February 13

We are already in freedom of expression, and we finished some of the cases discussing the restraints which we have discussed already
kadtong mga forms of restrictions, freedom of speech prior restraints, subsequent punishments, we have discussed some of the cases
so take note of them. Now we go to the second classification of restriction, we also learned that there are

Two types of restrictions on free speech, we have

1. content-based restriction and

2. content-neutral restrictions.

Refresh your memory when we say it is a content-based restriction it is a restriction on the content of the speech.

Chavez v Gonzales

Remember the case of Chavez v Gonzales where the substance of the material of the CD itself sought to be suppressed whereas when
we talk about content-neutral restrictions it does not deal with the content of the speech but rather on the manner, the mode, the
time and place wherein the speech may be delivered so kato ang gina regulate.

Diocese v Comelec

However we learned in the case of Doicese v Comelec in that case the Court established the border between these two. The tarpaulin
size it’s supposed to deal the manner with which the speech is delivered but the court said that the size gap of the tarpaulin is in fact
connected to its content. Anyway take note of that case. So that is the general concept of a content-based restriction and the content-
neutral restriction. If the restriction is content-based the Supreme Court usually applies then the strictest tests that it can do on it
because we are talking about a restriction on your freedom to say something, the substance itself. The court has commonly applied
the clear-and-present-danger test.

Where did we adopt all of these tests?

We adopt this tests from the United States Supreme Court and in your syllabus there is an enumeration here of the tests which have
been discussed by us, by our courts but thy were taken from US Supreme Court cases.

Gitlow v New York

In this case is where the Supreme Court of the United States established the Dangerous Tendency Test. It was decided in 1925. So
what happened here?

Facts: Benjamin Gitlow sometime in November 1919 and an associate of him Landarken were arrested by the New York City Police
Officers for criminal anarchy which is an offense under New York State Law. So they have a law there which punishes criminal anarchy.
What did they do? In this case Gitlow and his associate were both communist party members and they published the article The
Revolutionary Age this a newspaper rather where they printed the net wing manifesto which is smuggled and the communits manifesto
by Karl Marx and Engles which advocated the violent revert law of the Government so they were the ones who published this
newspaper and because of that they were charged with criminal anarchy so while existing New York State Law. Why? Because they
were advocates of socialist reform in the United States. They argued that while their action was precipitated by that whatever they
publish but they were convicted by the court. So the challenge here is on the law which punishes their act this purported criminal
anarchy for publishing this article-The Revolutionary Age.

ISSUE: Did this law which prohibited their activity, deprived these people, Gitlow and his friend with their constitutional right of freedom
of speech? NO

RULING: And the court said tha NO, this law is valid. The law is not that unreasonable or arbitrary means of exercising the States police
power. It is within the State’s power to prevent in the observance of peace and regulate speech that may incite crime even if the threat
of such action is not immediate. So dire nigawas ang Dangerous Tendency, if the speech has a dangerous tendency of producing the
danger that the state can prevent then the state may regulate the same, impose restrictions on it without suffering from any
constitutional defect. Freedom of speech and press do not confer an absolute right to publish or speak without being held responsible
for the result of said speech. The state may regulate to protect its interests in the general welfare of its citizens.

However this test was overturned or abandoned by the Supreme Court sometime in the 1930’s, why?

Because this test is very, it’s quite easy to validate or make this restriction valid and defeat the right itself. As the jurisprudence of the
Supreme Court of the United States evolved they became stricter on the standards of validating these restrictions. Mas ginafavor na,
based on the cases assigned to us mas ginafavor na sa US ang enjoyment of freedom sa speech and the restrictions are strictly
scrutinized.
Take note of this test- this Dangerous tendency Test, in your syllabus it provides that, when the legislative body has determined
generally that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether
any specific utterance coming within the prohibited class is likely, in and itself, to bring about the substantive evil is not open to
consideration. So it is generally under this test allow these restrictions if it seeks to suppress a speech that has a tendency of danger
then the state can properly suppress.

