THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
QUALITY CONTROL: MARCELO, RETIRADO
ANNOTATIONS: CHATTO
SECTION 4
No law shall be passed abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to assemble and petition
the government for redress of grievances.
THE 1987 TEXT
Reasons behind the freedom of expression guarantee:
o essential for the search of truth
o needed for democracy to work properly
o promotes individual self-realization and self-determination
FREEDOM OF SPEECH AND PRESS: PRIOR RESTRAINT AND
SUBSEQUENT PUNISHMENT
Prior restraint
o First prohibition of Section 4.
o Official governmental restrictions on the press or other forms
of expression in advance of actual publication or
dissemination.
o Ex. System of licensing administered by an executive officer
The mere prohibition of government interference before words are
spoken or published would be an inadequate protection of the
freedom of expression if the government could punish without
restraint after publication.
o The unrestrained threat of subsequent punishment itself
would operate as a very effective prior restraint.
o Thus, the guarantee of freedom of expression also means a
limitation on the power of the state to impose
subsequent punishment.
o Much of the jurisprudence on freedom of expression consists
of attempts to find standards for allowable subsequent
punishment.
PRIOR RESTRAINT AND THE PRESS
In Near v. Minnesota and New York Times v. United States, the
Press won over the States prior restraint. Why?
o Justice Stewart: The Executive is endowed with enormous
power in the two related areas of national defense and
international relations. In the absence of governmental
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checks and balances present in other areas of our national
life, the only effective restraint upon executive policy and
power in the areas of national affairs may lie in an
enlightened citizenry in an informed and critical public
opinion which alone can here protect the values of a
democratic government. For this reason, it is perhaps here
that a press is alert, aware, and free most vitally serves the
basic purpose of the first amendment. For without an
informed and free press there cannot be an enlightened
people.
PRIOR RESTRAINT, MOVIES AND ELECTRONIC MEDIA.
Far Eastern Broadcasting v. Dans, Jr. (1985) the freedom of
broadcast media is lesser in scope than the press because of their
pervasive presence in the lives of people and because of their
accessibility to children.
MEDIA AND JUDICIAL PROCESS
Estes v. Texas the U.S. Supreme Court held that television
coverage of judicial proceedings involves an inherent denial of the
due process rights of a criminal defendant.
o Prejudicial effect of telecasting on witnesses:
Witnesses might be frightened, play to the camera,
or become nervous.
They are subject to extraordinary out-of-court
influences which might affect their testimony.
o Telecasting not only increases the trial judges responsibility
to avoid actual prejudice to the defendant, it may as well
affect his own performance.
o For the defendant, telecasting is a form of mental
harassment and subjects him to excessive public exposure.
o Within a courtroom, a reporters constitutional rights are no
greater than those of any other member of the public.
o Video footages of court hearings for news purposes shall be
restricted and limited to shots of the courtroom, the judicial
officers, the parties and their counsel taken prior to the
commencement of official proceedings. No video shots or
photographs shall be permitted during the trial proper.
MEDIA AND PRIVACY
Ayer Productions v. Capulong (1988) against freedom of
expression must be balanced the right of privacy which is recognized
law as the right to be left alone.
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o A limited intrusion into a persons privacy has long been
regarded as permissible where that person is a public
figure and the information sought to be elicited from him or
to be published about him constitute matters of a public
character.
o The right of privacy cannot be invoked to resist publication
and dissemination of matters of public interest.
o The interest sought to be protected by the right of privacy is
the right to be free from unwarranted publicity, from the
wrongful publicizing of the private affairs and activities of
an individual which are outside the realm of legitimate
private concern.
o Public figure:
Defined as a person who, by his accomplishments,
fame or mode of living, or by adopting a profession
or calling which gives the public a legitimate
interest in his doings, his affairs, and his
character, has become a public personage.
Held to have lost their right of privacy to some
extent for 3 reasons:
They sought publicity and consented to it,
and so could not complain when they
received it
Their personalities and their affairs had
already become public and could not longer
be regarded as their own private business.
The press had privilege to inform the public
about those who have become legitimate
matters of public interest.
SUBSEQUENT PUNISHMENT: STANDARDS FOR RESTRAINT
Dangerous tendency rule: In the early stages of Philippine
jurisprudence, the accepted rule was that speech may be curtailed or
punished when it creates a dangerous tendency which the State has
the right to prevent.
Clear and present danger test: American jurisprudence. It is a
standard which serves to emphasize the importance of speech to a
free society without sacrificing other freedoms essential to a
democracy.
o Schenck v. United States Justice Holmes: the question in
every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear
and present danger that they will bring about the
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substantive evils that Congress has a right to prevent. It
is a questions of proximity and degree.
Balancing of interests test: where the legislation under
constitutional attack interferes with freedom of speech and assembly
in a more generalized way and where the effect of speech and
assembly in terms of the probability of realization of a specific danger
is not susceptible even of impressionistic calculation, what is more
suitable is the balancing of interests test. (Gonzales v. COMELEC,
1969)
o American Communications Association v. Douds (1947): the
duty of the courts is to determine which of the two conflicting
interests demands the greater protection under the
particular circumstances presented to weigh the
circumstances and to appraise the substantiality of the
reasons advanced in support of the regulation of the free
enjoyment of rights.
o Professor Kauper: the balance-of interests theory rests on
the basis that constitutional freedoms are not absolute, and
that they may be abridged to some extent to serve
appropriate and important public interests.
PURIFYING THE ELECTORAL PROCESS
Badoy, Jr. v. COMELEC (1970) at issue was R.A. 6132 providing
for COMELEC space (free space from newspapers, magazines and
periodicals) which shall be allocated equally among all candidates.
Outside of said space, it shall be unlawful to print or publish, any
advertisement, paid comment or paid article in furtherance of or in
opposition to the candidacy of any person.
o First view (supported by 5 judges): Against the background
of so many other avenues of expression open to the
candidate, Justice Makasiar found the limitation on the law
so narrow as not to affect the substance and vitality of his
freedom of expression itself.
The slight limitation is only one of the many devices
employed by the law to prevent a clear and present
danger of the perversion of prostitution of the
electoral apparatus and of the denial of the equal
protection of the laws.
o Second view (Also supported by 5 judges): even through
the governmental purposes be legitimate and substantial,
they cannot be pursued by means that broadly stifle
fundamental liberties when the end can be more narrowly
achieved.
THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS) 3
In the statute was a clear impairment of the right to
determine what the advertisement, the paid
comment or the paid article should contain in a
manner which dealt with the right to disseminate
political information.
o Both sides of the divided Court defended the preferred
position of the right of political expression.
National Press Club v. Commission on Elections (1992) at issue
was the Electoral Reform Law of 1987 which made it unlawful for
any newspaper, radio broadcasting or television station, other mass
media, or any person making use of the mass media to sell or to
give free of charge print space or air time for campaign or other
political purposes except to the Commission. It also
commanded the Commission to procure print space and broadcast
time to be allocated impartially among the candidates.
o The Court upheld the reasonableness of the provisions
saying that the objective of the prohibition was the
equalizing of the situation of rich and poor candidates.
Adiong v. COMELEC (1992) COMELEC may not prohibit the
posting of decals and stickers of candidates on mobile places,
public or private.
o the prohibited acts were found to present no substantial
danger to government interest.
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NEAR vs. MINNESOTA
(GUERRERO)
KEY TAKE-AWAY: The rule against prior restraints is not absolute; there
are exceptional cases where it is valid (such as when the security of the
community is at stake, as in times of war). Public scandal CANNOT be
considered as an exceptional case, thus the statute holding such justification
must fall.
DATE/GR.NO./SCRA: 238 U.S. 697 (1931)
PONENTE: Chief Justice Hughes
PETITIONER: Jay M. Near
RESPONDENT: Minnesota in relation to Floyd Olson
FACTS:
Petition:
Petition for review on appeal on the decision of the Minnesota
Supreme Court which upheld the questioned Minnesota statute that
allows abatement of malicious, scandalous and defamatory
periodicals
Factual Antecedents:
Petitioner published a periodical called The Saturday Press in the
city of Minnesota. Nine editions of the said periodical were published
on successive dates
A complaint from the County Attorney (Floyd Olson) in the Minnesota
trial court alleged that the said periodical is largely devoted to
malicious scandalous and defamatory articles
The articles charged in substance that a Jewish gangster
was in control of gambling, bootlegging, and racketeering in
Minneapolis and that the law-enforcing officers and agencies
were not energetically performing their duties
The Chief of Police was charged with gross neglect of
duty, illicit relations with gangsters, and 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
The complaint is also under Chapter 285 of the Session
Laws of Minnesota or simply Public Nuisance Law of 1925.
The said statute also provided permanent injunctions to
abate the publishing of the Press
4
Petitioner insists that the complaint is invalid on the ground that it did
not state the sufficient facts to constitute a cause of action and also
he alleges that the questioned statute is unconstitutional, but the trial
court upheld the statute
With the state law being upheld, the abatement then has
been ordered by the court as it is considered as a nuisance
Petitioner once again appealed, but the State Supreme Court
sustained the statute, thus the present case before the U.S.
Supreme Court
Statute Involved:
Section 1 of Chapter 285 of the Session Laws of Minnesota
for year 1925 (Public Nuisance Law): Any person who as an
individual, or as a member or employee of a firm, or association or
organization, or as an officer, director, member or employee of a
corporation shall be engaged in the business of regularly or
customarily producing, publishing or circulating, having in
possession, selling or giving away (b) a malicious, scandalous
and defamatory newspaper, magazine or other periodical is
guilty of a nuisance, and all persons guilty of such nuisance may be
enjoined, as hereinafter provided.
Position of Petitioner:
Petitioner contends that the Public Nuisance Law of 1925 is
st
unconstitutional because it violates the 1 (freedom of speech and of
th
the press) and 14 (Due Process) amendment rights
Petitioner also declared that the Saturday Press is his expression
and not criminal nor illegal in any way
Position of Respondents
Defamatory and Malicious statements done by Petitioner are
grounds to enjoin his publication business permanently as it creates
public scandal
ISSUE:
W/N Minnesotas Public Nuisance Law of 1925 is constitutional?
HELD/RATIO:
NO
In passing upon the constitutionality of a statute, the court has regard
not only to the form, but to the substance of the law
Opinion of the court provided four main points on determining the
constitutionality of the questioned statute:
THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
1. The statute is aimed at the distribution of scandalous
matter as detrimental to public morals and to the general
welfare, tending to disturb the peace of the community and
to provoke assaults and the commission of crime
There is no requirement by the state of proof of
malice in fact as distinguished from malice inferred
from the mere publication of the defamatory matter.
The statute permits the defense, not of the truth
alone, but only that the truth was published with
good motives and for justifiable ends. Under the
statute, the publication is to be regarded as
defamatory if it injures reputation and scandalous
if it circulates charges of reprehensible conduct,
whether criminal or otherwise, and the publication is
thus deemed to invite public reprobation and to
constitute a public scandal.
2. The statute not only covers the defamatory statements
against private persons, but also it penalizes the
statements against public officials of specific newspapers
or periodicals, which discuss the corruption, malfeasance,
and serious neglect of public officers (which charges by their
nature create a public scandal).
3. The object of the statute is not to punish those who express
defamatory statements (such as libel), but to suppress the
offending periodical. A violator therefore is faced with a
possibility of his publishing business being enjoined, and that
seems to be the purpose of the statute: restraint.
4. The statute can be considered as an effective censorship.
Unless the violator is able to bring in competent evidence to
prove that the defamatory statements are true and of good
motive, his periodical is suppressed/ enjoined from
operation. That is the essence of censorship.
The recognition of authority to impose previous restraint upon
publication in order to protect the community against the circulation
of charges of misconduct, and especially of official misconduct,
necessarily would carry with it the admission of the authority of the
censor against which the constitutional barrier was created
It is therefore clear that the Public Nuisance Law of 1928 is a prior
restraint on the freedom of the press as it prevents the publication of
articles without knowledge of whether it is defamatory or not
This is not an absolute rule: there are extreme instances
wherein prior restraints are valid such as times of war and also to
ensure the safety of the community
5
Obviously the reasoning of respondents that the statements create
public scandal is not one of the exceptions, thus it is a prior
restraint and also a step closer to a complete system of censorship.
Final Ruling
The decision of the State Supreme Court is reversed. And the Public
Nuisance Law of 1925 is declared as unconstitutional as it infringes
th
the liberty of the press as guaranteed by the 14 amendment.
NEW YORK TIMES CO. vs. UNITED STATES
(KHO)
KEY TAKE-AWAY: The government carries a heavy burden of providing
justification for restraining the freedom of expression granted by the
Constitution
DATE/GR NO/SCRA: 403 U.S. 713 June 30, 1971
PONENTE: Per Curiam
PETITIONER: New York Times Co.
