote 7] contempt, [Footnote 8] advocacy of unlawful
acts, [Footnote 9] breach of the peace, [Footnote 10] obscenity, [Footnote 11] solicitation of legal
business, [Footnote 12] and the various other formulae for the repression of expression that have been
challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must
be measured by standards that satisfy the First Amendment.

The general proposition that freedom of expression upon public questions is secured by the First
Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was
fashioned to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people." Roth v. United States, 354 U. S. 476, 354 U. S. 484.

"The maintenance of the opportunity for free political discussion to the end that government may be
responsive to the will of the people and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of our constitutional system."

Stromberg v. California, 283 U. S. 359, 283 U. S. 369. "[I]t is a prized American privilege to speak
one's mind, although not always with perfect good taste, on all public institutions," Bridges v.
California, 314 U. S. 252, 314 U. S. 270, and this opportunity is to be afforded for "vigorous advocacy"
no less than "abstract discussion." NAACP v. Button, 371 U. S. 415,371 U. S. 429.

Page 376 U. S. 270

The First Amendment, said Judge Learned Hand,

"presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than
through any kind of authoritative selection. To many, this is, and always will be, folly, but we have
staked upon it our all."

United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in his
concurring opinion in Whitney v. California, 274 U. S. 357, 274 U. S. 375-376, gave the principle its
classic formulation:
"Those who won our independence believed . . . that public discussion is a political duty, and that this
should be a fundamental principle of the American government. They recognized the risks to which all
human institutions are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that
fear breeds repression; that repression breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies,
and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by law -- the argument of force in its worst
form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so
that free speech and assembly should be guaranteed."

Thus, we consider this case against the background of a profound national commitment to 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. See
Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4; De Jonge v. Oregon, 299 U. S. 353,

Page 376 U. S. 271

299 U. S. 365. The present advertisement, as an expression of grievance and protest on one of the
major public issues of our time, would seem clearly to qualify for the constitutional protection. The
question is whether it forfeits that protection by the falsity of some of its factual statements and by its
alleged defamation of respondent.

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize
an exception for any test of truth -- whether administered by judges, juries, or administrative officials -
- and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357
U. S. 513, 357 U. S. 525-526. The constitutional protection does not turn upon "the truth, popularity,
or social utility of the ideas and beliefs which are offered." NAACP v. Button, 371 U. S. 415, 371 U. S.
445. As Madison said, "Some degree of abuse is inseparable from the proper use of every thing, and in
no instance is this more true than in that of the press." 4 Elliot's Debates on the Federal Constitution
(1876), p. 571. In Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 310, the Court declared:

"In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been,
or are, prominent in church or state, and even to false statement. But the people of this nation have
ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a
democracy."

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of
expression

Page 376 U. S. 272

are to have the "breathing space" that they "need . . . to survive," NAACP v. Button, 371 U. S.
415, 371 U. S. 433, was also recognized by the Court of Appeals for the District of Columbia Circuit
in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S.
678. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman's
libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial
appointment. He said:

"Cases which impose liability for erroneous reports of the political conduct of officials reflect the
obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public
here outweighs the interest of appellant or any other individual. The protection of the public requires
not merely discussion, but information. Political conduct and views which some respectable people
approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in
regard to a man's mental states and processes, are inevitable. . . . Whatever is added to the field of
libel is taken from the field of free debate. [Footnote 13]"

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free
than does factual error. Where judicial officers are involved, this Court has held that concern for the
dignity and

Page 376 U. S. 273

reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge
or his decision.Bridges v. California, 314 U. S. 252. This is true even though the utterance contains
"half-truths" and "misinformation."Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 342, 328 U. S. 343,
n. 5, 328 U. S. 345. Such repression can be justified, if at all, only by a clear and present danger of the
obstruction of justice. See also Craig v. Harney, 331 U. S. 367; Wood v. Georgia,370 U. S. 375. If
judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney,
supra, 331 U.S. at 331 U. S. 376, surely the same must be true of other government officials, such as
elected city commissioners. [Footnote 14] Criticism of their official conduct does not lose its
constitutional protection merely because it is effective criticism, and hence diminishes their official
reputations.

If neither factual error nor defamatory content suffices to remove the constitutional shield from
criticism of official conduct, the combination of the two elements is no less inadequate. This is the
lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first
crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy of
Suppression (1960), at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That
statute made it a crime, punishable by a $5,000 fine and five years in prison,

"if any person shall write, print, utter or publish . . . any false, scandalous and malicious

Page 376 U. S. 274

writing or writings against the government of the United States, or either house of the Congress . . . or
the President . . . with intent to defame . . . or to bring them, or either of them, into contempt or
disrepute; or to excite against them, or either or any of them, the hatred of the good people of the
United States."

The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both
of the law and the facts. Despite these qualifications, the Act was vigorously condemned as
unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of
1798, the General Assembly of Virginia resolved that it
"doth particularly protest against the palpable and alarming infractions of the Constitution in the two
late cases of the 'Alien and Sedition Acts,' passed at the last session of Congress. . . . [The Sedition
Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and
positively forbidden by one of the amendments thereto -- a power which, more than any other, ought
to produce universal alarm because it is leveled against the right of freely examining public characters
and measures, and of free communication among the people thereon, which has ever been justly
deemed the only effectual guardian of every other right."

4 Elliot's Debates, supra, pp. 553-554. Madison prepared the Report in support of the protest. His
premise was that the Constitution created a form of government under which "The people, not the
government, possess the absolute sovereignty." The structure of the government dispersed power in
reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of
government was "altogether different" from the British form, under which the Crown was sovereign
and the people were subjects. "Is

Page 376 U. S. 275

it not natural and necessary, under such different circumstances," he asked, "that a different degree of
freedom in the use of the press should be contemplated?" Id., pp. 569-570. Earlier, in a debate in the
House of Representatives, Madison had said:

"If we advert to the nature of Republican Government, we shall find that the censorial power is in the
people over the Government, and not in the Government over the people."

4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said:

"In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and
measures of public men, of every description, which has not been confined to the strict limits of the
common law. On this footing, the freedom of the press has stood; on this foundation it yet stands. . .
."

4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials
was thus, in Madison's view, a fundamental principle of the American form of government. [Footnote
15]

Page 376 U. S. 276

Although the Sedition Act was never tested in this Court, [Footnote 16] the attack upon its validity has
carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on
the ground that it was unconstitutional. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied
by H.R.Rep. No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4,
1836, assumed that its invalidity was a matter "which no one now doubts." Report with Senate bill No.
122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and
sentenced under the Act and remitted their fines, stating:

"I discharged every person under punishment or prosecution under the sedition law because I
considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had
ordered us to fall down and worship a golden image."
Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The invalidity
of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by
Brandeis, J., in Abrams v. United States, 250 U. S. 616, 250 U. S. 630; Jackson, J., dissenting
in Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 288-289; Douglas, The Right of the People (1958),
p. 47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-900; Chafee,
Free Speech in the United States (1942), pp. 27-28. These views reflect a broad consensus that the
Act, because of the restraint it imposed upon criticism of government and public officials, was
inconsistent with the First Amendment.

There is no force in respondent's argument that the constitutional limitations implicit in the history of
the Sedition Act apply only to Congress, and not to the States. It is true that the First Amendment was
originally addressed only to action by the Federal Government, and

Page 376 U. S. 277

that Jefferson, for one, while denying the power of Congress "to controul the freedom of the press,"
recognized such a power in the States. See the 1804 Letter to Abigail Adams quoted in Dennis v.
United States, 341 U. S. 494, 341 U. S. 522, n. 4 (concurring opinion). But this distinction was
eliminated with the adoption of the Fourteenth Amendment and the application to the States of the
First Amendment's restrictions. See, e.g., Gitlow v. New York, 268 U. S. 652, 268 U. S. 666; Schneider
v. State, 308 U. S. 147, 308 U. S. 160; Bridges v. California, 314 U. S. 252, 314 U. S. 268; Edwards v.
South Carolina,372 U. S. 229, 372 U. S. 235.

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the
reach of its civil law of libel. [Footnote 17] The fear of damage awards under a rule such as that
invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution
under a criminal statute. See City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923).
Alabama, for example, has a criminal libel law which subjects to prosecution "any person who speaks,
writes, or prints of and concerning another any accusation falsely and maliciously importing the
commission by such person of a felony, or any other indictable offense involving moral turpitude," and
which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six
months. Alabama Code, Tit. 14, § 350. Presumably, a person charged with violation of this statute
enjoys ordinary criminal law safeguards such as the requirements of an indictment and of proof beyond
a reasonable doubt. These safeguards are not available to the defendant in a civil action. The
judgment awarded in this case -- without the need for any proof of actual pecuniary loss -- was one
thousand times greater than the maximum fine provided by the Alabama criminal statute, and one
hundred times greater than that provided by the Sedition Act.

Page 376 U. S. 278

And since there is no double jeopardy limitation applicable to civil lawsuits, this is not the only
judgment that may be awarded against petitioners for the same publication. [Footnote 18] Whether or
not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed
upon those who would give voice to public criticism is an atmosphere in which the First Amendment
freedoms cannot survive. Plainly the Alabama law of civil libel is

"a form of regulation that creates hazards to protected freedoms markedly greater than those that
attend reliance upon the criminal law."
Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70.

The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous
statements honestly made is no less essential here than was the requirement of proof of guilty
knowledge which, in Smith v. California, 361 U. S. 147, we held indispensable to a valid conviction of a
bookseller for possessing obscene writings for sale. We said:

"For, if the bookseller is criminally liable without knowledge of the contents, . . . He will tend to restrict
the books he sells to those he has inspected, and thus the State will have imposed a restriction upon
the distribution of constitutionally protected, as well as obscene, literature. . . . And the bookseller's
burden would become the public's burden, for, by restricting him, the public's access to reading matter
would be restricted. . . . [H]is timidity in the face of his absolute criminal liability thus would tend to
restrict the public's access to forms of the printed word which the State could not constitutionally

Page 376 U. S. 279

suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship
affecting the whole public, hardly less virulent for being privately administered. Through it, the
distribution of all books, both obscene and not obscene, would be impeded."

( 361 U. S. 361 U.S. 147, 361 U. S. 153-154.) A rule compelling the critic of official conduct to
guarantee the truth of all his factual assertions -- and to do so on pain of libel judgments virtually
unlimited in amount -- leads to a comparable "self-censorship." Allowance of the defense of truth, with
the burden of proving it on the defendant, does not mean that only false speech will be deterred.
[Footnote 19] Even courts accepting this defense as an adequate safeguard have recognized the
difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g.,
Post Publishing Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public
Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule, would-be critics of official
conduct may be deterred from voicing their criticism, even though it is believed to be true and even
though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of
having to do so. They tend to make only statements which "steer far wider of the unlawful
zone."Speiser v. Randall, supra, 357 U.S. at 357 U. S. 526. The rule thus dampens the vigor and limits
the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The
constitutional guarantees require, we think, a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves that
the statement was made

Page 376 U. S. 280

with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it
was false or not. An oft-cited statement of a like rule, which has been adopted by a number of state
courts, [Footnote 20] is found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281
(1908). The State Attorney General, a candidate for reelection and a member of the commission
charged with the management and control of the state school fund, sued a newspaper publisher for
alleged libel in an article purporting to state facts relating to his official conduct in connection with a
school-fund transaction. The defendant pleaded privilege and the trial judge, over the plaintiff's
objection, instructed the jury that
"where an article is published and circulated among voters for the sole purpose of giving what the
defendant

Page 376 U. S. 281

believes to be truthful information concerning a candidate for public office and for the purpose of
enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith
and without malice, the article is privileged, although the principal matters contained in the article may
be untrue, in fact, and derogatory to the character of the plaintiff, and in such a case the burden is on
the plaintiff to show actual malice in the publication of the article."

In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a
general verdict was returned for the defendant. On appeal, the Supreme Court of Kansas, in an opinion
by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P. at 286):

"It is of the utmost consequence that the people should discuss the character and qualifications of
candidates for their suffrages. The importance to the state and to society of such discussions is so
vast, and the advantages derived are so great, that they more than counterbalance the inconvenience
of private persons whose conduct may be involved, and occasional injury to the reputations of
individuals must yield to the public welfare, although at times such injury may be great. The public
benefit from publicity is so great, and the chance of injury to private character so small, that such
discussion must be privileged."

The court thus sustained the trial court's instruction as a correct statement of the law, saying:

"In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be
defamed by the communication must show actual malice or go remediless. This privilege extends to a
great variety of subjects, and includes matters of

Page 376 U. S. 282

public concern, public men, and candidates for office."

78 Kan. at 723, 98 P. at 285.

Such a privilege for criticism of official conduct [Footnote 21] is appropriately analogous to the
protection accorded a public official when he is sued for libel by a private citizen. In Barr v.
Matteo, 360 U. S. 564, 360 U. S. 575, this Court held the utterance of a federal official to be absolutely
privileged if made "within the outer perimeter" of his duties. The States accord the same immunity to
statements of their highest officers, although some differentiate their lesser officials and qualify the
privilege they enjoy. [Footnote 22] But all hold that all officials are protected unless actual malice can
be proved. The reason for the official privilege is said to be that the threat of damage suits would
otherwise "inhibit the fearless, vigorous, and effective administration of policies of government" and
"dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge
of their duties." Barr v. Matteo, supra, 360 U.S. at 360 U. S. 571. Analogous considerations support the
privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official's duty
to administer. See Whitney v. California, 274 U. S. 357, 274 U. S. 375 (concurring opinion of Mr.
Justice Brandeis), quoted supra, p. 376 U. S. 270. As Madison said, see supra p. 376 U. S. 275, "the
censorial power is in the people over the Government, and not in the Government over the people." It
would give public servants an unjustified preference over the public they serve, if critics of official
conduct

Page 376 U. S. 283

did not have a fair equivalent of the immunity granted to the officials themselves.

We conclude that such a privilege is required by the First and Fourteenth Amendments.

III

We hold today that the Constitution delimits a State's power to award damages for libel in actions
brought by public officials against critics of their official conduct. Since this is such an action, [Footnote
23] the rule requiring proof of actual malice is applicable. While Alabama law apparently requires proof
of actual malice for an award of punitive damages, [Footnote 24] where general damages are
concerned malice is "presumed." Such a presumption is inconsistent

Page 376 U. S. 284

with the federal rule. "The power to create presumptions is not a means of escape from constitutional
restrictions," Bailey v. Alabama, 219 U. S. 219, 219 U. S. 239, "the showing of malice required for the
forfeiture of the privilege is not presumed but is a matter for proof by the plaintiff. . . ." Lawrence v.
Fox, 357 Mich. 134, 146, 97 N.W.2d 719, 725 (1959). [Footnote 25] Since the trial judge did not
instruct the jury to differentiate between general and punitive damages, it may be that the verdict was
wholly an award of one or the other. But it is impossible to know, in view of the general verdict
returned. Because of this uncertainty, the judgment must be reversed and the case
remanded. Stromberg v. California, 283 U. S. 359,283 U. S. 367-368; Williams v. North Carolina, 317
U. S. 287, 317 U. S. 291-292; see Yates v. United States, 354 U. S. 298, 354 U. S. 311-312; Cramer v.
United States, 325 U. S. 1, 325 U. S. 36, n. 45.

Since respondent may seek a new trial, we deem that considerations of effective judicial administration
require us to review the evidence in the present record to determine

Page 376 U. S. 285

whether it could constitutionally support a judgment for respondent. This Court's duty is not limited to
the elaboration of constitutional principles; we must also in proper cases review the evidence to make
certain that those principles have been constitutionally applied. This is such a case, particularly since
the question is one of alleged trespass across "the line between speech unconditionally guaranteed and
speech which may legitimately be regulated." Speiser v. Randall, 357 U. S. 513, 357 U. S. 525. In
cases where that line must be drawn, the rule is that we

"examine for ourselves the statements in issue and the circumstances under which they were made to
see . . . whether they are of a character which the principles of the First Amendment, as adopted by
the Due Process Clause of the Fourteenth Amendment, protect."

Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335; see also One, Inc., v. Olesen, 355 U. S.
371; Sunshine Book Co. v. Summerfield, 355 U. S. 372. We must "make an independent examination
of the whole record," Edwards v. South Carolina,372 U. S. 229, 372 U. S. 235, so as to assure
ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.
[Footnote 26]

Applying these standards, we consider that the proof presented to show actual malice lacks the
convincing

Page 376 U. S. 286

clarity which the constitutional standard demands, and hence that it would not constitutionally sustain
the judgment for respondent under the proper rule of law. The case of the individual petitioners
requires little discussion. Even assuming that they could constitutionally be found to have authorized
the use of their names on the advertisement, there was no evidence whatever that they were aware of
any erroneous statements or were in any way reckless in that regard. The judgment against them is
thus without constitutional support.

As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The
statement by the Times' Secretary that, apart from the padlocking allegation, he thought the
advertisement was "substantially correct," affords no constitutional warrant for the Alabama Supreme
Court's conclusion that it was a

"cavalier ignoring of the falsity of the advertisement [from which] the jury could not have but been
impressed with the bad faith of The Times, and its maliciousness inferable therefrom."