Schneck v United States (CLEAR-AND-PRESENT DANGER TEST)

In this case, dire nato gi copy or gi adopt ang CLEAR-AND-PRESENT DANGER TEST. What happened here?

FACTS: It involved a prominent socialist John Schneck, who attempted to distribute thousands of fliers to American servicemen recently
drafted to fight for the World War I. Just like us siguro nuh in times of war we can be drafted, that happened in the United States. Now
the fliers that he distributed asserted that the draft the picking of these people amounted to involuntary servitude proscribe by their
constitution which outlaws slavery. The war itself was motivated by capitalist greed among other things so because of this he was
distributing fliers na “oh you are becoming slaves which is prohibited under the constitution”. So there is now the effect on the person
receiving the flier that probably what we are doing is wrong and unconstitutional. So because of this he was charged for violating the
law here by inspiring to cause insubordination in the military and naval forces of the United States, based on the espionage act. Naa
silay law didto that punishes that.

ISSUE: His response was that, this law violated his right of freedom of speech. He was nevertheless found guilty by the courts so he
went to the Supreme Court

RULING: And here the US supreme court upheld his conviction. And ruled that the law did not violate the first amendment where his
right to free speech is granted because it passed the clear-and-present-danger test. Schneck here had really intended to undermine
the draft because his flier was designed precisely to have that effect. The character of every act depends upon the circumstances in
which it is done. When in peace time those fliers would be harmless speech however in times of war those acts would constitute
national insubordination. So as an imagery here, a man who has cries fire in a crowded theater could be made similar to that, in a quiet
home that would be harmless but when you do that in a theater na naay sunog that would produce harm, stampede. And because of
that, that is the harm which is sought to be prevented by this espionage act. Because of the time, the circumstances that these fliers
were published. Free speech rides accorded by their first amendment were not limitless and the context determines the limits. So the
question in every case is whether the words used are used in such circumstances and of such a nature that would create a clear and
present danger which would bring about to substantive evils which Congress has right to prevent. So dire nato gikopya or gi-adopt ang
clear and present danger test. However as the jurisprudence in the United States evolved they replaced it with an imminent lawless
action test. Here in the Philippines we still apply the clear-and-present danger test.

Again if that test is applied, content-based restriction the strictest scrutiny is applied by the courts. The question in every case is
whether the words are used in such circumstances in such a nature as to create a clear and present danger which would bring about
to substantive evils which the State has the right to prevent. So there is a restriction, remember Chavez v Gonzales, kani ang gigmait
na test and that the act of the executive in that case were invalidated because the words used, first of all its not even sure if the
recording was genuine kung gi wire tap ba jud sya and that in any case there was no nexus in the standard that these words do not
have the nature to create this clear and present danger and that is why, what the state did there in restricting the production of
publication of Hello Garci Tapes was too much of a restriction to right to free speech. And therefore it failed the clear and present
danger test.

Marantan v Diokno

FACTS: Now we have the case of Marantan v Diokno, here Marantan is a policeman he was charged in a prior case for homicide for
killing someone captured in a CCTV. Now they were out on bail so they were still doing their job when eventually another shoot-out
happened in Atimonan somewhere in the province of Quezon. And because this siya ang in charged of that police station in other
words he was remised in his duties. Naay syay reason to be complicit or to be neglectful rather of his duties because of this kadtong
mga victims in the first criminal case held a press conference. Riding on the popularity of this recent incident they made a press
conference stating that Marantan et al they were never disciplined nor jailed for their participation in the previous shoot-out- the
homicide case. They murdered people but still they were promoted so naay ing ato na presscon conducted by the lawyer and the heirs
or the parents of the victims in the first criminal case. And because of this Manrantan filed an action before the court for contempt
against Diokno and relatives of the victim in the first criminal charge because they violated the subjudice rule.there was a pending case
against them and they made a publication purportedly saying their guilty and so they filed that charge for that case.

