Freedom From Subsequent Punishment

Section 18(1), Art. III. No person shall be detained solely by reason of his political
beliefs and aspirations.

Without this assurance, the individual would hesitate to speak for fear that he
might be held to account for his speech, or that he might be provoking the
vengeance of the officials he may have criticized.

Not absolute; subject to police power and may be regulated (freedom of

expression does not cover ideas offensive to public order)

Right of students to free speech in school premises not absolute

General Rule: a student shall not be expelled or suspended solely on the basis of
articles he has written

Exception: when the article materially disrupts class work or involves substantial
disorder or invasion of rights of others, the school has the right to discipline its
students (in such a case, it may expel or suspend the student)

Tests of valid governmental interference

(criteria in determining the liability of the individual for ideas expressed by him) :

1. Clear and present danger rule

2. Dangerous tendency doctrine
3. Balance of interest test

1. Clear and Present Danger Rule when words are used in such circumstance and
of such nature as to create a clear and present danger that will bring about the
substantive evil that the State has a right to prevent. (As formulated by Justice
Holmes in Schenck v. United States)

Clear causal connection with the danger of the substantive evil arising from the
utterance

Present time element; imminent and immediate danger (the danger must not only
be probable but also inevitable). (Gonzales v. Comelec)

In ABS-CBN v. Comelec, the Comelec banned exit polls in the exercise of its
authority to regulate the holders of media franchises during the lection period. It
contends that an exit poll has the tendency to sow confusion considering the
randomness of selecting interviewees.... However, the Court said that exit polls
constitute an essential part of the freedoms of speech and of the press. Hence, the
Comelec cannot ban totally in the guise of of promoting clean, honest, orderly and
credible elections. The ban does not satisfy the clear and present danger rule
because the evils envisioned are merely speculative.

Terminiello vs City of
Chicago

Primicias vs Fugosos

Navarro vs Villegas

(speech inside an auditorium with 800

persons)
speech is often provocative and
challenging. hence, fighting words are not
sufficient to convict a person absent a clear
and present danger of a serious substantive
evil
The respondent mayor could only reasonably
regulate, not absolutely prohibit, the use of
public places for the purpose indicated.
the condition of Manila at that time did
not justify the mayor's fears. there was no
clear and present danger.
decided in 1947
(compare with Primicias case)
SC sustained respondent mayor's act of
refusing to issue a permit enabling students
to hold a public rally. Mayor feared the rally
would result to public disorder.

Reyes vs Bagatsing

- decided in 1970
the denial of a permit to hold a public rally
was invalid as there was no showing of the
probability of a clear and present danger of
an evil that might arise as a result of the
meeting. The burden of proving such
eventually rests on the Mayor.

2. Dangerous Tendency Doctrine if the words uttered create a dangerous

tendency of an evil which the State has the right to prevent.(Cabansag v.
Fernandez)

Justice Holmes, critique of this doctrine: Every idea is an incitement. If believed,

it is acted on unless some other belief outweighs it, or some failure of energy stifles
the movement at its birth.

Bayan vs Executive
Secretary Ermita
Cabansag vs Fernandez

People vs Perez

(a) the Calibrated Pre-emptive Response

Policy is null and void. Respondents are
enjoined from using it and to strictly observe
the requirements of maximum tolerance.
It is not necessary that some definite or
immediate acts of force or violence be
advocated. It is sufficient that such acts be
advocated in general terms.
A mere tendency toward the evil was
enough.
Accused declared: The Filipinos like myself
must use bolos for cutting off (GovernorGeneral) Wood's head for having
recommended a bad thing for the Filipinos,
for he has killed our independence.
He was sentenced to jail.

3. Balance of Interest Test when particular conduct is regulated in the interest of

public order, and the regulation results in an indirect, conditional, partial
abridgment of speech, the duty of the courts is to determine which of the two
conflicting interests demands the greater protection under the circumstances
presented. (American Communications Association v. Douds)

CLEAR AND PRESENT

DANGER RULE

DANGEROUS TENDENCY
RULE

BALANCE OF INTEREST
RULE

liberty is preferred

Authority is preferred

the issue is resolved in

the light of the peculiar
circumstancesobtaining
in each particular case

In Mutuc v. Comelec, the preferred freedom of expression calls all the more the
utmost respect when what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage.