The statement does not indicate malice at the time of the publication; even if the advertisement was
not "substantially correct" -- although respondent's own proofs tend to show that it was -- that opinion
was at least a reasonable one, and there was no evidence to impeach the witness' good faith in
holding it. The Times' failure to retract upon respondent's demand, although it later retracted upon the
demand of Governor Patterson, is likewise not adequate evidence of malice for constitutional purposes.
Whether or not a failure to retract may ever constitute such evidence, there are two reasons why it
does not here. First, the letter written by the Times reflected a reasonable doubt on its part as to
whether the advertisement could reasonably be taken to refer to respondent at all. Second, it was not
a final refusal, since it asked for an explanation on this point -- a request that respondent chose to
ignore. Nor does the retraction upon the demand of the Governor supply the

Page 376 U. S. 287

necessary proof. It may be doubted that a failure to retract, which is not itself evidence of malice, can
retroactively become such by virtue of a retraction subsequently made to another party. But, in any
event, that did not happen here, since the explanation given by the Times' Secretary for the distinction
drawn between respondent and the Governor was a reasonable one, the good faith of which was not
impeached.

Finally, there is evidence that the Times published the advertisement without checking its accuracy
against the news stories in the Times' own files. The mere presence of the stories in the files does not,
of course, establish that the Times "knew" the advertisement was false, since the state of mind
required for actual malice would have to be brought home to the persons in the Times' organization
having responsibility for the publication of the advertisement. With respect to the failure of those
persons to make the check, the record shows that they relied upon their knowledge of the good
reputation of many of those whose names were listed as sponsors of the advertisement, and upon the
letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the
names was authorized. There was testimony that the persons handling the advertisement saw nothing
in it that would render it unacceptable under the Times' policy of rejecting advertisements containing
"attacks of a personal character"; [Footnote 27] their failure to reject it on this ground was not
unreasonable. We think

Page 376 U. S. 288

the evidence against the Times supports, at most, a finding of negligence in failing to discover the
misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding
of actual malice. Cf. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 618, 116 A.2d 440,
446 (1955); Phoenix Newspapers, Inc., v. Choisser, 82 Ariz. 271, 277-278, 312 P.2d 150, 154-155
(1957).

We also think the evidence was constitutionally defective in another respect: it was incapable of
supporting the jury's finding that the allegedly libelous statements were made "of and concerning"
respondent. Respondent relies on the words of the advertisement and the testimony of six witnesses to
establish a connection between it and himself. Thus, in his brief to this Court, he states:

"The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard
the testimony of a newspaper editor . . . ; a real estate and insurance man . . . ; the sales manager of
a men's clothing store . . . ; a food equipment man . . . ; a service station operator . . . , and the
operator of a truck line for whom respondent had formerly worked. . . . Each of these witnesses stated
that he associated the statements with respondent. . . ."

(Citations to record omitted.) There was no reference to respondent in the advertisement, either by
name or official position. A number of the allegedly libelous statements -- the charges that the dining
hall was padlocked and that Dr. King's home was bombed, his person assaulted, and a perjury
prosecution instituted against him -- did not even concern the police; despite the ingenuity of the
arguments which would attach this significance to the word "They," it is plain that these statements
could not reasonably be read as accusing respondent of personal involvement in the acts

Page 376 U. S. 289

in question. The statements upon which respondent principally relies as referring to him are the two
allegations that did concern the police or police functions: that "truckloads of police . . . ringed the
Alabama State College Campus" after the demonstration on the State Capitol steps, and that Dr. King
had been "arrested . . . seven times." These statements were false only in that the police had been
"deployed near" the campus, but had not actually "ringed" it, and had not gone there in connection
with the State Capitol demonstration, and in that Dr. King had been arrested only four times. The
ruling that these discrepancies between what was true and what was asserted were sufficient to injure
respondent's reputation may itself raise constitutional problems, but we need not consider them here.
Although the statements may be taken as referring to the police, they did not, on their face, make
even an oblique reference to respondent as an individual. Support for the asserted reference must,
therefore, be sought in the testimony of respondent's witnesses. But none of them suggested any basis
for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he
was in overall charge of the Police Department and thus bore official responsibility for police conduct;
to the extent that some of the witnesses thought respondent to have been charged with ordering or
approving the conduct or otherwise being personally involved in it, they based this notion not on any
statements in the advertisement, and not on any evidence that he had, in fact, been so involved, but
solely on the unsupported assumption that, because of his official position, he must have been.
[Footnote 28] This reliance on the bare

Page 376 U. S. 290

fact of respondent's official position [Footnote 29] was made explicit by the Supreme Court of
Alabama. That court, in holding that the trial court "did not err in overruling the demurrer [of the
Times] in the aspect that the libelous

Page 376 U. S. 291

matter was not of and concerning the [plaintiff,]" based its ruling on the proposition that:

"We think it common knowledge that the average person knows that municipal agents, such as police
and firemen, and others, are under the control and direction of the city governing body, and more
particularly under the direction and control of a single commissioner. In measuring the performance or
deficiencies of such groups, praise or criticism is usually attached to the official in complete control of
the body."

273 Ala., at 674-675, 144 So.2d at 39.

This proposition has disquieting implications for criticism of governmental conduct. For good reason,

"no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on
government have any place in the American system of jurisprudence."

City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E.

Page 376 U. S. 292

86, 88 (1923). The present proposition would sidestep this obstacle by transmuting criticism of
government, however impersonal it may seem on its face, into personal criticism, and hence potential
libel, of the officials of whom the government is composed. There is no legal alchemy by which a State
may thus create the cause of action that would otherwise be denied for a publication which, as
respondent himself said of the advertisement, "reflects not only on me but on the other Commissioners
and the community." Raising as it does the possibility that a good faith critic of government will be
penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of
the constitutionally protected area of free expression. [Footnote 30] We hold that such a proposition
may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental
operations was a libel of an official responsible for those operations. Since it was relied on exclusively
here, and there was no other evidence to connect the statements with respondent, the evidence was
constitutionally insufficient to support a finding that the statements referred to respondent.

The judgment of the Supreme Court of Alabama is reversed, and the case is remanded to that court
for further proceedings not inconsistent with this opinion.

Reversed and remanded.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-27833 April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT

4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

F. R. Cabigao in his own behalf as petitioner.

B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Tañada as amicus curiae.

FERNANDO, J.:

A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the
undesirable practice of prolonged political campaign bringing in their wake serious evils not the least of which is the
ever increasing cost of seeking public office, is challenged on constitutional grounds. More precisely, the basic
liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act.
Thus the question confronting this Court is one of transcendental significance.

It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy.
One is the freedom of belief and of expression availed of by an individual whether by himself alone or in association
with others of similar persuasion, a goal that occupies a place and to none in the legal hierarchy. The other is the
safeguarding of the equally vital right of suffrage by a prohibition of the early nomination of candidates and the
limitation of the period of election campaign or partisan political activity, with the hope that the time-consuming efforts,
entailing huge expenditures of funds and involving the risk of bitter rivalries that may end in violence, to paraphrase
the explanatory note of the challenged legislation, could be devoted to more fruitful endeavors.

The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark
opinion, 1 when we act in these matters we do so not on the assumption that to us is granted the requisite knowledge
to set matters right, but by virtue of the responsibility we cannot escape under the Constitution, one that history
authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is
appropriately invoked.

This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they
entitled Declaratory Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been
started in the of Court of First Instance but treated by this Court as one of prohibition in view of the seriousness and
the urgency of the constitutional issue raised. 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 2 and limiting the period of election campaign or partisan political
activity. 3

The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former
according to Act No. 4880 "refers to any person aspiring for or seeking an elective public office regarded of whether or
not said person has already filed his certificate of candidacy or has been nominated by any political party as its
candidate." "Election campaign" or "partisan political activity" refers to acts designed to have a candidate elected or
not or promote the candidacy of a person or persons to a public office." Then the acts were specified. There is a
proviso that simple expression of opinion and thoughts concerning the election shall not be considered as part of an
election campaign. There is the further proviso that nothing stated in the Act "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." 4
Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila and
the Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on November
11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of Manila and a
political leader of his co-petitioner. It is their claim that "the enforcement of said Republic Act No. 4880 in question
[would] prejudice [their] basic rights..., such as their freedom of speech, their freedom of assembly and their right to
form associations or societies for purpose not contrary to law, guaranteed under the Philippine Constitution," and that
therefore said act is unconstitutional.

After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of
assembly with a citation of two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit or
intention of the law that would legally justify its passage and [enforcement] whether for reasons of public policy, public
order or morality, and that therefore the enactment of Republic Act [No.] 4880 under, the guise of regulation is but a
clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the right to
form associations and societies for purposes not contrary to law, ..." There was the further allegation that the
nomination of a candidate and the fixing of period of election campaign are matters of political expediency and
convenience which only political parties can regulate or curtail by and among themselves through self-restraint or
mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police
power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners
meaningless and without effect.

To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void,
respondent Commission on Elections, in its answer filed on August 1, 1967, after denying the allegations as to the
validity of the act "for being mere conclusions of law, erroneous at that," and setting forth special affirmative defenses,
procedural and substantive character, would have this Court dismiss the petition.

Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the
following effect: "At the hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F.
Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios appeared for the respondent and they were
given a period of four days from today within which to submit, simultaneously,, their respective memorandum in lieu of
oral argument."

On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L-
27833 (Arsenio Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having
deliberated on the issue of the constitutionality of Republic Act No. 4880; and a divergence of views having developed
among the Justices as to the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election Code:
considering the Constitutional provision that "no treaty or law may be declared unconstitutional without the
concurrence of two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to defer
final voting on the issue until after the return of the Justices now on official leave."

The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo
Cabigao of the City of Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on
American Supreme Court opinion that warn against curtailment in whatever guise or form of the cherished freedoms
of expression, of assemble and of association, all embraced in the First Amendment of the United States Constitution.
Respondent Commission on Elections was duly represented by Atty. Ramon Barrios.

Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he did, arguing most impressively with a
persuasive exposition of the existence of undeniable conditions that imperatively called for regulation of the electoral
process and with full recognition that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights
of speech and press, of assembly and of association. He did justify its enactment however under the clear and
present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being
debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with
the loss not only of efficiency in government but of lives as well.

The matter was then discussed in conference, but no final action was taken. The divergence of views with reference
to the paragraphs above mentioned having continued, on Oct. 10, 1968, this Court, by resolution, invited certain
entities to submit memoranda as amici curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar
Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were included,
among them. They did file their respective memoranda with this Court and aided it in the consideration of the
constitutional issues involved.

1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is
their view that respondent Commission on Elections not being sought to be restrained from performing any specific
act, this suit cannot be characterized as other than a mere request for an advisory opinion. Such a view, from the
remedial law standpoint, has much to recommend it. Nonetheless, a majority would affirm, the original stand that
under the circumstances it could still rightfully be treated as a petition for prohibition.

The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question.
Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong
reasons of public policy demand that [its] constitutionality ... be now resolved." 7 It may likewise be added that the
exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity
for a ruling, the national elections being, barely six months away, reinforce our stand.

It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the
enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on the matter.

There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily,
a party who impugns the validity of a statute or ordinance must have a substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement. 8 Respondent cannot see such interest as
being possessed by petitioners. It may indicate the clarity of vision being dimmed, considering that one of the
petitioners was a candidate for an elective position. Even if such were the case, however, the objection is not
necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring an action to
restrain the expenditure of public funds through the enforcement of an invalid or unconstitutional legislative measure. 9

2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an
exercise of the police power of the state, designed to insure a free, orderly and honest election by regulating "conduct
which Congress has determined harmful if unstrained and carried for a long period before elections it necessarily
entails huge expenditures of funds on the part of the candidates, precipitates violence and even deaths, results in the
corruption of the electorate, and inflicts direful consequences upon public interest as the vital affairs of the country are
sacrificed to purely partisan pursuits." Evidently for respondent that would suffice to meet the constitutional questions
raised as to the alleged infringement of free speech, free press, freedom of assembly and 'freedom' of association.
Would it were as simple as that?

An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The
case confronts us again with the duty our system places on this Court to say where the individual's, freedom ends the
State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual.
presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the
indispensable democratic freedoms secured by the First Amendment.... That priority gives these liberties a sanctity
and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which
determines what standard governs the choice..."

Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of
respondent, militates against a stand minimizing the importance and significance of the alleged violation of individual
rights: "As so construed by us, it has not been made to appear that section 8189, Comp. Gen. Laws, section 5925,
Rev. Gen. St., is on its face violative of any provision of either the state or Federal Constitution on the subject of free
speech or liberty of the press, nor that its operation is in any wise subversive of any one's constitutional
liberty." 11Another leading State decision is much more emphatic: "Broad as the power of the legislature is with respect
to regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections, the
legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation may not be
compelled to give evidence against himself. If it destroys the right of free speech, it is to that extent void." 12

The question then of the alleged violation of Constitutional rights must be squarely met. lawphi 1.nêt

3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is
unconstitutional may prove illuminating. The primacy, the high estate accorded freedom of expression is of course a
fundamental postulate of our constitutional system. No law shall be passed abridging the freedom of speech or of the
press .... 13 What does it embrace? At the very least, 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. 14 There is to be then no
previous restraint on the communication of views or subsequent liability whether in libel suits, 15prosecution for
sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a clear and present danger of
substantive evil that Congress has a right to prevent.

The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring
individual self-fulfillment, of attaining the truth, of assuring participation by the people in social including political
decision-making, and of maintaining the balance between stability and change. 19 The trend as reflected in Philippine
and American decisions is to recognize the broadcast scope and assure the widest latitude to this constitutional
guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited,
robust, and wide-open. 20 It is not going too far, according to another American decision, to view the function of free
speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of speech and of the press thus
means something more than the right to approve existing political beliefs or economic arrangements, to lend support
to official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So
atrophied, the right becomes meaningless. The right belongs as well, if not more, for those who question, who do not
conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the
thought that agrees with us. 22

So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a
whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of new society in
which man's mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational
and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive,
exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration,
skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society
that is tyrannical, conformist, irrational and stagnant." 23

From the language of the specified constitutional provision, it would appear that the right is not susceptible of any
limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex
society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to
insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other
societal values that press for recognition. How is it to be limited then?

This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible
restriction. Thus: "These are the 'clear and 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.

We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice?
Did its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?"
The choice of this Court was manifest and indisputable. It adopted the clear and present danger test. As a matter of
fact, in an earlier decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of the clear and present
danger doctrine.
Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders
thus: ... the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be
time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the
remedy to be applied is more speech, not enforced silence." 26 For him the apprehended evil must be "relatively
serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the
substantive evil be "extremely serious." 27 Only thus may there be a realization of the ideal envisioned by Cardozo:
"There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme
borders where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The question in
every case is whether the words used in such circumstances and of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity
and degree." 29

This 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 dangerous tendency 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.

4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of speech
or of the press. It likewise extends the same protection to the right of the people peaceably to assemble. As was
pointed out by Justice Malcolm in the case of United States v. Bustos, 30 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. From the same Bustos opinion: "Public policy, the welfare
of society and orderly administration of government have demanded protection for public opinion." To paraphrase the
opinion of Justice Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident or coincidence that
the rights to freedom of speech and of the press were coupled in a single guaranty with the rights of the people
peaceably to assemble and to petition the government for redress of grievances. All these rights while not identical
are inseparable. They are cognate rights and the assurance afforded by the clause of this section of the Bill of Rights
wherein they are contained, applies to all. As emphatically put in the leading case of United States v.
Cruikshank, 32 "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." 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.

5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or
without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a member
of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are dispelled.
Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an indigenous
cast. It can trace its origin to the Malolos Constitution.

In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it is
primarily the first amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly
and of petition "that provides [associations] with the protection they need if they are to remain viable and continue to
contribute to our Free Society." 34 He adopted the view of De Tocqueville on the importance and the significance of the
freedom to associate. Thus: "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." 35

There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it
would be a barren existence if he could not freely associate with others of kindred persuasion or of congenial frame of
mind. As a matter of fact, the more common form of associations may be likely to be fraternal, cultural, social or
religious. Thereby, for almost everybody, save for those exceptional few who glory in aloofness and isolation life is
enriched and becomes more meaningful.
In a sense, however, the stress on this freedom of association should be on its political significance. If such a right
were non-existent then the likelihood of a one-party government is more than a possibility. Authoritarianism may
become unavoidable. Political opposition will simply cease to exist; minority groups may be outlawed, constitutional
democracy as intended by the Constitution may well become a thing of the past.

Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority
as the will of the electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost
scope should be afforded this freedom of 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. To quote from
Douglas anew: "Justice Frankfurter thought that political and academic affiliations have a preferred position under the
due process version of the First Amendment. But the associational rights protected by the First Amendment are in my
view much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and
in religion. In my view, government can neither legislate with respect to nor probe the intimacies of political, spiritual,
or intellectual relationships in the myriad of lawful societies and groups, whether popular or unpopular, that exist in this
country." 36

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". How should the limitation "for purposes not
contrary to law" be interpreted? 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.37 As was so aptly stated: "There is no other course
consistent with the Free Society envisioned by the First Amendment. For the views a citizen entertains, the beliefs he
harbors, the utterances he makes, the ideology he embraces, and the people he associates with are no concern to
government — until and unless he moves into action. That article of faith marks indeed the main difference between
the Free Society which we espouse and the dictatorships both on the Left and on the Right." 38 With the above
principles in mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the too early nomination
of candidates and the limitation found therein on the period of election campaign or partisan political activity alleged by
petitioners to offend against the rights of free speech, free press, freedom of assembly and freedom of association. In
effect what are asked to do is to declare the act void on its face evidence having been introduced as to its actual
operation. There is respectable authority for the court having the power to so act. Such fundamental liberties are
accorded so high a place in our constitutional scheme that any alleged infringement manifest in the wording of statute
cannot be allowed to pass unnoticed. 39

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.

The prohibition of too early nomination of candidates presents a question that is not too formidable in character.
According to the act: "It shall be unlawful for any political party political committee, or political group to nominate
candidates for any elective public officio voted for at large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public, office earlier than ninety days immediately preceding an
election." 40

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.
The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny.
According to Republic Act No. 4880: "It is unlawful for any person whether or not a voter or candidate, or for any group
or association of persons whether or not a political party or political committee, to engage in an election campaign or
partisan political activity except during the period of one hundred twenty days immediately preceding an election
involving a public office voted for at large and ninety days immediately preceding an election for any other elective
public office. The term 'candidate' refers to any person aspiring for or seeking an elective public office, regardless of
whether or not said person has already filed his certificate of candidacy or has been nominated by any political party
as its candidate. The term 'election campaign' or 'partisan political activity' refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public office ..."

If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken
down. What other conclusion can there be extending as it does to so wide and all-encompassing a front that what is
valid, being a legitimate exercise of press freedom as well as freedom of assembly, becomes prohibited? That cannot
be done; such an undesirable eventuality, this Court cannot allow to pass.

It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having
inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of
ideas may be the loser.41 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. 42 The language of Justice Douglas, both appropriate and vigorous, comes to mind: "Words which are
vague and fluid ... may be as much of a trap for the innocent as the ancient laws of Caligula." 43 Nor is the reason
difficult to discern: ."These freedoms are delicate and vulnerable, as well as supremely precious in our society. The
threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." 44

7. 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.

For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what
ordinarily would suffice would indeed be called for. The justification alleged by the proponents of the measures weighs
heavily with the members of the Court, though in varying degrees, in the appraisal of the aforesaid restrictions to
which such precious freedoms are subjected. They are not unaware of the clear and present danger that calls for
measures that may bear heavily on the exercise of the cherished rights of expression, of assembly, and of
association.

This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such
constitutional rights. The clear and present danger doctrine rightly viewed requires that not only should there be
an occasion for the imposition of such restrictions but also that they be limited in scope.

There are still constitutional questions of a serious character then to be faced. The practices which the act identifies
with "election campaign" or "partisan political activity" must be such that they are free from the taint of being violative
of free speech, free press, freedom of assembly, and freedom of association. What removes the sting from
constitutional objection of vagueness is the enumeration of the acts deemed included in the terms "election campaign"
or "partisan political activity."

They are: "(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; (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;(c) making
speeches, announcements or commentaries or holding interviews for or against the election or any party or candidate
for public office; (d) publishing or distributing campaign literature or materials; (e) directly or indirectly soliciting votes
and/or undertaking any campaign or propaganda for or against any party; (f) giving, soliciting, or receiving
contributions for election campaign purposes, either directly or indirectly." 45 As thus limited the objection that may be
raised as to vagueness has been minimized, if not totally set at rest. 46

8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional
infringement exists insofar as the formation of organization, associations, clubs, committees, or other groups of
persons for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a
candidate or party is restricted 47 and that the prohibition against giving, soliciting, or receiving contribution for election
purposes, either directly or indirectly, is equally free from constitutional infirmity. 48

The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings,
rallies, parades or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or
propaganda or both for or against a candidate or party, 49 leaving untouched all other legitimate exercise of such poses
a more difficult question. Nevertheless, after a thorough consideration, and with the same Justices entertaining the
opposite conviction, we reject the contention that it should be annulled. Candor compels the admission that the writer
of this opinion suffers from the gravest doubts. For him, such statutory prescription could very well be within the
outermost limits of validity, beyond which lies the abyss of unconstitutionality.

The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the
judicial predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical, because
of their collision with the preferred right of freedom of expression. From the outset, such provisions did occasion
divergence of views among the members of the Court. Originally only a minority was for their being adjudged as
invalid. It is not so. any more. 50 This is merely to emphasize that the scope of the curtailment to which freedom of
expression may be subjected is not foreclosed by the recognition of the existence of a clear and present danger of a
substantive evil, the debasement of the electoral process.

The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda
whether directly or indirectly, by an individual, 51 the making of speeches, announcements or commentaries or holding
interview for or against the election for any party or candidate for public office, 52 or the publication or distribution of
campaign literature or materials, 53 suffer from the corrosion of invalidity. It lacks however one more affirmative vote to
call for a declaration of unconstitutionality.

This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory
condition arising from the too-early nomination of candidates and the necessarily prolonged, political campaigns. The
direful consequences and the harmful effects on the public interest with the vital affairs of the country sacrificed many
a time to purely partisan pursuits were known to all. Moreover, it is no exaggeration to state that violence and even
death did frequently occur because of the heat engendered by such political activities. Then, too, the opportunity for
dishonesty and corruption, with the right to suffrage being bartered, was further magnified.

Under the police power then, with its concern for the general welfare and with the commendable aim of safe-guarding
the right of suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is
understandable for Congress to believe that without the limitations thus set forth in the challenged legislation, the
laudable purpose of Republic Act No. 4880 would be frustrated and nullified. Whatever persuasive force such
approach may command failed to elicit the assent of a majority of the Court. This is not to say that the conclusion
reached by the minority that the above poisons of the statute now assailed has passed the constitutional test is devoid
of merit.

It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding
of interviews for or against the election of any party or candidate for public office and the prohibition of the publication
or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the
undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a
constitutional command. To that extent, the challenged statute prohibits what under the Constitution cannot by any
law be abridged.

More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and
present danger doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an
adjudication of invalidity, that the challenged statute could have been more narrowly drawn and the practices
prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear
and present danger doctrine.

In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite
standards in a legislation of its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of the
Court could discern "an over breadth that makes possible oppressive or capricious application" 55 of the statutory
provisions, the line dividing the valid from the constitutionally infirm has been crossed. Such provisions offend the
constitutional principle that "a governmental purpose constitutionally subject to control or prevent activities state
regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms. 56

It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly
achieved. 57 For precision of regulation is the touchstone in an area so closely related to our most precious
freedoms. 58

Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as
unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the
fundamental liberties associated with freedom of the mind. 59

Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of
nullity insofar as the challenged sections are concerned is called for. It cannot accept the conclusion that the
limitations thus imposed on freedom of expression vitiated by their latitudinarian scope, for Congress was not at all
insensible to the problem that an all-encompassing coverage of the practices sought to be restrained would seriously
pose.

Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Tañada,
appearing before us as amicus curiae. He did clearly explain that such provisions were deemed by the legislative
body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to
the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as
violence that of late has invariably marred election campaigns and partisan political activities in this country. He did
invite our attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady requiring
governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless
clearly repugnant to fundamental rights, be ignored or disregarded.

More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation
of the undeniable legislative determination not to transgress the preferred freedom of speech, of press, of assembly
and of association. It is thus provided: "That simple expressions or opinion and thoughts concerning the election shall
not be considered as part of an election campaign [and that nothing in the Act] 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. 60 If properly implemented then, as it ought to, the barrier to free,
expression becomes minimal and far from unwarranted.

For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting
edge may be ascribed to the fears entertained that Congress failed to abide by what the Constitution commands as
far as freedom of the mind and of association are concerned. It is its opinion that it would be premature to say the
least, for a judgment of nullity of any provision found in Republic Act No. 4880. The need for adjudication arises only if
in the implementation of the Act, there is in fact an unconstitutional application of its provisions. Nor are we called
upon, under this approach, to anticipate each and every problem that may arise. It is time enough to consider it when
there is in fact an actual, concrete case that requires an exercise of judicial power.

9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the
electoral process. There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation to
impose the necessary restrictions to what otherwise would be liberties traditionally accorded the widest scope and the
utmost deference, freedom of speech and of the press, of assembly, and of association. We cannot, however, be
recreant to the trust reposed on us; we are called upon to safeguard individual rights. In the language of Justice
Laurel: "This Court is perhaps the last bulwark of constitutional government. It shall not obstruct the popular will as
manifested through proper organs... But, in the same way that it cannot renounce the life breathed into it by the
Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61

We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility
incumbent on the judiciary, it is not always possible, even with the utmost sympathy shown for the legislative choice of
means to cure an admitted evil, that the legislative judgment arrived at, with its possible curtailment of the preferred
freedoms, be accepted uncritically. There may be times, and this is one of them, with the majority, with all due reject
to a coordinate branch, unable to extend their approval to the aforesaid specific provisions of one of the sections of
the challenged statute. The necessary two-third vote, however, not being obtained, there is no occasion for the power
to annul statutes to come into play.

Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional.

WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs.

EN BANC
 FRANCISCO CHAVEZ, G.R. No. 168338
Petitioner,
Present:
x----------------
PUNO, C.J., -----------------
QUISUMBING, -----------------
YNARES-SANTIAGO, -----------------
- versus - SANDOVAL-GUTIERREZ, -----------------
CARPIO, -x
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES, DECIS
AZCUNA, ION
TINGA,
RAUL M. GONZALES, CHICO-NAZARIO,
VELASCO, JR., PUNO, C.J.:
in his capacity as the
Secretary of the NACHURA,
Department of Justice; REYES, and A. Precis
and NATIONAL LEONARDO-DE CASTRO, JJ.
TELECOMMUNICATIONS In this
COMMISSION (NTC), Promulgated: jurisdiction, it
Respondents. is established
February 15, 2008
that freedom
of the press is
crucial and so inextricably woven into the right to free speech and free expression, that any attempt
to restrict it must be met with an examination so critical that only a danger that is clear and present
would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck
down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief
of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary
Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means
to prevent the free exercise of speech, it must be nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local
elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition
was planning to destabilize the administration by releasing an audiotape of a mobile phone
conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo,
and a high-ranking official of the Commission on Elections (COMELEC). The conversation
was audiotaped allegedly through wire-tapping.[5] Later, in a Malacaang press briefing,
 Secretary Bunye produced two versions of the tape, one supposedly the complete version,
and the other, a spliced, doctored or altered version, which would suggest that the President
had instructed the COMELEC official to manipulate the election results in the Presidents
favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo,
but subsequently made a retraction. [7]

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia,
subsequently released an alleged authentic tape recording of the wiretap. Included in the
tapes were purported conversations of the President, the First Gentleman Jose Miguel
Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned
reporters that those who had copies of the compact disc (CD) and those broadcasting or
publishing its contents could be held liable under the Anti-Wiretapping Act. These persons
included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing
said tapes were committing a continuing offense, subject to arrest by anybody who had
personal knowledge if the crime was committed or was being committed in their presence.[9]

4. On June 9, 2005, in another press briefing, 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. He then expressed his intention of
inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly
declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10]
5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION
OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM STANDARDS

xxx xxx xxx

Taking into consideration the countrys unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and television
network owners/operators that the conditions of the authorization and permits issued
to them by Government like the Provisional Authority and/or Certificate of Authority
explicitly provides that said companies shall not use [their] stations for the
broadcasting or telecasting of false information or willful misrepresentation. Relative
thereto, it has come to the attention of the [NTC] that certain personalities are in
 possession of alleged taped conversations which they claim involve the President of
the Philippines and a Commissioner of the COMELEC regarding supposed violation
of election laws.

These personalities have admitted that the taped conversations are products of illegal
wiretapping operations.

Considering that these taped conversations have not been duly authenticated nor could
it be said at this time that the tapes contain an accurate or truthful representation of
what was recorded therein, it is the position of the [NTC] that the continuous airing or
broadcast of the said taped conversations by radio and television stations is a
continuing violation of the Anti-Wiretapping Law and the conditions of the
Provisional Authority and/or Certificate of Authority issued to these radio and
television stations. It has been subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the concerned radio
and television companies are hereby 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.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program
standards to be observed by radio and television stations. NTC Memorandum Circular
111-12-85 explicitly states, among others, that all radio broadcasting and television
stations shall, during any broadcast or telecast, cut off from the air the speech, play,
act or scene or other matters being broadcast or telecast the tendency thereof is to
disseminate false information or such other willful misrepresentation, or to propose
and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated
by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited
radio, broadcasting and television stations from using their stations to broadcast or
telecast any speech, language or scene disseminating false information or willful
misrepresentation, or inciting, encouraging or assisting in subversive or treasonable
acts.

The [NTC] will not hesitate, after observing the requirements of due process, to
apply with full force the provisions of said Circulars and their accompanying
sanctions on erring radio and television stations and their owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng
mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release
did not violate the constitutional freedom of speech, of expression, and of the press, and the
right to information. Accordingly, NTC and KBP issued a Joint Press Statement which
states, among others, that: [12]

NTC respects and will not hinder freedom of the press and the right to information
on matters of public concern. KBP & its members have always been
 committed to the exercise of press freedom with high sense of responsibility
and discerning judgment of fairness and honesty.

NTC did not issue any MC [Memorandum Circular] or Order constituting a

restraint of press freedom or censorship. The NTC further denies and does not
intend to limit or restrict the interview of members of the opposition or free
expression of views.

What is being asked by NTC is that the exercise of press freedom [be] done
responsibly.

KBP has program standards that KBP members will observe in the treatment of
news and public affairs programs. These include verification of sources, non-
airing of materials that would constitute inciting to sedition and/or rebellion.

The KBP Codes also require that no false statement or willful misrepresentation
is made in the treatment of news or commentaries.

The supposed wiretapped tapes should be treated with sensitivity and handled
responsibly giving due consideration to the process being undertaken to verify
and validate the authenticity and actual content of the same.

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents
Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition,
as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of authority by the respondents.[13]

Alleging that the acts of respondents are violations of the freedom on expression and of the
press, and the right of the people to information on matters of public concern, [14] petitioner
specifically asked this Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or

made since June 6, 2005 until the present that curtail the publics rights to freedom of
expression and of the press, and to information on matters of public concern
specifically in relation to information regarding the controversial taped conversion of
President Arroyo and for prohibition of the further commission of such acts, and
making of such issuances, and orders by respondents. [15]
 Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners
legal standing to file the petition. Among the arguments they raised as to the validity of the fair
warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees
compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate
the telecommunications industry. [17] It was also stressed that most of the [television] and radio
stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon
between the NTC and KBP. [18]

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional challenge peculiar.
Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and
statements made by respondents as violations of the right to free speech, free expression and a free
press. For another, the recipients of the press statements have not come forwardneither intervening
nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with
respondent NTC that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to
allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the Court so largely depends for illumination
of difficult constitutional questions. [19]

But as early as half a century ago, we have already held that where serious constitutional questions
are involved, the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside if we must, technicalities of procedure. [20] Subsequently,
this Court has repeatedly and consistently refused to wield procedural barriers as impediments to
its addressing and resolving serious legal questions that greatly impact on public interest, [21] in
keeping with the Court's duty under the 1987 Constitution to determine whether or not other
branches of government have kept themselves within the limits of the Constitution and the laws
and that they have not abused the discretion given to them.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of
overarching significance to our society,[22] we therefore brush aside technicalities of procedure and
take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the
civil rights, the freedom of expression. The petition raises other issues like the extent of the right
to information of the public. It is fundamental, however, that we need not address all issues
but only the most decisive one which in the case at bar is whether the acts of the respondents
abridge freedom of speech and of the press.
 But aside from the primordial issue of determining whether free speech and freedom of
the press have been infringed, the case at bar also gives this Court the opportunity: (1) to
distill the essence of freedom of speech and of the press now beclouded by the vagaries of
motherhood statements; (2) to clarify the types of speeches and their differing restraints
allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and
content-based regulations and their constitutional standard of review; (4) to examine the
historical difference in the treatment of restraints between print and broadcast media and
stress the standard of review governing both; and (5) to call attention to the ongoing blurring
of the lines of distinction between print and broadcast media.

E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,

OF EXPRESSION AND OF THE PRESS

No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for
redress of grievances.[24]

Freedom of expression has gained recognition as a fundamental principle of every

democratic government, and given a preferred right that stands on a higher level than substantive
economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the
Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights,[25] were
considered the necessary consequence of republican institutions and the complement of free
speech.[26] This preferred status of free speech has also been codified at the international level, its
recognition now enshrined in international law as a customary norm that binds all nations.[27]

In the Philippines, the primacy and high esteem accorded freedom of expression is a
fundamental postulate of our constitutional system. [28] This right was elevated to constitutional
status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both
political and legal, that freedom of speech is an indispensable condition for nearly every other form
of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech,
expression and the press was, at bottom, the struggle for the indispensable preconditions for the
exercise of other freedoms.[30] For it is only when the people have unbridled access to information
and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words
of Thomas Jefferson, we cannot both be free and ignorant.

