ADIONG VS. COMELEC [207 SCRA 712; G.R. NO.

103956; 31 MAR 1992] Facts: COMELEC promulgated Resolution No. 2347 which provides that decals and stickers may be posted only in any of the authorized posting areas, prohibiting posting in "mobile" places, public or private. Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the Resolution. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. Issue: Whether or Not the COMELECs prohibition unconstitutional. or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective. The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. The restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law. The prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship. Held: The prohibition unduly infringes on the citizen's fundamental right of free speech. The preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. The so-called balancing of interests individual freedom on one hand and substantial public interests on the other is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections. When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. The regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his

NEAR VS. MINNESOTA [283 US 697] Facts: A complaint alleged that the defendants, on September 24, 1927, and on eight subsequent dates in October and November, 1927, published and circulated editions of The Saturday Press(published in Minneapolis) which were 'largely devoted to malicious, scandalous and defamatory articles'(based on Session Laws of Minnesota). The articles charged, in substance, provides that a Jewish gangster was in control of gambling, bootlegging, and racketeering in Minneapolis, and that law enforcing officers and agencies were not energetically performing their duties. Most of the charges were directed against the chief of police; he was charged with gross neglect of duty, illicit relations with gangsters, and with participation in graft. The county attorney was charged with knowing the existing conditions and with failure to take adequate measures to remedy them. The mayor was accused of inefficiency and dereliction. One member of the grand jury was stated to be in sympathy with the gangsters. A special grand jury and a special prosecutor were demanded to deal with the situation in general, and, in particular, to investigate an attempt to assassinate one Guilford, one of the original defendants, who, it appears from the articles, was shot by gangsters after the first issue of the periodical had been published. Now defendants challenged the Minnesota statute which provides for the abatement, as a public nuisance, of a malicious, scandalous and defamatory news paper, magazine or other periodical. The District Court ruled against defendants. Hence the appeal Issue: Whether or Not the proceeding authorized by the statute herein constitutes an infringement of the freedom of the press. Held: Yes. The insistence that the statute is designed to prevent the circulation of scandal which tends to disturb the public peace and to provoke assaults and the commission of crime is unavailing. The reason for the enactment, as the state court has said, is that prosecutions to enforce penal statutes for libel do not result in 'efficient repression or suppression of the evils of scandal.' In the present instance, the proof was that nine editions of the newspaper or periodical in question were published on successive dates, and that they were chiefly devoted to charges against public officers and in relation to the prevalence and protection of crime. In such a case, these officers are not left to their ordinary remedy in a suit for libel, or the authorities to a prosecution for criminal libel. The statute not only operates to suppress the offending newspaper or periodical, but to put the publisher under an effective censorship. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse.' Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals. Characterizing the publication as a business, and the business as a nuisance, does not permit an invasion of the constitutional immunity against restraint. Nor can it be said that

the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this court has said, on proof of truth.

TOLENTINO vs. THE SECRETARY OF FINANCE Case Digest 1994 Aug 25 G.R. No. 115455 235 SCRA 630 FACTS: The valued-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or exchange of services. It is equivalent to 10% of the gross selling price or gross value in money of goods or properties sold, bartered or exchanged or of the gross receipts from the sale or exchange of services. Republic Act No. 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National Internal Revenue Code. The Chamber of Real Estate and Builders Association (CREBA) contends that the imposition of VAT on sales and leases by virtue of contracts entered into prior to the effectivity of the law would violate the constitutional provision of non-impairment of contracts. ISSUE: Whether R.A. No. 7716 is unconstitutional on ground that it violates the contract clause under Art. III, sec 10 of the Bill of Rights. RULING: No. The Supreme Court the contention of CREBA, that the imposition of the VAT on the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law would violate the constitutional provision of non-impairment of contracts, is only slightly less abstract but nonetheless hypothetical. It is enough to say that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government which retains adequate authority to secure the peace and good order of society. In truth, the Contract Clause has never been thought as a limitation on the exercise of the State's power of taxation save only where a tax exemption has been granted for a valid consideration. Such is not the case of PAL in G.R. No. 115852, and the Court does not understand it to make this claim. Rather, its position, as discussed above, is that the removal of its tax exemption cannot be made by a general, but only by a specific, law. Further, the Supreme Court held the validity of Republic Act No. 7716 in its formal and substantive aspects as this has been raised in the various cases before it. To sum up, the Court holds: (1) That the procedural requirements of the Constitution have been complied with by Congress in the enactment of the statute; (2) That judicial inquiry whether the formal requirements for the enactment of statutes - beyond those prescribed by the Constitution - have been observed is precluded by the principle of separation of powers; (3) That the law does not abridge freedom of speech, expression or the press, nor interfere with the free exercise of religion, nor deny to any of the parties the right to an education; and (4) That, in view of the absence of a factual foundation of record, claims that the law is regressive, oppressive and confiscatory and that it violates vested rights protected under the Contract Clause are prematurely raised and do not justify the grant of prospective relief by writ of prohibition.