ISSUE: So, were the parents of the victims here as well as the lawyers were they held guilty for indirect contempt? NO

RULING: The court said that no. Now this case explains what the subjudice rule is, it restricts comments and disclosures aiming to the
judicial proceedings in order to avoid pre-judging the issue or influencing the court or obstructing the administration of justice. You
violate this rule if there is a pending case and then sige kay yawyaw dra “guilty, guilty na sya” that would it has the tendency to influence
the judge, “I would never get justice” you could be held liable for indirect contempt.
Now going to the matter which is the speech, uttered by Atty Dioko here and the parents of the victim here, they were sought to be
restricted using this subjudice rule.

Can this be restricted-their utterances?

The court said that for contempt for this language for this is considered for contempt in court it must really appear that such does
interfere and embarrass the administration of justice. And in order to test whether it does impair the independence of the judiciary
gi-apply sa supreme court here ang clear and present danger test.

Does this bring about the danger of bailing the administration of justice? Does the language used have that effect?

The evil consequence or the comment must be extremely serious and the degree of imminence should be high before an utterance
can be punished. So using that very strict test vis a vis the utterances made by the lawyer here.

The court said here na dili sya that speech that could prevail. It could not produce this clear and present danger which is sought to be
prevented by the content proceedings. The comments here were expressions of their opinions that their loved ones were murdered
by the accused in this case.

American Communications Associations v Doubs (BALANCING OF INTEREST TEST)

Another test used by the United States Supreme Court, is the BALANCING OF INTEREST TEST. This was pronounced by the court in
American Communications Associations v Doubs, here there was a law passed in the US the national labor relations act. There was a
provision there that required all labor union officer to sign annual affidavits stating that they do not belong to the communist party or
support the unlawful over throw of the US government. So you sign the affidavit if you did not sign that affidavit you will be denied
access to the national labor relations board for relief for unfair labor practices.

ISSUE: Now, this provision was challenged as it discouraged the exercise of political rights protected by their Constitution.

RULING:The court said that the affidavit provision in that law was designed by the Congress to regulate harmful conduct in the form
of political strikes but not harmful speech. However, because this statute had the Court viewed as having an indirect effect on speech,
the court applied the Balancing Test rather that the clear and present danger test. So, the lighter test, the balancing of the interest
involved after considering the competing interests. The majority concluded that protecting the national economy from disruptive
political strikes that will be created by this communists party members in the labor force have weight. Any burden on the ability from
a relative handful union members to express their political views. The balance must be struck between individual freedoms and societal
needs in order to preserve order.

Direct Incitement Test

Another test used by the US supreme court is the Direct Incitement Test. Speech can be prohibited if it is directed at inciting or
producing imminent lawless action. And that it is likely to incite or produce such action.

Where did this test originate?

Bradenberg v Ohio (Direct Incitement Test)

FACTS: Its in Bradenberg v Ohio where Bradenberg who is the leader of the KKK in the US. He made a speech at that clan and he was
convicted under a law in Ohio that penalize criminal syndicalism. It made it illegal this law to advocate crime, sabotage, violence;
terrorism as means of accomplishing industrial or political reform. It also prohibited assembling with any society group or assemblage
of persons to teach or advocate the doctrines of criminal syndicalism. So here the KKK member here made his speech promoting the
taking of revenge against the Government. It did not stop suppressing the white race and he was convicted because he did that.

ISSUE:So he challenged the validity of this law. Because it violated daw his right to free speech.

RULING: And the court said that this law is unconstitutional. The law made it illegal to advocate or teach doctrines of violence but it
did not address the issue of whether did that advocacy or teaching would actually incite imminent lawlessness. The mere abstract
teaching of the need to propriety to resort to violence is not the same as preparing a deed for a violent action. Because the law here
failed to provide for the second part of the test it was considered as overly broad and thus violated their constitution. So using this
direct incitement test the speech must be evaluated.