RESPONDENT: United States
FACTS:
Petition:
Petition for certiorari to the US CA for the second circuit in which the
US seeks to enjoin the NY Times and the Washington Post from
publishing the contents of a classified study
Factual Antecedents:
The Nixon Administration attempted to prevent the New York Times
and Washington Post from publishing materials belonging to a
classified Defense Department study regarding the history of
United States activities in Vietnam entitled History of US
Decision-Making Process on Viet Nam Policy
Statute Involved:
Art. 3, Sec 4 of the 1987 Constitution
First Amendment (for US)
Position of Respondent/s:
The President argued that prior restraint was necessary to protect
national security.
ISSUE:
W/N the Nixon administration's efforts to prevent the publication of
what it termed "classified information" violate the freedom of speech,
of expression or of the press (or first amendment)
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
HELD/RATIO:
YES
Any system of prior restrains of expression bears a heavy
presumption AGAINST its constitutional validity
The government carries a heavy burden of providing justification
for restraining the freedom of expression granted by the
Constitution
In this case, the government has NOT met that burden
Final Ruling
The stays entered by the Court are vacated
Justice Black, Justice Douglas (concurring)
The framers of the first amendment view that the press must be left
free to publish news, whatever the source, without censorship,
injunctions, or prior restraints
The press was protected so that it could bare the secrets of
government and inform the people; only a free and unrestrained
press can effectively expose deception in government
The NY Times, the Washington Post and other newspapers should
be commended for serving the purpose that the Founding Fathers
saw. In revealing the workings of the government that led to the Viet
Nam war, the newspapers nobly did precisely that which the
Founders hoped and trusted they would do
To give the President the power to withhold certain articles from the
press would wipe out the First Amendment and destroy the
fundamental liberty and security of the very people the government
hopes to make secure
Justice Brennan (concurring)
There is an extremely narrow class of cases in which the First
Amendments ban on prior restraint MAY be overridden
Such cases arise only when the Nationa is at war during which
times no one would question but that a Government might prevent
actual obstruction to its recruiting service or the public of the sailing
dates of transports of the number and location of troops (Near vs.
Minnesota)
Only governmental allegation and proof that publication must
inevitably, directly, and immediately cause the occurrence of an
event kindred to imperilling the safety of a transport already at sea
can support even the issuance of an interim restraining order
Justice Stewart, Justice White (concurring)
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In the area of basic national defense, the frequent need for
absolute secrecy is self-evident
If the Constitution gives the Executive a large degree of unshared
power in the conduct of foreign affairs and the maintenance of
national defense, then under the Constitution the Executive must
have the largely unshared duty to determine and preserve the
degree of internal security necessary to exercise that power
successfully
Justice Harlan, the Chief Justice, Justice Blackmun (dissenting)
The very nature of executive decisions as to foreign policy is
political, NOT judicial
Even if there is some room for the judiciary to override executive
determination, the scope of review must be exceedingly narrow
FREEDMAN vs. MARYLAND
(MASIGLAT)
KEY TAKE-AWAY: For movie censorship to avoid Constitutional Infirmity,
the following requisites (probably not limited to) must concur:
The burden of proving that the film is unprotected expression rests
on the censor
The decision of the Censor is NOT FINAL. Only judicial
determination may impose a final restraint
There can only be temporary restraint imposed by the Censor and
there must be PROMPT decisions as to not prolong the restraint
DATE/GR NO/SCRA: 380 US 51 | 1965 (US Case)
PONENTE: Justice Brennan
PETITIONER: Freedman
RESPONDENT: Maryland
FACTS:
Petition:
Petitioner challenges the decision of the CA of Maryland upholding
the Constitutionality of a statute that requires a film to be
submitted first to the Board of Censors before exhibiting it
Factual Antecedents:
Freedman exhibited the film Revenge at Daybreak without
submitting it first to the Board of Censors as required by Section
2 of the a Maryland Statute
Freedman was found to be in violation of the said statute.
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Freedman then challenged its constitutionality but the State did not
rule on its constitutionality and instead convicted Freedman for
violating the statute thus:
The State concedes that the picture (Revenge at Daybreak)
does not violate the statutory standards and would have
received a license if properly submitted
The CA of Maryland affirmed the decision
Petitioner comes now to the US Supreme Court
Statute Involved:
Sec. 2 It shall be unlawful to sell, lease, lend, exhibit or use any
motion picture film or view in the State of Maryland unless the said
film or view has been submitted by the exchange, owner or lessee of
the film or view and duly approved and licensed by the Maryland
Board of Censors, hereinafter in this article called the Board.
Position of Petitioner/s:
It constitutes invalid restraint because in the context of the remainder
of the statute, it presents a danger of unduly suppressing protected
expression.
He focuses particularly on the procedure for an initial
decision by the censorship board, which, without any
judicial participation, effectively bars exhibition of any
disapproved film
Position of Respondent/s:
Court of Appeals said (and erred in saying that):
In Freedmans refusal to submit the film, "he has restricted
himself to an attack on that section alone, and lacks standing
to challenge any of the other provisions (or alleged
shortcomings) of the statute."
ISSUE:
1. W/N the petitioner has a standing to challenge the Statute? YES
2. W/N the Maryland Statute was an invalid previous restraint? YES
HELD/RATIO:
1. YES
In the area of freedom of expression it is well established that one
has standing to challenge a statute on the ground that it delegates
overly broad licensing discretion to an administrative office,
whether or not his conduct could be proscribed by a properly drawn
statute, and whether or not he applied for a license.
Standing is recognized in such cases because of the ". . .
danger of tolerating, in the area of First Amendment
7
freedoms, the existence of a penal statute susceptible of
sweeping and improper application." (NAACP v. Button)
The Maryland statute lacks sufficient safeguards for confining the
censor's action to judicially determined constitutional limits, and
therefore contains the same vice as a statute delegating excessive
administrative discretion.
2. YES
Although movie censorship might be a form of prior restraint, it
avoids constitutional infirmity if it takes place under procedural
safeguards designed to obviate the dangers of a censorship
system.
The burden of proving that the film is unprotected
expression must rest on the censor
"Where the transcendent value of speech is
involved, due process certainly requires . . . that the
State bear the burden of persuasion to show that the
appellants engaged in criminal speech."
The censors decision whether the film is
unprotected/criminal speech cannot be final.
Only judicial determination may impose a valid
final restraint.
Any restraint imposed in advance of a final judicial
determination on the merits must similarly be limited
to preservation of the status quo for the shortest
fixed period compatible with sound judicial resolution
The Maryland Statute fails to provide the adequate safeguards
against undue inhibition of protected expression, and this renders the
2 requirement of prior submission of films to the Board an invalid
previous restraint because in the Statute:
First, once the censor disapproves the film, the exhibitor
must assume the burden of instituting judicial proceedings
and of persuading the courts that the film is protected
expression
Second, once the Board has acted against a film, exhibition
is prohibited pending judicial review, however protracted.
Third, it is abundantly clear that the Maryland statute
provides no assurance of prompt judicial determination.
Final Ruling
Conviction of Freedman is reversed
Section 2 of the Maryland Statute is an invalid previous restraint.
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IGLESIA NI CRISTO vs. COURT OF APPEALS
(OAMINAL)
KEY TAKE-AWAY: The clear and present danger test is applied to four
types of speech namely:
That which advocates dangerous ideas
That which provokes a hostile audience reaction
Out of court contempt
Release of information that endangers a fair trial
AND
It is not the task of the state to favor any religion by protecting it against the
attack by another religion.
DATE/GR NO/SCRA: 119763 July 26, 1996
PONENTE: Puno, J.
PETITIONER: Iglesia ni Cristo
RESPONDENT: Court of Appeals, Board of Review for Motion Pictures and
Television and honorable Henrieta S. Mendez
FACTS:
Petition:
Petition for Review of the CAs decision affirming the action of
respondent Board of Review for Motion Pictures and Television
which x-rated the TV Program Ang Iglesia ni Cristo
Factual Antecedents:
Petitioner has a television program entitled Ang Iglesia ni Cristo
which propagates petitioners religious beliefs, doctrines, and
practices oftentimes in comparative studies with other religions
Respondent MTRCB required petitioner to submit video tapes of
their show in order for them to be rated and upon their review certain
episodes of the show were given an X rating for attacking the
dogmas of other religions and were therefore prohibited from being
aired.
Peitioner filed a case against the respondents alleging grave abuse
of discretion and the trial court ruled in favor of the petitioners.
The Court of Appeals reversed the decision and ruled that the
respondent has the power to review the program and the prohibition
on the episodes that attacked other religions was valid. This
prompted the petitioner to bring the case before the SC.
Statute Involved:
Sec. 3 of PD 1986 , the MTRCB charter, which grant the board its
powers and functions.
8
Sec 4. Article 3 of the 1987 Constitution.
Position of Petitioner/s:
The CA erred in holding that the program is not constitutionally
protected as a form of religious exercise and expression.
The CA erred in not holding that being an exercise of religious
freedom, the program is subject to the police power of the state only
in the extreme case that it poses a clear and present danger.
The CA erred in holding that respondent MTRCB is vested with the
power to censor religious programs.
The CA erred in holding that the program, a purely religious program,
is indecent and contrary to law and good customs.
Position of Respondent/s:
The CA did not err in its ruling.
ISSUE:
W/N respondent MTRCB has the power to review petitioners TV
program, Ang Iglesia ni Cristo
Assuming respondent has such power, W/N it gravely abused its
discretion when it prohibited the airing of certain episodes of
petitioners program for the reason that they constitute an attack
against other religions and that they are indecent, contrary to law
and good customs.
HELD/RATIO:
YES
A look at Sec. 3 of PD 1986 shows that the MTRCB is vested with
the following powers:
To screen, review, and examine all TV programs.
To approve, delete, and/or prohibit TV programs.
Determine TV programs that are immoral, indecent, contrary
to good customs, contrary to the law and injurious to the
Philippines and the Filipinos.
The right to religious worship and profession has a 2-fold aspect
namely:
Freedom to believe which is absolute as long as the belief
is confined to the realm of thought
Freedom to act on ones belief which is subject to
regulation as external acts may affect the public welfare
Police power can be exercised to prevent
religious practices inimical to society
The exercise of religious freedom can be
regulated by the State when it will bring about
the clear and present danger of some
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substantive evil which the State is duty bound
to prevent
Mere invocation of religious freedom will not bar the State from
protecting the general welfare. The Constitution gave religious
liberty but NOT immunity from the law.
Petitioners program was an external manifestation of their
religious belief and could be duly regulated by the state.
NO
Any act that restrains speech is presumed to be invalid. Such is the
case at present and it is the burden of the respondent MTRCB to
overthrow this presumption.
Respondent failed to do so in the case at bar.
The attacks are mere criticisms of some of the deeply held dogmas
of other religions and the CAs ruling suppresses petitioners freedom
of speech and interferes with its right to free exercise of religion.
It is not the task of the State to favor any religion by
protecting it against an attack by another religion
Sec. 3 of PD 1986 does NOT provide that attacks against other
religions is a ground for x-rating a TV program.
This was merely added by respondents in its rules and such
a rule is void (it runs counter to the doctrine that
administrative rules and regulations cannot expand the letter
and spirit of the law they seek to enforce)
The respondents failed to apply the clear and present danger rule
Prior restraints on speech cannot be justified by theoretical
fears but only by showing that a substantive and imminent
evil exists.
The test is applied to four types of speech namely:
That which advocates dangerous ideas
That which provokes a hostile audience reaction
Out of court contempt
Release of information that endangers a fair trial
The program can easily provoke hostile audience reaction
Final Ruling
Decision affirmed insofar as it sustained the jurisdiction of the
MTRCB and is reversed and set aside insofar as it sustained the
action of the respondent MTRCB x-rating petitioners program
AYER PRODUCTIONS PTY. LTD. vs. JUDGE
CAPULONG
(RAPAL)
9
KEY TAKE-AWAY:The freedom of expression is granted both to locally-
owned and foreign-owned production companies. That the exhibition of said
film is for profit is not a disqualificationt. A limited intrusion upon the privacy
of a public person is permissible if the info sought to be elicited from him is a
matter of public concern.
DATE/GR NO/SCRA: April 29, 1988/ G.R. No. 82380 and G.R. No. 82398
PONENTE: FELICIANO, J.
st
PETITIONER: 1 -AYER PRODUCTIONS PTY. LTD. and McELROY &
McELROY FILM PRODUCTIONS
nd
2 - HAL MCELROY (Australian film maker)
st
RESPONDENT: 1 -HON.IGNACIO M. CAPULONG and JUAN PONCE
ENRILE
nd
2 - HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of
the Regional Trial Court of Makati, Branch 134 and JUAN PONCE ENRILE
FACTS:
Petition:
Certiorari and prayer for preliminary injunction or restraining order on
Judge Capulongs Order. Respondent Enrile claims that the film
violates his right to privacy while petitioners claim that the
Preliminary Injunction against them violates their freedom of speech
and expression.
