U.S.
Supreme Court
Los Angeles v. Preferred Communications, 476 U.S. 488 (1986)
City of Los Angeles v. Preferred Communications, Inc.
No. 85-390
Argued April 29, 1986
Decided June 2, 1986
476 U.S. 488
Syllabus
Respondent sued petitioners, the city of Los Angeles and its Department of
Water and Power (DWP), in Federal District Court, alleging, inter alia, a
violation of its rights under the First Amendment by reason of (1) the city's
refusal to grant respondent a cable television franchise on the ground that
respondent had failed to participate in an auction for a single franchise in the
area and (2) DWP's refusal to grant access to poles or underground conduits
used for power lines. The District Court dismissed the complaint for failure to
state a claim upon which relief could be granted. The Court of Appeals
reversed and remanded for further proceedings.
Held: The complaint should not have been dismissed. The activities in which
respondent allegedly seeks to engage plainly implicate First Amendment
interests. Through original programming or by exercising editorial discretion
over which stations or programs to include in its repertoire, respondent seeks
to communicate messages on a wide variety of topics and in a wide variety of
formats. But where speech and conduct are joined in a single course of action,
the First Amendment values must be balanced against competing societal
interests. Thus, where the city has made factual assertions to justify
restrictions on cable television franchising and these assertions are disputed
by respondent, there must be a fuller development of the disputed factual
issues before this Court will decide the legal issues. Accordingly, the case will
be remanded to the District Court so that petitioners may file an answer and
the material factual disputes may be resolved. Pp. 476 U. S. 493-496.
754 F.2d 1396, affirmed and remanded.
Reno v. ACLU, 521 U.S. 844 (1997)
Facts of the case
Several litigants challenged the constitutionality of two provisions in the 1996
Communications Decency Act. Intended to protect minors from unsuitable
internet material, the Act criminalized the intentional transmission of "obscene
or indecent" messages as well as the transmission of information which
depicts or describes "sexual or excretory activities or organs" in a manner
deemed "offensive" by community standards. After being enjoined by a District
Court from enforcing the above provisions, except for the one concerning
obscenity and its inherent protection against child pornography, Attorney
General Janet Reno appealed directly to the Supreme Court as provided for
by the Act's special review provisions.
Question
Did certain provisions of the 1996 Communications Decency Act violate the
First and Fifth Amendments by being overly broad and vague in their
definitions of the types of internet communications which they criminalized?
Conclusion
Yes. The Court held that the Act violated the First Amendment because its
regulations amounted to a content-based blanket restriction of free speech.
The Act failed to clearly define "indecent" communications, limit its restrictions
to particular times or individuals (by showing that it would not impact adults),
provide supportive statements from an authority on the unique nature of
internet communications, or conclusively demonstrate that the transmission
of "offensive" material is devoid of any social value. The Court added that
since the First Amendment distinguishes between "indecent" and "obscene"
sexual expressions, protecting only the former, the Act could be saved from
facial overbreadth challenges if it dropped the words "or indecent" from its
text. The Court refused to address any Fifth Amendment issues.
GMA NETWORK v. CENTRAL CATV, GR No. 176694, 2014-07-18
Facts:
Sometime in February 2000, the petitioner, together with the Kapisanan ng
mga Brodkaster ng Pilipinas, Audiovisual Communicators, Incorporated,
Filipinas Broadcasting Network and Rajah Broadcasting Network, Inc.
(complainants), filed with the NTC a complaint against the... respondent to
stop it from soliciting and showing advertisements in its cable television
(CATV) system, pursuant to Section 2 of Executive Order (EO) No. 205.[5]
Under this provision, a grantee's authority to operate a CATV system shall...
not infringe on the television and broadcast markets. The petitioner alleged
that the phrase "television and broadcast markets" includes the commercial
or advertising market.
In its answer, the respondent admitted the airing of commercial advertisement
on its CATV network but alleged that Section 3 of EO No. 436, which was
issued by former President Fidel V. Ramos on September 9, 1997, expressly
allowed CATV providers to carry advertisements and... other similar paid
segments provided there is consent from their program providers.[6]
After the petitioner presented and offered its evidence, the respondent filed a
motion to dismiss by demurrer to evidence claiming that the evidence
presented by the complainants failed to show how the respondent's acts of
soliciting and/or showing advertisements infringed upon... the television and
broadcast market.[7]
The NTC granted the respondent's demurrer to evidence and dismissed the
complaint.