Facts: The value-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or exchange of services. RA 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National Internal Revenue Code. There are various suits challenging the constitutionality of RA 7716 on various grounds. One contention is that RA 7716 did not originate exclusively in the House of Representatives as required by Art. VI, Sec. 24 of the Constitution, because it is in fact the result of the consolidation of 2 distinct bills, H. No. 11197 and S. No. 1630. There is also a contention that S. No. 1630 did not pass 3 readings as required bythe Constitution. Issue: Whether or not RA 7716 violates Art. VI, Secs. 24 and 26(2) of the Constitution Held: The argument that RA 7716 did not originate exclusively in the House of Representatives as required by Art. VI, Sec. 24 of the Constitution will not bear analysis. To begin with, it is not the law but the revenue bill which is required by the Constitution to originate exclusively in the House of Representatives. To insist that a revenue statute and not only the bill which initiated the legislative process culminating in the enactment of the law must substantially be the same as the House bill would be to deny the Senates power not only to concur with amendments but also to propose amendments. Indeed, whatthe Constitution simply means is that the initiative for filing revenue, tariff or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House,

so long as action by the Senate as a body is withheld pending receipt of the House bill. The next argument of the petitioners was that S. No. 1630 did not pass 3 readings on separate days as required by the Constitution because the second and third readings were done on the same day. But this was because the President had certified S. No. 1630 as urgent. The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. That upon the certification of a bill by the President therequirement of 3 readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice.

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent. Facts: Petitioner, Social Weather Stations, Inc. (SWS) is a private non-stock, non-profit social research institution conducting surveys in various fields. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation. Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing Section 5.4 of RA. No.9006 (Fair Election Act), which provides that: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. No similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. They contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous

and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Issue: whether or not Section 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of speech, expression and the press? Held: Based on the above reasons (petitioner), yes, it constitutes an unconstitutional abridgement of freedom of expression, speech and the press. To summarize, the Supreme Court held that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression. Section 5.4 lays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election seven (7) days before a local election. Because of tile preferred status of tile constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Any system of prior restraints of expression comes to this Court bearing a heavy Presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for in enforcement of such restraint. Nor may it be argued that because of Art. IX-C, 4 of the

Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of such media facilities "public information campaigns and forums among candidates." MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of 5.4. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations. Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the circumstances to determine whether public interest is served by the regulation of the free enjoyment of the rights". The dissenting opinion simply concludes that the objectives of Section 5.4 are valid. It may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. As already stated, the purpose of Art. IXC, 4 is to "ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefore for public information campaigns and forums among candidates". Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic

claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press, with little protection. Nor can the ban on election surveys be justified on the ground that there are other countries - 78, according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. In some countries, of which are no older nor more mature than the Philippines in political development, they do not restrict the publication of election survey results. The O 'Brien test could then be employed to determine the constitutional validity of 5.4. The United States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien: [A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest. Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not related to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion

concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." The prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the O 'Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No. 9006 24(h) of COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional.
FERNANDO VS. ESTORNINOS [G.R. NO 159751; 6 DEC 2006] Facts: Acting on reports of sale and distribution of pornographic materials, officers of the PNP Criminal Investigation and Detection Group in the National Capital Region conducted police surveillance on the store Gaudencio E. Fernando Music Fair (Music Fair) in Quiapo. A Search Warrant for violation of Article 201 of RPC against petitioner and a