Factual Antecedents:
Hal McElroy an Australian film maker, and his movie production
company, Ayer Productions PTY Ltd., envisioned for commercial
viewing the historical peaceful struggle at EDSA
Petitioners discussed this Project with local movie producer Lope V.
Juban who told them to consult appropriate government agencies.
They were also told to consult with General Fidel V. Ramos and
Senator Juan Ponce Enrile, who had played major roles in the
events proposed to be filmed.
The motion picture The Four Day Revolution was endorsed by the
MTRCB and the government agencies consulted. General Ramos
gave his approval as well.
Petitioners informed Senator Enrile of the contents of the film, mainly
that it would be a docu-drama which revolved around 4 fictitious
characters whose stories would help international viewers
understand the event. The characters are from different
backgrounds: Tony ONeil is an American journalist who works for a
major network; Angie Fox is an Australian photo-journalist who is
new in town; an unnamed Reform Army Movement Colonel who
develops a relationship with Angie and reflects the discontent of the
army; and finally, Ben Balano, a middle-aged editor of a Manila
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
newspaper. The production will employ David Williamson, Australias
leading playwright, and Professor McCoy, an American historian with
deep understanding of the Philippines. The proposed motion picture
would essentially re-enact the events of the EDSA revolution.
December 21, 1987- Enrile did not approve of the use of his
name, picture, or that any member of his family in any
production of advertising or commercial exploitation.
Consequently, Enriles name was deleted from the movie script
and petitioners proceeded to film the projected motion picture.
February 23,1988 - Enrile filed a Complaint with TRO and writ of
Preliminary Injunction seeking to enjoin petitioners from producing
the movie. He alleged that the production without his consent and
over his objection constitutes a violation of his right to privacy
March 9, 1988 - Hal McElroy filed a Motion to dismiss with opposition
to the Preliminary Injunction that the mini-series film would not
involve the private life of Enrile nor that of his family and that the
preliminary injunction would amount to a prior restraint on their right
of free expression
March 9, 1988 - Ayer Productions filed Motion to Dismiss for alleging
lack of cause of action as the mini-series had not been
completed
March 16, 1988 - Respondent court issued a writ of Preliminary
Injunction against petitioners ordering them to desist from producing
the film and making reference to Enrile or his family and from
creating a fictitious character resembling Enrile.
March 22, 1988- Ayer Productions filed a Petition for Certiorari with
the SC. SC granted a Temporary Restraining Order enjoining the
implementation of respondent judges March 16 order.
Statute Involved:
Art. III, Sec. 3
Position of Petitioner/s:
Freedom of Speech and of Expression were violated by the
Preliminary Injuction
Position of Respondent/s:
Enriles right to privacy was violated.
ISSUE:
1. W/N the Preliminary Injunction violated the petitoners freedom of speech
and expression
2. W/N respondent Enriles right to privacy was violated by the petitioners
HELD/RATIO:
1. YES, the petitioners freedom of speech and expression was
violated.
10
Freedom of speech and expression includes freedom to film and
produce motion pictures or to diffuse them through television
Gonzales vs Katigbak - the effect on the perception by our
people of issues and public officials or public figures as well
as the prevailing cultural traits is considerable. It can either
entertain or inform.
This freedom is available in our country both to locally-
owned and foreign-owned companies.
The production of motion picture films as a commercial
activity is NOT a disqualification for availing of freedom of
speech or expression.
To exclude commercially-owned and operated media from
this constitutionally protected right would be a drastic
contraction of such constitutional liberties.
In this case, there is a prior restraint by the respondent court on the
exercise of speech and expression of the petitioners.
In Lagunzad, there was no prior restraint upon the movie
producer who in fact completed and exhibited the film
biography of Moises Padilla.
Because of the preferred character of the constitutional
rights of freedom of speech and of expression, a
presumption of invalidity vitiates measures of prior restraint
upon the exercise of such freedoms.
Respondent judge should have stayed his hand instead of
issuing an ex-parte Temporary Restraining Order one day
after filing of a complaint by private respondent and issuing a
Preliminary Injunction twenty days later. The motion picture
was NOT yet completed and NOT exhibited to an
audience. The respondent judge did not know what the
completed film looked like. Hence, there was NO clear
and present danger of any violation of any right to privacy
that Enrile could lawfully assert.
2. NO, Enriles right to privacy was not violated.
The right to privacy, like freedom of speech and expression is not an
absolute right.
A limited intrusion into a persons privacy is permissible
when he is a public figure and the information sought to be
solicited from him constitutes matters of a public character.
The interest sought to be protected by the right of privacy
is the right to be free from unwarranted publicity, from
the wrongful publicizing of the private affairs and activities of
an individual which are outside the realm of legitimate public
concern.
THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Lagunzad v. Vda. de Gonzales - a suit involving the license
to produce a movie portraying the life of Moises Padilla, a
mayoralty candidate and for whose murder, Governor Rafael
Lacson and his men were tried and convicted. The motion
picture biography included a partly fictionalized Moises
Padilla without the consent and without paying the pre-
agreed royalties to Padillas family
The Court ruled in favor of the widow and the family of
Padilla, stating that his surviving relatives have a privilege to
protect the deceaseds memory, the familys feeling and their
rights. The Court stated that being a public figure does
NOT destroy a persons right to privacy. It cited Gonzales
v. COMELEC, stating the prevailing doctrine of the clear and
present danger rule and the balancing of interests test. The
test requires the court to take into consideration the interplay
of interests observable in the given situation
The Four Day Revolution is one of public interest and concerns.
The subject is of international interest and must be regarded as
having passed into public domain.
It does NOT relate to the individual or private life of
Enrile. However, it is compelled to refer to the role played by
Enrile in the precipitating and constituent events of the
change in government in February 1986.
The privilege of the public is not limited to the dissemination
of news in current events but is also extend to information or
education, or even entertainment and amused by books,
articles, pictures, films and broadcasts.
Private Respondent Enrile is a public figure.
Prof. Prosser and Keentons definition: a person who, by his
accomplishments, fame, or mode of living, or by adopting a
profession or calling which gives the public a legitimate
interest in his doings, his affairs, and his character, has
become a 'public personage.' He is, in other words, a
celebrity. Obviously to be included in this category are
those who have achieved some degree of reputation by
appearing before the public (ex. An actor, a professional
baseball player, or any other entertainment). The list is,
however, broader than this. It includes public officers,
famous inventors and explorers, war heroes and even
ordinary soldiers, an infant prodigy, and no less a personage
than the Grand Exalted Ruler of a lodge. It includes, in short,
anyone who has arrived at a position where public
attention is focused upon him as a person.
11
Being a public figure, he was held to have lost, to an
extent, the right to privacy.
REASONS: (1) Such figures have sought publicity and
consented to it, and so could not complaint when they
received it. (2) Their personalities and their affairs has
already public, and could no longer be regarded as their
own private business. (3) The press had a privilege, under
the Constitution, to inform the public about those who
have become legitimate matters of public interest.
Enrile is a principal actor in the change in government on
February 1986. The right of privacy of a "public figure" is
narrower than that of an ordinary citizen.
The Four Day Revolution limits itself in portraying the
participation of respondent in the EDSA Revolution to those
events which are directly and reasonably related to the
public facts of the EDSA Revolution; thus, the intrusion into
private respondents privacy cannot be regarded as
unreasonable and actionable
Such portrayal may be carried out even without a license
from respondent
Final Ruling
Petitions for Certiorari are granted due course, and the Order dated
16 March 1988 of respondent trial court granting a Writ of
Preliminary Injunction is hereby set aside. The limited Temporary
Restraining Order granted by this Court on 24 March 1988 is hereby
modified by enjoining unqualifiedly the implementation of
respondent Judge's Order of 16 March 1988 and made permanent
EASTERN BROADCASTING vs. DANS, JR.
(RONQUILLO)
KEY TAKE-AWAY: Broadcast stations deserve the special protection given
to all forms of media by the due process and freedom of expression clauses
of the Constitution.
DATE/GR NO/SCRA: July 19, 1985
PONENTE: Gutierrez, JR.
PETITIONER: EASTERN BROADCASTING CORPORATION (DYRE)
RESPONDENT: THE HON. JOSE P. DANS, JR., MINISTER OF
TRANSPORTATION & COMMUNICATIONS, THE HON. CEFERINO S.
CARREON, COMMISSIONER, NATIONAL TELECOM., COMMISSION, ET
AL.
FACTS:
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Petition:
Petition to compel respondents to allow the reopening of the Radio
Station DYRE which was summarily closed on the grounds of
national security.
Factual Antecedents:
The radio station DYRE was summarily closed due to allegations
that it was used to incite people to sedition.
No hearing was held and no proof was submitted to establish the
factual basis for the closure.
Petitioner was not informed why an administrative action was filed
against it.
The petitioner sold the radio station to Manuel B. Pastrana and the
National Telecommunication Commission expressed its willingness
to:
Grant Pastrana of the requisite license and franchise to
operate the radio station
Approve the sale of the radio transmitter of DYRE
Because of the sale, petitioner no longer has any interest in the
case and Pastrana is not interested in pursuing the case,
therefore the case has become moot and academic.
However, for the guidance of inferior courts and administrative
tribunals exercising quasi-judicial functions, the Supreme Court
decided to resolve the case.
Position of Petitioner/s:
It was denied due process when it was summarily closed based
on mere allegations, furthermore, no hearing and proof were
submitted to establish factual basis
ISSUE:
W/N the summary closure of the Radio Station DYRE was VALID
HELD/RATIO:
NO, the summary closure was INVALID
The requirements for administrative proceedings laid down in
Ang Tibay v. Court of Industrial Relations should be followed before
a broadcast station may be closed or its operations curtailed
While there is no controlling and precise definition of due
process, it establishes an unavoidable standard to which
government action must conform in order that any deprivation of
life, liberty, or property may be valid
ALL forms of media, whether print or broadcast, are entitled to
the broad protection of the freedom of speech and expression
12
clause. The test for limitations on freedom of expression is the
clear and present danger rule which states that:
That words are used in such circumstances and are of such
a nature as to create a clear and present danger that they
will bring about the substantive evils that the lawmaker has a
right to prevent
The rule should NOT be interpreted as applicable to all
statements in all forums
Although all forms of communication are entitled to the broad
protection of the freedom of expression, the freedom of television
and radio broadcasting has a lesser scope than the freedom of
newspaper and print media which is explained in American Court
in Federal Communications Commission v. Pacifica Foundation
which states that:
1. Broadcast media confronts the citizen NOT only in public
but also in the privacy of his home
2. Broadcast media is uniquely accessible to children
Broadcast media has also established a uniquely pervasive
presence in the lives of all Filipinos. While the masses find
the cost of newspapers and books beyond their means,
transistor radios can be found everywhere and the
television set is becoming universal making all the
materials broadcasted therein accessible to everyone.
While the government has a right to be protected against
broadcasts which incite the listeners to violently overthrow it, the
people also have a right to be informed. Since radio and
television are the most convenient and popular means of
disseminating varying views on public issues, they also deserve
special protection (vis-a-vis the due process and freedom
expression clauses of the Constitution)
The freedom to comment on public affairs is essential to a
representative democracy, this was already laid down in the 1918
case of United States v. Bustos which states that the interest of
society and the maintenance of good government demand a full
discussion of public affairs.
Final Ruling
The case having become moot and academic, the petitioner's motion
to withdraw or dismiss the petition is hereby granted.
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
ALEXANDER vs. UNITED STATES
(SENA)
KEY TAKE-AWAY: There is a distinction between prior constraint and
subsequent punishment. Prior constraint forbids certain communications
when issued in advance of the time that such communications are to concur,
whereas subsequent punishment refers to the punishment imposed for past
criminal conduct.
DATE/GR NO/SCRA: 509 U.S. 544 June 28, 1993
PONENTE: Rehnquist, J.
PETITIONERS: Ferris J. Alexander
RESPONDENTS: United States
FACTS:
Petition:
Petition to declare the RICO forfeiture order as being violative of the
First Amendment
Factual Antecedents:
Alexander was in the adult entertainment business for more than 30
years, and was the owner of more than a dozen stores and theaters
dealing in sexually explicit materials
Alexander was convicted by the District Court (RTC of the US) on 17
obscenity counts and 3 counts of violating the Racketeer
Influenced and Corrupt Organizations Act (RICO)
The obscenity convictions were based on the findings that 4
magazines and 3 videotapes sold at his stores were
obscene, and these served as predicates to the three RICO
convictions
In addition to a prison term and fine, the District Court also ordered
Alexander to forfeit assets that were directly related to his
racketeering activity as punishment for the RICO violations.