E.1. ABSTRACTION OF FREE SPEECH

Surrounding the freedom of speech clause are various concepts that we have adopted as part
and parcel of our own Bill of Rights provision on this basic freedom. [31] What is embraced under
this provision was discussed exhaustively by the Court in Gonzales v. Commission on
Elections, [32] in which it was held:

At the very least, free speech and free press may be identified with the liberty to
discuss publicly and truthfully any matter of public interest without censorship and
punishment. There is to be no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for
damages, or contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. [33]

Gonzales further explained that the vital need of a constitutional democracy for freedom of
expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining
the truth; of assuring participation by the people in social, including political, decision-making; and
of maintaining the balance between stability and change.[34] As early as the 1920s, the trend as
reflected in Philippine and American decisions was to recognize the broadest scope and assure the
widest latitude for this constitutional guarantee. The trend represents a profound commitment to
the principle that debate on public issue should be uninhibited, robust, and wide-open. [35]

Freedom of speech and of the press means something more than the right to approve existing
political beliefs or economic arrangements, to lend support to official measures, and to take refuge
in the existing climate of opinion on any matter of public consequence.[36] When atrophied, the
right becomes meaningless.[37] The right belongs as well -- if not more to those who question, who
do not conform, who differ.[38] The ideas that may be expressed under this freedom are confined
not only to those that are conventional or acceptable to the majority. To be truly meaningful,
freedom of speech and of the press should allow and even encourage the articulation of the
unorthodox view, though it be hostile to or derided by others; or though such view induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to
anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for
the thought that agrees with us. [40]

The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print and assembly regarding secular as well as political causes,
and is not confined to any particular field of human interest. The protection covers myriad matters
of public interest or concern embracing all issues, about which information is needed or
appropriate, so as to enable members of society to cope with the exigencies of their period. The
constitutional protection assures the broadest possible exercise of free speech and free press for
religious, political, economic, scientific, news, or informational ends, inasmuch as the
Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of
ideas that are conventional or shared by a majority.
 The constitutional protection is not limited to the exposition of ideas. The protection afforded
free speech extends to speech or publications that are entertaining as well as instructive or
informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,[41] this Court
stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the
clause on freedom of speech and of expression.

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.

E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH

From the language of the specific constitutional provision, it would appear that the right to free
speech and a free press is not susceptible of any limitation. But the realities of life in a complex
society preclude a literal interpretation of the provision prohibiting the passage of a law that would
abridge such freedom. For freedom of expression is not an absolute, [42] nor is it an unbridled license
that gives immunity for every possible use of language and prevents the punishment of those who
abuse this freedom.

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.[43] 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. [44] We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene
speech, as well as fighting words are not entitled to constitutional protection and may be
penalized.[45]
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. [46] 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. [47]

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; [48] (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; [49] 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. [50]

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. [51]

E.3. IN FOCUS: FREEDOM OF THE PRESS

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. As Justice Malcolm wrote
in United States v. Bustos:[52]

The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of clear conscience.

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.

E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND

CONTENT-BASED REGULATIONS
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; [53] (3) freedom of access to information; [54] and (4) freedom
of circulation.[55]

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.

At this point, it should be noted that respondents in this case deny that their acts constitute
prior restraints. This presents a unique tinge to the present challenge, considering that the cases in
our jurisdiction involving prior restrictions on speech never had any issue of whether the
governmental act or issuance actually constituted prior restraint. Rather, the determinations were
always about whether the restraint was justified by the Constitution.

Be that as it may, 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.[56] Freedom from prior restraint is largely
freedom from government censorship of publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that required approval of a proposal to publish;
licensing or permits as prerequisites to publication including the payment of license taxes for the
privilege to publish; and even injunctions against publication. Even the closure of the business and
printing offices of certain newspapers, resulting in the discontinuation of their printing and
publication, are deemed as previous restraint or censorship. [57] Any law or official that requires
some form of permission to be had before publication can be made, commits an infringement of
the constitutional right, and remedy can be had at the courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on
speech, and any act that restrains speech is presumed invalid,[58] and any act that restrains speech
is hobbled by the presumption of invalidity and should be greeted with furrowed brows, [59] it is
important to stress not all prior restraints on speech are invalid. 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.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint
on freedom of speech. 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;[60] or (2) a content-
based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or
speech. [61] The cast of the restriction determines the test by which the challenged act is assayed
with.

When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity.[62] 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 approachsomewhere between the mere rationality that is required of
any other law and the compelling interest standard applied to content-based
restrictions.[63] 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:

A governmental 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 [freedom of speech &
expression] is no greater than is essential to the furtherance of that interest. [64]

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,[65] 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.[66]
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.[67] As formulated, the question in every
case is whether the words used 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 Congress
has a right to prevent. It is a question of proximity and degree.[68]

The regulation which restricts the speech content must also serve an important or substantial
government interest, which is unrelated to the suppression of free expression. [69]

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance
of that interest. [70] A restriction that is so broad that it encompasses more than what is required to
satisfy the governmental interest will be invalidated. [71] The regulation, therefore, must be
reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means
undertaken. [72]

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an

intermediate review. A content-based regulation,[73] 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. [74]

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to
the clear and present danger rule, as they are content-based restrictions. The acts of
respondents focused solely on but one objecta specific content fixed as these were on the alleged
taped conversations between the President and a COMELEC official. Undoubtedly these did not
merely provide regulations as to the time, place or manner of the dissemination of speech or
expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents argument that the challenged act is valid on the ground that
broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next
explore and test the validity of this argument, insofar as it has been invoked to validate a content-
based restriction on broadcast media.

The regimes presently in place for each type of media differ from one other. Contrasted
with the regime in respect of books, newspapers, magazines and traditional printed matter,
broadcasting, film and video have been subjected to regulatory schemes.

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,[75] 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.[76] 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]; [77] (b) its pervasiveness as a medium; and (c) its unique
accessibility to children.[78] 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,[79] they are decided on whether the
governmental restriction is narrowly tailored to further a substantial governmental
interest,[80] or the intermediate test.

As pointed out by respondents, 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[81] 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.

The distinction between broadcast and traditional print media was first enunciated in Eastern
Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that [a]ll 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[83]

Dans was a case filed to compel the reopening of a radio station which had been summarily
closed on grounds of national security. Although the issue had become moot and academic because
the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the
case and made formulations to serve as guidelines for all inferior courts and bodies exercising
quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be
considered in cases involving broadcast media. Thus:[84]

xxx xxx xxx

(3) 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, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief
Justice Enrique M. Fernando cites at least nine of our decisions which apply the test.
More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf
of the Anti-Bases Coalition v. Bagatsing. (4) 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 American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular
radio program, explained why radio broadcasting, more than other forms of
communications, receives the most limited protection from the free expression clause.
First, broadcast media have established a uniquely pervasive presence in the lives of
all citizens, Material presented over the airwaves confronts the citizen, not only in
public, but in the privacy of his home. Second, broadcasting is uniquely accessible to
children. Bookstores and motion picture theaters may be prohibited from making
certain material available to children, but the same selectivity cannot be done in radio
or television, where the listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the lives
of all Filipinos. Newspapers and current books are found only in metropolitan areas
and in the poblaciones of municipalities accessible to fast and regular transportation.
Even here, there are low income masses who find the cost of books, newspapers, and
magazines beyond their humble means. Basic needs like food and shelter perforce
enjoy high priorities.
On the other hand, 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 listeners including the indifferent or unwilling who happen to be
within reach of a blaring radio or television set. The materials broadcast over the
airwaves reach every person of every age, persons of varying susceptibilities to
persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions
to inflammatory or offensive speech would be difficult to monitor or predict. The
impact of the vibrant speech is forceful and immediate. Unlike readers of the printed
 work, the radio audience has lesser opportunity to cogitate analyze, and reject the
utterance.
(5) The clear and present danger test, therefore, must take the particular circumstances of
broadcast media into account. The supervision of radio stations-whether by
government or through self-regulation by the industry itself calls for thoughtful,
intelligent and sophisticated handling.
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.
(6) The freedom to comment on public affairs is essential to the vitality of a representative
democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was
already stressing that.
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of a clear conscience. A public
officer must not be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of media by the due
process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence
to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to
children), but only after categorically declaring that the test for limitations on freedom of
expression continues to be the clear and present danger rule, for all forms of media, whether
print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the
differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise
deemed as unprotected speech (e.g., obscenity, national security, seditious and inciting speech), or
to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies,
which is absent in print media. Thus, when this Court declared in Dans that the freedom given to
broadcast media was somewhat lesser in scope than the freedom accorded to newspaper and print
media, it was not as to what test should be applied, but the context by which requirements of
licensing, allocation of airwaves, and application of norms to unprotected speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that
the test to determine free expression challenges was the clear and present danger, again without
distinguishing the media.[87] Katigbak, strictly speaking, does not treat of broadcast media but
motion pictures. Although the issue involved obscenity standards as applied to movies, [88] the Court
concluded its decision with the following obiter dictum that a less liberal approach would be used
to resolve obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court that where
television is concerned, a less liberal approach calls for observance. This is so
because unlike motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely be among the avid
viewers of the programs therein shown..It cannot be denied though that the State
as parens patriae is called upon to manifest an attitude of caring for the welfare of
the young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the
results by a broadcast company, we reiterated that the clear and present danger rule is the test we
unquestionably adhere to issues that involve freedoms of speech and of the press.[89]

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. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast media, the Court
refused to apply the clear and present danger rule to a COMELEC regulation of time and manner
of advertising of political advertisements because the challenged restriction was content-
neutral.[91] And in a case involving due process and equal protection issues, the Court
in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC [92] treated a
restriction imposed on a broadcast media as a reasonable condition for the grant of the medias
franchise, without going into which test would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also in
other jurisdictions, where the statutory regimes in place over broadcast media include elements of
licensing, regulation by administrative bodies, and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media
differ in a number of respects, but have a common historical basis. The stricter
system of controls seems to have been adopted in answer to the view that owing to
their particular impact on audiences, films, videos and broadcasting require a
system of prior restraints, whereas it is now accepted that books and other printed
media do not. These media are viewed as beneficial to the public in a number of
respects, but are also seen as possible sources of harm.[93]
Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of
frequencies was thought to provide a rationale. However, cable and satellite television have
enormously increased the number of actual and potential channels. Digital technology will further
increase the number of channels available. But still, the argument persists that broadcasting is the
most influential means of communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects children in a way that the
print media normally does not, that regulation is said to be necessary in order to preserve pluralism.
It has been argued further that a significant main threat to free expressionin terms of diversitycomes
not from government, but from private corporate bodies. These developments show a need for a
reexamination of the traditional notions of the scope and extent of broadcast media regulation. [94]

The emergence of digital technology -- which has led to the convergence of broadcasting,
telecommunications and the computer industry -- has likewise led to the question of whether the
regulatory model for broadcasting will continue to be appropriate in the converged
environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the
broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply
equally to the Internet.[97] Thus, it has been argued that courts, legislative bodies and the
government agencies regulating media must agree to regulate both, regulate neither or develop a
new regulatory framework and rationale to justify the differential treatment. [98]

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go
to its application to the case at bar. 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. The records of the case at bar, however, are confused and confusing, and
respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various
statements of the Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary
showed to the public two versions, one supposed to be a complete version and the other, an altered
version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act
is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers,
the manner of its commission and other related and relevant proofs are some of the invisibles of
this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing
would violate 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 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. In calling for a careful and calibrated measurement of the
circumference of all these factors to determine compliance with the clear and present danger
test, the Court should not be misinterpreted as devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the State for they breed their own
evil consequence. But to repeat, the need to prevent their violation cannot per se trump the
exercise of free speech and free press, a preferred right whose breach can lead to greater
evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger
test, the Court has no option but to uphold the exercise of free speech and free press. There is no
showing that the feared violation of the anti-wiretapping law clearly endangers the national
security of the State.

This is not all the faultline in the stance of the respondents. 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. Undoubtedly, respondent
Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the
regulatory body of media. 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. The press statements at
bar are acts that should be struck down as they constitute impermissible forms of prior restraints
on the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on

record. The warnings given to media came from no less the NTC, a regulatory agency that can
cancel the Certificate of Authority of the radio and broadcast media. They also came from the
Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute
those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably
joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner
Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on
the sidelines on the part of some media practitioners is too deafening to be the subject of
misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised
with care and in light of the distinct facts of each case. For there are no hard and fast rules when it
comes to slippery constitutional questions, and the limits and construct of relative freedoms are
never set in stone. Issues revolving on their construct must be decided on a case to case basis,
always based on the peculiar shapes and shadows of each case. But in cases where the challenged
acts are patent invasions of a constitutionally protected right, we should be swift in striking them
down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are
hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005
warning the media on airing the alleged wiretapped conversation between the President and other
personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech
and of the press

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 79690-707 February 1, 1989

ENRIQUE A. ZALDIVAR, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M. GONZALEZ, claiming to be and acting as
Tanodbayan-Ombudsman under the 1987 Constitution, respondents.

G.R. No. 80578 February 1, 1989

ENRIQUE A. ZALDIVAR, petitioner,

vs.
HON. RAUL M. GONZALES, claiming to be and acting as Tanodbayan-Ombudsman under the 1987
Constitution, respondent.

RESOLUTION

PER CURIAM:

We have examined carefully the lengthy and vigorously written Motion for Reconsideration dated October 18, 1988
filed by counsel for respondent Raul M. Gonzalez, relating to the per curiam Resolution of the Court dated October 7,
1988. We have reviewed once more the Court's extended per curiam Resolution, in the light of the argument adduced
in the Motion for Reconsideration, but must conclude that we find no sufficient basis for modifying the conclusions and
rulings embodied in that Resolution. The Motion for Reconsideration sets forth copious quotations and references to
foreign texts which, however, whatever else they may depict, do not reflect the law in this jurisdiction.

Nonetheless, it might be useful to develop further, in some measure, some of the conclusions reached in the per
curiam Resolution, addressing in the process some of the "Ten (10) Legal Points for Reconsideration," made in the
Motion for Reconsideration.

1. In respondent's point A, it is claimed that it was error for this Court "to charge respondent [with]
indirect contempt and convict him of direct contempt."

In the per curiam Resolution (page 50), the Court concluded that "respondent Gonzalez is guilty both of contempt of
court in facie curiae and of gross misconduct as an officer of the court and member of the bar." The Court did not use
the phrase "in facie curiae" as a technical equivalent of "direct contempt," though we are aware that courts in the
United States have sometimes used that phrase in speaking of "direct contempts' as "contempts in the face of the
courts." Rather, the court sought to convey that it regarded the contumacious acts or statements (which were made
both in a pleading filed before the Court and in statements given to the media) and the misconduct of respondent
Gonzalez as serious acts flaunted in the face of the Court and constituting a frontal assault upon the integrity of the
Court and, through the Court, the entire judicial system. What the Court would stress is that it required respondent, in
its Resolution dated 2 May 1988, to explain "why he should not be punished for contempt of court and/or subjected to
administrative sanctions" and in respect of which, respondent was heard and given the most ample opportunity to
present all defenses, arguments and evidence that he wanted to present for the consideration of this Court. The Court
did not summarily impose punishment upon the respondent which it could have done under Section 1 of Rule 71 of
the Revised Rules of Court had it chosen to consider respondent's acts as constituting "direct contempt."

2. In his point C, respondent's counsel argues that it was "error for this Court to charge respondent
under Rule 139 (b) and not 139 of the Revised Rules of Court."

In its per curiam Resolution, the Court referred to Rule 139 (b) of the Revised Rules of Court pointing out that:
 [R]eference of complaints against attorneys either to the Integrated Bar of the Philippines or to the
Solicitor General is not mandatory upon the Supreme Court such reference to the Integrated Bar of the
Philippines or to the Solicitor General is certainly not an exclusive procedure under the terms of Rule
139 (b) of the Revised Rules of Court, especially where the charge consists of acts done before the
Supreme Court.