It ruled that since EO No. 205 does not define "infringement," EO No. 436
merely clarified or filled-in the details of the term to mean that the CATV
operators may show advertisements, provided... that they secure the consent
of their program providers. In the present case, the documents attached to
the respondent's demurrer to evidence showed that its program providers
have given such consent. Although the respondent did not formally offer these
documents as... evidence, the NTC could still consider them since they formed
part of the records and the NTC is not bound by the strict application of
technical rules.[8]
With the denial of its motion for reconsideration,[11] the petitioner went to the
CA, alleging that the NTC committed grave procedural and substantive errors
in dismissing the complaint.
The CA upheld the NTC ruling. The NTC did not err in considering the
respondent's pieces of evidence that were attached to its demurrer to
evidence since administrative agencies are not bound by the technical rules
of procedure.[12]
Issues:
Whether the CA erred in affirming the order of the NTC which granted the
respondent's motion to dismiss by demurrer to evidence.
Ruling:
The remedy of a demurrer to evidence is applicable in the proceedings before
the NTC, pursuant to Section 1, Rule 9, Part 9 of its Rules of Practice and
Procedure which provides for the suppletory application of the Rules of Court.
Rule 33[22] of the Rules of Court provides for the rule on demurrer to evidence
In other words, the issue to be resolved in a motion to dismiss based on a
demurrer to evidence is whether the plaintiff is entitled to the relief prayed for
based on the facts and the law.
The "facts" referred to in Section 8 should include all the means sanctioned
by the Rules of Court in... ascertaining matters in judicial proceedings. These
include judicial admissions, matters of judicial notice, stipulations made during
the pre-trial and trial, admissions, and presumptions, the only exclusion being
the defendant's evidence.
In granting the demurrer to evidence in the present case, the NTC considered
both the insufficiency of the allegations in the complaint and the insufficiency
of the complainants' evidence in light of its interpretation of the provisions of
EO No. 205 and EO No. 436. The
NTC ruled that the complainants, including the petitioner, failed to prove by
substantial evidence that the respondent aired the subject advertisements
without the consent of its program providers, as required under EO No. 436.
The NTC, therefore, has issued the assailed order... upon a consideration of
the applicable laws and the evidence of the petitioner. On this score, the grant
of the demurrer suffers no infirmity.
However, the NTC further extended its consideration of the issue to the
respondent's pieces of evidence that were attached to its demurrer to
evidence. On this score, we agree with the petitioner that the NTC erred.
Rule 33 of the Rules of Court, as explained in our ruling in Casent, proscribes
the court or the tribunal from considering the defendant's evidence in the
resolution of a motion to dismiss based on a demurrer to evidence.
While an administrative agency is not strictly bound by technical rules of
procedure in the conduct of its administrative proceedings, the relaxation of
the rules should not result in violating fundamental evidentiary rules, including
due process.[25]
In the present case, the NTC proceeded against the very nature of the remedy
of demurrer to evidence when it considered the respondent's evidence,
specifically the certifications attached to the respondent's demurrer to
evidence. Despite the petitioner's... objections,[26] the NTC disregarded the
rule on demurrer by allowing the submission of the respondent's evidence
while depriving the petitioner of the opportunity to question, examine or refute
the submitted documents.[27]
That the petitioner had the chance to peruse these documents is of no
moment. In a demurrer to evidence, the respondent's evidence should not
have been considered in the first place. As the NTC opted to consider the
respondent's evidence, it should not have resolved the case... through the
remedy of demurrer but instead allowed the respondent to formally present its
evidence where the petitioner could properly raise its objections. Clearly,
there was a violation of the petitioner's due process right.
ABS-CBN v. PMSI, G.R. No. 175769-70, 19 January 2009
Facts:
Petitioner ABS-CBN, a broadcasting corporation, filed a complaint against
respondent PMSI alleging that the latter’s unauthorized rebroadcasting of
Channels 2 and 23 infringed on its broadcasting rights and copyright. PMSI
posits that it was granted a franchise to operate a digital direct-to-home
satellite service and that the rebroadcasting was in accordance with the NTC
memo to carry television signals of authorized television broadcast stations,
which includes petitioner’s programs. The IPO Bureau of Legal Affairs found
PMSI to have infringed petitioner’s broadcasting rights and ordered it to
permanently desist from rebroadcasting. On appeal, the IPO Director General
found for PMSI. CA affirmed.
Issue:
Whether or not petitioner’s broadcasting rights and copyright are infringed.
Ruling: NO.