When faced with border line situations where freedom (of expression) to speak &
freedom to know (to information) are invoked against (vs.) maintaining free and
clean elections- the police, local officials and COMELEC should lean in favor of
freedom.

For in the ultimate analysis, the freedom of the citizen and the States power to
regulate are NOT ANTAGONISTIC.

There can be no free and honest elections if in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed.

We examine the limits of regulation. J. Feliciano shows that regulation of election

campaign activity may not pass the test of validity if:

It is too general in its terms

Not limited in time and scope in its application

It if restricts ones expression of belief in a candidate or ones opinion of his or

her qualifications,

If it cuts off the flow of media reporting

If the regulatory measure bears no clear and reasonable nexus with the
constitutionally sanctioned objective.

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 in his
private vehicle, the expression becomes a statement by the owner, primarily his
own and not of anybody else.

The general rule for a speech to be considered libelous or defamatory is:

Libel = falsity + actual malice (uttered in full knowledge of its falsity or with
reckless disregard)

Exemption: When the subject of the supposed libelous or defamatory material is a

public officer. Defamatory words may be uttered against them and not be
considered libelous. The reason is that 1) they asked for it (they voluntarily thrust
themselves into the public eye and therefore should not be thin-skinned); 2) its a
matter of public interest; and 3) public figures have the opportunity and resources
to rebut whatever is said against them. (Policarpio vs Manila Times); ( New York
Times vs Sullivan)

In New York Times v. Sullivan, The New York Times is protected under the
freedom of speech in publishing paid advertisement, no matter if it contained
erroneous claims and facts. Said publication was not commercial in the sense that
it communicated information, expressed opinion, recited grievances, protested
claimed abuses, and sought a financial support on behalf of a movement. That the
Times was paid for publishing the advertisement is as immaterial as the fact that
newspapers and books are sold.

Newspapers do not forfeit the protection they enjoy under speech freedom just
because they publish paid advertisements. Otherwise, newspapers will be
discouraged from carrying editorial advertisements and so might shut off an

important outlet for the promulgation of information and ideas by persons who do
not themselves have access to publishing facilities.

On errors: Some degree of abuse is inseparable from the proper use of every thing;
and in no instance is this truer than that of the press. Erroneous statement is
inevitable in free debate.

Moreover, criticism of official conduct does not lose its constitutional protection
merely because it is effective criticism and hence diminishes their official
reputations. Presence of clear and present danger of substantive evil must be
proved. Actual Malice needs to be proved if a public official wants to recover
damages for a defamatory falsehood relating to his official conduct. Even a false
statement may be deemed to make a valuable contribution to public debate since it
brings about the clearer perception and livelier impression of truth, produced by its
collision with error.

In Gonzales v. Kalaw-Katigbak, Kapit sa Patalim was classified as For Adults

Only by the MTRCB and was suggested to have certain portions cut/ deleted.

Held: MTRCB do not have the power to exercise prior restraint. The power of the
MTRCB is limited to the classification of films.

The test to determine whether a motion picture exceeds the bounds of permissible
exercise of free speech and, therefore should be censored, is the clear and
present danger test.

Assembly and Petition

The right to assemble is not subject to prior restraint and may not be
conditioned upon the prior issuance of a permit or authorization from the
government authorities. However, the right must be exercised in such a way that it
will not prejudice the public welfare. (De la Cruz v. Court of Appeals)

 If assembly is to be held at a public place, permit for the use of such place, and
not for the assembly itself, may be validly required. Power of local officials is merely
for regulation and not for prohibition. (Primicias v. Fugoso)

Permit for public assembly is not necessary if meeting is to be held in: a private
place; the campus of a government-owned or operated educational institution; and
freedom park. (B.P. Blg. 880 - The Public Assembly Act of 1985')

In JBL Reyes v. Bagatsing, retired J. JBL Reyes sought a permit from the City of
Manila to hold a march and rally on Oct 26, 1983 2-5pm from Luneta to gates of US
Embassy, and was denied by the Mayor due to Vienna Convention Ordinance and
fear of subversives may infiltrate the ranks of the demonstrators.