The above statement was made by the Court in response to respondent's motion for referral of this case either to the
Solicitor General or to the Integrated Bar of the Philippines under Rule 139 (b). Otherwise, there would have been no
need to refer to Rule 139 (b). It is thus only necessary to point out that under the old rule, Rule 139, referral to the
Solicitor General was similarly not an exclusive procedure and was not the only course of action open to the Supreme
Court. It is well to recall that under Section 1 (entitled "Motion or complaint") of Rule 139, "Proceedings for the removal
or suspension of attorneys may be taken by the Supreme Court, (1) on its own motion, or (2) upon the complaint
under oath of another in writing" (Parentheses supplied). The procedure described in Sections 2 et seq. of Rule 139 is
the procedure provided for suspension or disbarment proceedings initiated upon sworn complaint of another person,
rather than a procedure required for proceedings initiated by the Supreme Court on its own motion. It is inconceivable
that the Supreme Court would initiate motu proprio proceedings for which it did not find probable cause to proceed
against an attorney. Thus, there is no need to refer a case to the Solicitor General, which referral is made "for
investigation to determine if there is sufficient ground to proceed with the prosecution of the respondent" (Section 3,
Rule 139), where the Court itself has initiated against the respondent. The Court may, of course, refer a case to the
Solicitor General if it feels that, in a particular case, further factual investigation is needed. In the present case, as
pointed out in the per curiam Resolution of the Court (page 18), there was "no need for further investigation of facts in
the present case for it [was] not substantially disputed by respondent Gonzalez that he uttered or wrote certain
statements attributed to him" and that "in any case, respondent has had the amplest opportunity to present his
defense: his defense is not that he did not make the statements ascribed to him but that those statements give rise to
no liability on his part, having been made in the exercise of his freedom of speech. The issues which thus need to be
resolved here are issues of law and of basic policy and the Court, not any other agency, is compelled to resolve such
issues."

In this connection, we note that the quotation in page 7 of the Motion for Reconsideration is from a dissenting opinion
of Mr. Justice Black in Green v. United State. 1 It may be pointed out that the majority in Green v. United
States, through Mr. Justice Harlan, held, among other things, that: Federal courts do not lack power to impose
sentences in excess of one year for criminal contempt; that criminal contempts are not subject to jury trial as a matter
of constitutional right; nor does the (US) Constitution require that contempt subject to prison terms of more than one
year be based on grand jury indictments.

In his concurring opinion in the same case, Mr. Justice Frankfurter said:

Whatever the conflicting views of scholars in construing more or less dubious manuscripts of the
Fourteenth Century, what is indisputable is that from the foundation of the United States the
constitutionality of the power to punish for contempt without the intervention of a jury has not been
doubted. The First Judiciary Act conferred such a power on the federal courts in the very act of their
establishment, 1 State 73, 83, and of the Judiciary Committee of eight that reported the bill to the
Senate, five member including the chairman, Senator, later to be Chief Justice, Ellsworth, had been
delegates to the Constitutional Convention (Oliver Ellsworth, Chairman, William Paterson, Caleb
Strong, Ricard Basett, William Few. 1 Annals of Cong 17). In the First Congress itself no less than
nineteen member including Madison who contemporaneously introduced the Bill of Rights, had been
delegates to the Convention. And when an abuse under this power manifested itself, and led Congress
to define more explicitly the summary power vested in the courts, it did not remotely deny the
existence of the power but merely defined the conditions for its exercise more clearly, in an Act
"declaratory of the law concerning contempts of court." Act of Mar. 2, 1831, 4 Stat 487.

xxxxxxxxx

Nor has the constitutionality of the power been doubted by this Court throughout its existence . In at
least two score cases in this Court, not to mention the vast mass of decisions in the lower federal
courts, the power to punish summarily has been accepted without question. ... 2
To say that a judge who punishes a contemnor judges his own cause, is simplistic at best. The judge who finds
himself compelled to exercise the power to punish for contempt does so not really to avenge a wrong inflicted upon
his own person; rather he upholds and vindicates the authority, dignity and integrity of the judicial institution and its
claim to respectful behaviour on the part of all persons who appears before it, and most especially from those who are
officers of the court.

3. In his point D, respondent counsel urges that it is error "for this Court to apply the "visible tendency"
rule rather than the "clear and present danger" rule in disciplinary and contempt charges."

The Court did not purport to announce a new doctrine of "visible tendency," it was, more modestly, simply
paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of Court which penalizes a variety of contumacious
conduct including: "any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the
administration of justice."

The "clear and present danger" doctrine invoked by respondent's counsel is not a magic incantation which dissolves
all problems and dispenses with analysis and judgment in the testing of the legitimacy of claims to free speech, and
which compels a court to exonerate a defendant the moment the doctrine is invoked, absent proof of impending
apocalypse. The clear and present danger" doctrine has been an accepted method for marking out the appropriate
limits of freedom of speech and of assembly in certain contexts. It is not, however, the only test which has been
recognized and applied by courts. In Logunzad v. Vda. de Gonzales, 3 this Court, speaking through Mme. Justice
Melencio-Herrera said:

...The right of freedom of expression indeed, occupies a preferred position in the "hierarchy of civil
liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51
SCRA 191 [1963]. It is not, however, without limitations. As held in Gonzales v. Commission on
Elections, 27 SCRA 835, 858 [1960]:

"From the language of the specific constitutional provision, it would appear that the right is not
susceptible of any limitation. No law may be passed abridging the freedom of speech and of the
press. The realities of life in a complex society preclude however, a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that all times and under all circumstances
it should remain unfettered and unrestrained. There are other societal values that press for
recognition."

The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion
for permissible limitation on freedom of speech and of the press, which includes such vehicles of the
mass media as radio, television and the movies, is the "balancing-of-interests test" (Chief Justice
Enrique M. Fernando on the Bill of Rights, 1970 ed., p. 79). The principle "requires a court to take
conscious and detailed consideration of the interplay of interests observable in a given situation or
type of situation (Separate Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899). (Emphasis Supplied) 4

Under either the "clear and present danger" test or the "balancing-of-interest test," we believe that the statements here
made by respondent Gonzalez are of such a nature and were made in such a manner and under such circumstances,
as to transcend the permissible limits of free speech. This conclusion was implicit in the per curiam Resolution of
October 7, 1988. It is important to point out that the "substantive evil" which the Supreme Court has a right and a duty
to prevent does not, in the instant case, relate to threats of physical disorder or overt violence or similar disruptions of
public order. 5 What is here at stake is the authority of the Supreme Court to confront and prevent a "substantive evil"
consisting not only of the obstruction of a free and fair hearing of a particular case but also the avoidance of the
broader evil of the degradation of the judicial system of a country and the destruction of the standards of professional
conduct required from members of the bar and officers of the courts. The "substantive evil" here involved, in other
words, is not as palpable as a threat of public disorder or rioting but is certainly no less deleterious and more far
reaching in its implications for society.

4. In his point H, respondent's counsel argues that it is error "for this Court to hold that intent is
irrelevant in charges of misconduct." What the Court actually said on this point was:
 Respondent Gonzalez disclaims an intent to attack and denigrate the Court. The subjectivities of the
respondent are irrelevant so far as characterization of his conduct or misconduct is concerned. He will
not, however, be allowed to disclaim the natural and plain import of his words and acts. It is, upon the
other hand, not irrelevant to point out that the respondent offered no apology in his two (2)
explanations and exhibited no repentance (Resolution, p. 7; footnotes omitted).

The actual subjectivities of the respondent are irrelevant because such subjectivities (understood as pyschological
phenomena) cannot be ascertained and reached by the processes of this Court. Human intent can only be shown
derivatively and implied from an examination of acts and statements. Thus, what the Court was saying was that
respondent's disclaimer of an intent to attack and denigrate the Court, cannot prevail over the plain import of what he
did say and do. Respondent cannot negate the clear import of his acts and statements by simply pleading a secret
intent or state of mind incompatible with those acts or statements. It is scarcely open to dispute that, e.g., one
accused of homicide cannot successfully deny his criminal intent by simply asserting that while he may have inserted
a knife between the victim's ribs, he actually acted from high motives and kind feelings for the latter.

5 In his point 1, respondent's counsel argues that it is error "for this Court to punish respondent for
contempt of court for out of court publications."

Respondent's counsel asks this Court to follow what he presents as alleged modern trends in the United Kingdom and
in the United States concerning the law of contempt. We are, however, unable to regard the texts that he cites as
binding or persuasive in our jurisdiction. The Court went to some length to document the state of our case law on this
matter in its per curiam Resolution. There is nothing in the circumstances of this case that would suggest to this Court
that that case law, which has been followed for at least half a century or so, ought to be reversed.

6. In his point J, respondent's counsel pleads that the imposition of indefinite suspension from the
practice of law constitutes "cruel, degrading or inhuman punishment". The Court finds it difficult to
consider this a substantial constitutional argument. The indefiniteness of the respondent's suspension,
far from being "cruel" or "degrading" or "inhuman," has the effect of placing, as it were, the key to the
restoration of his rights and privileges as a lawyer in his own hands. That sanction has the effect of
giving respondent the chance to purge himself in his own good time of his contempt and misconduct
by acknowledging such misconduct, exhibiting appropriate repentance and demonstrating his
willingness and capacity to live up to the exacting standards of conduct rightly demanded from every
member of the bar and officer of the courts.

ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration for lack of merit. The denial is FINAL.

The Court also NOTED the Ex-Parte Manifestation and Motion, dated October 25, 1988 and the Supplemental
Manifestation, dated October 27, 1988, filed by respondent

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

EN BANC
 [G.R. No. 133486. January 28, 2000]

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON

ELECTIONS, respondent.

DECISION

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally
in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls -
- properly conducted and publicized -- can be vital tools in eliminating the evils of election-fixing
and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize
or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner
the fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on
Elections (Comelec) en banc Resolution No. 98-1419 dated April 21, 1998. In the said Resolution,
[1]

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." The electoral body believed that such project might conflict with the official Comelec
[2]

count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel).
It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit
survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually
conducted and reported by media without any difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse
of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a
restraining order enjoining the petitioner or any [other group], its agents or representatives from
conducting exit polls during the x x x May 11 elections." [3]

In his Memorandum, the solicitor general, in seeking to dismiss the Petition, brings up additional
[4]

issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of
the assailed Comelec Resolution.

The Court's Ruling

The Petition is meritorious.

[5]

Procedural Issues: Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998
election has already been held and done with. Allegedly, there is no longer any actual controversy
before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998
election, its implications on the people's fundamental freedom of expression transcend the past
election. The holding of periodic elections is a basic feature of our democratic government. By its
very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will
only postpone a task that could well crop up again in future elections. [6]

In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty to
formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the
symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees." Since the fundamental freedoms of speech and of the press are being invoked here, we
[7]

have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit
polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure to
exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over to
prevent a miscarriage of justice, when the issue involves the principle of social justice or the
[8]

protection of labor, when the decision or resolution sought to be set aside is a nullity, or when the
[9] [10]

need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available. [11]

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only
twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on
May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not
only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to
this Court through a special civil action for certiorari is therefore justified.
 Main Issue: Validity of Conducting Exit Polls

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.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the
mass media, committed to report balanced election-related data, including "the exclusive results of
Social Weather Station (SWS) surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting of their results are valid exercises
of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly
restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and
grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it
gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional
and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and
"to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the
conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were
designed "to condition the minds of people and cause confusion as to who are the winners and the
[losers] in the election," which in turn may result in "violence and anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle to
preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in
violation of Section 2, Article V of the Constitution; and relevant provisions of the Omnibus
[12]

Election Code. It submits that the constitutionally protected freedoms invoked by petitioner "are not
[13]

immune to regulation by the State in the legitimate exercise of its police power," such as in the
present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and
present danger of destroying the credibility and integrity of the electoral process," considering that
they are not supervised by any government agency and can in general be manipulated easily. He
insists that these polls would sow confusion among the voters and would undermine the official
tabulation of votes conducted by the Commission, as well as the quick count undertaken by the
Namfrel.

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.
Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a

'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. x
x x [T]his must be so because the lessons of history, both political and legal, illustrate that freedom
of thought and speech is the indispensable condition of nearly every other form of freedom." [14]

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of
the press. In the landmark case Gonzales v. Comelec, this Court enunciated that at the very least,
[15] [16]

free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of
public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of
securing participation by the people in social and political decision-making, and of maintaining the
balance between stability and change. It represents a profound commitment to the principle that
[17]

debates on public issues should be uninhibited, robust, and wide open. It means more than the right
[18]

to approve existing political beliefs or economic arrangements, to lend support to official measures,
or to take refuge in the existing climate of opinion on any matter of public consequence. And
paraphrasing the eminent justice Oliver Wendell Holmes, we stress that the freedom encompasses
[19]

the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of
speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and
under all circumstances. They are not immune to regulation by the State in the exercise of its police
[20]

power. While the liberty to think is absolute, the power to express such thought in words and deeds
[21]

has limitations.

In Cabansag v. Fernandez this Court had occasion to discuss two theoretical tests in determining
[22]

the validity of restrictions to such freedoms, as follows:

"These are the 'clear and 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. x x x" [23]

"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as follows:
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." [24]
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its
earlier decisions in Primicias v. Fugoso and American Bible Society v. City of Manila; as well as
[25] [26]

in later ones, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo Umpar Adiong v.
[27] [28] [29]

Comelec and, more recently, in Iglesia ni Cristo v. MTRCB. In setting the standard or test for the
[30] [31]

"clear and present danger" doctrine, the Court echoed the words of justice Holmes: "The question in
every case is whether the words used 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 Congress has a
right to prevent. It is a question of proximity and degree." [32]

A limitation on the freedom of expression may be justified only by a danger of

such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency"
doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the
danger must not only be probable but very likely to be inevitable. The evil sought to be avoided
[33]

must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument. [34]

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is
treated an exemption. The power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity. And it is respondent's burden to overthrow such presumption.
[35]

Any act that restrains speech should be greeted with furrowed brows, so it has been said. [36]

To justify a restriction, the promotion of a substantial government interest must be clearly

shown. Thus:
[37]

"A government regulation is sufficiently justified if it is within the constitutional power

of the government, if it furthers an important or substantial government interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest."
[38]

Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued
by means that broadly, stifle fundamental personal liberties, when the end can be more narrowly
achieved. [39]

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
[40]

constitutional right as free speech." When faced with borderline situations in which the freedom of
[41]

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. [42]
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 research
data 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. [43]

Comelec Ban on Exit Polling

In the case at bar, the 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 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
[44]

around the voting centers. There is no showing, however, that exit polls or the means to interview
[45]

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.

In Daily Herald Co. v. Munro, the US Supreme Court held that a statute, one of the purposes of
[46]

which was to prevent the broadcasting of early returns, was unconstitutional because such purpose
was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the
least restrictive alternative. Furthermore, the general interest of the State in insulating voters from
outside influences is insufficient to justify speech regulation. Just as curtailing election-day
broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices
is impermissible, so is regulating speech via an exit poll restriction.[47]

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.

For instance, a specific limited area for conducting exit polls may be designated. Only professional
survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance
from the voting center. They may be required to explain to voters that the latter may refuse to be
interviewed, and that the interview is not part of the official balloting process. The pollsters may
further be required to wear distinctive clothing that would show they are not election
officials. Additionally, they may be required to undertake an information campaign on the nature of
[48]

the exercise and the results to be obtained therefrom. These measures, together with a general
prohibition of disruptive behavior, could ensure a clean, safe and orderly election.

For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are
randomly selected in each province; (2) residences to be polled in such communities are also chosen
at random; (3) only individuals who have already voted, as shown by the indelible ink on their
fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are
released to the public only on the day after the elections. These precautions, together with the
[49]

possible measures earlier stated, may be undertaken to abate the Comelec's fear, without
consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the
electorate. Quite the contrary, instead of disrupting elections, exit polls -- properly conducted and
publicized -- can be vital tools for the holding of honest, orderly, peaceful and credible elections; and
for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy
of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the
voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification.
Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from
making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also
proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of
disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of
voters with their respective votes, for the purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This result cannot, however, be achieved merely
through the voters' verbal and confidential disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation
of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to
reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec,
so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing
the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the
Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the
Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. L-16027 May 30, 1962

LUMEN POLICARPIO, plaintiff-appellant,

vs.
THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN,
MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant-appellees.

Mario Bengzon for plaintiff-appellant.

Alfredo Gonzales and Rafael M. Delfin for defendants-appellees.

CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Manila dismissing plaintiff's complaint and defendants'
counterclaim, without special pronouncement as to costs. Originally certified to the Court of Appeals, the record on
appeal was subsequently forwarded to us in view of the amount involved in the complaint (P300,000.00).

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. The defendants are The Manila Times Publishing Co., Inc., as publisher of The Saturday Mirror and The
Daily Mirror, which are newspapers of general circulation in the Philippines, and Constante C. Roldan, Manuel V.
Villa-Real, E. Aguilar Cruz and Consorcio Borje, as the reporter or author of the first article and the managing editor,
the associate editor and the news editor, respectively, of said newspapers.

After its motion to dismiss the complaint had been denied by the Court of First Instance of Manila, in which the present
action was initiated, the defendants filed a joint answer admitting the formal allegations of the complaint, denying the
other allegations thereof, alleging special defenses and setting up a counterclaim for P10,000, as attorney's fees and
expenses of litigation. In due course, later on, said court rendered the aforementioned decision, upon the ground that
plaintiff had not proven that defendants had acted maliciously in publishing the aforementioned articles, although
portions thereof were inaccurate or false.