The Director-General of the IPO correctly found that PMSI is not engaged in
rebroadcasting and thus cannot be considered to have infringed ABS-CBN’s
broadcasting rights and copyright.
Section 202.7 of the IP Code defines broadcasting as “the transmission by
wireless means for the public reception of sounds or of images or of
representations thereof; such transmission by satellite is also ‘broadcasting’
where the means for decrypting are provided to the public by the broadcasting
organization or with its consent.” On the other hand, rebroadcasting as defined
in Article 3(g) of the International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations, otherwise known
as the 1961 Rome Convention, of which the Republic of the Philippines is a
signatory, is “the simultaneous broadcasting by one broadcasting organization
of the broadcast of another broadcasting organization.” The Working Paper
prepared by the Secretariat of the Standing Committee on Copyright and
Related Rights defines broadcasting organizations as “entities that take the
financial and editorial responsibility for the selection and arrangement of, and
investment in, the transmitted content.” Evidently, PMSI would not qualify as
a broadcasting organization because it does not have the aforementioned
responsibilities imposed upon broadcasting organizations, such as ABS-CBN.
ABS-CBN creates and transmits its own signals; PMSI merely carries such
signals which the viewers receive in its unaltered form. PMSI does not
produce, select, or determine the programs to be shown in Channels 2 and
23. Likewise, it does not pass itself off as the origin or author of such
programs. Insofar as Channels 2 and 23 are concerned, PMSI merely
retransmits the same in accordance with Memorandum Circular 04-08-88.
With regard to its premium channels, it buys the channels from content
providers and transmits on an as-is basis to its viewers. Clearly, PMSI does
not perform the functions of a broadcasting organization; thus, it cannot be
said that it is engaged in rebroadcasting Channels 2 and 23.
Osmena v. COMELEC, G.R. No. 132231, March 31, 1998
Petitioners request a reexamination of the constitutionality of Sec. 11(b) of the
Electoral Reforms Law of 1987, prohibiting the mass media from selling or
giving free of charge print space or air time for campaign or other political
purposes, except to the Commission on Elections.
REASONABLE REGULATION – AS TO TIME and SCOPE
The main purpose of §11(b) is regulatory. Any restriction on speech is only
incidental, and it is no more than is necessary to achieve its purpose of
promoting equality of opportunity in the use of mass media for political
advertising. The restriction on speech, as pointed out in NPC, is limited both
as to time and as to scope.
What makes the regulation reasonable is precisely that it applies only to the
election period. Its enforcement outside the period would make it
unreasonable. More importantly, it should be noted that a “ban on mountain
skiing” would be passive in nature. It is like the statutory cap on campaign
expenditures, but is so unlike the real nature of §11(b), as already explained.
CONTENT-NEUTRAL REGULATION
In Adiong v. COMELEC this Court quoted the following from the decision of
the U.S. Supreme Court in a case sustaining a Los Angeles City ordinance
which prohibited the posting of campaign signs on public property:
A government regulation is sufficiently justified if it is within the constitutional
power of the Government, if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incident restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that
interest.
This test was actually formulated in United States v. O’Brien. It is an
appropriate test for restrictions on speech which, like §11(b), are content-
neutral. Unlike content-based restrictions, they are not imposed because of
the content of the speech. For this reason, content-neutral restrictions are
tests demanding standards. For example, a rule such as that involved in
Sanidad v. COMELEC, prohibiting columnists, commentators, and
announcers from campaigning either for or against an issue in a plebiscite
must have a compelling reason to support it, or it will not pass muster under
strict scrutiny. These restrictions, it will be seen, are censorial and therefore
they bear a heavy presumption of constitutional invalidity. In addition, they
will be tested for possible overbreadth and vagueness.
These regulations need only a substantial governmental interest to support
them. A deferential standard of review will suffice to test their validity.
CLEAR AND PRESENT DANGER TEST, NOT AN APPROPRIATE TEST IN
DETERMINING VALIDITY OF CONTENT-NEUTRAL REGULATIONS
Justice Panganiban’s dissent invokes the clear-and-present-danger test and
argues that “media ads do not partake of the ‘real substantive evil’ that the
state has a right to prevent and that justifies the curtailment of the people’s
cardinal right to choose their means of expression and of access to
information.” The clear-and-present-danger test is not, however, a sovereign
remedy for all free speech problems. As has been pointed out by a thoughtful
student of constitutional law, it was originally formulated for the criminal law
and only later appropriated for free speech cases. For the criminal law is
necessarily concerned with the line at which innocent preparation ends and a
guilty conspiracy or attempt begins. Clearly, it is inappropriate as a test for
determining the constitutional validity of laws which, like §11(b) of R.A. No.
