ON THE LIMITATIONS OF THE FREEDOM OF EXPRESSION 1

Michael Gines Munsayac2 Introduction The Constitution, Article 3, Section 4 provides: No law shall be passed abridging the freedom of speech, of e pression, or of the press, or of the right of people peaceabl! to assemble and petition the government for redress of grievance" The Constitution forbids not the abridging of speech, but the abridging of freedom of speech" 3 There are several reasons wh! freedom of e pression is guaranteed b! the Constitution" #or some, freedom of e pression is essential for the search of truth" This is the mar$etplace idea, which posits that the power of thought can be tested b! its acceptabilit! in the competition of the mar$et" Another reason offered is that free e pression is needed for democrac! to wor$ properl!" The citi%en has to be given the information re&uired for him to be able to perform his civic dut!" Still another reason is a ver! personal one: freedom of e pression promotes individual self'reali%ation and self'determination"4 The importance of freedom of e pression is easil! appreciated" Notabl!, this is the first right that is alwa!s curtailed when a free societ! falls under a repressive regime" (ur Constitution provides that sovereignt! resides in the people)* who manifest it regularl! through their suffrages, and more fre&uentl! and generall!, b! the assertion of their freedom of e pression" This sovereignt! would be negated if the! were denied the opportunit! to participate in the shaping if public affairs though the arbitrar! imposition upon them of the ban on silence"+ #reedom of e pression contains two guarantees: prohibiting prior restraint and a prohibition of subse&uent punishment" ,rior restraint means official government restrictions on the press or other forms of e pression in advance of actual publication or dissemination" -ts most blatant form is a s!stem of licensing or censorship administered b! an e ecutive officer" .ut it also includes other prior restrictions such as a /udicial in/unction against publication, license ta es for the privilege of engaging in the business of advertising, or flat license fees for the privilege of selling religious boo$s" The mere prohibition of government interference before words are spo$en or published would be an inade&uate protection of the freedom of e pression if the government could punish without restraint after publication" The unrestrained threat of subse&uent punishment itself would operate as a ver! effective prior restraint" 0ence, the guarantee of freedom of e pression also means a limitation on the power of the state to impose subse&uent punishment" Thus it is

Paper submitted in partial fulfillment of the requirement in Statutory Construction Class under Atty. Jim Lopez. The author would like to acknowled e the insi htful lectures of !ean Pacifico A. A abin in his Constitutional Law "" class# School $ear %&&'(%&&). 2 Student# Law Pro ram# Lyceum of the Philippines *ni+ersity, -.S. .conomics# *P /011)2# 3.-.A.# Ad3*
/%&&%2# 3.A. .conomics# !LS* /%&&42, concurrently Senior 3ana er# -P" Asset 3ana ement 5 Trust.
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3iriam !efensor Santia o# Constitutional Law6 Te7t and Cases# 8olume % -ill of 9i hts# %&&% .d. p. :1;. 4 Joaquin -ernas# S.J.# Constitutional 9i hts and Social !emands6 <otes and Cases# %&&: .d.# p. %): 5 01)' Constitution# Article ""# Section 0. 6 "sa ani Cruz# Constitutional Law# %&&' .d.# p. %&0.