Plaintiff is a member of the Philippine bar. On August 11 and 13, 1956, and for sometime prior thereto, she was
executive secretary of the local UNESCO National Commission. As such officer, she had preferred charges against
Herminia D. Reyes, one of her subordinates in said Commission, and caused her to be separated from the service.
Miss Reyes, in turn, preferred counter-charges which were referred to Col. Crisanto V. Alba, a Special Investigator in
the Office of the President. Pending completion of the administrative investigation, which began in June, 1956, Miss
Reyes filed with the Office of the City Fiscal of Manila, on August 8, 1956, a complaint against the plaintiff for alleged
malversation of public funds and another complaint for alleged estafa thru falsification of public documents, which
were scheduled for investigation by said office on August 22, 1956, at 2:00 p.m. Meanwhile, or on August 11, 1956,
the following appeared, with a picture of the plaintiff, in the front page of The Saturday Mirror:

WOMAN OFFICIAL SUED

PCAC RAPS L. POLICARPIO ON FRAUDS
Unesco Official Head Accused on
Supplies, Funds Use by Colleague

By Constante C. Roldan

Lumen Policarpio, executive secretary of the Unesco national commission here, was charged with malversation and
estafa in complaints filed with the city fiscal's office by the Presidential Complaints and Action Commission today.
The criminal action was initiated as a result of current administrative investigation against the Unesco official being
conducted by Col. Crisanto V. Alba, Malacañan technical assistant, on charges filed by Herminia D. Reyes, a Unesco
confidential assistant. The Unesco commission functions under the Office of the President.

Fiscal Manases G. Reyes, to whom the cases were assigned, immediately scheduled preliminary investigation of the
charges on August 22 at 2 p.m. Colonel Alba, in turn, indicated that the administrative phase of the inquiry will
continue Monday and then resume on August 21 at Malacañan Park. The Palace Investigator said there are other
charges, but would not specify these.

Alba said Miss Reyes had testified on circumstances supposedly substantiating the malversation charge. Testimony
had allegedly indicated that the accused had used Unesco stencils for private and personal purposes. Specification
reputedly said that Miss Policarpio had taken stencils from the Unesco storeroom and used these for French lessons
not at all connected with Unesco work; for the preparation of contracts of sale of pianos in her business establishment;
for preparation of invitations sent to members of the League of Women Voters of which she is one of the officers.

Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio Salabat, Taal, Batangas, Federico
Vergara and Pablo Armesto both of the Unesco. 1äwphï1.ñët

Regarding the charge of estafa through falsification of public documents allegedly also committed sometime in 1955,
Miss Policarpio was accused of having collected expenses for supposed trips. The accusation said the Unesco official
had sought reimbursement of expenses for a trip to Baler, Quezon, on Aug. 19, last year, representing expenses of
her car when in fact she supposedly rode in an army plane.

Testimony indicated that a newspaper woman who was a supposed co-passenger had even written about the plane
trip in her newspaper column. The same voucher also allegedly collected expenses for going to a Unesco Bayambang
(Pangasinan) project, although records reputedly showed that she was absent in that conferences.

Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force pilot, Lt. Clemente Antonio and
others, also of the PAF.

Miss Policarpio becomes the second high-ranking woman government official to face charges involving financial
disbursements in their office. The first was Sen. Pacita M. Gonzales who is still under charge mis-spending funds of
the Social Welfare Administration and the UNAC while she had charge of these.

The complainant, Miss Reyes, was earlier ordered relieved from her Unesco post by Miss Policarpio on charges
including conduct "unbecoming a lady", and as a result had not been paid her salary. She appealed to Malacañan
which dismissed her suit and later she sued before Judge Rafael Amparo to compel payment of her salary. The court
also rejected her plea on the ground that she had not exhausted all administrative remedies, the Palace not having
made a clearcut decision on her case.

The Daily Mirror of August 13, 1956, likewise, carried on its first page — with a picture of plaintiff and of Miss Reyes,
taken during the administrative investigation being conducted by Col. Alba — another news item, reading:

"PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO

Alba Probes Administrative Phase of
Fraud Charges Against Unesco Woman
Official; Fiscal Sets Prelim Quiz
Of Criminal Suit on Aug. 22.

The administrative phase of two-pronged investigation Miss Lumen Policarpio, head of the Unesco national
commission here, opened in Malacañan before Col. Crisanto V. Alba.

The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant in the Malacañan case before the
Presidential Complaints and Action Commission, will be conducted by Fiscal Manases G. Reyes on Aug. 22 at 2 p.m.
Miss Policarpio stands accused by Reyes of having malversed public property and of having fraudulently sought
reimbursement of supposed official expenses.

Colonel Alba, at the start of his investigation at the Malacañan Park, clarified that neither he nor the PCAC had
initiated the criminal action before the city fiscal's office. The complaint before the fiscal was started by an information
she naming Herminia D. Reyes as complainant and citing other persons as witnesses. Fiscal Reyes set preliminary
investigation of these charges for Aug. 22.

Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that during 1955 Miss Policarpio allegedly
used several sheets of government stencils for her private and personal use, such as for French lessons, contracts of
sale of pianos and for invitations of the League of Women Voters of which she (Miss Policarpio) is an officer. The
Unesco commission here functions under the Office of the President.

The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba for investigation.

Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, lawyer representing complainant Miss
Reyes, petitioned for the suspension of Miss Policarpio, executive secretary of the Unesco.

Alba did not act immediately on the petition. He said he was holding a hearing on the petition on August 15.

During this morning's investigation three witness appeared. The first witness was Atty. Antonio Lopez of the PCAC
who brought with him 18 sheets of stencil which were allegedly used by Miss Policarpio for her personal use. These
sheets were admitted as temporary exhibits.

The second witness was Federico Vergara of the Unesco who said that he received four of the 18 sheets, but he
could not identify which of the sheets he had received.

The third witness was Francisco Manalo who certified on the charge of oppression in office against Miss Policarpio.

The other charge of Miss Reyes corresponded to supposed reimbursements sought by Miss Policarpio for a trip to
Quezon Province and to Pangasinan. On the first, Miss Reyes' complaint alleged the Unesco official had asked for
refund of expenses for use of her car when, Miss Reyes claimed she had actually made the trip aboard an army
plane.

Miss Reyes also said Miss Policarpio was absent from the Bayambang conference for which she also sought
allegedly refund of expenses.

The complainant had previously been ordered relieved of her Unesco post by Miss Policarpio and had later sued at
the Palace and before the Court for payment of her salary.

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.

Upon the other hand, defendants contend that, although the complaints in the city fiscal's office were filed, not by the
PCAC, but by Miss Reyes, this inaccuracy is insignificant and immaterial to the case, for the fact is that said
complaints were filed with said office. As regards the number of sheets of stencil allegedly misused and the amount
said to have been misappropriated by plaintiff, as well as the nature of the falsification imputed to her, defendants
argue that these "details" do not affect the truthfulness of the article as a whole, and that, in any event, the
insignificant value of said sheets of stencil and the small amount allegedly misappropriated, would have had, if set
forth in said article, a greater derogatory effect upon the plaintiff, aside from the circumstance that defendants had no
means of knowing such "details". It appears, however, that prior to August 11, 1956, Col. Alba had already taken the
testimony of Antonio P. Lopez, Francisco Manalo and Federico Vergara, as witnesses for Miss Reyes. Hence,
defendants could have ascertained the "details" aforementioned, had they wanted to. Indeed, some of the defendants
and/or their representatives had made appropriate inquiries from Col. Alba before said date, and some "details" —
though not those adverted to above — appear in the article then published, whereas the number of sheets of stencil
allegedly misused was mentioned in the news item of August 13, 1956.

Moreover, the penalty prescribed by law for the crime either of estafa or of embezzlement depends partly upon the
amount of the damage caused to the offended party (Articles 315 to 318, Revised Penal Code). Hence, the amount or
value of the property embezzled is material to said offense.

Again, it is obvious that the filing of criminal complaints with the city fiscal's office by another agency of the
Government, like the PCAC, particularly after an investigation conducted by the same, imparts the ideal that the
probability of guilty on the part of the accused is greater than when the complaints are filed by a private individual,
specially when the latter is a former subordinate of the alleged offender, who was responsible for the dismissal of the
complainant from her employment. It is only too apparent that the article published on August 11, 1956, presented the
plaintiff in a more unfavorable light than she actually was.

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 (Jimenez vs. Reyes, 27 Phil. 52). For this reason, we feel that the interest of justice and of all parties concerned
would be served if the defendants indemnify the plaintiff in the sums of P3,000, by way of moral damages, and
P2,000, as attorney's fees.

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the
defendants herein to pay jointly and severally to the plaintiff the aforementioned sums of P3,000, as moral damages,
and P2,000, by way of attorney's fees, in addition to the costs. It is so ordered.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. L-2990 December 17, 1951

OSCAR ESPUELAS Y MENDOZA, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.

Carlos P. Garcia, Cosme P. Garcia and B.E. Enerio for petitioner.

Office of the Solicitor Jesus A. Avanceña for respondent.

BENGZON, J.:

Article 142 of the Revised Penal Code punishes those who shall write, publish or circulate scurrilous libels against the
Government of the Philippines or any of the duly constituted authorities thereof or which suggest or incite rebellious
conspiracies or riots or which tend to stir up the people againts the lawful authorities or to disturb the peace of the
community.

The appellant Oscar Espuelas y Mendoza was, after trial, convicted in the Court of First Instance of Bohol of a
violation of the above article. The conviction was affirmed by the Court of Appeals, because according to said court.

"About the time compromised between June 9 and June 24, 1947, both dates inclusive, in the town of Tagbilaran,
Bohol, Oscar Espuelas y Mendoza had his picture taken, making it to appear as if he were hanging lifeless at the end
of a piece of rope suspended form the limb of the tree, when in truth and in fact, he was merely standing on a barrel
(Exhibit A, C-I). After securing copies of his photograph, Espuelas sent copies of same to several newspapers and
weeklies of general circulation (Exhibit C, F, G, H, I), not only in the Province of Bohol but also throughout the
Philippines and abroad, for their publication with a suicide note or letter, wherein he made to appear that it was written
by a fictitious suicide, Alberto Reveniera and addressed to the latter's supposed wife translation of which letter or note
in hereunder reproduced:

Dearest wife and children, bury me five meters deep. Over my grave don't plant a cross or put floral wreaths,
for I don't need them.

Please don't bury me in the lonely place. Bury me in the Catholic cemetery. Although I have committed
suicide, I still have the right to burried among Christians.

But don't pray for me. Don't remember me, and don't feel sorry. Wipe me out of your lives.

My dear wife, if someone asks to you why I committed suicide, tell them I did it because I was not pleased with
the administration of Roxas. Tell the whole world about this.

And if they ask why I did not like the administration of Roxas, point out to them the situation in Central Luzon,
the Leyte.

Dear wife, write to President Truman and Churchill. Tell them that here in the Philippines our government is
infested with many Hitlers and Mussolinis. lawphil.net

Teach our children to burn pictures of Roxas if and when they come across one.

I committed suicide because I am ashamed of our government under Roxas. I cannot hold high my brows to
the world with this dirty government.
 I committed suicide because I have no power to put under Juez de Cuchillo all the Roxas people now in
power. So, I sacrificed my own self.

The accused admitted the fact that he wrote the note or letter above quoted and caused its publication in the Free
Press, the Evening News, the Bisayas, Lamdang and other local periodicals and that he had impersonated one
Alberto Reveniera by signing said pseudonymous name in said note or letter and posed himself as Alberto Reveniera
in a picture taken wherein he was shown hanging by the end of a rope tied to a limb of a tree."

The latter is a scurrilous libel against the Government. 1 It calls our government one of crooks and dishonest persons
(dirty) infested with Nazis and a Fascistis i.e. dictators.

And the communication reveals a tendency to produce dissatisfaction or a feeling incompatible with the disposition to
remain loyal to the government. 2

Writings which tend to overthrow or undermine the security of the government or to weaken the confidence of the
people in the government are against the public peace, and are criminal not only because they tend to incite to a
breach of the peace but because they are conducive to the destruction of the very government itself (See 19 Am. Law
Rep. 1511). Regarded as seditious libels they were the subject of criminal proceedings since early times in England.
(V op. cit.).

As explained by Paterson, 3 ". . . the great factors of government, consisting of the Sovereign, the Parliament, the
ministers of state, the courts of justice, must be recognized as holding functions founded on sound principles and to
be defended and treated with an established and well-nigh unalterable respect. Each of these great institutions has
peculiar virtues and peculiar weaknesses, but whether at any one time the virtue or the weakness predominates, there
must be a certain standard of decorum reserved for all. Each guarded remonstrance, each fiery invective, each burst
of indignation must rest on some basis of respect and deference towards the depository, for the time being, of every
great constitutional function. Hence another limit of free speech and writing is sedition. And yet within there is ample
room and verge enough for the freest use of the tongue and pen in passing strictures in the judgment and conduct of
every constituted authority."

Naturally, when the people's share in the government was restricted, there was a disposition to punish even mild
criticism of the ruler or the departments of government. But as governments grew to be more representative, the laws
of sedition became less drastic and freedom of expression strife continue to be prohibited.

The United States punished seditious utterances in the act of July 14, 1798 containing provisions parallel to our own
article 142. Analogous prohibitions are found in the Espionage Act of June 1917 and the seditious libel amendment
thereto in May, 1918.

Of course such legislation despite its general merit is liable to become a weapon of intolerance constraining the free
expression of opinion, or mere agitation for reform. But so long as there is a sufficient safeguard by requiring intent on
the part of the defendant to produce illegal action-such legislation aimed at anarchy and radicalism presents largely
a question of policy. Our Legislature has spoken in article 142 and the law must be applied.

In disposing of this appeal, careful thought had to be given to the fundamental right to freedom of speech. Yet the
freedom of speech secured by the Constitution "does not confer an absolute right to speak or publish without
responsibility whatever one may choose." It is not "unbridled license that gives immunity for every possible use of
language and prevents the punishment of those who abuse this freedom. 4" So statutes against sedition have
guaranty, although they should not be interpreted so as to agitate for institutional changes. 5

Not to be restrained is the privilege of any citizen to criticize his government officials and to submit his criticism to the
"free trade of ideas" and to plead for its acceptance in "the competition of the market." However, let such criticism be
specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up. Such wholesale attack is nothing less than an invitation to disloyalty to the government. In the
article now under examination one will find no particular objectionable actuation of the government. It is called dirty, it
is called a dictatorship, it is called shameful, but no particular omissions or commissions are set forth. Instead the
article drip with male-violence and hate towards the constituted authorities. It tries to arouse animosity towards all
public servants headed by President Roxas whose pictures this appellant would burn and would teach the younger
generation to destroy.

Analyzed for meaning and weighed in its consequences the article cannot fail to impress thinking persons that it seeks
to sow the seeds of sedition and strife. The infuriating language is not a sincere effort to persuade, what with the
writer's simulated suicide and false claim to martyrdom and what with is failure to particularize. When the use irritating
language centers not on persuading the readers but on creating disturbances, the rationable of free speech cannot
apply and the speaker or writer is removed from the protection of the constitutional guaranty.

If it be argued that the article does not discredit the entire governmental structure but only President Roxas and his
men, the reply is that article 142 punishes not only all libels against the Government but also "libels against any of the
duly constituted authorities thereof." The "Roxas people" in the Government obviously refer of least to the President,
his Cabinet and the majority of legislators to whom the adjectives dirty, Hitlers and Mussolinis were naturally directed.
On this score alone the conviction could be upheld. 6

As heretofore stated publication suggest or incites rebellious conspiracies or riots and tends to stir up people against
the constituted authorities, or to provoke violence from opposition who may seek to silence the writer. 7 Which is the
sum and substance of the offense under consideration.

The essence of seditious libel may be said to its immediate tendency to stir up general discontent to the pitch of illegal
courses; that is to say to induce people to resort to illegal methods other than those provided by the Constitution, in
order to repress the evils which press upon their minds. 8

"The idea of violence prevades the whole letter" says Justice Paredes of the Court of Appeals. "The mere fact that a
person was so disgusted with his "dirty government" to the point of taking his own life, is not merely a sign of
disillusionment; it is a clear act to arouse its readers a sense of dissatisfaction against its duly constituted authorities.
The mention made in said letter of the situation in Central Luzon, the Hukbalahaps, Julio Guillen and the banditry in
Leyte, which are instances of flagrant and armed attacks against the law and the duly constituted authorities cannot
but be interpreted by the reading public as an indirect justification of the open defiance by the Hukbalahaps against
the constituted government, the attempt against the life of President Roxas and the ruthless depredations committed
by the bandits of Leyte, thus insinuating that a state on lawlessness, rebellion and anarchy would be very much better
than the maladministration of said President and his men.

To top it all, the appellant proclaimed to his readers that he committed suicide because he had "no power to put under
juez de cuchillo all the Roxas people now in power." Knowing, that the expression Juez de Cuchillo means to the
ordinary layman as the Law of the Knife, a "summary and arbitrary execution by the knife", the idea intended by the
appellant to be conveyed was no other than bloody, violent and unpeaceful methods to free the government from the
administration of Roxas and his men.