6646, are not concerned with the content of political ads but only with their
incidents. To apply the clear-and-present-danger test to such regulatory
measures would be like using a sledgehammer to drive a nail when a regular
hammer is all that is needed.
The reason for this difference in the level of justification for the restriction of
speech is that content-based restrictions distort public debate, have improper
motivation, and are usually imposed because of fear of how people will react
to a particular speech. No such reasons underlie content-neutral regulations,
like regulations of time, place and manner of holding public assemblies under
B.P. Blg. 880, the Public Assembly Act of 1985. Applying the O’Brien test in
this case, we find that §11(b) of R.A. No. 6646 is a valid exercise of the power
of the State to regulate media of communication or information for the purpose
of ensuring equal opportunity, time and space for political campaigns; that the
regulation is unrelated to the suppression of speech; that any restriction on
freedom of expression is only incidental and no more than is necessary to
achieve the purpose of promoting equality.
G.R. No. 168338 February 15, 2008 FRANCISCO CHAVEZ,
petitioner, vs. RAUL M. GONZALES, in his capacity as the Secretary of
the Department of Justice; and NATIONAL TELECOMMUNICATIONS
COMMISSION (NTC), respondents.
Facts : Sometime before 6 June 2005, the radio station dzMM aired the Garci
Tapes where the parties to the conversation discussed "rigging" the results of
the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential
spokesperson Ignacio Bunye (Bunye) held a press conference in Malacañang
Palace, where he played before the presidential press corps two compact disc
recordings of conversations between a woman and a man. Bunye identified
the woman in both recordings as President Arroyo but claimed that the
contents of the second compact disc had been "spliced" to make it appear that
President Arroyo was talking to Garcillano. On 11 June 2005, the NTC issued
a press release warning radio and television stations that airing the Garci
Tapes is a "cause for the suspension, revocation and/or cancellation of the
licenses or authorizations" issued to them.5 On 14 June 2005, NTC officers
met with officers of the broadcasters group, Kapisanan ng mga Broadcasters
sa Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a
joint press statement expressing commitment to press freedom
Issue : WON the NTC warning embodied in the press release of 11 June 2005
constitutes an impermissible prior restraint on freedom of expression
Held : When expression may be subject to prior restraint, apply in this
jurisdiction to only four categories of expression, namely: pornography, false
or misleading advertisement, advocacy of imminent lawless action, and
danger to national security. All other expression is not subject to prior restrain
Expression not subject to prior restraint is protected expression or high-value
expression. Any content-based prior restraint on protected expression is
unconstitutional without exception. A protected expression means what it says
– it is absolutely protected from censorship Prior restraint on expression is
content-based if the restraint is aimed at the message or idea of the
expression. Courts will subject to strict scrutiny content-based restraint. If the
prior restraint is not aimed at the message or idea of the expression, it is
content-neutral even if it burdens expression The NTC action restraining the
airing of the Garci Tapes is a content-based prior restraint because it is
directed at the message of the Garci Tapes. The NTC’s claim that the Garci
Tapes might contain "false information and/or willful misrepresentation," and
thus should not be publicly aired, is an admission that the restraint is content-
based The public airing of the Garci Tapes is a protected expression because
it does not fall under any of the four existing categories of unprotected
expression recognized in this jurisdiction. The airing of the Garci Tapes is
essentially a political expression because it exposes that a presidential
candidate had allegedly improper conversations with a COMELEC
Commissioner right after the close of voting in the last presidential elections.
The content of the Garci Tapes affects gravely the sanctity of the ballot. Public
discussion on the sanctity of the ballot is indisputably a protected expression
that cannot be subject to prior restraint. Public discussion on the credibility of
the electoral process is one of the highest political expressions of any
electorate, and thus deserves the utmost protection. If ever there is a
hierarchy of protected expressions, political expression would occupy the
highest rank. The rule, which recognizes no exception, is that there can be no
content-based prior restraint on protected expression. On this ground alone,
the NTC press release is unconstitutional. Of course, if the courts determine
that the subject matter of a wiretapping, illegal or not, endangers the security
of the State, the public airing of the tape becomes unprotected expression that
may be subject to prior restraint. However, there is no claim here by
respondents that the subject matter of the Garci Tapes involves national
security and publicly airing the tapes would endanger the security of the State.