Government sought forfeiture of:
The businesses and real estate that represented petitioner's
interest in the racketeering enterprise
The property that afforded petitioner influence over that
enterprise
The assets and proceeds petitioner had obtained from his
racketeering offenses
The District Courts decision was affirmed by the Court of Appeals
Statute Involved:
First Amendment to the United States Constitution (the US
counterpart of Art. III, Sec. 4) which presents the prohibition on
prior restraint- Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
13
abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a
redress of grievances.
Position of Petitioner:
The forfeiture, which effectively shut down his business,
constituted an unconstitutional prior restraint on speech, rather
than a permissible criminal punishment. The forfeiture order imposed
a complete ban on his future expression because of previous
unprotected speech
According to Alexander, the forfeiture of expressive
materials and the assets of businesses engaged in
expressive activity, when predicated solely upon previous
obscenity violations, operates as a prior restraint because it
prohibits future presumptively protected expression in
retaliation for prior unprotected speech
Position of Respondent:
The forfeiture order was not a prior restraint on speech, but a
punishment for past criminal conduct
ISSUE: W/N the RICO forfeiture order violated the prohibition on prior
restraint as mandated by the Constitution?
HELD/RATIO:
No. The forfeiture order is considered as a subsequent punishment and
NOT a prior restraint
There is a distinction between prior restraints and subsequent
punishments
Prior restraint is used to describe administrative and
judicial orders forbidding certain communications when
issued in advance of the time that such communications
are to concur
The SC cited the following cases in which the concept of prior
restraint was applied:
In Near v. Minnesota ex rel. Olson, a court order that
perpetually enjoined Near, who had published a newspaper
containing articles found to violate a state nuisance statute,
from producing any future malicious scandalous and
defamatory publication was a true restraint on future
speech
In Organization for a Better Austin v. Keefe, the SC
invalidated an order enjoining petitioners from distributing
leaflets anywhere in Westchester, Illinois
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
In Vance v. Universal Amusement Co., a Texas statute that
authorized courts, upon a showing that obscene films had
been shown in the past, to issue an injunction of indefinite
duration prohibiting the future exhibition of films that have
not yet been found to be obscene was considered as
prior restraint
In Arcara v. Cloud Books Inc., the court order issued under a
general nuisance statute that closed down an adult
bookstore that was being used as a place of prostitution and
lewdness was sustained. The order did not violate prior
restraint because first, it would impose no restraint on the
dissemination of particular materials, and second, the
closure order was not imposed on the basis of an advance
determination that the distribution of particular materials is
prohibited
The RICO forfeiture order does not forbid Alexander from engaging
in any expressive activities in the future. It only deprives him of
specific assets that were found to be related to his previous
racketeering violations
Alexander can always go back to his adult entertainment
business provided that he cannot finance his enterprises
with assets derived from his prior racketeering offenses
The RICO forfeiture order was a punishment for past criminal
conduct
Using the Arcara case as basis, Alexanders distinction that
obscenity, unlike prostitution or lewdness has a significant
expressive element, has no bearing on the question whether
the forfeiture order in this case was an impermissible prior
restraint
According to the SC, to hold that the forfeiture order constituted a
prior restraint would blur the line separating such from subsequent
punishment that it would be impossible to determine whether a
particular measure is a prior restraint or not
Final Ruling
RICO's forfeiture provisions, as applied in this case, did not violate
the First Amendment, but that the Court of Appeals should have
considered whether they resulted in an "excessive" penalty within the
meaning of the Eighth Amendment's Excessive Fines Clause.
Accordingly, we vacate the judgment of the Court of Appeals and
remand the case for further proceedings consistent with this opinion.
14
NEWSOUNDS BROADCASTING vs. DY
(ZERRUDO)
KEY TAKE-AWAY: While broadcast stations are not exempt from obtaining
permits and licenses from local government units, such requirements
imposed upon them must be duly ordained and content-neutral in character.
Otherwise, it becomes an infringement on the freedom of speech.
DATE/GR NO/SCRA: April 2, 2009/GR No. 170270 & 179411
PONENTE: J. Tinga (2nd Division)
PETITIONER: Newsounds Broadcasting Network Inc., Consolidated
Broadcasting System, Inc.
RESPONDENT: Hon. Ceasar Dy (Mayor of Cauayan), Felicisimo Meer
(Acting City Administrator), Bagnos Maximo, Racma Fernandez-Garcia (City
Legal Officer), City of Cauayan
FACTS:
Petition:
Two petitions for review of CA and RTC decision denying their
petition for mandamus against government officials who closed down
the operation of their radio stations.
Factual Antecedents:
Petitioners are broadcasting networks which run Bombo Radyo
DZNC (AM Radio Station) and Star FM DWIT (FM Radio Station)
situated in Cauayan, Isabela that services the entire Isabela and the
rest of Region II and the Cordillera region. These radio stations
especially DZNC are well known in the province of Isabela and it was
in 2001 that they have heightened their efforts to expose election
irregularities. At that time, it was the Dy dynasty which was ruling in
Isabela with respondents brother as governor.
Prior to 2002, the petitioners broadcasting stations are able to secure
mayors permits for zoning clearance with ease as their properties
have been previously classified by the Housing and Land Use
Regulatory Board as commercial and they have also paid real
property taxes accordingly.
However, it was upon their application for renewal in 2002 that the
petitioners were denied the mayors permit because respondent
government officials required them to get a certification from the
Department of Agrarian Reform showing the property as converted
to commercial land or an approved resolution from the Sangguniang
Bayan or Panglungsod authorizing such re-classification.
2002 - Petitioners sought recognition from the DAR for the
conversion of their property to commercial and was granted by DAR
Regional Director Aydinan.
2003 - Petitioners filed for a renewal of their mayors permit attaching
the DAR Order previously issued to them and it was approved.
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
However, respondent Meer wrote to the petitioners saying that the
DAR order was void as the Regional Center for Land Use Policy
Planning and Implementation did not have any record of that order.
But no action was taken against them given that they still paid realty
taxes for 2003.
2004 (Elections) - Petitioners filed for renewal of the mayors permit
again and attached the DAR order and respondent Meer again
claimed that said orders authenticity needed to be verified. So he
extended the application for the mayors permit. Unfortunately, the
extension lapsed without the petitioners submitting additional
certifications from DAR or the Sangunniang Panlalawigan that
property had been converted for commercial use. This led to
respondents Meer and Garcia to close the radio stations. Meanwhile,
petitioners filed with the COMELEC for enforcement of the Omnibus
Election Code which prohibited closure of radio stations during the
election period so the radio stations were allowed to operate until the
end of the elections - June 10, 2004. Their offices were closed
afterwards.
Their petition for mandamus was denied by the RTC and petition for
review was dismissed by the CA.
Position of Petitioner/s:
The respondents issued a new requirement that was an infringement
on their right to freedom of speech.
Position of Respondent/s:
It was a valid exercise of local government to issue ordinances and
regulations for the welfare of their community.
ISSUE:
W/N the imposition of requirements for zoning clearance by the LGU
amounts to an infringement on the petitioners right to speech?
HELD/RATIO:
Yes. The restriction made by the respondents was arbitrary and was
not content-neutral but content-based.
Ordinance No. 92-004 stated that a mayors permit can be refused to
business establishments who do not conform with zoning regulations
and other requirements of the Municipality. However, there was
nothing in the said ordinance that required the applicant to submit a
certification from DAR or the Sangguniang Panlalawigan to show
that the property was converted from prime agricultural land to
commercial land.
15
In addition to this, prior classification from other government
institutions of the property as commercial should have been
recognized by the respondents.
Only content-neutral regulations are allowed.
Content-neutral regulation - concerned with incidents of
speech or control over the time, place, manner. Regulations
that can be across similar businesses. Example: requiring
proof that the property was converted from agricultural to
commercial property.
Content-based restraint = censorship - control over the
subject matter of the speech. What qualified the regulation to
be content-based was the fact that the restriction was:
imposed timely with the elections in 2004 where a
former employee of DZNC Bomba Radyo (Grace
Padaca, former assistant station manager) was
going to run against incumbent governor Dy.
arbitrary in the sense that there was no legal basis
for such additional requirement
Also, given the circumstance that the only rival
broadcasting company was owned by the Dys -
DWDY and there was also an article presented as
evidence from the Philippine Daily Inquirer wherein
respondent Mayor Dy mentioned he would
disenfranchise the radio station amounts to a
blatant violation of the petitioners constitutional right
to press freedom.
Damages were also imposed as penalty based on Article 32 of the
Civil Code - any public officer who obstructs or impairs any of the
following rights and liberties of another person shall be liable for
damages including freedom of speech.
Final Ruling:
Petition is GRANTED. CA and RTC decisions are REVERSED. Petition for
Mandamus is GRANTED and respondents are directed to immediately issue
the zoning clearances and mayors permits for 2004 to the petitioners.
Respondents are ordered to pay petitioners P4M as temparate damages,
P1M as exemplary damages, P500k as Attorneys fees.
GONZALES vs. COMELEC
(ANGSIY)
(The casebook only discussed Justice Castros Concurring and Dissenting
opinion. However, the same case and the decision itself could be found
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
under speech and the electoral process of the same Section. Please refer
to Gonzales v. Comelec by De Guia for a thorough discussion of the case
and the decision.)
KEY TAKE-AWAY: (Justice Castros opinion) 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 particular circumstances presented. The courts must,
therefore, weigh the circumstances and appraise the substantiality of
the reasons advanced in support of the regulation of the free enjoyment of
rights. This is called the balancing-of-interests test.
DATE/GR NO/SCRA: G.R. No. L-27833; April 18, 1969
PONENTE: FERNANDO, J.
PETITIONER: Arsenio Gonzales, an incumbent councilor in the 4th District of
Manila at the time of the filing of the petition and the Nacionalista Party
official candidate for Vice-Mayor of Manila to which he was subsequently
elected, and Felicisimo Cabigao, a private individual, a registered voter in the
City of Manila and a political leader of his co-petitioner
RESPONDENT: Comelec
FACTS:
Petition:
Declaratory Relief with Preliminary Injunction, a proceeding that
should have been started in the of Court of First Instance but treated
by this Court as one of prohibition in view of the seriousness and the
urgency of the constitutional issue raised
Factual Antecedents:
Please refer to Gonzales v. Comelec by De Guia
Statute Involved:
SECTION 1. Republic Act Numbered One hundred and eighty, as
amended, is hereby further amended by inserting new sections to be
known as Sections 50-A and 50-B, between Sections 50 and 51
thereof, which shall read as follows:
SEC. 50-A. Prohibition of too early nomination of Candidates. It
shall be unlawful for any political party, Political Committee, or
Political group to nominate candidates for any elective public office
voted for a large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public office earlier
than ninety days immediately preceding an election.
SEC 50-B. Limitation upon the period of Election Campaign or
Partisan Political Activity. It is unlawful for any person whether or
not a voter or candidate, or for any group or association of persons,
whether or not a political party or political committee, to engage in an
16
election campaign or partisan political activity except during the
period of one hundred twenty days immediately preceding an
election for any public office.
ISSUE:
W/N RA 4880 (Section 50-A and Section 50-B) is unconstitutional for
curtailing freedom of speech, freedom to peaceably assemble, and right to
form associations or societies.
HELD/RATIO:
Section 50-A is constitutional while Section 50-B is unconstitutional.
For Justice Castro, the "balancing-of-interests" test is the more
appropriate approach which should be used in determining the
constitutionality of Sections 50-A and 50-B.
He first differentiated these two approaches which were first adopted
by Philippine jurisprudence in determining subsequent punishment of
expression:
The dangerous tendency rule The clear and present danger rule
permitted the application of restrictions once a the substantive evil must be extremely
rational connection between the speech serious and the degree of imminence
restrained and the danger apprehended the extremely high before utterances can be
"tendency" of one to create the other was punished; required the Government to defer
shown application of restrictions until the
apprehended danger was much more
visible until its realization was imminent and
nigh at hand
Both doctrines cannot be used to qualify the provisions being
attacked in the instant case because doing so would involve both
speculation and prophecy of a sort. What is to be applied is the
balancing-of-interests 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 particular circumstances
presented. The courts must, therefore, weigh the
circumstances and appraise the substantiality of the
reasons advanced in support of the regulation of the free
enjoyment of rights. This is called the balancing-of-
interests test.
the "balancing" test requires a court to take conscious and
detailed consideration of the interplay of interests
observable in a given situation or type of situation.
THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Factors which are necessarily relevant in ascertaining the point or
line of equilibrium:
1. the social values and importance of the specific aspect of the
particular freedom restricted by the legislation
2. whether the restriction is direct or indirect; whether or not the
persons affected are few
3. the value and importance of the public interest sought to be
secured by the legislation the reference here is to the nature
and gravity of the evil which Congress seeks to prevent
4. whether the specific restriction decreed by Congress is
reasonably appropriate and necessary for the protection of such
public interest
5. whether the necessary safeguarding of the public interest
involved may be achieved by some other measure less
restrictive of the protected freedom
Applying the "balancing-of-interests" test or approach outlined
above, Justice Castro is persuaded that Congress did not exceed
constitutional limits in enacting Section 50-A.
the reach of the statute is itself limited: it applies only to
political parties, political committees or political groups,
leaving everyone else free from restraint
the thrust of the statute is also limited: it does not prohibit
political parties from holding nominating conventions or from
doing any lawful thing during such conventions; what it
controls is the scheduling of the nominating conventions
the legitimacy and importance of the public interest sought to
be promoted by this section must be conceded: early
nominations by political parties or groups have the tendency
of exposing people prematurely to the absorbing excitement
of election campaigns and detracting from the attention that
ought to be given to the pursuit of achieving increasing
levels of economic development and social welfare
the interest of the community in limiting the period of election
campaigns, on balance, far outweighs the social value of
the kind of speech and assembly that is involved in the
formal nomination of candidates for public office
Section 50-B of the Revised Election Code constitutes an
unconstitutional abridgment of the freedoms of speech, of the
press, of peaceful assembly, and of lawful association.
the restraint on the freedoms of expression, assembly and
association is direct. The prohibition applies to any person
"whether or not a voter or candidate," and to any group of
17
persons "whether or not a political party or political
committee."
legislation strikes at the right to actively participate in the
establishment or administration of government - the
most basic political right of the citizens in a republican
system
Final Ruling:
WHEREFORE, the petition is dismissed and the writ of prayed for
denied. Without costs.
PEOPLE vs. PEREZ
(BUENDIA)
KEY TAKE-AWAY: The Treason and Sedition Law must not be interpreted
to abridge the freedom of speech and the right the people to peaceably
assemble and petition the Government for redress of grievances as criticism
is permitted to penetrate the Government unless the intention and effect be
seditious.
45 Phil. 599 / GR NO L-21049 / December 22, 1923
PONENTE: Malcolm
PETITIONER: People of the Philippine Islands
RESPONDENT: Isaac Perez, Municipal Secretary of Pilar, Sorsogon
FACTS:
Petition:
Non explicitly stated but basically if the charge against the accused
for Art 256 was proper
Factual Antecedents:
Isaac Perez, municipal secretary of Pilar, Sorsogon met with
Fortunato Ludovice in the presidencia of Pilar where they discussed
the administration of Governor General Wood.
This discussion resulted in Perez shouting The Filipinos,
like myself, must use bolos for cutting off Wood's head for
having recommended a bad thing for the Filipinos, for he has
killed our independence."
Because of this shouting, Perez was convicted by the trial Judge
with a violation of Article 256 of the Penal Code which is why
Perez appealed the case to the court as the Information presented in
this case reads
April 1, 1922, Isaac Perez, in a discussion with several
persons on political matters, did criminally, unlawfully and
wilfully and with knowledge that Honorable Leonard Wood
was the Governor-General of the Philippine Islands and in
the discharge of his functions as such authority, insult by
word, without his presence, said Governor-General, uttering
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
in a loud voice and in the presence of many persons, and in
a public place, "And the Filipinos, like myself, must use bolos
for cutting off Wood's head for having recommended a bad
thing for the Philippines.
Contrary to article 256 of the Penal Code.
The accused however countered that the discussion was held
peacefully and what he said was
We are but blaming the Nacionalista Party which is in
power but do not take into account that Governor-
General Wood controls everything and I told him that
the day on which the Democratas may kill the Governor
General, then we will install the government we like
whether you Democratas want to pay or not pay taxes.
The trial Judge found as a fact that it had been proved beyond
reasonable doubt that the accused made use of the language stated.
Statute Involved:
Article 256 of the Penal Code
Sec 8 Act 292 - Treason and Sedition Law as amended by Act No
1692
Every person who shall utter seditious words or speeches, or
who shall write, publish or circulate scurrilous libels against
the Government of the United States or against the
Government of the Philippine Islands, or who shall print,
write, publish utter or make any statement, or speech, or do
any act which tends to disturb or obstruct any lawful officer in
executing his office or in performing his duty, or which tends
to instigate others to cabal or meet together for unlawful
purposes...be punished by imprisonment not exceeding two
years.
Position of Petitioner/s:
It is without doubt that the words were uttered by the accused but is
he punishable under Article 256
Position of Respondent/s:
The discussion was held peacefully and that what he intended was
that the Governor General be removed and substituted by another.
ISSUE:
W/N Article 256 was still in force
More importantly if not, the question presented for decision is, what
crime if any did the accused commit?
HELD/RATIO:
NO Article 256 is not in force in this case.
18
It is not Article 256 of the Penal Code but rather a portion of the
Treason and Sedition Law.
(TAKE NOTE OF THE DATE OF THE CASE AND THE DATE OF
THE JURISPRUDENCE)
In United States v. Helbig (1920)
Accused was charged for saying To hell with the President
of the United States and his proclamation!
It was held that Article 256 was still in force.
In People v. Perfecto (1922)
accused published an article reflecting on the Philippine
Senate in violation of Article 256 but was acquitted by
unanimous vote in that Art. 256 was abrogated completely
by the change from Spanish to American sovereignty.
To which proposition, seditious words, speeches or libels, constitute
a violation of Act 292, the Treason and Sedition Law, and to this
extent both the Penal Code and the Libel law are modified.
The offenses defined in Act 292 are distinctly of this character
including Sedition which is defined as the raising of commotions or
disturbances in the State.
Act 292 however must not be interpreted to abridge the freedom of
speech and the right the people to peaceably assemble and petition
the Government for redress of grievances as criticism is permitted to
penetrate the Government unless the intention and effect be
seditious.
In this instance, the attack on the Governor General passes the
furthest bounds of free speech and common decency. There is a
seditious tendency in the words used which could produce
disaffection among the people.
The Governor General is appointed by the President of the United
States and holds supreme executive power (Basically he is the
President of the Philippines). As such, a seditious attack on the
Governor-General is an attack on the rights of the Filipino people
and on American sovereignty.
Perez has uttered seditious words. He has made a statement and
done an act which tended to instigate others to cabal or meet
together for unlawful purposes and may be characterized as
penalized by Section 8 of Act 292 as amended.
Final Ruling
Agree with the trial Judge in his findings as fact and on these facts
convict the accused of violation of Sec 8 of Act 292 and that he will
suffer 2 months and 1 day imprisonment and pay the costs.
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
DENNIS vs. UNITED STATES
(BULLO)
KEY TAKE-AWAY: Free speech can be inhibited if it causes clear and
present danger that will bring about substantive evils that Congress has to
prevent. In this case, the overthrow of government or conspiracy to do so is
an abuse of the freedom of speech.
DATE/GR NO/SCRA: 341 US 494, 1951
PONENTE: Vinson
PETITIONER: Eugene Dennis, General Secretary of the American
Communist Party and other high-ranking members of the party.
RESPONDENT: US Government
FACTS:
Petition:
Writ of Certiorari on the decision of the Court of Appeals against
Dennis and his party.
Factual Antecedents:
High-ranking members of the Communist Party of the United States
of America were arrested for violating the Smith Act.
The Smith Act made it unlawful to advocate and teach the
overthrowing of the American Government through force or violence.
The provisions used in the Smith Act are as follows:
Section 2.
(a) It shall be unlawful for any person--
(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity,
desirability, or propriety of overthrowing or destroying any government in the United States
by force or violence, or by the assassination of any officer of such government;
(2) with the intent to cause the overthrow or destruction of any government in the
United Sttes, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any
written or printed matter advocating, advising or teaching the duty, necessity, desirability,
or propriety of overthrowing or destroying any government in the United States by force or
violence;
(3) to organize or help any society, group, or assembly of persons who reach
advocate, or encourage the overthrow or destruction of any government in the United
States by force or violence; or to be or become a member of, or affiliate with, any such
socity, group or assembly of persons, knowing purposes thereof.
Section 3. It shall be unlawful for any person to attempt to commit or to conspire to
commit any of the acts prohibited by the provisions of this title.
The party members were charged with organizing a group that
wanted to overthrow the government as well as one that advocates
and teaches government overthrow.
Investigation produced 16,000 pages of evidence and was enough to
prove that they did advocate and teach the belief of overthrowing of
government by violence and force.
19
Jury in the lower court found petitioners unwilling to work within the
US framework of democracy and wanting to violently revolt when the
time came. Petitioners explain that their Marxist-Leninist view claims
that it will be impossible to establish communism without the ruling
class fighting back.
It was once the Communist Political Association, which had peaceful
policies, but it eventually changed into the CPUSA - a highly
disciplined organization, adept at infiltration into strategic
positions,use of aliases, and double meaning of languages. Their
leaders tolerate no dissent.
Congress has the power to protect the US government. But the
question is whether the means employed by Congress conflicts with
the First and Fifth Amendments.
Even if theoretically there is a right to rebel against dictatorial
governments, this cannot be applied because the existing
government structure provides for peaceful and orderly change.
One contention is the question whether the Smith act prohibits
academic discussion within the merits of Marxism-Leninism. Does it
stifle free speech and free press?
According to Schenck v. US, clear and present danger that will bring
about substantive evil must be found in the exercise of speech for it
to be inhibited by the state, later jurisprudence under the Criminal
Espionage Act held that the ff. cases presented clear and present
danger:
o Goldman v. US - the distribution of an objectionable
document causing and attempting to cause insubordination
in the military forces and obstruct recruitment.
o Fronwerk v. US - publication of 12 news articles attacking
the war.
o Debs v. US - one speech attacking US participation in the
war.
o Abrams v. US - circulation of Socialist circulars attacking the
war.
o Schaefer v. US - publication of German-language
newspaper with allegedly false articles critical of capitalism
and the war
o Pierce v. US - circulation of a four-page pamphlet by a
clergyman attacking US participation of the war.
o Holmes and Brandeis dissented in these cases because
they think they did not have sufficient evidence under the
rules laid out by Schenck (no clear and present danger).
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
In Gitlow v. New York, New York had made it a crime to advocate
the overthrow of government. A conviction was made because of a
publication of a manifesto attacking the government and capitalism,
the clear and present danger test was not conducted because the
act itself is enough to violate the newly passed law. According to the
Supreme Court there was no need to prove clear and present danger
because a certain kind of speech was already banned no matter
what kind of danger it may or may not present.
Holmes and Brandeis again dissented from above case. They made
no distinction between a law that made certain acts unlawful and
needed the evidence of speech for a conviction, and a law which
made just speech itself a crime.
Statute Involved:
Smith Act mentioned above and the 1st Amendment.
Position of Petitioner/s:
The organization of the CPUSA and its ideals should be protected by
the 1st amendment. The Smith Act is unconstitutional.
Position of Respondent/s:
Petitioners are guilty of the provisions in the Smith Act.
ISSUE:
W/N The Smith Act violates the 1st amendment and other provisions
in the bill of rights. - NO
W/N there is clear and present danger in the activities of the CPUSA
- YES
HELD/RATIO:
YES/NO
The Smith Act is directed at advocacy not pure discussion which is
why it is not unlawful to teach the theories found in the CPUSAs
books.
Free speech can only be curtailed if, according to Justice Holmes,
words create a clear and present danger that they will bring about
substantive evils that Congress has the right to prevent The court
rules that this should be the only way the Smith Law is applied.
Overthrow of the government by force or violence is certainly
substantial enough to limit free speech.
The government cannot wait while an organization is still planning
and waiting for the right time for their plan to be executed.
Even if government is powerful enough to quench the foreseen
rebellion or even if the rebellion is weak because of inadequate
20
numbers and power, it should not wait for it to happen. It is already
sufficient evil for Congress to prevent. The court rejects the
contention that probability of success is a criterion of their guilt. If
ingredients of the reaction are present, we cannot bind the
government to wait until the catalyst is added
The court adopts Judge Hands statement, In each case we must
ask whether the gravity of the evil, discounted by its improbability,
justifies such invasion of free speech as is necessary to avoid the
danger.
The clear and present danger that assured their conviction here is
their formation of an organized, rigid, and disciplined conspiracy with
members that would act on orders of their leaders.
o This and the (1) inflammable nature of world conditions, (2)
similar uprisings in other countries, (3) the touch-and-go
relations with other countries with whom petitioners were
ideologically attuned to c.
Final Ruling
THe court affirms the CAs decision. Dennis and the other members
are convicted.
UNITED STATES vs. OBRIEN
(CUBACUB)
KEY TAKE-AWAY: The incidental restrictions on certain rights (like freedom
of speech) may be deemed essential in furtherance of more important state
interest.