The meaning, intent and effect of the article involves maybe a question of fact, making the findings of the court of
appeals conclusive upon us. 9

Anyway, it is clear that the letter suggested the decapitation or assassination of all Roxas officials (at least members
of the Cabinet and a majority of Legislators including the Chief Executive himself). And such suggestion clinches the
case against appellant.

In 1922 Isaac Perez of Sorsogon while discussing political matter with several persons in a public place uttered theses
words: "Filipinos must use bolos for cutting off Wood's head" — referring to the them Governor-General, Leonard
Wood. Perez was found guilty of inciting to sedition in a judgment of this court published in Volume 45 of the
Philippine Reports. That precedent is undeniably opposite. Note that the opinion was penned by Mr. Justice Malcolm
probably of speech. Adopting his own words we could say, "Here the person maligned by the accused is the Chief
Executive of the Philippine Islands. His official position, like the President of the United States and other high office,
under form of government, instead of affording immunity from promiscuous comment, seems rather to invite abusive
attacks. But in this instance, the attack on the President passes the furthest bounds of free speech and common
decency. More than a figure of speech was intended. There is a seditious tendency in the words used, which could
easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to
the Government and obedient to the laws."
The accused must therefore be found guilty as charged. And there being no question as to the legality of the penalty
imposed on him, the decision will be affirmed with costs.

Pablo, Padilla, Montemayor and Reyes, JJ., concur.

Jugo, J., concurs in the result.

SECOND DIVISION
 [G.R. No. 126466. January 14, 1999]

ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs. COURT
OF APPEALS and FRANCISCO WENCESLAO, respondents.

DECISION

"The question is not so much as who was aimed at as who was hit." (Pound, J., in Corrigan v. Bobbs-Merill
Co., 228 N.Y. 58 [1920]).

BELLOSILLO, J.:

PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly contested
freedoms of man, the issue of the right of free expression bestirs and presents itself time and again, in cyclic
occurrence, to inveigle, nay, challenge the courts to re-survey its ever shifting terrain, explore and furrow its
heretofore uncharted moors and valleys and finally redefine the metes and bounds of its controversial domain. This,
prominently, is one such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal metamorphoses
than his right to freely and openly express his views. Blackstone's pontifical comment that "where blasphemous,
immoral, treasonable, schismatical, seditious, or scandalous libels are punished by English law . . . the liberty of
the press, properly understood, is by no means infringed or violated," found kindred expression in the landmark
opinion of England's Star Chamber in the Libelis Famosis case in 1603.[1] That case established two major
propositions in the prosecution of defamatory remarks: first, that libel against a public person is a greater offense
than one directed against an ordinary man, and second, that it is immaterial that the libel be true.
Until republicanism caught fire in early America, the view from the top on libel was no less dismal. Even the
venerable Justice Holmes appeared to waffle as he swayed from the concept of criminal libel liability under the
clear and present danger rule, to the other end of the spectrum in defense of the constitutionally protected status of
unpopular opinion in free society.
Viewed in modern times and the current revolution in information and communication technology, libel
principles formulated at one time or another have waxed and waned through the years in the constant ebb and flow
of judicial review. At the very least, these principles have lost much of their flavor, drowned and swamped as they
have been by the ceaseless cacophony and din of thought and discourse emanating from just about every source
and direction, aided no less by an increasingly powerful and irrepressible mass media. Public discourse, laments
Knight, has been devalued by its utter commonality; and we agree, for its logical effect is to benumb thought and
sensibility on what may be considered as criminal illegitimate encroachments on the right of persons to enjoy a
good, honorable and reputable name. This may explain the imperceptible demise of criminal prosecutions for libel
and the trend to rely instead on indemnity suits to repair any damage on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco Wenceslao v. Arturo
Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that petitioners Arturo Borjal and
Maximo Soliven are solidarily liable for damages for writing and publishing certain articles claimed to be
derogatory and offensive to private respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc. (PTI),
now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the complaint was filed,
petitioner Borjal was its President while Soliven was (and still is) Publisher and Chairman of its Editorial
Board. Among the regular writers of The Philippine Star is Borjal who runs the column Jaywalker.
 Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman, business
consultant and journalist by profession. In 1988 he served as a technical adviser of Congressman Fabian Sison, then
Chairman of the House of Representatives Sub-Committee on Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988 undertaken by the
House Sub-Committee on Industrial Policy, those who attended agreed to organize the First National Conference
on Land Transportation (FNCLT) to be participated in by the private sector in the transport industry and government
agencies concerned in order to find ways and means to solve the transportation crisis. More importantly, the
objective of the FNCLT was to draft an omnibus bill that would embody a long-term land transportation policy for
presentation to Congress. The conference which, according to private respondent, was estimated to cost
around P1,815,000.00 would be funded through solicitations from various sponsors such as government agencies,
private organizations, transport firms, and individual delegates or participants.[2]
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco Wenceslao
was elected Executive Director. As such, he wrote numerous solicitation letters to the business community for the
support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published on different dates in
his column Jaywalker. The articles dealt with the alleged anomalous activities of an "organizer of a conference"
without naming or identifying private respondent. Neither did it refer to the FNCLT as the conference therein
mentioned. Quoted hereunder are excerpts from the articles of petitioner together with the dates they were
published[3] -

31 May 1989

Another self-proclaimed hero of the EDSA Revolution goes around organizing seminars and
conferences for a huge fee. This is a simple ploy coated in jazzy letterheads and slick prose. The hero
has the gall to solicit fees from anybody with bucks to spare.Recently, in his usual straightforward
style, Transportation Secretary Rainerio Ray Reyes, asked that his name be stricken off from the
letterheads the hero has been using to implement one of his pet seminars. Reyes said: I would like to
reiterate my request that you delete my name. Note that Ray Reyes is an honest man who would
confront anybody eyeball to eyeball without blinking.

9 June 1989

Another questionable portion of the so-called conference is its unauthorized use of the names of
President Aquino and Secretary Ray Reyes. The conference program being circulated claims that
President Aquino and Reyes will be main speakers in the conference. Yet, the word is that Cory and
Reyes have not accepted the invitation to appear in this confab. Ray Reyes even says that the
conference should be unmasked as a moneymaking gimmick.

19 June 1989

x x x some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick and Harry
and to almost all government agencies. And the letterheads carried the names of Reyes and
Periquet. Agrarian Reform Secretary on leave Philip Juico received one, but he decided to find out
from Reyes himself what the project was all about. Ray Reyes, in effect, advised Juico to put the fund
solicitation letter in the waste basket. Now, if the 3,000 persons and agencies approached by the
organizer shelled out 1,000 each, thats easily P3 million to a project that seems so
unsophisticated. But note that one garment company gave P100,000, after which the Garments
Regulatory Board headed by Trade and Industry Undersecretary Gloria Macapagal-Arroyo was
approached by the organizer to expedite the garment license application of the P100,000 donor.

21 June 1989

A 'conference organizer' associated with shady deals seems to have a lot of trash tucked inside his
closet. The Jaywalker continues to receive information about the mans dubious deals. His notoriety,
according to reliable sources, has reached the Premier Guest House where his name is spoken like
dung.

xxx

The first information says that the 'organizer' tried to mulct half a million pesos from a garment
producer and exporter who was being investigated for violation of the rules of the Garments, Textile,
Embroidery and Apparel Board. The 'organizer' told the garment exporter that the case could be
fixed for a sum of P500,000.00. The organizer got the shock of his life when the exporter told him: 'If
I have that amount, I will hire the best lawyers, not you.' The organizer left in a huff, his thick face
very pale.

xxx

Friends in government and the private sector have promised the Jaywalker more 'dope' on the
'organizer.' It seems that he was not only indiscreet; he even failed to cover his tracks. You will be
hearing more of the 'organizers' exploits from this corner soon.

22 June 1989

The scheming 'organizer' we have been writing about seems to have been spreading his wings too
far. A congressional source has informed the Jaywalker that the schemer once worked for a
congressman from the North as some sort of a consultant on economic affairs. The first thing the
organizer did was to initiate hearings and round-the-table discussions with people from the business,
export and -- his favorite -- the garments sector.

xxx

The 'organizers' principal gamely went along, thinking that his 'consultant' had nothing but the good
of these sectors in mind. It was only later that he realized that the 'consultant' was acting with a burst
of energy 'in aid of extortion.' The 'consultant' was fired.

xxx

There seems to be no end to what a man could do to pursue his dubious ways. He has tried to operate
under a guise of a well-meaning reformist. He has intellectual pretensions - and sometimes he
succeeds in getting his thoughts in the inside pages of some newspapers, with the aid of some naive
newspaper people. He has been turning out a lot of funny-looking advice on investments, export
growth, and the like.
 xxx

A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and influence-
peddlers from entering the premises of his department. But the Cabinet man might not get his
wish. There is one 'organizer' who, even if physically banned, can still concoct ways of doing his
thing. Without a tinge of remorse, the 'organizer' could fill up his letterheads with names of Cabinet
members, congressmen, and reputable people from the private sector to shore up his shady
reputation and cover up his notoriety.

3 July 1989

A supposed conference on transportation was a big failure. The attendance was very poor and the
few who participated in the affair were mostly leaders of jeepney drivers groups. None of the
government officials involved in regulating public transportation was there. The big names in the
industry also did not participate. With such a poor attendance, one wonders why the conference
organizers went ahead with the affair and tried so hard to convince 3,000 companies and individuals
to contribute to the affair.

xxx

The conference was doomed from the start. It was bound to fail. The personalities who count in the
field of transportation refused to attend the affair or withdrew their support after finding out the
background of the organizer of the conference. How could a conference on transportation succeed
without the participation of the big names in the industry and government policy-makers?

Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he was
the organizer alluded to in petitioner Borjals columns.[4] In a subsequent letter to The Philippine Star, private
respondent refuted the matters contained in petitioner Borjals columns and openly challenged him in this manner -

To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to
relinquish this position in case it is found that I have misappropriated even one peso of FNCLT
money. On the other hand, if I can prove that Borjal has used his column as a hammer to get clients
for his PR Firm, AA Borjal Associates, he should resign from the STAR and never again write a
column. Is it a deal?[5]

Thereafter, private respondent filed a complaint with the National Press Club (NPC) against petitioner Borjal
for unethical conduct. He accused petitioner Borjal of using his column as a form of leverage to obtain contracts
for his public relations firm, AA Borjal Associates.[6] In turn, petitioner Borjal published a rejoinder to the challenge
of private respondent not only to protect his name and honor but also to refute the claim that he was using his
column for character assassination.[7]
Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case for libel
against petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August 1990, the Assistant
Prosecutor handling the case dismissed the complaint for insufficiency of evidence. The dismissal was sustained
by the Department of Justice and later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil action for damages based on libel
subject of the instant case.[8] In their answer, petitioners interposed compulsory counterclaims for actual, moral and
exemplary damages, plus attorneys fees and costs. After due consideration, the trial court decided in favor of private
respondent Wenceslao and ordered petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00
for actual and compensatory damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary
damages, P200,000.00 for attorneys fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the monetary award
to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00 attorney's fees plus costs. In a 20-
page Decision promulgated 25 March 1996, the appellate court ruled inter alia that private respondent was
sufficiently identifiable, although not named, in the questioned articles; that private respondent was in fact defamed
by petitioner Borjal by describing him variously as a "self-proclaimed hero," "a conference organizer associated
with shady deals who has a lot of trash tucked inside his closet," "thick face," and "a person with dubious ways;"
that petitioners claim of privilege communication was unavailing since the privileged character of the articles was
lost by their publication in a newspaper of general circulation; that petitioner could have performed his office as a
newspaperman without necessarily transgressing the rights of Wenceslao by calling the attention of the government
offices concerned to examine the authority by which Wenceslao acted, warning the public against contributing to a
conference that, according to his perception, lacked the univocal indorsement of the responsible government
officials, or simply informing the public of the letters Wenceslao wrote and the favors he requested or demanded;
and, that when he imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual pretentions
to Wenceslao, petitioner Borjal crossed the thin but clear line that separated fair comment from actionable
defamation.
Private respondent manifested his desire to appeal that portion of the appellate courts decision which reduced
the amount of damages awarded him by filing with this Court a Petition for Extension of Time to File Petition and
a Motion for Suspension of Time to File Petition.[9] However, in a Resolution dated 27 May 1996, the Second
Division denied both motions: the first, for being premature, and the second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the present case to the Second
Division, there was no longer any case thereat with which to consolidate this case since G.R. No. 124396 had
already been disposed of by the Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the motion in its
Resolution of 12 September 1996. Hence the instant petition for review. The petitioners contend that the Court of
Appeals erred: (a) in ruling that private respondent Wenceslao was sufficiently identified by petitioner Borjal in the
questioned articles; (b) in refusing to accord serious consideration to the findings of the Department of Justice and
the Office of the President that private respondent Wenceslao was not sufficiently identified in the questioned
articles, this notwithstanding that the degree of proof required in a preliminary investigation is merely prima
facie evidence which is significantly less than the preponderance of evidence required in civil cases; (c) in ruling
that the subject articles do not constitute qualifiedly privileged communication; (d) in refusing to apply the "public
official doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned articles lost their
privileged character because of their publication in a newspaper of general circulation; (f) in ruling that private
respondent has a valid cause of action for libel against petitioners although he failed to prove actual malice on their
part, and that the prosecutors of the City of Manila, the Department of Justice, and eventually, the Office of the
President, had already resolved that there was no sufficient evidence to prove the existence of libel; and, (g)
assuming arguendo that Borjal should be held liable, in adjudging petitioner Soliven solidarily liable with
him. Thus, petitioners pray for the reversal of the appellate courts ruling, the dismissal of the complaint against
them for lack of merit, and the award of damages on their counterclaim.
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.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings sufficiently identified
Wenceslao as the "conference organizer." It cited the First National Conference on Land Transportation, the
letterheads used listing different telephone numbers, the donation of P100,000.00 from Juliano Lim and the
reference to the "organizer of the conference" - the very same appellation employed in all the column items - as
having sufficiently established the identity of private respondent Wenceslao for those who knew about the FNCLT
who were present at its inception, and who had pledged their assistance to it.
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.
No less than private respondent himself admitted that the FNCLT had several organizers and that he was only
a part of the organization, thus -

I would like to clarify for the record that I was only a part of the organization. I was invited then because I was
the head of the technical panel of the House of Representatives Sub-Committee on Industrial Policy that took care
of congressional hearings.[16]

Significantly, private respondent himself entertained doubt that he was the person spoken of in Borjal's
columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the one referred to in the
subject articles.[17] His letter to the editor published in the 4 June 1989 issue of The Philippine Star even showed
private respondent Wenceslao's uncertainty -

Although he used a subterfuge, I was almost certain that Art Borjal referred to the First National
Conference on Land Transportation (June 29-30) and me in the second paragraph of his May 31
column x x x[18]

Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the
object of the verbal attack. It is well to note that the revelation of the identity of the person alluded to came not from
petitioner Borjal but from private respondent himself when he supplied the information through his 4 June 1989
letter to the editor. Had private respondent not revealed that he was the "organizer" of the FNCLT referred to in the
Borjal articles, the public would have remained in blissful ignorance of his identity. It is therefore clear that on the
element of identifiability alone the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private respondent has been
sufficiently identified as the subject of Borjal's disputed comments, we now proceed to resolve the other issues and
pass upon the pertinent findings of the courts a quo.
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 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. An example
is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of Congress from liability for any
speech or debate in the Congress or in any Committee thereof. 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. The rule on
privileged communications had its genesis not in the nation's penal code but in the Bill of Rights of the Constitution
guaranteeing freedom of speech and of the press.[19] As early as 1918, in United States v. Caete,[20] this Court ruled
that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of
freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it
express recognition in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde v.
Gutierrez[21] and reiterated in Santos v. Court of Appeals[22] -
To be more specific, no culpability could be imputed to petitioners for the alleged offending publication without
doing violence to the concept of privileged communications implicit in the freedom of the press. As was so well
put by Justice Malcolm in Bustos: Public policy, the welfare of society, and the orderly administration of
government have demanded protection of public opinion. The inevitable and incontestable result has been the
development and adoption of the doctrine of privilege.
The doctrine formulated in these two (2) cases resonates the rule that privileged communications must, sui
generis, be protective of public opinion. This closely adheres to the democratic theory of free speech as essential to
collective self-determination and eschews the strictly libertarian view that it is protective solely of self- expression
which, in the words of Yale Sterling Professor Owen Fiss,[23] makes its appeal to the individualistic ethos that so
dominates our popular and political culture. It is therefore clear that the restrictive interpretation vested by the Court
of Appeals on the penal provision exempting from liability only private communications and fair and true report
without comments or remarks defeats, rather than promotes, the objective of the rule on privileged communications,
sadly contriving as it does, to suppress the healthy effloresence of public debate and opinion as shining linchpins
of truly democratic societies.
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.[24]
There is no denying that the questioned articles dealt with matters of public interest. In his testimony, private
respondent spelled out the objectives of the conference thus -

x x x x The principal conference objective is to come up with a draft of an Omnibus Bill that will
embody a long term land transportation policy for presentation to Congress in its next regular session
in July. Since last January, the National Conference on Land Transportation (NCLT), the conference
secretariat, has been enlisting support from all sectors to ensure the success of the project. [25]