The alleged violation of the Anti-Wiretapping Law is not in itself a ground to
impose a prior restraint on the airing of the Garci Tapes because the
Constitution expressly prohibits the enactment of any law, and that includes
anti-wiretapping laws, curtailing freedom of expression. The only exceptions
to this rule are the four recognized categories of unprotected expression.
However, the content of the Garci Tapes does not fall under any of these
categories of unprotected expression.
.R. Nos. 170270 & 179411 April 2, 2009
NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED
BROADCASTING SYSTEM, INC., Petitioners,
vs. HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO,
RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN,
Respondents.
Facts:
Petitioners operate and run Bombo Radyo DZNC Cauayan (DZNC), an AM
radio broadcast station, and Star FM DWIT Cauayan, an FM radio broadcast
station, in Cauayan Citry, Isabela. Back in 1996, Newsounds commenced
relocation of its broadcasting station, management office, and transmitters on
propery located in Minante 2, Cauayan City, Isabela.
On July 1996, the Housing & Land Use Regulatory Board (HLURB) and Office
of the Municipal Planning and Development Coordinator (OMPDC) affirmed
and certified that the commercial structure to be constructed conformed to
local zoning regulations, noting as well that the location is classified as a
“commercial area”. The radio station was able to fully operate smoothly
thereafter.
In 2002 however, when petitioners applied for a renewal of mayor’s permit,
City Zoning Administratior-Designate Bagnos Maximo refused to issue zoning
clearance on the grounds that petitioners were not able to submit conversion
papers showing that the agricultural land was converted to commercial land.
Petitioners asked the court to compel the issuance of mayor’s permit but the
court denied the action. In the meantime, the Department of Agrarian Reform
(DAR) Region II office issued to petitioners a formal recognition of conversion
of the property from agricultural to commercial.
In 2003, petitioners again filed their application for renewal of mayor’s permit,
attaching the DAR Order. Respondent Felicisimo Meer, acting City
Administrator of Cauayan City denied the same, claiming that it was void on
the grounds that they did not have record of the DAR Order.
The deadline lapsed on Febuary 15, 2004, and respondents Meer and Racma
Fernandez-Garcia, City Legal Officer of Cauayan City, closed the radio
station. Due to the prvosion of Omnibus Election Code which prohibits the
closure of radio station during the pendency of election period, COMELEC
issued an order allowing the petitioners to operate before Febuary 17, 2004,
but was barred again by respondent Mayor Ceasar Dy on the grounds that the
radio station had no permit. Nonetheless, COMELEC allowed them to run
again until June 10, 2004 after elections.
Petitioners filed the case to the RTC and CA for the issuance of mayor’s permit
but both courts denied the petition.
A municipal or city mayor is likewise authorized under the LGC to issue
licenses and permits, and suspend or revoke the same for any violation of the
conditions upon which said licenses or permits had been issued, pursuant to
law or ordinance. In case of Cauayan City, the authority to require a mayor’s
permit was enacted through Ordinance No. 92-004, enacted in 1993.
However, nothing in the ordinance requires an application for a mayor’s permit
to submit “either an approved land conversion papers from DAR, showing that
its property was converted from prime agricultural land or an approved
resolution from the Sangguniang Bayan or Sangguniang Panglungsod
authorizing the reclassification of property from agricultural to commercial
land.
In 1996, the HLURB issued a zoning decision that classified the property as
commercial. Petitioners are also armed with several certifications stating that
the property is indeed a commercial area. Also, petitioners paid real property
taxes based on the classification of property as commercial without objections
raised by the respondents.
Petitioners argued that this consistent recognition by the local government of
Cauayan of the commercial character of the property constitutes estoppels
against respondents from denying the fact before the courts. The lower courts
had ruled that “the government of Cauayan City is not bound by estoppels,
but petitioners classified that this concept is understood to only refer to acts
and mistakes of its official especially to those which are irregular.
Issue:
Whether the lower court is correct in contending that the government of
Cauayan City is not bound by estoppels on the grounds that the state is
immune against suits.
Held:
No. While it is true that the state cannot be put in estoppels by mistake or error
of its officials or agents, there is an exception.