DATE/GR NO/SCRA: May 27, 1968 391 U.S. 367
PONENTE: Chief Justice Warren
PETITIONER: United States
RESPONDENT: David Paul OBrien
FACTS:
Petition:
Petition for certiorari the CA decision that held the 1965 amendment
as unconstitutional.
Factual Antecedents:
Respondent David Paul OBrien and three others burned their
Selective Service registration certificates on the steps of the South
Boston Courthouse. A sizable crowd, including FBI agents,
witnessed this event.
Some members of the crowd started to attack OBrien and an FBI
agent escorted him into the courthouse for safety. After he was
advised of his right to counsel and to silence, respondent said that
he burned his certificate because of his anti-war beliefs that people
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
should reevaluate their positions in the Selective Service, with the
armed forces and reevaluate their place in the culture of today. He
did such act even if he knew he was violating Federal law.
OBrien was convicted by the US District Court for the District of
Massachusetts, holding that the statute is constitutional.
The CA reversed the US District Court decision and held that the
1965 Amendment was unconstitutional because it violated freedom
of speech.
Statute Involved:
1965 Amendment to Section 426(b)(3) of the Universal Military
Training Act of 1948, which provides for violation to be imposed on
any person who forges, alters, knowingly destroys, knowingly
mutilates or in any manner changes any such certificate.
Position of Petitioner/s:
The CA erred in holding that the 1965 amendment was
unconstitutional.
Position of Respondent/s:
O'Brien argues that act of burning his registration certificate was
protected "symbolic speech" within the First Amendment (on
abridging freedom of speech).
ISSUE:
W/N the 1965 Amendment is unconstitutional.
HELD/RATIO:
NO, the 1965 amendment does not suppress OBriens right to freedom
of speech.
This case deals with conduct having no connection with speech. It
prohibits the knowing destruction of certificates issued by the
Selective Service System, and there is nothing necessarily
expressive about such conduct.
o We cannot accept the view that an apparently limitless
variety of conduct can be labeled "speech" whenever the
person engaging in the conduct intends thereby to express
an idea.
o However, even on the assumption that the alleged
communicative element in O'Brien's conduct is sufficient to
bring into play the First Amendment, it does not
necessarily follow that the destruction of a registration
certificate is constitutionally protected activity.
o This Court has held that, when "speech" and "nonspeech"
elements are combined in the same course of conduct, a
sufficiently important governmental interest in
21
regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms.
To characterize the quality of the governmental interest which must
appear, the Court has employed a variety of descriptive terms:
compelling, substantial, subordinating, paramount, cogent,
strong.
A government regulation is sufficiently justified if:
o Within the constitutional power of the Government
o Furthers an important or substantial governmental interest
o The governmental interest is unrelated to the suppression of
free expression
The incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of
that interest.
Final Ruling
We hold that the 1965 Amendment is constitutional and reinstate
the judgment and sentence of the District Court.
BLUE RIBBON COMMITTEE vs. HON. JOSE
MAJADUCON
(DANTES)
KEY TAKE-AWAY: The power to declare a person in contempt of court must
be exercised on the preservative, not vindictive principle, and on the
corrective and not retaliatory idea of punishment.
DATE/GR NO. SCRA: July 29, 2003 / G.R. No. 136760
PONENTE: YNARES-SANTIAGO, J
PETITIONERS: THE SENATE BLUE RIBBON COMMITTEE, represented
by its Chairman, SENATOR AQUILINO Q. PIMENTEL, JR.
RESPONDENTS: HON. JOSE B. MAJADUCON, Presiding Judge of Branch
23, Regional Trial Court of General Santos City, and ATTY. NILO J.
FLAVIANO
FACTS:
Petition:
Two consolidated petitions: (a) G.R. No. 136760, for certiorari,
prohibition, mandamus and preliminary injunction, assailing the
resolution dated November 11, 1998 of respondent judge of the RTC
of General Santos City, which denied the Senate Blue Ribbon
Committees motion to dismiss the petition for prohibition, injunction
with writ of preliminary injunction filed by private respondent Atty.
Nilo J. Flaviano; and (b) G.R. No. 138378, for review of the
resolution dated April 15, 1999 of respondent judge declaring
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
petitioner Senator Aquilino Q. Pimentel, Jr. guilty of indirect contempt
of court.
Factual Antecedents:
G.R. No. 136760
August 28, 1998: Senator Ople and Senator Sotto III respectively
filed for resolutions to conduct an inquiry, in aid of legislation, into the
charges of then Defense Secretary Mercado that a group of active
and retired military officers were organizing a coup detat to prevent
the administration of then President Estrada from probing alleged
fund irregularities in the AFP and into the alleged mismanagement of
the funds and investment portfolio of the Armed Forces Retirement
and Separation Benefits System (AFP-RSBS).
During the hearings conducted by the Senate Blue Ribbon
Committee (hereafter called the Committee), it appeared that the
AFP-RSBS purchased a lot, Lot X, MR-1160-D to AFP-RSBS, in
General Santos City, for a purchase price greater than that indicated
in the deed of sale filed with the Registrar of Deeds
The Committee thereafter subpoenaed respondent Atty. Flaviano,
directing him to appear and testify before it, but he did not appear
and instead filed a petition for prohibition and preliminary injunction
with prayer for temporary restraining order with the RTC of General
Santos
October 21, 1998: the RTC issued a TRO directing the Committee
to CEASE and DESIST from proceeding with the inquiry in P.S. 160
particularly in General Santos City and/or anywhere in Region XI or
Manila on matters affecting the patenting/titling and sale of Lot X,
MR-1160-D to AFP-RSBS.
November 5, 1998: the Committee filed a motion to dismiss the
petition
November 11, 1998: the trial court denied petitioners motion to
dismiss and granted the writ of preliminary injunction
G.R. No. 138378
January 13, 1999: The Philippine Star published a news report on
the petition for certiorari filed by the Committee with the SC, quoting
portions of the petition alleging that respondent judge was guilty of
gross ignorance of the rules and procedures when he issued the
TRO and the writ of preliminary injunction because, under the
principle of separation of powers, courts cannot interfere with the
exercise by the legislature of its authority to conduct investigations in
aid of legislation.
Reacting to the news report, respondent judge motu proprio initiated
a charge for indirect contempt of court against petitioner Senator
22
Aquilino Q. Pimentel, Jr., and several of the publication and editing
staff of the newspaper.
April 15, 1999: A decision was rendered finding petitioner Pimentel
guilty of indirect contempt.
Statute Involved:
Rule 71, Section 3(d) of the 1997 Rules of Civil Procedure provides:
Section 3. Indirect contempt to be punished after charge
and hearing. After a charge in writing has been filed,
and an opportunity given to the respondent to comment
thereon within such period as may be fixed by the court
and to be heard by himself or counsel, a person guilty of
any of the following acts may be punished for indirect
contempt:
o d) Any improper conduct tending, directly or indirectly,
to impede, obstruct, or degrade the administration of
justice;
Position of Petitioners:
The phrase gross ignorance of the rules of law and procedure,
which the Committee used in the petition, is not pejorative, but
merely a description normally used in petitions where the acts of
lower courts are challenged before higher judicial bodies.
o Court often uses the phrase in its decisions to describe judges
who commit gross and palpable mistakes in their
interpretation and application of the law.
Petitioner also contends that he had no participation in the
publication of excerpts from the Committees petition for certiorari.
The report by the Philippine Star of the filing of the petition and the
reproduction of its contents was a legitimate exercise of press
freedom
Position of Respondents:
Pimentel was guilty of indirect contempt of court: (1) for causing the
publication of the Committees petition in the Philippine Star
notwithstanding that the same was sub judice (under judgment); (2)
for making derogatory remarks in the petition itself; and (3) for
making it appear that an administrative complaint was filed against
respondent Judge for gross ignorance of the law. These, he said,
constituted malicious and false report which obstructed the
administration of justice.
ISSUE:
W/N respondent Judge erred in convicting petitioner Pimentel of indirect
contempt of court.
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
HELD/RATIO:
NO.
It did not appear that Pimentel caused the publication of the fact of
filing of the petition for certiorari by the Committee in the Philippine
Star.
o Publishers are given right of press freedom which
gives them a wide latitude of choice over the
material for as long as they are relevant to public
interest
The allegation of the respondent judge that the petitioner
made it appear that an administrative complaint was filed
against him is without basis, no formal administrative
complaint was instituted separately from the petition for
certiorari.
The statement that respondent Judge was grossly ignorant
of the rules of law and procedure does not constitute
improper conduct that tends to impede, obstruct or degrade
the administration of justice; it is ordinarily found in
administrative complaints and is a necessary description to
support a petition which seeks the annulment of an order of
a judge wherein basic legal principles are disregarded.
o Spouses Bacar v. Judge De Guzman, Jr. held that
when the law is so elementary, not to know it or to
act as if a judge does not know it, constitutes gross
ignorance of the law.
The power to declare a person in contempt of court must be
exercised on the preservative, not vindictive principle, and
on the corrective and not retaliatory idea of punishment. This
is expressed in the case of Nazareno v. Barnes:
o A judge should never allow himself to be moved by
pride, prejudice, passion, or pettiness in the
performance of his duties. He should always bear in
mind that the power of the court to punish for
contempt should be exercised for purposes that are
impersonal, because that power is intended as a
safeguard not for the judges as persons but for the
functions that they exercise.
Final Ruling:
Both petitions are GRANTED, and the resolution which declared
Senator Aquilino Q. Pimentel, Jr. guilty of indirect contempt of court,
is REVERSED and SET ASIDE. The petition for indirect contempt is
ordered DISMISSED.
23
GONZALES vs. COMELEC
(DE GUIA)
KEY TAKE-AWAY: The only valid limitation to the constitutional freedoms of
expression, assembly, and association is when the exercise of such freedom
would lead to a serious substantive evil or that there is an existing
substantive evil in the execution of such freedom.
DATE/GR NO/SCRA: April 18, 1969 / G.R. No. L-27833
PONENTE: Fernando
PETITIONERS: Arsenio Gonzales and Felicisimo R. Cabigao
RESPONDENTS: Commission on Elections (COMELEC)
FACTS:
Petition:
Petition for declaratory relief regarding the constitutionality of two
new sections in the Revised Election Code, under RA No. 4880.
The two two new sections: (1) Sec. 50-A which prohibit the
too early nomination of candidates; and (2) Sec. 50-B which
limits the period of election campaign or partisan political
activity
Factual Antecedents:
The case should have gone to the Court of First Instances but the SC
treated the case because of the seriousness and urgency of the
constitutional issue raised
Petitioners:
Cabigao, at the time of the filing of the petition, was an
incumbent councilor in Manila and the Nacionalista Party
candidate for Vice-Mayor of Manila, to which he was elected
Gonzales is a private individual, a registered voter in the City
of Manila, and a political leader of his co-petitioner
Aug. 3, 1967: A case was set for hearing Petitioners and
respondents were required to submit memorandums instead of their
oral arguments
Aug. 9, 1967: Resolution from the SC stated that they deferred from
final voting until the return of the Justices on official leave (only 8
Justices were present then)
The case was then set for oral arguments after which the matter was
discussed in conference.
Statute Involved:
RA 4880
"Sec. 50-A. Prohibition of too early nomination of Candidates. It shall
be unlawful for any political group to nominate candidates for any
elective office voted for at large earlier than one hundred and fifty
days immediately preceding an election, and for any other elective
THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
public office earlier than ninety days immediately preceding an
election."
"Sec. 50-B. Limitation upon the period of Election Campaign or
Partisan Political Activity. It is unlawful for any person whether or not
a voter or candidate, or for any group or association of persons,
whether or not a political party or political committee, to engage in an
election campaign or partisan political activity except during the
period of one hundred twenty days immediately preceding an
election involving a public office voted for at large and ninety days
immediately preceding an election for any other elective public office.
"The term 'Candidate' refers to any person aspiring for or seeking an
elective public office, regardless of whether or not said person has
already filed his certificate of candidacy or has been nominated by
any political party as its candidate.
"The term 'Election Campaign' or 'Partisan Political Activity' refers to
acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office which shall
include:
"(a) Forming Organizations, Associations, Clubs,
Committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate;
"(b) Holding political conventions, caucuses, conferences,
meetings, rallies, parades, or other similar assemblies, for
the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a any candidate or
party;
"(c) Making speeches, announcements or commentaries or
holding interviews for or against the election of any party or
candidate for public office;
"(d) Publishing or distributing campaign literature or
materials;
"(e) Directly or indirectly soliciting votes and/or undertaking
any campaign or propaganda for or against any candidate or
party;
"(f) Giving, soliciting, or receiving contributions for election
campaign purposes, either directly or indirectly. Provided,
That simple expressions or opinion and thoughts concerning
the election shall not be considered as part of an election
campaign: Provided, further, That nothing herein stated shall
be understood to prevent any person from expressing his
views on current political problems or issues, or from
24
mentioning the names of the candidates for public office
whom he supports."