1. The speech can be prohibited if it is directed at inciting or producing imminent lawless action.
2. It is likely to incite or produce such action.

This law made it illegal the teaching of his advocacy but it ignored on whether or not that advocacy would really incite imminent lawless
action.

Dennis v United States (Grave but Improbable Danger Test)

FACTS: This talks about the grave but improbable danger test. Here grave ang harm but it is not probable that it would happen. Here
Dennis et al were leaders of a communist party and they were indicted and convicted for violation of conspiracy provision of the Smith
Law they have that in the United States. Because what did they do? They are members of a communist party and it is a highly disciplined
organization and they tolerate no decision from the policy laid down by the forces and the literature of the party and the statements
by its leaders advocate the general rule of their party which is to overthrow successfully the existing order by force and violence. And
they were charged for violating this Smith Act.

ISSUE: Is this law valid?

RULING:The court said that YES. The act is constitutionaland valid because it is directed at the advocacy rather than the discussion.
The gravity of evil imposed by the communist party justifies such an invasion of free speech in order to avoid that danger. Here they
intended to overthrow the government as soon as the circumstances were meted. In every case the court must ask of whether or not
the gravity of evil is counted by its improbability. Meaning even if it is improbable justifies such invasion of free speech as is necessary
to avoid the danger.

Now using some of these tests they tripled down the jurisprudence and for example we used them in several context or various context
of freedom of expression and national security we have Chavez v Gonzales where that case applied the clear and present danger test.
Not every violation of law apparently violates the anti-wiretapping act that will justify the straight jacketing in the exercise of freedom
of the speech and of the press. So whatever violation they did there and the regulation made by the state to suppress this speech was
held to be unconstitutional kadtong acts of the executive secretary the NBI the MTC.

Soriano v Laguardia (clear and present danger test)

Also the court discussed in that case where THE CLEAR AND PRESENT DANGER TEST is applicable. It is applicable if the expression
sought to be suppressed, prevented or regulated creates a clear and present danger of bringing about the substantive evil which
the government has the power to prohibit. The freedom of speech and press is susceptible of restriction only when necessary to
prevent the grave and immediate danger to the interests which the government may lawfully protect. The doctrine involved in the
context of insurrection and rebellion involving the overthrow of the Government. So remember those tests kay basi mugawas sa exam
or sa bar exam.

So let’s go now to the relationship between your right to express yourself—freedom of expression and going beyond that criticism of
official conduct. Can you validly criticize without violating any law or is that absolutely protected?

So we have penal laws that punish criticism na sobra sobra na which would amount already to libel. That is under the Revised Penal
Code article 353.

What is libel?

Article 353.Definition of libel. A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.

So be careful with the words you utter especially if they are meant not to do any good. So for a person to be held guilty for libel it must
have the following elements;

ELEMENTS OF LIBEL

1. The allegation of a discreditable act or condition concerning another.

2. The publication of the charge (you spread it or you tell it to a third person dili lang kadtong imong gi disparage.

If giingun nimo sya to that person that you disparage that is not publication)

3. Identity of the person defamed. (dapat there should be a clear connect between the person you are trying to destroy and the person
who is actually destroyed or is claiming to be destroyed , dili pwede na muingon “na mura lage to ug ako” so naigo lang sya that is not
enough)

4 The existence of malice. (You made that statement because you wanted to destroy the reputation of that person you did it for no
apparent good )

Article 354 requires that the utterance must be publicized there is this requirement of publicity. Every defamatory imputation is
presumed to be malicious. Even if it is true if no good intention and justifiable motive for making that imputation except in the
following cases; so Article 354 enumerates some instances where the communication is privilege because it would appear this
instances na naay good actually wala sya in the first instance.

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 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.

If you can fit the utterance under any of those 2 instances that will fall as a privilege form of communication that will removed the
presumption of malice. Pag mawala ang presumption of malice it would now be the burden of the state to prove that the utterance
was made at the outset maliciously.