that much of the /urisprudence on freedom of e pression consists of attempts to find standards for allowable subse&uent punishment" Prior Restraint and the Press A leading case on prior restraint is New York Times v. United States"1 The case arose when the New 2or$ Times started publication of e cerpts from a classified ,entagon stud! entitled History of U.S. Decision Makin !rocess on "ietnam !olicy ") The Ni on administration claimed that continued publication of the stud! would pose a serious threat to national securit!" -n re/ecting the government claim the court made an important pronouncement" An! s!stem of prior restraints of e pression comes to this Court bearing a heav! presumption against its constitutional validit!"3 The 4overnment thus carries a heav! burden of showing /ustification for the enforcement of such a restraint") 5 The Court held that the 4overnment had not met that burden") An earl! 6"S" decision however was willing to admit an e ception to the prohibition of prior restraint" -n Near v. Minnesota,78 6"S" Supreme Court ac$nowledged in an o#iter dictum that the prior restraint principle was not an unbending rule" -t admitted of e ception" $%hen a nation is at war& many thin s that mi ht #e said in time of 'eace are such a hindrance to its effort that their utterance will not #e endured so lon as men fi ht and that no court could re ard them as 'rotected #y any constitutional ri ht.()) No one would *uestion #ut that overnment mi ht 'revent actual o#struction to its recruitin service or the 'u#lication of the sailin dates of trans'orts or the num#er and location of troo's. +n similar rounds& the 'rimary re*uirements of decency may #e enforced a ainst o#scene 'u#lications. The security of the community life may #e 'rotected a ainst incitements to acts of violence and the overthrow #y force of orderly overnment.( 9otion pictures do not receive the same preferential treatment accorded to the press in the matter of prior restraint" -n our countr!, it is legitimate for our e ecutive agenc! to review a movie before public e hibition"7: The ,hilippine Supreme Court, in , lesia ni -risto v. .ourt of /''eals said:73 $To #e sure& le al scholars in the United States are still de#atin the 'ro'osition whether or not courts alone are com'etent to decide whether s'eech is constitutionally 'rotected. The issue involves hi hly ar ua#le 'olicy #y our le islators.( ;elated to movie censorship is the prohibition of television coverage of /udicial trials" The issue came to a head in Secretary of 0ustice v. Sandi an#ayan)1 which involved a petition to allow live television coverage of the trial of former ,resident <strada" The Court said:
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Cited in People +. <azario# 04= SC9A 0)4# 01=(014 /01))2. Citin -antam -ooks# "nc. +. Sulli+an# ;'% *.S. =)# '& /014;2. 9 Citin >r anization for a -etter Austin +. ?eefe# :&% *.S. :0= /01'02 10 %;) *.S. 41'# '04 /01;02# as cited in -ernas# pp. %)=(%1&. 11 "bid# citin Schenck +. *nited States# %:1 *.S. :' /01012 12 Cf. @reedman +. 3aryland# ;)& *.S. =0 /014=2. The American doctrine holds that only courts can stop the showin of the film. 13 A.9. <o. 0014';# July %4# 0114. 14 A.3. <o. &0(:(&;(SC# June %1# %&&0.

23'erience has esta#lished the 're4udicial effect of television on witnesses& %itnesses mi ht #e fri htened& 'lay to the camera& or #ecome nervous. They are su#4ect to e3traordinary out5of5court influences which mi ht affect their testimony. /lso& telecastin not only increases the trial 4ud es6 res'onsi#ility to avoid actual 're4udice to the defendant& it may as well affect his own 'erformance. 0ud es are human #ein also and are su#4ect to the same 'sycholo ical reactions as laymen. 7or the defendant& telecastin is a form of mental harassment and su#4ects him to e3cessive 'u#lic e3'osure and distracts him from the effective 'resentation of his defense.( The television camera is a 'owerful wea'on which $intentionally or inadvertently can destroy an accused and his case in the eyes of the 'u#lic.) Media and Privacy The case of /yer !roductions v. .a'ulon 7* was the occasion for an e amination of motion pictures as a vehicle not /ust for entertainment but also for information" The case involved the production of The 7our Days of 8evolution,) a movie account of the bloodless coup that toppled the 9arcos regime" =uan ,once <nrile, a principal actor in the historic event, sought to en/oin the use of his name or of an! of his famil!" Against <nrile>s claim was the producer>s assertion of freedom of e pression" The Court had to balance <nrile>s claim to the right of privac! against the producer>s freedom of e pression and concluded that: $/ limited intrusion into a 'erson6s 'rivacy has lon #een re arded as 'ermissi#le where that 'erson is a 'u#lic fi ure and the information sou ht to #e elicited from him or to #e 'u#lished a#out him constitute matters of 'u#lic character. The interest sou ht to #e 'rotected #y the ri ht to 'rivacy is the ri ht to #e free from $unwarranted 'u#licity& from the wron ful 'u#lici9in of the 'rivate affairs and activities of an individual which are outside the realm of le itimate 'u#lic concern.(): Limitations on the Freedom of Expression -f prior restraints were all that the constitutional guarantee prohibited and government could impose subse&uent punishment without restraint, freedom of e pression could be a moc$er! and a delusion")71 0ence, freedom of e pression also means that there are limits to the power of government to impose rules or regulations curtailing freedom of speech and of the press" The right of free speech and press is not absolute" 0e who abuses it ma! be held liable"73 The search for standards for government curtailment of speech presupposes the premise that freedom of speech is not absolute" -n the oft &uoted e pression of =ustice 0olmes:

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04& SC9A )40 /01))2. "bid# citin BThe Constitutional @oundations of Pri+acy#C in "rene Cortes# .mer in Trends in Law# pp. 0( '&. The lecture of !ean Cortes /later Associate Justice of the Supreme Court2 was ori inally deli+ered in 01'&. 17 -ernas# p ;0. 18 Santia o# p =)).

$the constitutional uarantee o#viously was not intended to ive immunity for every 'ossi#le use of lan ua e.(); #or testing the validit! of laws which impinge upon freedom of e pression, various tests have been evolved" The Dangerous Tendency Doctrine -n <ayan v. 2rmita,:8 the Supreme Court outlawed the so'called .ali#rated !re5em'tive 8es'onse !olicy adopted b! the administration against public rallies, sa!ing that it has no place in our legal firmament and must be struc$ down as a dar$ness that shrouds freedom" The Calibrated ,re'emptive ;esponse ,olic!, insofar as it would purport to differ from or be in lieu of ma imum tolerance, is null and void and respondents are en/oined to refrain from using it and to strictl! observe the re&uirements of ma imum tolerance") This test was the test consistentl! applied during the American regime" The accepted rule was that speech ma! be curtailed or punished when it creates a dangerous tendenc! which the state has the right to prevent"):7 The remar$ complained of in the case, made b! a lowl! municipal secretar! in the course of a conversation at a casual meeting with another person, was: $The 7ili'inos like myself must use #olos for cuttin off Governor General %ood6s head for havin recommended a #ad thin for the 7ili'inos& for has killed our inde'endence.( The accused was sentenced to /ail" All it re&uires for speech to be punishable is that there be a rational connection between the speech and the evil apprehended" -n other words, under this rule, the constitutionalit! of a statute curtailing the freedom of e pression is determined in the same manner that the constitutionalit! of an! statute is determined, namel! b! answering the &uestion whether the statute is reasonable") ;ight now, this is a highl! unacceptable criterion, chosen obviousl! to discourage attac$s against the American Administration":: The Clear and Present Danger Rule The dangerous tendenc!) rule !ielded to the clear and present danger) test, a standard which serves to emphasi%e the importance of speech to a free societ! without sacrificing other freedoms essential to a democrac!" :3 This is the most libertarian of all the tests and as declared b! the 6"S" Supreme Court in the case of Schenck v. United States::4 The *uestion in every case is whether the words used in such circumstances and are of such a nature to create a clear and 'resent dan er that will #rin a#out the su#stantive evils that a State has a ri ht to 'revent.( ,f they do& the
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Trohwerk +. *nited States# %:1 *.S. %&:# %&4 /01012# cited in -ernas# p ;0. A.9. <o. '41);)# April %=# %&&4. 21 People +. Perez# := Phil. =11 /01%;2. 22 Cruz# p. %%0. 23 -ernas# p. ;0. 24 %:1 *.S. :'# =% /01012# as cited in Cruz# pp. %0;(%0:.