certain Warren Tingchuy and the seizure of the following items: a. Copies of New Rave Magazines with nude obscene pictures; b. Copies of IOU Penthouse Magazine with nude obscene pictures; c. Copies of Hustler International Magazine with nude obscene pictures; and d. Copies of VHS tapes containing pornographic shows. The police searched the premises and confiscated twenty-five VHS tapes(among of which is Kahit sa Pangarap Lang with Myra Manibog as actress who is naked) and ten different magazines(Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery, QUI), which they deemed pornographic. Petitioners were charged and convicted. CA affirmed the decision hence this appeal. Issue: Whether or Not the CA erred in affirming RTCs decision. Held: No. As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect the public from obscene, immoral and indecent materials must justify the regulation or limitation. (Kottinger Rule Applied).
FRANCISCO CHAVEZ vs. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NTC G.R. No. 168338, February 15, 2008 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 Pr esident Arroyo. On 6 June 2005, Presidential spokesperson Bunye held a press conference in Malacaang 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. However, on 9 June 2005, Bunye backtracked and stated that the womans voice in the compact discs was not President Arroyos after all.3 Meanwhile, other individuals went public, claiming possession of the genuine copy of the Garci Tapes. Respondent Gonzalez ordered the NBI to investigate media organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the AntiWiretapping Law. 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. On 14 June 2005, NTC officers met with officers of the broadcasters group KBP, to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing commitment to press freedom On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the acts, issuances, and orders of the NTC and respondent Gonzalez (respondents) on the following grounds: (1) respondents conduct violated freedom of expression and the right of the people to information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it warned radio and television stations against airing the Garci Tapes. ISSUE: The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005 constitutes an impermissible prior restraint on freedom of expression. 1. Standing to File Petition Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case, any citizen has the right to bring suit to question the constitutionality of a government

action in violation of freedom of expression, whether or not the government action is directed at such citizen. Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is of transcendental importance that must be defended by every patriotic citizen at the earliest opportunity. 2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable condition8 to the exercise of almost all other civil and political rights. Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows citizens to make informed choices of candidates for public office. Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression: No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of expression shall not be abridged. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of necessity. The exceptions, 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 restraint. 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. Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution. If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in public places without any restraint on the content of the expression. Courts will subject content-neutral restraints to intermediate scrutiny. An example of a contentneutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts. Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on unprotected expression is content-based since the restraint is imposed because of the content itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to prior restraint. This Court recognized false or misleading advertisement as unprotected expression only in October 2007. Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed

unconstitutional. Second, the government bears a heavy burden of proving the constitutionality of the prior restraint. Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public. While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment,27 either civilly or criminally. Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or hate speech against a religious minority is not subject to subsequent punishment in this jurisdiction, such expression cannot be subject to prior restraint. If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent punishment. There must be a law punishing criminally the unprotected expression before prior restraint on such expression can be justified. The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories of unprotected expression pornography,31 advocacy of imminent lawless action, and danger to national security is the clear and present danger test.32 The expression restrained must present a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be grave and imminent. Prior restraint on unprotected expression takes many forms it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits.34 The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies. 3. Government Action in the Present Case The government action in the present case is a warning by the NTC that the airing or broadcasting of the Garci Tapes by radio and television stations is a cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to radio and television stations. The NTC warning, embodied in a press release, relies on two grounds. First, the airing of the Garci Tapes is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations. Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes contain false information or willful misrepresentation. The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be subject to prior restraint. The NTC does not specify what substantive evil the State seeks to prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of grave and imminent character, that the State has a right and duty to prevent. The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a continuing violation of the Anti-Wiretapping Law. There is also the issue of whether a wireless cellular phone conversation is covered by the Anti-Wiretapping Law.

Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and television stations were not even given an opportunity to be heard by the NTC. The NTC did not observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations. The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also concedes that only after a prosecution or appropriate investigation can i t be established that the Garci Tapes constitute false information and/or willful misrepresentation. Clearly, the NTC admits that it does not even know if the Garci Tapes contain false information or willful misrepresentation. 4. Nature of Prior Restraint in the Present Case 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 NTCs 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. 5. Nature of Expression in the Present Case 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. Obviously, 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. In any event, public discussion on all political issues should always remain uninhibited, robust and wide open. 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 airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern. The Constitution guarantees the peoples right to information on matters of public concern. The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law. While there can be no prior restraint on protected expression, there can be subsequent punishment for protected expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the Anti-Wiretapping Law. 6. Only the Courts May Impose Content-Based Prior Restraint The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest NTC with any content-based censorship power over radio and television stations.