How is libel committed?

Can you say that it is libel because you shouted the person has a syphilis? Libel is done by writing so if you say someone has a syphilis
that is slander.

Under article 355 A libel is committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means. Mao to sya ang means to commit libel.

However you can also prove that whatever you said had

(1)a good reason or you had a justifiable motive; and

(2) It was true.

You can offer the proof of truth in criminal prosecutions for libel as a defense under article 361.

Article 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears
that the matter charged as libelous is true, and moreover, that it was published with good motives and for justifiable ends, the
defendant shall be acquitted.

Remember the utterance made against in the Pinoy ako blog giingnan sya ug shrek atong political analyst in the social media, she was
ugly , she has a big nose and gikasuhan sya ug libel. Her defense is that it was true, it was used as a defense well I don’t know what
happened to that case.

So anyway those are the provisions under the revised penal code that penalize your expression. In other words it underscores the fact
that the expression in our freedom to expression is not that absolute. If it becomes libelous speech it becomes punishable. And so we
have cases involving libel and

What is the effect if you are charged with libel?

Instead of speaking out mahadlok naka because you would be penalized for libel but the provision of the revised penal code are clear
that there are standards that will have to be transgressed before you can be held liable for libel. And if you do not transgress those
standards then you can be off the spot even if you criticized as long as the criticism does not become libelous.

Does it have a chilling effect on the right to free speech?

As to the chilling effect, as we already discussed before that is precisely the effect of penal laws, they create chilling effects for would
be violators. They are not supposed to do that because otherwise they would be violated so they would refrain from that act.

Soliven v Makasiar, Beltran v Makasiar

FACTS: There was a publication here, criticizing the President during that time si Corazon Aquino. The accused here the publisher and
the chairman of the editorial board issued this publication and the president herself sued them for libel.

ISSUE: And so they went to the Supreme Court challenging this action against them stating that (1) this President is immune from suit;
she should not be able to file this case because otherwise we could not file counter charges against her. Lugi mi. (2) this libel suit
against them produces a chilling effect on them. They would rather not criticize this administration if they would have face libel suits
filed by the president herself. Now in the majority opinion of the Supreme Court said

RULING: In the first issue; the right of the president –her immunity from suit is personal to her so if she wanted to waive it by filing
the criminal charges she can do that. Therefore it is not right for the accused here Makasiar, the publishers to invoke that for her. They
are not the ones who can claim that she is immune from suit, she is the one who can claim that she is immune from suitit. By filing the
suit against them she waived her immunity and therefore the suit will continue. She subjects herself to other charges by filing the same
because she already waive her immunity upon filing the suit.

On the 2nd issue on the chilling effect, the court did not rule on it because according to the court it is not a trier of facts so the cases
will anyway continue with the trial courts they should be the one to determine if there is indeed a finding of this whatever allegation
they alleged. But on the dissenting opinion of one justice here, Justice Gutierrez he discussed this issue. Because according to him wala
tay pulos as a supreme court if we do not discuss this very important issue. A prosecution for libel, this was his conclusion, should not
be allowed to continue where after discounting the possibility that the words may not really be that libelous there is likely to be a
chilling effect. In fact the inhibiting factor and the willingness on news paper men especially the editors and publishers to courageously
perform their critical role in society that is how we want the case to be resolved. Go to the language used by the writers here.

Are they really libelous? And if not this case should be dismissed. Added to the fact that this case was filed by the president herself.
Imagine ikaw naghimo ka ug criticism and then the president will sue you for libel. What happens to you? Sira na imong whatever.