s'eaker shall #e 'unished= otherwise& not. $,t is a *uestion of 'ro3imity and de ree. The character of every act de'ends u'on the circumstances in which it is done") Thus, the most stringent protection of free speech would not protect a man in falsel! shouting #ire, fire) in a crowded auditorium and causing a panic" .! contrast, the same word shouted with the same note of alarm but is a less flammable setting, sa! in the middle of 6, Sun$en 4arden, would create no clear and present danger and therefore no liabilit!" The clear and present) danger rule has been applied in the following cases::* Criminal prosecutions for opposition to war Statutes penali%ing the advocac! of the overthrow of the government b! force or violence Attac$s of courts or /udges ,ic$eting ;egulation of prison inmates> access to newspapers, periodical, etc" -ncitement to crime .reach of the peace or disorderl! conduct ;e&uirement of education officials that public school students should salute the flag"

.! contrast, the clear and present danger) rule has been held not to be applicable in the following cases::+ Antitrust actions (bscenit! ?ibel Statutes regulating conduct of labor union affairs Statutes governing the use of school propert! for non'school purposes" @emonstrations in an inappropriate place, such as a courthouse"

-n later !ears, this doctrine has been superseded b! its own offspring, the weighting'of'interest) standard also $nown as the balance'of'interest) test" alancing of Interest Test Since the clear and present danger) test is a *uestion of 'ro3imity and de ree) and since not all evils easil! lend themselves to measurement in terms of pro imit! and degree, the test cannot alwa!s be convenientl! applied to all t!pes of encroachment on freedom of e pression" #or this reason, the balancing of interest test came into being":1

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Santia o# pp. =)1(=1&. !r. Santia o cited the cases of Schenk +. *nited States# %:1 *S :', !ennis +. *nited States# %:1 *S :1:, Thornbill +. Alabama# ;0& *S )), 3usser +. *tah# ;;; *S 1=, Terminiello +. Chica o# ;;' *S 0, Dest 8ir inia State -oard of .ducation +. -arnette. ;01 *S 4%:. 26 "bid# p. =1&. !r. Santia o cited the followin cases6 Associated Press +. *nited States# ;%4 *S 0, -eauharnais +. "llinois# ;:; *S %=&, American Communication Association +. Lands# ;;1 *S ;)%, and Co7 +. Louisiana# ;'1 *S ==1. 27 -ernas# p. ;%.

The test rests on the theor! that it is the Court>s function in cases before it, when it finds public interests served b! legislation on the one hand and guaranteed freedoms affected b! it on the other, to balance one against the other and to arrive at a /udgment, where the greater weight shall be placed" -f on balance it appears that the public interest served b! restrictive legislation is of such a character that it outweighs the interest served b! freedom, then the Court will find the legislation valid":3 The balancing of interest test has been particularl! useful in the anal!sis of laws which impose a degree of restriction on speech for the sa$e of purif!ing and e&uali%ing the electoral process":5 This test has not found favor with man! libertarians" The flaw in this method is that it, in effect, allows the courts to decide that this freedom ma! not be so enforced unless the! believe it is reasonable to do so"38 !ther Limitations of the Freedom of "peech and Press @r" Santiago enumerated other limitations in the freedom of speech and the press" These limitations are in addition to the three doctrines previousl! discussed"