Private respondent likewise testified that the FNCLT was raising funds through solicitation from the public -
Q: Now, in this first letter, you have attached a budget and it says here that in this seminar of the First National Conference
on Land Transportation, you will need around One million eight hundred fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or organizations as well
as individual transport firms and from individual delegates/participants.[26]
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.
This in effect is the strong message in New York Times v. Sullivan[27] which the appellate court failed to consider
or, for that matter, to heed. It insisted that private respondent was not, properly speaking, a "public offical" nor
a "public figure," which is why the defamatory imputations against him had nothing to do with his task of organizing
the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the height of the bloody
rioting in the American South over racial segregation. The then City Commissioner L. B. Sullivan of Montgomery,
Alabama, sued New York Times for publishing a paid political advertisement espousing racial equality and
describing police atrocities committed against students inside a college campus. As commissioner having charge
over police actions Sullivan felt that he was sufficiently identified in the ad as the perpetrator of the outrage;
consequently, he sued New York Times on the basis of what he believed were libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan holding
that honest criticisms on the conduct of public officials and public figures are insulated from libel judgments. The
guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for
a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual
malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not.
The raison d'etre for the New York Times doctrine was that to require critics of official conduct to guarantee
the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be
critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true,
because of doubt whether it could be proved or because of fear of the expense of having to prove it.[28]
 In the present case, we deem private respondent a public figure within the purview of the New York
Times ruling. At any rate, we have also defined "public figure" in Ayers Production Pty., Ltd. v. Capulong[29] as -

x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or

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

The FNCLT was an undertaking infused with public interest. It was promoted as a joint project of the
government and the private sector, and organized by top government officials and prominent businessmen. For this
reason, it attracted media mileage and drew public attention not only to the conference itself but to the personalities
behind as well. As its Executive Director and spokesman, private respondent consequently assumed the status of a
public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the
FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the subject
of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he
was involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become less
so merely because a private individual is involved or because in some sense the individual did not voluntarily
choose to become involved. The publics primary interest is in the event; the public focus is on the conduct of the
participant and the content, effect and significance of the conduct, not the participant's prior anonymity or
notoriety.[30]
There is no denying that the questioned articles dealt with matters of public interest. A reading of the
imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore upon the latter's
official conduct and his moral and mental fitness as Executive Director of the FNCLT. The nature and functions of
his position which included solicitation of funds, dissemination of information about the FNCLT in order to
generate interest in the conference, and the management and coordination of the various activities of the conference
demanded from him utmost honesty, integrity and competence. These are matters about which the public has the
right to be informed, taking into account the very public character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed describing the "organizer
of the conference." One is tempted to wonder if it was by some mischievous gambit that he would also dare test the
limits of the "wild blue yonder" of free speech in this jurisdiction. But no matter how intemperate or deprecatory
the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed by
Mr. Justice Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and
wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the
government and public officials.[31]
The Court of Appeals concluded that since malice is always presumed in the publication of defamatory matters
in the absence of proof to the contrary, the question of privilege is immaterial.
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.[33]
 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.[34] Malice is bad faith or bad
motive.[35] It is the essence of the crime of libel.[36]
In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in question
petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was animated by
a desire to inflict unjustifiable harm on his reputation, or that the articles were written and published without good
motives or justifiable ends. On the other hand, we find petitioner Borjal to have acted in good faith. Moved by a
sense of civic duty and prodded by his responsibility as a newspaperman, he proceeded to expose and denounce
what he perceived to be a public deception. Surely, we cannot begrudge him for that. Every citizen has the right to
enjoy a good name and reputation, but we do not consider that petitioner Borjal has violated that right in this case
nor abused his press freedom.
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.[37] "Reckless disregard of what is false or not" means that the defendant entertains serious doubt as to the
truth of the publication,[38] or that he possesses a high degree of awareness of their probable falsity.[39]
The articles subject of the instant case can hardly be said to have been written with knowledge that these are
false or in reckless disregard of what is false or not. This is not to say however that the very serious allegations of
petitioner Borjal assumed by private respondent to be directed against him are true. But we nevertheless find these
at least to have been based on reasonable grounds formed after the columnist conducted several personal interviews
and after considering the varied documentary evidence provided him by his sources. Thus, the following are
supported by documentary evidence: (a) that private respondent requested Gloria Macapagal-Arroyo, then head of
the Garments and Textile Export Board (GTEB), to expedite the processing and release of the import approval and
certificate of availability of a garment firm in exchange for the monetary contribution of Juliano Lim,
which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the procedure of the GTEB in
processing applications and clarifying that all applicants were treated equally;[40] (b) that Antonio Periquet was
designated Chairman of the Executive Committee of the FNCLT notwithstanding that he had previously declined
the offer;[41] and, (c) that despite the fact that then President Aquino and her Secretary of Transportation Rainerio
Reyes declined the invitation to be guest speakers in the conference, their names were still included in the printout
of the FNCLT.[42] Added to these are the admissions of private respondent that: (a) he assisted Juliano Lim in his
application for a quota allocation with the GTEB in exchange for monetary contributions to the FNCLT;[43] (b) he
included the name of then Secretary of Transportation Rainerio Reyes in the promotional materials of the
conference notwithstanding the latter's refusal to lend his name to and participate in the FNCLT;[44] and, (c) he used
different letterheads and telephone numbers.[45]
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. [46] In Bulletin Publishing
Corp. v. Noel[47] we held -

A newspaper especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being hauled to
court by one group or another on criminal or civil charges for libel, so long as the newspaper respects
and keeps within the standards of morality and civility prevailing within the general community.
 To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules
governing liability for injury to reputation are required to allow an adequate margin of error by protecting some
inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a
public official or public figure may not be imposed in the absence of proof of "actual malice" on the part of the
person making the libelous statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice Malcolm
expressed in U.S. v. Bustos,[48] that "the interest of society and the maintenance of good government demand a full
discussion of public affairs.Complete liberty to comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound may be assuaged by the balm of a clear conscience. A public
official must not be too thin-skinned with reference to comments upon his official acts.
The foregoing disposition renders the second and seventh assigned errors moot and academic, hence, we find
no necessity to pass upon them.
We must however take this opportunity to likewise remind media practitioners of the high ethical standards
attached to and demanded by their noble profession. The danger of an unbridled irrational exercise of the right of
free speech and press, that is, in utter contempt of the rights of others and in willful disregard of the cumbrous
responsibilities inherent in it, is the eventual self-destruction of the right and the regression of human society into
a veritable Hobbesian state of nature where life is short, nasty and brutish. Therefore, to recognize that there can be
no absolute "unrestraint" in speech is to truly comprehend the quintessence of freedom in the marketplace of social
thought and action, genuine freedom being that which is limned by the freedom of others. If there is freedom of the
press, ought there not also be freedom from the press? It is in this sense that self-regulation as distinguished
from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout x x x a lively
sense of responsibility, a free press may readily become a powerful instrument of injustice."[49]
Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes
and operates. For we have always strongly maintained, as we do now, that freedom of expression is man's birthright
- constitutionally protected and guaranteed, and that it has become the singular role of the press to act as
its "defensor fidei" in a democratic society such as ours. But it is also worth keeping in mind that the press is the
servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to
prey on the ordinary citizen.[50]
On petitioners counterclaim for damages, we find the evidence too meager to sustain any award. Indeed, private
respondent cannot be said to have instituted the present suit in abuse of the legal processes and with hostility to the
press; or that he acted maliciously, wantonly, oppressively, fraudulently and for the sole purpose of harassing
petitioners, thereby entitling the latter to damages. On the contrary, private respondent acted within his rights to
protect his honor from what he perceived to be malicious imputations against him. Proof and motive that the
institution of the action was prompted by a sinister design to vex and humiliate a person must be clearly and
preponderantly established to entitle the victim to damages. The law could not have meant to impose a penalty on
the right to litigate, nor should counsels fees be awarded every time a party wins a suit.[51]
For, concluding with the wisdom in Warren v. Pulitzer Publishing Co.[52] -

Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral
with his fleet, a general with his army, a judge with his jury, we are, all of us, the subject of public
discussion. The view of our court has been thus stated: It is only in despotisms that one must
speak sub rosa, or in whispers, with bated breath, around the corner, or in the dark on a subject
touching the common welfare. It is the brightest jewel in the crown of the law to speak and maintain
the golden mean between defamation, on one hand, and a healthy and robust right of free public
discussion, on the other.
 WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996 and its
Resolution of 12 September 1996 denying reconsideration are REVERSED and SET ASIDE, and the complaint for
damages against petitioners is DISMISSED. Petitioners counterclaim for damages is likewise DISMISSED for lack
of merit. No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
 SECOND DIVISION

G.R. No. L-39258 November 15, 1982

RAYMUNDO A. ARMOVIT, ROBERTO L. BAUTISTA, OSCAR S. ATENCIO, and POLICARPIO
MAPUA, petitioners,
vs.
THE HONORABLE AMANTE P. PURISIMA, Presiding Judge, Branch VII, Court of First Instance of Manila,
ADEZ REALTY, INC., PILAR I. VDA. DE ZUZUARREGUI, PACITA JAVIER, ANTONIO DE ZUZUARREGUI, JR.,
ENRIQUE DE ZUZUARREGUI, and VICTORINO GASKELL, respondents.

Raymundo Armovit, Roberto L. Bautista and Oscar S. Atencio for petitioners.

Senen S. Ceneza for respondents.

FERNANDO, C.J.:

The invocation of the constitutional right to freedom of expression 1 in a motion to dismiss an action for damages flied by
petitioners as defendants failed to obtain an affirmative response from respondent Judge Amante P. Purisima. Hence this
certiorari, prohibition and mandamus proceeding, assailing on jurisdictional grounds the order denying such motion. The
alleged grievance of private respondents 2 as plaintiffs in a case then pending before respondent Judge 3 arose from the first
two paragraphs of the answer of petitioners 4 as defendants, worded as follows: "[Defendant], through counsel, by way of
answer to the complaint, respectfully, represents: 1. The averments of plaintiff's alleged due organization and existence
(par. 1, Complaint) is denied — it falsifies the fact of its creation and operation as an instrument and front for illegal and
oppressive usurious loan transactions; the averments on defendant's personal circumstances (supra) are admitted, with the
qualification that his dealings with plaintiff were based on good faith and reliance on his part, but taken advantage of by
scheming plaintiff. 2. That averments on the alleged loan secured on 3 December 1971 in the sum of P7,270.00 and
accessory sums thereon, the supposed demands for payment and requests for extensions, the alleged failure of defendant
to pay (pars. 2, 3, 4, 5 and 6, supra) are specifically denied as fraudulent distortions of the facts and apparent disguises to
confuse and conceal the true agreements between the parties," 5 after which came the affirmative defenses. The privileged
character of such words employed in a pleading on a matter impressed with relevance, usury being the defense, is not
difficult to discern, if, as should be the case, there be recognition of the basic constitutional right of free expression. So it
would be in accordance with an unbroken line of decisions of this Tribunal. It does appear, therefore, that petitioners are
entitled to the remedies prayed for.

The facts are undisputed. This litigation had its origin in a suit for collection filed by plaintiff Adez Realty, Inc., now one
of the private respondents, seeking the payment of P7,270.00 with 12% interest and 25% of such amount as
liquidated damages. 6 The principal allegation was that plaintiff, now respondent, Adez Realty, Inc. agreed to extend to the
defendant, now petitioner, Policarpio Mapua and did deliver to him a loam in the amount of P7,270.00 on the condition that
failure to liquidate such loan on the date due would result in paying not only the principal with interest but the equivalent to
25% as liquidated damages. 7 It was then stated that defendant Mapua had not paid such overdue debt, hence the filing of
this case for collection. 8 The answer was filed with the alleged offending paragraphs thereof as duly noted at the outset of
this opinion. 9 Moreover, the affirmative defenses contained the following allegations: "3. The transactions between plaintiff
and defendant are in reality a loan of P5,000.00 secured way back in 1969 earning usurious interest at the rate of 5%
monthly, or 60% per annum to the extent that defendant was unable to pay said usurious interest and at the same time
liquidate the principal amount of P5,000.00 by December 3, 1971, such that 4. On 3 October 1971, plaintiff's jargon and
double-talk caused defendant to sign the alleged promissory note — Annex A, Complaint, which plaintiff managed to facelift
and veneer as a lawful deed and agreement, but stripped of its gloss, it is null and void, for being contrary to the laws policy
against usury. 5. Considering the payments by defendant of 5% interest monthly on the principal since 1969, or P250.00
monthly, until 3 December 1971, defendant had fully paid the principal indebtedness. 10 The language employed in such
answer resulted, as had been stated, in a complaint for damages filed with the Court of First Instance of Manila before
respondent Judge. 11 Then came the motion to dismiss, which as set forth, was predicated on the matter complained of
being absolutely privileged. 12 When after an opposition to such motion 13 and a reply to such opposition 14 were submitted,
the lower court issued the order denying the motion to dismiss, 15 this petition was filed with this Court, a motion for
reconsideration having proved futile. 16

To repeat, the petition is impressed with merit.

1. "The prevailing rule," according to Justice Malcolm in the leading case of Santiago v. Calvo," 17 is that parties,
counsel and witnesses are exempted from liability in libel or slander for words otherwise defamatory published in the course
of judicial proceedings, provided the statements are pertinent or relevant to the case." 18 Such doctrine was foreshadowed in
the earlier case of Zurbito v. Bayot, 19 decided in 1911. In the language of Justice Johnson: "If the persons presenting the
claim are, in the opinion of those opposing it, attempting to have a claim allowed which should not be snowed, they have a
right to state their reasons therefor, even though such opposition may incidentally reflect upon the honor and credit of the
person presenting the claim." 20 A year after the Santiago ruling, a similar pronouncement came from the pen of another
eminent jurist, Justice Street in Baron v. David. 21 Thus: "It is clear that with respect to these damages the cross-action
cannot be maintained, for the reason that the affidavit in question was used in course of a legal proceeding for the purpose
of obtaining a legal remedy, and it is, therefore, privileged." 22 The then Justice, now retired Chief Justice Concepcion in the
leading case of Sison v. David 23 restated the principle: "It is, thus, clear that utterances made in the course of judicial
proceedings, including all kinds of pleadings, petitions and motions, belong to the class of communications that are already
absolutely privileged." 24 As so emphatically stressed by the late Chief Justice Castro in Deles v. Aragona:" 25 The doctrine of
privileged communication is not an Idle and empty principle. It has been distilled from wisdom and experience." 26

2. It is undoubted likewise, as held in Tolentino v. Baylosis, Justice J.B.L. Reyes being the ponente, 27 that as to the
degree of relevancy or pertinency necessary for the invocation of this absolute privilege, "the courts favor a liberal
rule." 28He added: "The matter to which the privilege does not extend must be so palpably wanting in relation to the subject
matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety. In order that matter alleged in a
pleading may be privileged, it need not be in every case material to the issues presented by the pleadings. It must, however,
be legitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of inquiry in
the course of the trial." 29 He likewise quoted from the aforesaid Santiago v. Calvo decision: "For, as aptly observed in one
case, 'while the doctrine of privileged communications is liable to be abused, and its abuse may lead to great hardships, yet
to give legal sanction to such suits as the present would, we think, give rise to far greater hardships.'" 30 The language of the
then Justice, later Chief Justice, Bengzon in Dorado v. Pilar 31 is apropos: "Undoubtedly, lawyers should be allowed some
latitude of remark or comment in the furtherance of causes they uphold. For the felicity of their clients they may be pardoned
some infelicities of phrase." 32 It bears mentioning that in Deles, 33 such sentiment was pharaphrased by Chief Justice
Castro in this wise: "Lawyers, most especially, should be allowed a great latitude of pertinent comment in the furtherance of
the causes they uphold, and for felicity of their clients, they may be pardoned some infelicities of language." 34

3. The language of this Court on the question of what pleadings enjoy absolute immunity is not swathed in obscurity. Nor
has there been only change of mind - far from it. This Court has consistently adhered to what it had stated with clarity as far
as 1911. If at all, the later decisions had been even more emphatic to dissipate any lurking doubt that the rule of liberality so
unequivocally set forth must be upheld. The principle that calls for application is crystal-clear. The immunity parties and
counsel enjoy is absolute — as long as the test of relevance is met. There is need, it would seem, to keep in mind that as
Hokfeld pointed out, the correlative of immunity is disability. Respondent Judge failed to heed such an imperative. It ought to
have granted the motion to dismiss. Petitioners, to repeat, are entitled to the remedies sought. So this Court has ruled in the
aforecited cases of Zurbito and Baylosis as wen as People v. Andres. 35

WHEREFORE, certiorari is granted and the assailed order denying the motion to dismiss is annulled. Respondent Judge or
whoever may be acting in his stead is prohibited from taking any further action in Civil Case No. 94551 except to dismiss the
same. To that extent, mandamus lies. No costs.

Makasiar, Aquino, Concepcion, Jr., Abad Santos and De Castro, JJ., concur.

Guerrero, J., is on leave.