Held: no justifiable ground to deny permit because Bill of Rights will prevail over
Vienna Ordinance should conflict exist (none proven because 500m not measured
from gate to US Embassy proper) and fear of serious injury cannot alone justify
suppression of free speech and assembly- only clear and present danger of
substantive evil.

Notes: the Court is called upon to protect the exercise of the cognate rights to free
speech and peaceful assembly

Tanada vs
Bagatsing
Malabanan vs
Ramento

Villar vs TIP

SC sustained the petitioner's motion compelling the mayor

of Manila to issue a permit to hold a rally, but changed the
meeting place to Ugarte Field, a private park
(several students were suspended for 1 year for
conducting demonstration in the premises of a university
outside the area permitted by the school authorities)
SC emphasized that the students did not shed their
constitutional rights to free speech at the schoolhouse
gate, and permitted the students to re-enroll and finish
their studies.
(several students were barred from re-enrollment for
participating in demonstrations)
while the Court upheld the academic freedom of
institutions of higher learning, which includes the right to
set academic standards to determine under what

Non vs Dames

PBM
Employees
Assoc vs PBM

circumstances failing grades suffice for expulsion of

students, it was held that this right cannot be utilized to
discriminate against those who exercise their
constitutional rights to peaceful assembly.
SC abandons its ruling in Alcuaz vs PSBA (that enrolment
of a student is a semester-to-semester contract and the
school may not be compelled to renew the contract)
upholding the primacy of freedom of expression, because
the students do not shed theur constitutionally protected
rights at the school gate.
right to free assembly and petition prevails over economic
rights.

Tests of a lawful assembly

(1) Purpose Test

ideally, the test should be the purpose for which the assembly is held,
regardless of the auspices under which it is organized

(2) Auspices Test

Evengelista vs Earnshaw: the mayor of Manila prohibited the members of the

Communist Party from holding any kind of meeting, revoking all permits previously
granted by him on the ground that the party had been found (by the fiscal's office)
to be an illegal association.

In People v. Bustos, Bustos and several people sent complaint letters via counsel
against Justice of Peace Roman Punsalan, who charged them with libel.

Held: Bustos and the others were acquitted,

Ratio: the guarantees of free speech and a free press include the right to criticize
judicial conduct. And these people did so in proper channels without undue
publicity, believing they were right.

Right of Association

Section 8, Art. III. The right of the people, including those employed in the public
and private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.

The Right of Association is deemed embraced in freedom of expression because the

organization can be used as a vehicle for the expression of views that have a
bearing on public welfare.

SSS
Employees
Assoc vs CA
Victoriano vs
Elizalde Rope
Workers'
Union
Occena vs
COMELEC
In re Edillon

right to organize does not carry with it right to strike

right of association was not violated where political parties

were prohibited from participating in the barangay
elections to insure the non-partisanship of the candidates.
Bar integration does not compel the lawyer to associate
with anyone. Integration does not make a lawyer a
member of any group of which he is not already a member.

T. OBSCENITY CASES

US vs Kottinger

People vs Go Pin

Pita vs CA
Miller vs California

SC acquitted accused who was charged of

having offered for sale pictures of half-clad
members of non-Christian tribes, holding that he
had only presented them in their native attire
Accused was convicted for exhibiting nude
paintings and pictures, notwithstanding his
claim that he had done so in the interest of art.
SC, noting that he has charged admission fees
to the exhibition, held that his purpose was
commercial, not merely artistic.
SC declared that the determination of what is
obscene is a judicial function.
Test of Obscenity:
whether the average person, applying
contemporary community standards, would find
that the work, taken as a whole, appeals to the
prurient interest
whether the work depicts, in a patently
offensive way, sexual conduct specifically
defined by the applicable law
whether the work, taken as a whole, lacks
serious literary, artistic, political or scientific
value

Justice Douglas, dissent: I do not think we, the

judges, were ever given the constitutional power
to make definitions of obscenity. Obscenity is a
hodgepodge.
- The Courts should not apply a national standard but the standard of the
community in which the material is being tested.