So anyway according to Justice Gutierrez this should have been considered when resolved by the court right then and there. Anyway
while he admits that the court is not a trier of facts and it vests the trial courts to determine. He begs to differ because there is this
more important issue in the petitions that should be resolved now rather than later. The court should not hesitate to quash a criminal
prosecution in the more unlighted and more substantial justice where it is not alone where the criminal liability of an accused in a
seemingly minor case which is involved but broader considerations of governmental powers which it preferred freedom. There is an
unusual situation here with the highest official of the country and one who enjoys an unprecedented public support asks for the
prosecution of a newspaper columnist. This is not a simple prosecution for libel because we have a popular and powerful president
who heads the investigation prosecution serving because that belongs to the executive department and appoints member of the
appellate court who feel superably maligned. She had taken an unorthodox step of going to court despite the invocations of the
freedom of the press which would inevitably followed. So the court act then and there kato iyang position. If discounting the
prosecution for libel should not be allowed to continue after discounting the possibility that the words may not be really that libelous
there is likely to be a chilling effect and patently on the inhibiting factor. And the willingness of newspaper men, editors and publishers
who courageously perform their critical goal in the society. So he is for the preservation of that right. It should not be suppressed by
this action—libel suits against this author and editors.

Borjal v CA

There is a very substantial discussion here on the context of privilege communication. Mao ni tong example na what the person felt
himself to be maligned was not directly identified by the article but he felt that it was alluding to him.

FACTS: We have here Borjal and Soliven they were incorporators of this Philippines Today publisher of PhilStar Daily, a daily newspaper
and there was an article there written by Borjal where he claimed nga there is this organizer daw in a conference na corrupt, he was
taking the money to hold this event. Where did the idea come from? According to the person purportedly maligned here si Wenceslao
there was a meeting an organization of an event the First National Conference on Land Transportation he was the one who sought to
organize that so he had sponsorship of several individuals and because he organize that nigawas to nga article sometime within the
dates when he started organizing the event purporting that there were allege anomalous activities of a certain organizer of a
conference. So blind item without naming or identifying him. Neither did the article refer to this event the First National Conference
on Land Transportation as the event referred to. So because of this he felt that he is the one na gipandunggan or the one that was
referred to in that article who corrupt and anomalous. So he filed a suit for libel against Borjal and Soliven. The criminal cases however
were dismissed so he filed a civil case against them for libel. This is the one that flourished he was able to get a sizeable amount of
money because he prevailed in that suit. That is why Borjal et al went to the Supreme Court and challenged the decision of the trial
court that found them civilly guilty and liable for that purportedly libelous article.

ISSUE: Should the case here prosper, the damages suit against them?

RULING: The court said that NO. It should have been dismissed. Why? There are many reasons here.

(1) In order to maintain a libel suit it is essential that the victim should be identifiable. It is one of the elements of the offense.
Although it is not necessary that he should be named. Dapat the article itself must refer to a specific individual. It is also not
sufficient that the offended party recognize itself as the person attacked or detained but it must be shown that at least a third
person could identify him as the object of the libelous publication. Dili pwede na ikaw lang kay feel nimo. Dapat your friends
or your peers or somone elese would say na “hala murag ikaw gud ni”. Here that element of identifiability was not present
that is why the civil liability on libel is anchored on the criminal liability. So anyway naay missing element on the offense then
it should not have prospered. The person alluded to be in the article is not Wenceslao actually. They do not identify any
particular person, the principal organizers were not even specified. There was nothing in the article that indicated that
Wenceslao was the one referred to. In fact Wenceslao himself even admitted that this event had several organizers, so dili
lang sya it could have been other people.

So when is the element of identification grossly inadequate?

It is when the alleged offended party himself is unsure that he was the subject of the verbal attack.

Now going to our topic the author as well as the publisher of this article claimed that the write up is a form of a privilege communication
under Article 354 of the Revised Penal Code. And what happens if that article is deemed as a privilege communication under this
article 354?
It removes the presumption of malice, so karun since nawala na ang presumption of malice the state has to prove that it was publish
with malice. It removes the element of malice, privilege communication according to them. Now, the counter argument here of
Wenceslao here is that

Article 354 only provides for two instances of privilege communication;

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 confidential nature xx

According to Wencelao your article does not fall to under any of these privilege communication. The court said that Wenceslao is
wrong.