Estoppels against the public are little favored. They should not be invoked
except in rare and unusual circumstances, and may not be invoked where
they would operate to defeat the effective operation of a policy adopted to
protect the public. They must be applied with circumspection and should be
applied only in those special cases where the interests of justice clearly
require it. Nevertheless, the government must not be allowed to deal
dishonorably or capriciously with its citizens, and must not play an ignoble part
or do a shabby thing; and subject to limitations . . ., the doctrine of equitable
estoppel may be invoked against public authorities as well as against private
individuals
Thus, when there is no convincing evidence to prove irregularity or negligence
on the part of the government official whose acts are being disowned other
than the bare assertion on the part of the State, the Supreme Court have
declined to apply State immunity from estoppel. Herein, there is absolutely no
evidence other than the bare assertions of the respondents that the Cauayan
City government had previously erred when it certified that the property had
been zoned for commercial use. The absence of any evidence other than bare
assertions that the 1996 to 2001 certifications were incorrect lead to the
ineluctable conclusion that respondents are estopped from asserting that the
previous recognition of the property as commercial was wrong.
Respondents were further estopped from disclaiming the previous consistent
recognition by the Cauayan City government that the property was
commercially zoned unless they had evidence, which they had none, that the
local officials who issued such certifications acted irregularly in doing so. It is
thus evident that respondents had no valid cause at all to even require
petitioners to secure “approved land conversion papers from the DAR showing
that the property was converted from prime agricultural land to commercial
land.”
Respondents closure of petitioner’s radio stations is clearly tainted with ill
motvies. Petitioners have been aggressive in exposing the widespread
election irregularities in Isabela that appear to have favored respondent Dy
and his political dynasty. Such statement manifests and confirms that
respondent’s denial of the renewal applications on the ground that property is
commercial and merely a pretext, and their real agenda is to remove
petitioners from Cauayan City and suppress the latter’s voice. This is a blatant
violation of constitutional right to press freedom.
WHEREFORE, the petitions are GRANTED. The assailed decisions of the
Court of Appeals and the Regional Trial Court of Cauayan City, Branch 24,
are hereby REVERSED and SET ASIDE. The instant petition for mandamus
is hereby GRANTED and respondents are directed to immediately issue
petitioners’ zoning clearances and mayor’s permits for 2004 to petitioners.
FCC v. Pacifica, 438 U.S. 726 (1978)
During a mid-afternoon weekly broadcast, a New York radio station aired
George Carlin's monologue, "Filthy Words." Carlin spoke of the words that
could not be said on the public airwaves. His list included shit, piss, fuck, cunt,
cocksucker, motherfucker, and tits. The station warned listeners that the
monologue included "sensitive language which might be regarded as
offensive to some." The FCC received a complaint from a man who stated that
he had heard the broadcast while driving with his young son.
Question
Does the First Amendment deny government any power to restrict the public
broadcast of indecent language under any circumstances?
Conclusion
No. The Court held that limited civil sanctions could constitutionally be invoked
against a radio broadcast of patently offensive words dealing with sex and
execration. The words need not be obscene to warrant sanctions. Audience,
medium, time of day, and method of transmission are relevant factors in
determining whether to invoke sanctions. "[W]hen the Commission finds that
a pig has entered the parlor, the exercise of its regulatory power does not
depend on proof that the pig is obscene."
Soriano v. Laguardia, G.R. No. 164785, 29 April 2009
FACTS:
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program
Ang Dating Daan, aired on UNTV 37, made obscene remarks against INC.
Two days after, before the MTRCB, separate but almost identical affidavit-
complaints were lodged by Jessie L. Galapon and seven other private
respondents, all members of the Iglesia ni Cristo (INC), against petitioner in
connection with the above broadcast. Respondent Michael M. Sandoval, who
felt directly alluded to in petitioner’s remark, was then a minister of INC and a
regular host of the TV program Ang Tamang Daan.
ISSUE:

Are Soriano’s statements during the televised “Ang Dating Daan” part of the
religious discourse and within the protection of Section 5, Art.III?
RULING:
No. Under the circumstances obtaining in this case, therefore, and considering
the adverse effect of petitioner’s utterances on the viewers’ fundamental rights
as well as petitioner’s clear violation of his duty as a public trustee, the MTRCB
properly suspended him from appearing in Ang Dating Daan for three months.
Furthermore, it cannot be properly asserted that petitioner’s suspension was
an undue curtailment of his right to free speech either as a prior restraint or as
a subsequent punishment. Aside from the reasons given above (re the
paramountcy of viewers rights, the public trusteeship character of a
broadcaster’s role and the power of the State to regulate broadcast media), a
requirement that indecent language be avoided has its primary effect on the
form, rather than the content, of serious communication. There are few, if any,
thoughts that cannot be expressed by the use of less offensive language.