In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior restraint. However, even assuming for the sake of argument that the airing of the Garci Tapes constitutes unprotected expression, only the courts have the power to adjudicate on the factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, so as to justify the prior restraint. Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. 7. Government Failed to Overcome Presumption of Invalidity Respondents did not invoke any compelling State interest to impose prior restraint on the public airing of the Garci Tapes. The respondents claim that they merely fairly warned radio and television stations to observe the Anti-Wiretapping Law and pertinent NTC circulars on program standards. Respondents have not explained how and why the observance by radio and television stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State interest justifying prior restraint on the public airing of the Garci Tapes. Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal prosecution after the violation is committed. Respondents have not explained how the violation of the Anti-Wiretapping Law, or of the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security of the State. 8. The NTC Warning is a Classic Form of Prior Restraint The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations constitutes impermissible pressure amounting to prior restraint on protected expression. Whether the threat is made in an order, regulation, advisory or press release, the chilling effect is the same: the threat freezes radio and television stations into deafening silence. Radio and television stations that have invested substantial sums in capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC threat is thus real and potent. 9. Conclusion

Primicias vs. Fugoso [L-18000. Jan 27, 1948] Doctrine: Clear and Present Danger Test, Freedom of Assembly and Expression FACTS: This case is an action of mandamus instituted by petitioner Cipriano Primicias, manager of theCoalesced Minority Parties, against respondent Manila City Mayor, Valeriano Fugoso, to compel the latter to issue a permit for the holding of a public meeting at the Plaza Miranda on Nov 16, 1947. The petitioner requested for a permit to hold a peaceful public meeting. However, the respondent refused to issue such permit because he found that there is a reasonable ground to believe, basing upon previous utterances and upon the fact that passions, specially on the part of the losing groups, remains bitter and high, that similar speeches will be delivered tending to undermine the faith and confidence of the people in their government, and in the duly peace and a disruption of public order. Respondent based his refusal to the Revised Ordinances of 1927 prohibiting as an offense against public peace, and penalizes as a misdemeanor, "any act, in any public place, meeting, or procession, tending to disturb the peace or excite a riot; or collect with other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any

congregation engaged in any lawful assembly." Included herein is Sec. 1119, Free use of Public Place. ISSUE: Whether or not the Mayor has the right to refuse to issue permit hence violating freedom of assembly. HELD: The answer is negative. Supreme Court states that the freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitution. However, these rights are not absolute. They can be regulated under the states police power that they should not be injurious to the equal enjoyment of others having equal rights, nor to the rights of the community or society. The Court holds that there can be 2 interpretations of Sec. 1119: 1) the Mayor of the City of Manila is vested with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful assembly or meeting, parade, or procession in the streets and other public places of the City of Manila; and 2) The right of the Mayor is subject to reasonable discretion to determine or specify the streets or public places to be used with the view to prevent confusion by overlapping, to secure convenient use of the streets and public places by others, and to provide adequate and proper policing to minimize the risk of disorder. The court favored the second construction since the first construction is tantamount to authorizing the Mayor to prohibit the use of the streets. Under our democratic system of government no such unlimited power may be validly granted to any officer of the government, except perhaps in cases of national emergency. It is to be noted that the permit to be issued is for the use of public places and not for the assembly it self. The Court holds that the assembly is lawful and thus cannot be struck down. Fear of serious injury cannot alone justify suppression of free speech and assembly. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. PETITION IS GRANTED.
Nelson Navarro, Petitioner vs. Mayor Antonio Villegas, respondent.

FACTS:

On February 24, 1970, the petitioner, acting in behalf of the Movement of a Democratic Philippines, wrote a letter to the respondent, the Mayor of the city of Manila, applying to hold a rally at Plaza Miranda February 26, 1970, from 4-11pm.

On the same day, the respondent wrote a reply, denying his request on the grounds that, the have temporarily adopted the policy of not issuing any permit for the used of Plaza Miranda for rallies or demonstration during weekdays due to the events that happened from the past week.

On the same letter, the respondent gave the petitioner an option to use the Sunken Garden near Intamuros for its rally, and for it to be held earlier for it to end before dark.

The petitioner filed suit contesting the Mayors action on the ground that it violates the petitioners right to peaceable assemble and petition the government for redress of grievances (ART. 3, sec 1(8)) and of the petitioners right to the equal protection of the law (art. 3, sec. 1).

ISSUE: Whether or not the respondents act on denying the request of the petitioner violates the petitioners Right to peaceable assembly and right to the equal protection of the law.

Held:

The right of peaceable assemble is subject to regulation under the police power of the state.

The right to freedom of speech and peaceful assembly, though granted by the Constitution, is not absolute for it may be regulated in order that it may not be injurious to the equal enjoyment of others having an equal right of community and society, This power may be exercised under the police power of the state, which is the power of the state, which is the power to prescribe regulations to promote the health, morals, peace, education, and good order, safety and general welfare of the people.

While the privilege of the citizen to use streets and parks for communication may be regulated in the interest of all, said privilege is not absolute. It must be exercised in subordination to the general comfort and convenience and in consonance with peace and good order, but it must not guise of regulation be abridged or denied.