There are two types of privilege communication

1. Absolutely privilege communication—this communications are not actionable even if the author acted in bad faith.
(for example the protection granted to our legislators in their parliamentary immunity. Article VI sec. 11, which exempts
the member of Congress for any liability in a speech or debate in the Congress or any committee thereof. They cannot be
held criminally liable outside, if they made the utterances with the requirements present under the Constitution. They
cannot be held criminally, civilly or administratively liable but they can be disciplined by the body, so absolutely privilege
communication.
2. Qualifiedly privilege communication—are communications that contain defamatory imputations, these are not
actionable unless they are found to have been made without good intention or justifiable motive. (mahulog dire sa
Article 354)

Now the court said that the enumeration in article 354 so far as to the privilege communication is not exclusive. Included in the listing
of qualifiedly privilege communication is this concept or this doctrine of fair and true report, fair commentaries on matters of public
interests. That is another category, another form of privilege communication. So 354 duha plus kaning si fair commentaries and matters
of public interests. This is a form of qualifiedly privilege communication to prove that it fell under these exception then mawala ang
element of malice therefore the the state has to proved that the communication was malicious.

Now how do you make your article fall under this privilege?

First of all what is the basis of this privilege? Where did this come from?

Under the Constitution, so we have provisions protecting the right to free speech and in early jurisprudence, publications which are
privilege for reasons of public policy are protected by the Constitutional guaranty of the freedom of speech so this privilege is anchored
on that right. So this right can be abolished by the mere failure of Congress to include that form of privilege speech in the Revised
Penal Code because it has long been recognized before pa. So, this concept of privilege communication is implicit in the freedom of
the press. It is important for the press to report so that they can be more vigilant rather they can be bolder in whatever they do in
journalism. Dili sila mahadlok because whatever they write could fall under this fair commentaries and matters of public interest which
is a qualifiedly privilege communication.

What is it? What is this doctrine fair comment? When does an article become fair commentary on matters of public concern?

It means that in every quiet, in every general, every discreditable imputation of public dealing is considered false because every man
is presumed innocent until his guilt is judicially proved and every false imputation is deemed malicious. Nevertheless when that
discreditable imputation is directed against a public person in his public capacity it is not necessarily actionable, so dira sya mahulog.
So if your writeup or speech is directed against a private person even if it contains discreditable imputations writeup against a public
person in his public capacity, as a rule it is not necessarily be actionable because it may be considered as privilege communication
under this category.

When can that be actionable?

If it based on a false allegation of fact or in a false position. Makita nimo in that instance na dili nma sya privilege because it is already
malicious.

So how do you prove that your article falls in that privilege communication?

You have to prove that you are talking about a public person and that the defamatory or discreditable imputation talks about him in
his public capacity.

So who is a public figure? Mao na ang requirement to prove that this person you are talking about.

Is Wencslao here a public figure? YES

He is considered as a celebrity or someone who achieved some degree of reputation. There is a discussion here as to who a celebrity
is. Enrile here is a celebrity not necessary na artist aka.

Is it restricted to celebrities or public figures? NO

In fact it’s not, even if the person is not a public figure as long as he is involved in a public issue, he maybe considered the subject of a
fair commentary. So you prove that you did this write up against this person in his public capacity is a public person and that you did
not do so maliciously, so the presumption of malice is removed if your communication is shown to be privilege. So if you are able to
prove that it is a fair commentary then mawala tong presumption of malice and therefore you cannot be held liable for libel unless the
state proves that your article was malicious.

Here the court said that the article:

(1) It did not allude to person. So dismissable sya

(2) It was a form of privilege communication under the doctrine of fair commentary.

And the presumption of malice is removed. So they were absolved of the civil charges in relation to libel, gitanggal ang damages.