Position of Petitioners:
Enforcement of RA 4880 would prejudice their basic rights such as
their freedom of speech, freedom of assembly, and their right to form
associations or societies for purpose not contrary to law, hence the
RA is unconstitutional.
Position of Respondents:
Denies the allegations set forth by petitioners
Memorandum: RA 4880 is an exercise of the police power of the
state designed to insure a free, orderly and honest election by
restraining conduct which, if unrestrained, would result in large
expenditures, violence, deaths, corruption, and direful consequences
to public interest
Sufficient to meet the constitutional question raised
ISSUES:
Procedural:
1. W/N the suit is simply an advisory opinion due to the petition not seeking to
restrain COMELEC from performing any act
2. W/N petitioners have standing
Substantive:
W/N the prohibition in RA 4880 regarding the too early nomination of
candidates and the limitation on partisan political activity is an offense
against the constitutional right of free speech, free press, freedom of
assembly, and freedom of association.
HELD/RATIO:
Procedural:
1. NO.
Quoting Justice Laurel: "All await the decision of this Court on the
constitutional question. Considering, therefore, the importance which
the instant case has assumed and to prevent multiplicity of suits,
strong reasons of public policy demand that [its] constitutionality ...
be now resolved."
The exceptional character of this present case is of paramount public
interest and that because the national elections is 6 months away,
the ruling of the Court is necessary
2. YES
In this jurisdiction, the rule has been relaxed as to permit a taxpayer
to bring an action to restrain the expenditure of public funds
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Substantive:
NO. The prohibition and limitation are valid.
Court discusses the basic rights invoked by petitioners
Freedom of Expression
Free speech and free press may be identified with the liberty
to discuss publicly and truthfully any matters of public
interest without censorship and punishment
Thus there must be no restraint or subsequent
liability imposed on people unless there be a present
and clear danger of substantive evil that Congress
has a right to prevent
Trend of Philippine and US decisions: Recognize the
broadest scope and assure the widest latitude to this
constitutional guarantee
Commitment to the principle that debate of public
issue should be uninhibited
Function of free speech is to invite dispute which it
does to serve its high purpose (in other words, ok
lang mag debate ang mga tao)
BUT, freedom of expression is not absolute
Cabansag v. Fernandez Cabansag wrote a letter
to the PCAC wherein the Court applied the first rule
2 tests that may supply an acceptable criterion for
permissible restriction
2 Tests:
1. Clear and present danger rule
Evil consequences of the utterance
must be extremely serious and the
degree of imminence extremely high
before the utterance can be
punished
Justified by the danger or evil of
substantive character that is present
2. Dangerous tendency rule
If the words uttered creates a
dangerous tendency which the state
has a right to prevent, then such
words are punishable
Not necessary that some definite or
immediate acts of force or
unlawfulness be advocated or that
the words are circulated to incite
25
persons to acts of force, violence, or
unlawfulness
Sufficient that such acts be
advocated in general terms or that
the possible effect of the utterance
is to bring about the substantive evil
which the legislative seeks to
prevent
Freedom of Assembly
United States v. Bustos this rights is a necessary
consequence of our republican institution and complements
the right of free speech
Assembly a right on the part of the citizens o meet
peaceably for consultation in respect to public affair
As with freedom of expression, this right cannot be limited,
much less denied, except on a showing of a clear and
present danger of a substantive evil
Freedom to Form Association
The Constitution recognizes this despite not having a
provision
Origin is from the Malolos Constitution
De Tocqueville: The most natural privilege of man, next to
the right of acting for himself, is that of combining his
exertions with those of his fellow creatures and of acting in
common with them. The right of association thereof appears
to me almost as inalienable as the right of personal liberty.
No legislator can attack it without impairing the foundation of
society.
If such a right was non-existent, then the likelihood of a one-
party government is more than a possibility (i.e.
Authoritarianism)
Only limitation is that the associations cannot be contrary to
law
Association must not be shown to create an
imminent danger to public safety
Validity of RA 4880
The RA was created in order to answer a present serious
substantive evil
Provisos in the RA also states that
simple expressions of opinion and thoughts concerning
the election shall not be considered as part of an election
campaign.
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
nothing herein states shall be understood to prevent any
person from expressing his views on current political
problems or issues, or from mentioning the names of the
candidates from public office whom he supports.
The prohibition of too early nomination of candidate presents a
question that is not too formidable in character
The right of association is affected in the sense that political
parties have less freedom as to the time during which the
can nominate candidates
BUT, such curtailment does not render meaningless such a
basic right nor does it infringe on their right to assemble
HENCE, the prohibition is valid
Limitation on the period of election campaign
The provision may be stricken down as vague
When a statutory provision operates to inhibit the exercise of
individual Constitutional freedom, the imputation of
vagueness sufficient to invalidate the statute is inescapable.
But the definition of election campaigns and partisan
political activity minimizes the vagueness
NOTE: The Court only declared its constitutionality because
it missed on more vote for unconstitutionality
Final Ruling:
It is the judgment of this Court that RA 4880 cannot be declared
unconstitutional. WHEREFORE, the petition is dismissed and the writ of
prohibition prayed for denied.
NOTE: If you read the case, it becomes evident that the Ponente wished that
the RA be declared unconstitutional but because of a technicality wherein
they were missing one more vote for unconstitutionality, the RA, by default,
was declared constitutional. Or baka ako lang yun
SANIDAD vs. COMELEC
(EXCONDE)
26
KEY TAKE-AWAY: Art. 9 C of Constitution confers upon Comelec the power
to supervise and regulate use and enjoyment of franchises, permits or other
grants of public utilities, media communication etc. to prevent undue
advantage to some candidates. This does not apply to media practitioners
who are not franchise holders.
DATE/GR NO/SCRA: 181 SCRA 529 1990
PONENTE: Medialdea J
PETITIONER: Pablito V. Sanidad
RESPONDENT: Commission on Elections
FACTS:
Petition:
Petition for certiorari assailing the constitutionality of Sec 19 of
Comelec Resolution No. 2167 on the grounds that it violates the
constitutional guarantees of the freedom of expressions and of the
press.
Factual Antecedents:
On Oct. 23 1989, RA 6766 An act providing for organic act for the
Cordillera Autonomous Region, was enacted.
All affected cities and provinces shall take part in a plebiscite to
ratify the said act.
Respondent enacted RA 2167 to govern the conduct of the said
plebiscite.
Petitioner, a newspaper columnist, assailed the constitutionality of
Sec. 19 of said act.
Statute Involved:
Sec. 19 of RA 2167 Prohibition on columnists, commentators or
announcers During the plebiscite campaign period, on the day
before and on plebiscite day, no mass columnist, commentator,
announcer or personality shall use his column or radio or television
time to campaign for or against the plebiscite issues.
Position of Petitioner/s:
RA 2167 constitutes a restraint on his constitutionally guaranteed
freedom of the press
Position of Respondent/s:
RA 2167 does not violate the constitutional guaranteed freedom of
speech and of the press.
It is a valid implementation of power of COMELEC to supervise and
regulate media during election or plebiscite, pursuant to Art. 9 C Sec
14 of 1987 Constitution
Which authorizes COMELEC to supervise or regulate the
enjoyment and utilization of all franchises... and other public
utilities, media communication.
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Petitioner may still express his views during COMELECs space and
airtime, which are regulated and pursuant to Sec. 90 and 92 of BP
881.
ISSUE:
W/N Sec 19 of RA 2167 is constitutional?
HELD/RATIO:
NO
Comelec was granted by the Constitution to supervise and regulate
the use and enjoyment of franchises, permits or other grants of
public utilities, media communication etc. to prevent undue
advantage to some candidates.
RA 6646 nor Art. 9 C of Constitution does not confer upon Comelec
the power to supervise and regulate the exercise by media
practitioners themselves of their right to expression during
plebiscite periods.
Media practitioners, like petitioner in this case, are not the franchise
holders nor candidates that said act and provisions regulate and
supervise.
Although there is Comelec space and airtime, said provision is still a
restriction on petitioners choice of forum to express his views,
without justifiable reason.
Badoy Jr. v. Comelec, assailed the constitutionality of prohibition of
certain forms of election propaganda.
o In Badoy Jr v. Comelec, it was an election period and not a
plebiscite.
o In elections, people vote for specific persons. While in
plebiscite, electorate is asked to vote for or against issues.
Final Ruling:
Petition is GRANTED.
NATIONAL PRESS CLUB vs. COMELEC
(FILASOL)
KEY TAKEAWAY: For purposes of supervision or regulation of the operation
of media enterprises, the applicable rule is the general time-honoured one
that a statute is presumed to be constitutional and that the party
asserting its unconstitutionality must discharge the burden of clearly and
convincingly proving that assertion.
G.R. No./ Date: GR No. 102653, March 5, 1992
PONENTE: FELICIANO, J.
27
PETITIONERS: National Press Club, Philippine Press Institute, Kapisanan
ng mga Broadcasters sa Pilipinas (KBP), Radio Philippines Network Inc
(RPN), ABS-CBN Broadcasting Corporation, and former Senator Orly
Mercado.
RESPONDENT: Commission on Elections
FACTS:
Petition:
Petition assailing the constitutionality of RA 6646.
Factual Antecedents:
This is a consolidation of three cases.
Petitioners are either involved in the mass media business of
candidates for the May 1992 elections.
Statute Involved:
Sec 11 of RA 6646 prohibits the sale or donation of print space and
airtime for campaign or other political purposes, except to the
Commission on Elections, which shall allocate them equally and
impartially among all candidates.
Position of Petitioners:
Petitioners argue that Section 11 of the RA 6466 (Election Reforms
Law) is violative of the constitutional guarantees comprising freedom
of expression. They claim that said section is unreasonable and
oppressive, as it prohibits the sale or donation of print space and air
time for campaign or other political purposes, except to the
Commission on Elections, as provided under BP 881 (Omnibus
Election Code).
Sections 90 and 92 of BP 881 provides for COMELEC
space and COMELEC time, wherein space in newspapers
and airtime in radio/television are allocated, free of charge,
equally and impartially by the Commission among all
candidates.
Position of Respondents:
The law serves the legitimate interest equality of opportunities for
all candidates. Furthermore, the restrictions are (a) limited in scope
(campaign period) and (b) content neutral (time and space only, not
actual content).
ISSUE:
W/N Sec 11 of RA 6646 is Constitutional and has not gone beyond
permissible supervision of media operations so as not to constitute
unconstitutional repression of freedom of speech and and freedom of
the press.
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Held/Ratio:
Yes. [RATIO FROM CASEBOOK]
[The law banning political ads has since been repealed but the Court made
this important observation which is still pertinent]:
The technical effect of Article IX (C) 4 of the Constitution may be
seen to be that no presumption of invalidity arises in respect of
exercises of supervisory or regulatory authority on the part of the
COMELEC for the purpose of securing equal opportunity among
candidates for political office, although such supervision or regulation
may result in some limitation of the rights of free speech and free
press.
For supervision or regulation of the operations of media
enterprises is scarcely conceivable without such
accompanying limitation.
Thus, the applicable rule is the general time-honoured one
that a statute is presumed to be constitutional and that
the party asserting its unconstitutionality must
discharge the burden of clearly and convincingly
proving that assertion.
Final Ruling:
For the Court to strike out their acts as unconstitutional, nothing less
than clear and convincing evidence of such breach of the
Constitution must be shown.
Petitioners have not acquitted themselves of that duty. The petition
then must be DISMISSED for lack of merit.
ADIONG vs. COMELEC
(FONACIER)
KEY TAKE-AWAY: In order allow the prohibition of certain acts which
infringe upon constitutional rights the reasoning MUST be based on clear
and present danger, MUST NOT suffer from over breadth, and MUST NOT
impair equal opportunity.
DATE/GR NO/SCRA: GR No. 103596, March 31, 1992
PONENTE: Guiterrez, Jr., J.
PETITIONER: Blo Umpar Adiong
RESPONDENT: Commission on Elections
FACTS:
Petition:
Petition to assail the COMELECs Resolution insofar as it prohibits
the posting of decals and stickers in mobile places like cars and
other moving vehicles.
Factual Antecedents:
28
On January 13, 1992 COMELEC promulgated Resolution no. 2347.
Pertinent sections:
Sec 15(a) - enumerates lawful election propaganda
(pamphlets, leaflets, cards, decals, and handwritten/printed
letters and other material), their size (8 - 14 in), BUT
PROVIDES that stickers and decals may be posted
ONLY in any of the authorized posting areas in Section
21(f)
Sec 21(f) - enumerates prohibited forms of election
propaganda (basically exhibiting any election propaganda in
any place, whether public or private, mobile or stationary
except in COMELEC common posted areas, campaign
headquarters, or at candidates own residential home.)