Right of privacy" 4overnment ma! properl! act in man! situations to prohibit intrusion into the privac! of the home of unwelcome views and ideas which cannot be totall! banned from the public dialogue" 37 Thus, a statute that authori%es a household to re&uire his name be removed from the mailing list of a mailer of pandering advertisements does not violate this right"3: Reasona#le #ounds of ne$sgathering" The press is not immune from restriction or regulations" The press does not have a constitutional right of special access to information or places not available to the general public" 33 -n a case involving =ac&ueline Aenned! (nassis, a 6"S" court held that although the late #irst ?ad! was a public figure, a photographer>s actions went far be!ond reasonable bounds for news gathering, and the photographer was en/oined from an! further harassment of her"34 usiness regulations apply to press" Bith respect to statutor! regulations, the press stands on the same ground as ordinar! persons" A newspaper is liable for libel, contempt of court, and pa!ment of business ta esC he is also sub/ect to antitrust and labor laws" %dvocacy rule" The advocac! rule states that the constitutional guarantee of free speech and free press do not permit a state to forbid or prescribe advocac! of the use of force or of law violation, e cept where such advocac! is directed to inciting or producing

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Aonzales +. C>3.L.C# %' SC9A );= /01412. Social Deather Stations +. C>3.L.C# A.9. <o. 0:'='0# 3ay =# %&&&, A-S(C-< -roadcastin Corporation +. C>3.L.C# A.9. <o. 0;;:)4# January %)# %&&&, <ational Press Club +. C>3.L.C# %&' SC9A 0 /011%2. 30 Cruz# p. %%;. 31 Santia o# p. =))# citin Cohen +. California# :&; *S 0=. 32 "bid# citin 9owan +. *S Post >ffice !epartment# ;1' *S '%). 33 "bid. citin -ell +. Procunier# :0' *S )0'. 34 "bid# citin Aalella +. >nassis :)' @%d 1)4.

imminent lawless action and is li$el! to incite or produce such action" 3* 6nder the advocac! rule, when the advocac! of conduct prescribed b! law falls short of incitement, and there is nothing to indicate that the advocac! will be immediatel! acted on, free speech cannot be denied"3+ The advocac! rule has been applied to the following cases:

o Criminal prosecutions for opposition to a war or to the militar!, generall!31 o Cases involving advocac! of the overthrow of the government b! force and
violence"33 Conversel!, the advocac! rule has not been applied in certain cases" -n these specific situations, advocac! of unlawful acts or of the forceful overthrow of the government has been held not protected b! the free speech and press guarantee" The court did not find it necessar! to consider whether the advocac! was directed to inciting or producing imminent lawless action and was li$el! to incite or produce such action" Such cases include:

o Bhere the issue was an applicant>s admission to the bar35 o Advocac! of unlawful acts b! an officer in the armed forces48 o @eportation of an alien"47
Commercial "peech& Least Protected "peech Commercial speech simpl! means communication whose sole purpose is to propose a commercial transaction" -t is also protected speech, but it has not been accorded the same level of protection as that given to what is called core) speech such as political speech" 4: .entral Hudson Gas v. !u#lic Service .ommission 1> set down the re&uirements for the protection of commercial speech: 7" :" 3" 4" The speech must not be false or misleading or propose an illegal activit! The governmental interest sought to be served b! the regulation must be substantial The regulation must directl! advance the government interest The regulation must not be overbroad"

-n the recent case of !harmaceutical and Health .are /ssociation of the !hili''ines v. Secretary Du*ue11, the Supreme Court unanimousl! declared null and void certain provisions of the @epartment of 0ealth>s ;evised -mplementing ;ules and ;egulations of the 9il$ Code, which call for an absolute ban on the promotion and advertisement of breast mil$ substitutes" The Court declared that the advertising and promotion of breast mil$ substitutes properl! falls within the ambit of the term commercial speech, a separate categor! of speech which is not
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"bid# citin Communist Party of "ndiana +. Dhitcomb# :0: *S ::0. "bid# citin ?in sley "nternational Pictures Corp. +. 9e ents of *ni+ersity of <ew $ork# ;4& *S 4):. 37 "bid# citin -ashellar +. 3aryland# ;1' *S =4:. 38 "bid# citin Communist Party of "ndiana +. Dhitcomb# :0: *S ::0. 39 "bid.# citin ?in sley +. State -ar of California# ;44 *S ;4. 40 "bid.# citin Parker +. Le+y# :0' *S ';;. 41 "bid.# citin Earisiades +. Shau nessy# ;:% *S =)&. 42 -ernas# p. ;;. 43 ::' *S ==' /01)&2. 44 A.9. <o. 0';&;:# >ctober 1# %&&'.