In Reno v. ACLU, Communications Decency Act seek to protect minors from

obscenity on the internet.

Held: overbroad, vague, unconstitutional.

Notes: Sexual expression which is indecent but not obscene is protected by the
First Amendment.

The internet is not an invasive medium because it requires a series of affirmative

steps more deliberate and directed than merely turning a dial (tv or radio).

There is no effective way to determine the identity or the age of a user who is
accessing material through email, mail exploders, newsgroups or chat rooms.

The Community Standard as applied to the internet means that any communication
available to a nationwide audience will be judged by the standards of the
community most likely to be offended by the message.

The effect of CDA is such that when a site is blocked for being indecent or
patently offensive the remaining content even if not indecent cannot be viewed
anymore. Imposition of requirements (adult identification number or credit card)
would bar adults who do not have a credit card and lack the resources to obtain one
from accessing any blocked material. It burdens communication among adults.

The CDA is punitive, a criminal statute. The CDA is a content- based blanket
restriction on speech, and as such, cannot be properly analyzed as a form of time,
place and manner regulation.

The CDA was replaced with Child Online Protection Act, 1. The scope had been
limited to material displayed only on the world wide web. Chat and email were not
included. The classification of content was limited as harmful to minors using the
Miller V California Test. So, it was upheld by the Supreme Court.

Notes: the Courts Jurisprudence teaches that it is the publishers responsibility to

abide by that communitys standards.

The fact that distributors of allegedly obscene materials may be subjected to

varying community standards in the various federal judicial districts into which they
transmit the materials does not render a federal statute unconstitutional.

- Criticism of Official Conduct

Lagunzad vs Sotto Vda.
the Court granted the petition to restrain the
de Gonzales
public exhibition of the movie Moises Padilla
Story, because it contained fictionalized
embellishments.
Being a public figure does not destroy one's
right to privacy.
Ayer Productions vs
the tribunal upheld the primacy of freedom of
Judge Capulong
expression over Enrile's right to privacy,
because Enrile was a public figure and a public
figure's right to privacy is narrower than that of
an ordinary citizen. Besides, the movie Four
Days of Revolution (sabi ni Cruz) / A
Dangerous Life (sabi ni Nachura) / The Four
Day Revolution (sabi sa case) would not be
historically faithful without including therein the
participation of Enrile in the EDSA revolution.
US vs Bustos
SC compared criticism of official conduct to a
scalpel that relieves the abscesses of
officialdom
People vs Alarcon
newspaper publications tending to impede,
obstruct, embarrass or influence the courts in
administering justice in a pending suit or
proceeding constitutes criminal contempt which
is summarily punishable by the courts.
In re Jurado
a publication that tends to impede, embarrass
or obstruct the court and constitutes a clear and
present danger to the administration of justice is
not protected by the guarantee of press freedom
and is punishable by contempt.
It is not necessary that publication actually
obstructs the administration of justice, it is
enough that it tends to do so.
In re Sotto
a senator was punished for contempt for having
attacked a decision of SC which he called
incompetent and narrow-minded, and
announcing that he would file a bill for its
reorganization
In re Tulfo
Tulfo's Sangkatutak na Bobo column was held
contumacious. Freedom of the press is
subordinate to the decision, authority and
integrity of the judiciary and the proper
administration of justice.
In re Laureta
a lawyer was held in contempt and suspended
from the practice of law for wrting individual
letters to members of the SC division that
decided a case against his client, arrogantly
questioning their decision
Zaldivar vs
a member of the Bar who imputed charges of

Sandiganbayan

improper influence, corruption and other

misdeeds to members of the Supreme Court
was suspended from the practice of law as
neither the right of free speech nor the right to
engage in political activities can be so construed
or extended as to permit any such liberties to a
member of the bar.