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
Facts of the case
The Child Pornography Prevention Act of 1996 (CPPA) prohibits "any visual
depiction, including any photograph, film, video, picture, or computer or
computer-generated image or picture" that "is, or appears to be, of a minor
engaging in sexually explicit conduct," and any sexually explicit image that is
"advertised, promoted, presented, described, or distributed in such a manner
that conveys the impression" it depicts "a minor engaging in sexually explicit
conduct." The Free Speech Coalition, an adult-entertainment trade
association, and others filed suit, alleging that the "appears to be" and
"conveys the impression" provisions are overbroad and vague and, thus,
restrain works otherwise protected by the First Amendment. Reversing the
District Court, the Court of Appeals held the CPPA invalid on its face, finding
it to be substantially overbroad because it bans materials that are neither
obscene under Miller v. California, 413 U.S. 15, nor produced by the
exploitation of real children as in New York v. Ferber, 458 U.S. 747.
Question
Does the Child Pornography Prevention Act of 1996 abridge freedom of
speech when it proscribes a significant universe of speech that is neither
obscene under Miller v. California nor child pornography under New York v.
Ferber?
Conclusion
Yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held
that the two prohibitions described above are overbroad and unconstitutional.
The Court found the CPPA to be inconsistent with Miller insofar as the CPPA
cannot be read to prohibit obscenity, because it lacks the required link
between its prohibitions and the affront to community standards prohibited by
the obscenity definition. Moreover, the Court found the CPPA to have no
support in Ferber since the CPPA prohibits speech that records no crime and
creates no victims by its production. Provisions of the CPPA cover "materials
beyond the categories recognized in Ferber and Miller, and the reasons the
Government offers in support of limiting the freedom of speech have no
justification in our precedents or in the law of the First Amendment" and
abridge "the freedom to engage in a substantial amount of lawful speech,"
wrote Justice Kennedy.
Ashcroft v. ACLU, 535 U.S. 564 (2002)
Facts of the case
Unlike the Communications Decency Act of 1996, the Child Online Protection
Act (COPA) applies only to material displayed on the World Wide Web, covers
only communications made for commercial purposes, and restricts only
"material that is harmful to minors." Moreover, COPA requires jurors to apply
"contemporary community standards" in assessing material. Before it was
scheduled to go into effect, a number of organizations affected by COPA filed
suit, alleging that the statute violated adults' First Amendment rights because
it effectively banned constitutionally protected speech, was not the least
restrictive means of accomplishing a compelling governmental purpose, and
was substantially overbroad. The District Court issued a preliminary
injunction. In affirming, the Court of Appeals, reasoning that COPA's use of
contemporary community standards to identify material that is harmful to
minors rendered the statute substantially overbroad.
Question
Does the Child Online Protection Act's use of "community standards" to
identify "material that is harmful to minors" violate the First Amendment?
Conclusion
No. In an 8-1 opinion delivered by Justice Clarence Thomas, the Court held
that COPA's reliance on community standards to identify what material is
harmful to minors does not by itself render the statute substantially overbroad
for First Amendment purposes. The Court expressed no view as to whether
COPA was overbroad for other reasons or was unconstitutionally vague and
did not vacate the preliminary injunction because it could not do so without
addressing matters yet to be considered. "In its original form, the community
standard provided a shield for communications that are offensive only to the
least tolerant members of society," argued Justice John Paul Stevens in his
dissent. "In the context of the Internet, however, community standards
become a sword, rather than a shield. If a prurient appeal is offensive in a
puritan village, it may be a crime to post it on the World Wide Web."
Disini, et al. v. The Secretary of Justice, et al., G.R. No. 203335, 11
February
FACTS
Petitioners lament that libel provisions of the penal code and, in effect, the
libel provisions of the cybercrime law carry with them the requirement of
“presumed malice” even when the latest jurisprudence already replaces it with
the higher standard of “actual malice” as a basis for conviction. Petitioners
argue that inferring “presumed malice” from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on his
constitutionally guaranteed freedom of expression.
ISSUE
Whether or not Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel
affected the requirement of “actual malice” as opposed to “presumed malice”
as basis for conviction of libel.
RULING
The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in
the cases of Vasquez (a barangay official) and Borjal (the Executive Director,
First National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of “malice” to
convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government
demand a full discussion of public affairs.
But, where the offended party is a private individual, the prosecution need not
prove the presence of malice. The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed statement. For
his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.
Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)
FACTS:
Peter Junger was an Internet activist and computer law professor at Case
Western Reserve University who challenged the U.S. government’s
regulations of encryption software. Federal restrictions prevent United States
citizens from exporting encryption source codes – a definition which includes
publishing them over the internet. Junger, who taught encryption technology
as part of his computer law class, worried that he might not be allowed to
accept foreign national students into his class as a result of these export
regulations. He also feared that his self-authored encryption programs, which
he wished to post on his website, might place him in legal jeopardy.
He decided to challenge the government’s restrictions in federal court. He
sued William Daley, the United States Secretary of Commerce, on the
grounds that the Export Regulations violated his First Amendment rights to
freedom of speech.
A U.S. District Court judge ruled that encryption software is not sufficiently
expressive to warrant protection under the First Amendment. ACLU attorneys
Ray Vasvari and Gino Scarselli supported Junger and argued on his behalf.
On appeal, the Sixth Circuit Court ruled that the encryptions were protected
by the First Amendment.
The district court concluded that the functional characteristics of source code
overshadow its simultaneously expressive nature. The fact that a medium
of expression has a functional capacity should not preclude constitutional
protection. Rather, the appropriate consideration of the medium's functional
capacity is in the analysis of permitted government regulation.
HELD:
The Supreme Court has explained that “all ideas having even the slightest
redeeming social importance,” including those concerning “the advancement
of truth, science, morality, and arts” have the full protection of the First
Amendment. Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1
L.Ed.2d 1498 (1957) (quoting 1 Journals of the Continental Congress 108
(1774)). This protection is not reserved for purely expressive
communication. The Supreme Court has recognized First Amendment
protection for symbolic conduct, such as draft-card burning, that has both
functional and expressive features. See United States v. O'Brien, 391 U.S.
367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
The Supreme Court has expressed the versatile scope of the First
Amendment by labeling as “unquestionably shielded” the artwork of Jackson
Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis
Carroll. Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S.
557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). Though unquestionably
expressive, these things identified by the Court are not traditional speech.
Particularly, a musical score cannot be read by the majority of the public but
can be used as a means of communication among musicians. Likewise,
computer source code, though unintelligible to many, is the preferred method
of communication among computer programmers.
Because computer source code is an expressive means for the exchange
of information and ideas about computer programming, we hold that it is
protected by the First Amendment.
The functional capabilities of source code, and particularly those of
encryption source code, should be considered when analyzing the
governmental interest in regulating the exchange of this form of speech.
Under intermediate scrutiny, the regulation of speech is valid, in part, if “it
furthers an important or substantial governmental interest.” O'Brien, 391 U.S.
at 377, 88 S.Ct. 1673. In Turner Broadcasting System v. FCC, 512 U.S. 622,
664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), the Supreme Court noted that
although an asserted governmental interest may be important, when the
government defends restrictions on speech “it must do more than simply ‘posit
the existence of the disease sought to be cured.’ ” Id. (quoting Quincy Cable
TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C.Cir.1985)). The government
“must demonstrate that the recited harms are real, not merely conjectural, and
that the regulation will in fact alleviate these harms in a direct and material
way.” Id. We recognize that national security interests can outweigh the
interests of protected speech and require the regulation of speech. In the
present case, the record does not resolve whether the exercise of presidential
power in furtherance of national security interests should overrule the interests
in allowing the free exchange of encryption source code.
Before any level of judicial scrutiny can be applied to the Regulations, Junger
must be in a position to bring a facial challenge to these regulations. In light
of the recent amendments to the Export Administration Regulations, the
district court should examine the new regulations to determine if Junger can
bring a facial challenge.
For the foregoing reasons, we REVERSE the district court and REMAND the
case to the district court for consideration of Junger's constitutional challenge
to the amended regulations.
Southern Hemisphere Engagement Network v. Anti-Terrorism Council,
G.R. No. 178552, 5October 2010
FACTS:
Petitioners assail for being intrinsically vague and impermissibly broad the
definition of the crime of terrorism under RA 9372 (the Human Security Act of
2007) in that terms like “widespread and extraordinary fear and panic among
the populace” and “coerce the government to give in to an unlawful demand”
are nebulous, leaving law enforcement agencies with no standard to measure
the prohibited acts.
ISSUE:
Can the Human Security Act of 2007 be facially challenged on the grounds of
vagueness and overbreadh doctrines?
RULING:
No.
A facial invalidation of a statute is allowed only in free speech cases, wherein
certain rules of constitutional litigation are rightly excepted.
In Estrada vs. Sandiganbayan it was held that:
A facial challenge is allowed to be made to a vague statute and to one which
is overbroad because of possible”chilling effect” upon protected speech. The
possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of
others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general
in terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.