accorded the same level of protection as that given to other constitutionall! guaranteed forms of e pression but is nonetheless entitled to protection" Chief =ustice ,uno said: The a#solute #an on advertisin is unduly restrictive and is more than necessary to further the avowed overnmental interest of 'romotin the health of infants and youn children. ,t ou ht to #e self5evident that the advertisement of such 'roducts which are strictly informative cuts dee' free s'eech. The lauda#le concern of the res'ondent for the 'romotion of the health of infants and youn children cannot 4ustify the a#solute overarchin #an.) .ased on the above cases, it is obvious that commercial speech is protected as long as it is factual and not contrar! to public order and public morals" 'nprotected "peech .oth historicall! and doctrinall!, freedom of e pression has never been understood as an absolute right" There are, in fact, some forms of speech not protected b! the Constitution" This is notwithstanding that the language of the guarant!, unli$e some of the provisions in the .ill of ;ights, in un&ualified" ?i$e all rights, it is sub/ect to the police power of the state and ma! be properl! regulated in the interest of the public" -t has been held that freedom of e pression does not cover ideas offensive to public order or decenc! or the reputation of persons" Thus, lewd, words, obscenities, seditious words, and slanderous words cannot be considered a step to truth) and therefore will not en/o! immunit! from prohibition and punishment"4* Two t!pes of unprotected speech have received considerable attention from the courts: libel and obscenit!" The! are no essential part of an! e position of ideas, and are of such slight social value as a step to truth that ma! be derived from them is clearl! outweighed b! the social interests in order and moralit!") Thus, in dealing with them there is no call for the application of the clear and present danger rule or the dangerous tendenc! rule or the balancing of interest test because the! are essentiall! methods of competing legitimate values" .ut there still remains the complicated tas$ of discovering the norms for determining what speech is libelous or what speech is obscene"4+ Li#el ?ibel is defined in /rticle >?> of the 8evised !enal .ode as a public and malicious imputation of a crime or of a vice or a defect, real or imaginar!, or an! act, omission, condition, status, circumstance tending to cause dishonor, discredit, or contempt of a natural or /uridical person, or to blac$en the memor! of the dead" There is libel when the imputation is public and malicious" ,ublicit! means ma$ing the defamator! matter, after it has been written, $nown to someone other the person to whom it has been written,) -t is malicious when the author of the imputation is prompted b! ill'will or spite and spea$s not in response to dut! but merel! to in/ure the reputation of the person who claims to have been defamed") 0owever, a defamator! speech is protected if it is made in good faith or an! sub/ect matter in which the communicator has an interest, or concerning an! matter which he has a dut!" #or instance, reporting a defamator! matter to a superior is not libelous"41
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Cruz# p. %0;# citin Thornhill +. Alabama# ;0& *S )). -ernas# p. ;;# citin Central Eudson Aas +. Public Ser+ice Commission# ::' *S =='# ='% /01)&2. 47 Luis 9eyes# Jr.# The 9e+ised Penal Code# 8olume ""# %&&4 .d.# pp.1;1(1)0.

The general rule is that libel is presumed to be malicious even if it be true" The author of a libelous statement therefore would have the burden of proving that it is not malicious" Bhen, however, the ob/ect of vilification is a public official, there is no presumption of malice" The rule on defamation of public officials was set in the landmar$ case of New York Times v. Sullivan 1@ which said: $The constitutional uarantees re*uire& we think& a federal rule that 'rohi#its a 'u#lic official from recoverin dama es for a defamatory falsehood relatin to his official conduct unless he 'roves that the statement was made with Aactual malice6& that is& with knowled e that it was false with reckless disre ard of whether it was false or not.( ,hilippine /urisprudence accepted the New York Times rule in <or4al v. .ourt of /''eals45 and 0alandoni v. Drilon"*8 The official acts, and now even the private life of a public servant are legitimate sub/ects of public comment" The people have a right to scrutini%e and commend or condemn the conduct of their chosen representative in the government" And as long as their comments are made in good faith and with /ustifiable ends, the! are insulated from prosecution or damage suits for defamation even if such views are found to be inaccurate or erroneous" The court even applied the rule to a defamator! imputation against a lowl! baranga! official in the case of "as*ue9 v. .ourt of /''eals"*7 These observations are applicable not onl! to the public officer but also to the public figure" The importance to the state and to societ! of such discussion is so vast, and the advantages derived are so great, that the! more than counterbalance the inconvenience of private persons whose conduct ma! be involved"*: !#scenity As to obscenit!, the problem is also of tr!ing to determine what materials are obscene" -t is a iomatic that obscenit! is not constitutionall! protected because it offends public decenc! and morals"*3 Statutes do not define what is obscene" The definition that has gained acceptance comes from Miller v. .alifornia*4 which set down the guidelines for the trier of facts in obscenit! cases" 9iller laid down the tests of obscenit! as follows: 7" Bhether the average person, appl!ing contemporar! standards would find that the wor$, ta$en as a whole, appeals to the prurient interest :" Bhether the wor$ depicts or describes, in a patentl! offensive wa!, se ual conduct specificall! defined b! the applicable law 3" Bhether the wor$, ta$en as a whole, lac$s serious literar!, artistic, political, or scientific value"

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;'4 *S %=: /014:2# as citec by -ernas# p. ;';(;'=. A.9. <o. 0%4:44# January 0:# 0111. 50 A.9. <o. 00=%;1(:&# 3arch %# %&&&. 51 A.9. <o. 00)1'0# September 0=# 0111. 52 Cruz# pp. %%:(%%=# citin <ew $ork Times Co. +. Sulli+an# ;'4 *S %=:. 53 Cruz# p. %;%. 54 ;' L..d. %d :01 /01';2# cited in -ernas# pp. ;)1 F ;1=.

This was substantiall! followed b! our Court for movies in Gon9ales v. -ati #ak,** but the Court noted that stricter rules could be followed for television since children have easier access to television" -n determining whether the material goes substantiall! be!ond customar! limit of candor and affronts contemporar! standards of decenc!,) the Courts should not appl! a national standard but the standard of the communit! in which the material is being tested" #urther, the determination of its meaning should be done on a case'to'case basis"*+ The arrival of the -nternet has begun to spawn a new class of cases on obscenit!" 8eno v. /merican .ivil Bi#erties Union*1 passed upon the constitutionalit! of two provisions of the Communications Decency %ct of ())* +CD%, which sought to protect minors from harmful material on the -nternet" The law was declared unconstitutional largel! because of the broad and vague sweep of the content based on prohibition tended to ban material not suitable for minors but to which adults have a right of access" The Court ac$nowledged the right of the state to ta$e measures protective of minors, but affirmed that it cannot be done to the detriment of those who have a right to certain $inds of material" Epilogue -t was stressed at the outset that freedom of e pression is available onl! insofar as it e ercised for the discussion of matters affecting the public interest" ,urel! private matters do not come within the guarant!" Nevertheless, freedom of e pression is not absolute notwithstanding that the language of the guarant!, unli$e some of the provisions in the .ill of ;ights, is un&ualified" ?i$e all rights, it is sub/ect to the police power of the State and ma! be properl! regulated in the interest of the public"

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0;' SCA9A '0'# July %%# 01)=. Pita +. Court of Appeals# 0') SC9A ;4% /01)12. 57 <o. 14(=00# !ecided June %4# 011'# cited in -ernas# 441-443.

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