Statute Involved:
Sec 4, Article 3 of the Constitution
COMELECs Resolution no. 2347
Position of Petitioner/s:
The prohibition made by the Resolution is not supportive but rather
violative of Section 82 of the Omnibus Election Code and Section
11(a) of RA No. 6646
Petitioner, being a neophyte in the field of politics, will suffer grave
and irreparable injury with this prohibition
Posting decals and stickers would be his last medium to inform the
electorate that he is a senatorial candidate
Has not received notice from Election Registrars as to where the
COMELEC Poster Areas are
Position of Respondent/s:
Resolution seeks to enforce Section 82 of the Omnibus Election
Code (Lawful Election Propaganda) and Section 11(a) of RA 6646
(Prohibited Forms of Election Propaganda) Note: with regard to Sec
15(a) and Sec 21(f) above, they are essentially the same as Section
82 and Section 11(a) except for the items marked with **
ISSUE:
W/N COMELEC may prohibit the posting of decals and stickers on
mobile places, public or private, and limit their location or
publication to the authorized posting areas that it fixes.
HELD/RATIO:
NO
First, it unduly infringes upon a citizens fundamental right of free
speech
THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Free speech is a preferred freedom because it is the
indispensable condition of nearly every other freedom (how
can right to free election be guaranteed if the freedom to
speak, to convince or persuade is taken away?)
Mutuc v COMELEC the preferred freedom of expression
calls for utmost respect when what may be curtailed is the
dissemination of information to make more meaningful
the equally vital right of suffrage
COMELEC under the Constitution (Article IX-C, Section 4) is
granted regulatory powers vis-a-vis the conduct and manner of
elections during the election period
o The question is what is permissible regulation of election
campaign activities and indefensible repression
committed in the name of free and honest elections
o National Press Club v COMELEC a government
regulation is sufficiently justified if:
1) it is within the constitutional power of the
Government
2) it furthers an important or substantial governmental
interest
3) the governmental interest is unrelated to the
suppression of free expression
4) the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the
furtherance of that interest
Posting of decals and stickers on mobile places does NOT
endanger government interest nor does it endanger
public interest to justify a curtailing of the right of
speech and expression
Reasons to restrict these rights must be based on clear and
present danger
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 ones mouth or a writing instrument to be
stilled
Second, resolution is void for overbreadth
o A statute is considered void for overbreadth when it
offends the constitutional principle that a governmental
purpose to control or prevent activities constitutionally
subject to state regulations may NOT be achieved by
29
means which seep unnecessarily broadly and thereby
invade the area of protected freedoms
o In this case, the restriction is so broad that it
encompasses citizens OWN private property (ex.
privately-owned vehicle), in essence depriving them of the
right to do what they will with their private property
o The right to property may be subject to a greater degree
of regulation but when it is joined by a liberty interest,
the burden of justification on the part of the government
MUST be CONVINCING and IRREFUTABLE
Such burden has not been met in this case.
o The assailed provisions are is so loosely worded that it
may even include the privacy of ones home or living
room.
Third, the constitutional objective to give rich and poor an equal
chance of informing the public of their candidacy is NOT
impaired by allowing the posting of decals and stickers on their
cars.
When a person attaches a sticker with candidates name on
his car bumper he is expressing more than the name: he is
espousing ideas.
Final Ruling
Petition is GRANTED. Section 15(a) of Resolution No. 2347 of
COMELEC is declared NULL and VOID.
ABS CBN vs. COMELEC
(GARCIA)
KEY TAKE-AWAY: The holding of exit polls and the dissemination of their
results through mass media constitute an essential part of the freedoms of
speech and of the press. Hence, the Comelec cannot ban them totally in the
guise of promoting clean, honest, orderly and credible elections.
DATE/GR.NO./SCRA: G.R. No. 133486. January 28, 2000
PONENTE: PANGANIBAN J.
PETITIONER: ABS-CBN Broadcasting Corporation
RESPONDENT: Commission on Elections
FACTS:
Petition:
Petition assailing COMELEC en banc Resolution No. 981419:
"RESOLVED to approve the issuance of a restraining order
to stop ABS-CBN or any other groups, its agents or
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS) 30
representatives from conducting such exit survey and to the Constitution and relevant provisions of the Omnibus Election
authorize the Honorable Chairman to issue the same." Code. Moreover, the constitutionally protected freedoms invoked by
Factual Antecedents: petitioner "are not immune to regulation by the State in the legitimate
COMELEC issued a Resolution approving the issuance of a exercise of its police power," such as in the present case.
restraining order to stop ABS CBN or any other groups, its agents Press freedom may be curtailed if the exercise thereof creates a
or representatives from conducting exit surveys. COMELEC clear and present danger to the community or it has a dangerous
believed that such project might conflict with the official tendency." It then contends that "an exit poll has the tendency to
COMELEC count, as well as the unofficial quick count of the sow confusion considering the randomness of selecting
National Movement for Free Elections (Namfrel). It also noted that it interviewees, which further makes the exit poll highly unreliable.
had not authorized or deputized ABS-CBN to undertake the exit
survey. ISSUE:
W/N the COMELEC, in the exercise of its power, may totally ban exit
NOTE: Exit polls are electoral surveys conducted by qualified individuals or polls
a group of individuals for the purpose of determining the probable result of
an election.
HELD/RATIO:
NO
Two days before the elections on May 11, 1998, the Court issued the
Exit polls are within the Nature and Scope of Freedom of
Temporary Restraining Order prayed for by petitioner ABS-CBN. The
Speech and of the Press
Comelec was directed to cease and desist, until further orders, from
The freedom of expression is a fundamental principle in our
implementing the assailed Resolution or the restraining order issued
democratic government
pursuant thereto, if any. In fact, the exit polls were actually
It is a preferred right therefore it stands on a higher level
conducted and reported by media without any difficulty or problem.
than other substantive economic or other liberties
Statute Involved:
There is NO justification for a restriction
COMELEC Resolution No. 981419:
To justify a restriction the promotion of a substantial
"RESOLVED to approve the issuance of a restraining order
government interest must be clearly shown.
to stop ABS-CBN or any other groups, its agents or
A government regulation is sufficiently justified if:
representatives from conducting such exit survey and to
It is within the constitutional power of the
authorize the Honorable Chairman to issue the same."
government
Position of Petitioner:
It furthers an important or substantial government
The holding of exit polls and the nationwide reporting of their results
interest
are valid exercises of the freedoms of speech and of the press
If the government interest is unrelated to the
Position of Respondent/s:
suppression of free expression
The assailed resolution was "pursuant to its constitutional and
Even though the governments purposes are legitimate and
statutory powers to promote a clean, honest, orderly and
substantial, they cannot be pursued by means that
credible elections"; and "to protect, preserve and maintain the
broadly stifle fundamental personal liberties, when the end
secrecy and sanctity of the ballot."
can be more narrowly achieved.
The conduct of exit surveys might unduly confuse and influence
The clear and present danger of destroying the integrity of
the voters and that the surveys were designed "to condition the
electoral processes is speculative and untenable
minds of people and cause confusion as to who are the winners and
First, by the very nature of a survey, the participants are
the losers in the election," which in turn may result in "violence and
selected at random, so that the results will as much as
anarchy."
possible be representative or reflective of the general
Exit surveys indirectly violate the constitutional principle to
sentiment or view of the community or group polled.
preserve the sanctity of the ballots," as the "voters are lured to
reveal the contents of ballots," in violation of Section 2, Article V of
THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Second, the survey result is not meant to replace or be at
par with the official Comelec count. It consists merely of the
opinion of the polling group as to who the electorate in
general has probably voted for, based on the limited data
gathered from polled individuals.
Finally, not at stake here are the credibility and the integrity
of the elections, which are exercises that are separate and
independent from the exit polls. The holding and the
reporting of the results of exit polls cannot undermine those
of the elections, since the former is only part of the latter. If
at all, the outcome of one can only be indicative of the other.
The alleged Disorder and Confusion that would happen in the
voting centers are without merit
The Comelec's concern with the possible non-
communicative effect of exit polls -- disorder and confusion
in the voting centers -- does not justify a total ban on them.
The assailed Comelec Resolution is too broad since its
application is without qualification as to whether the
polling is disruptive or not.
The Omnibus Election Code prohibits disruptive
behavior around the voting centers. There is NO
showing, however, that exit polls or the means to
interview voters cause chaos in voting centers.
Neither has any evidence been presented proving
that the presence of exit poll reporters near an
election precinct tends to create disorder or confuse
the voters.
Moreover, the prohibition incidentally prevents the
collection of exit poll data and their use for any
purpose.
The valuable information and ideas that could be
derived from them, based on the voters' answers to
the survey questions will forever remain unknown
and unexplored.
There is NO violation of Ballot Secrecy
Petitioner does not seek access to the ballots cast by the
voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is
to avoid vote buying through voter identification.
Thus, voters are prohibited from exhibiting the
contents of their official ballots to other persons,
from making copies thereof, or from putting
distinguishing marks thereon so as to be identified.
31
Clearly, what is forbidden is the association of
voters with their respective votes, for the purpose
of assuring that the votes have been cast in
accordance with the instructions of a third party. This
result cannot, however, be achieved merely through
the voters' verbal and confidential disclosure to a
pollster of whom they have voted for.
In exit polls, the contents of the official ballot are not
actually exposed. Furthermore, the revelation of whom an
elector has voted for is not compulsory, but voluntary. Voters
may also choose not to reveal their identities. Indeed,
narrowly tailored countermeasures may be prescribed by the
Comelec, so as to minimize or suppress incidental problems
in the conduct of exit polls, without transgressing the
fundamental rights of our people.
Final Ruling:
Petition is granted, and the Temporary Restraining Order issued by
the Court permanent. Assailed Minute Resolution No. 98-1419
issued by the Comelec en banc is hereby NULLIFIED and SET
ASIDE. No costs.
SOCIAL WEATHER STATIONS vs. COMELEC
(GUERRERO)
KEY TAKE-AWAY: A law that suppresses the publication of survey results
for a period before the day of elections cannot be considered as valid as it is
a prior restraint and there are many less restrictive ways to attain the
objective of preventing bandwagon voting
DATE/GR.NO./SCRA: GR No. 147571, May 5, 2001
PONENTE: Mendoza J.
PETITIONER: Social Weather Stations Inc and Kamahalan Publishing Corp./
Manila Standard
RESPONDENT: Commission on Elections
FACTS:
Petition:
Action for Prohibition to enjoin the COMELEC from enforcing Section
5.4 of RA 9006 (Fair Election Act) which prohibits the publication of
surveys for a period of time before election day
Factual Antecedents:
Petitioners stated that they wish to conduct several surveys, and
publish the same throughout the election period
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS)
Especially Kamahalan Publishing Corp, which intends to
publish survey results until the very last day of the election
period
But the COMELEC, through the Fair Election Act, insisted that the
petitioners CANNOT publish the surveys as it would manipulate
the electorate through the pre-survey results
Statute Involved:
Section 5.4 of RA 9006 or the Fair Election Act: 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.
Position of Petitioner:
Section 5.4 of RA 9006 impairs the freedom of expression, speech
and also press
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.
Petitioners also insist that they have been conducting the same
process of publishing pre-surveys in the past 3 elections (1992,
1995 and 1998) without creating any kind of confusion on the part of
the electorate
o They also contend that there is no reason for ordinary
voters to be denied access to the results of election surveys
which are relatively objective
Position of Respondents:
Respondent insists that the objective of the questioned provisions of
the Fair Election Act is to prevent the manipulation and corruption
of the electoral process by unscrupulous and erroneous surveys just
before the election
The objective of the law is to avoid the bandwagon effect
which surveys can potentially create
Section 5.4 of RA 9006 is narrowly tailored to meet the
evils sought to be prevented
The impairment of the freedom of expression is very
minimal in both duration and scope: because it only
prohibits the publication 15 or 7 days before election day
ISSUE:
W/N Section 5.4 of RA 9006 in prohibiting the publication of survey
results for a period before Election Day is constitutional
32
HELD/RATIO:
NO
Because of the preferred status of the constitutional rights of
speech, expression, and the press there is a presumption of
invalidity and the burden of showing justification therefor is on the
Government
There is a reversal of the normal presumption of validity
that inheres in every legislation
The balancing of interests test as proposed by Justice Kapunan
was rejected and instead, the Court applied the OBrien test in
determining the constitutionality of Section 5.4:
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 suppression of free expression
Even if the purpose is unrelated to the suppression of free speech,
the law should be invalidated if the restriction on freedom of
expression is greater than is necessary to achieve the
governmental purpose in question
Utilizing the OBrien test, Section 5.4 of RA 9006 is invalid for
failing requisite number 3, because the suppression of the
freedom of expression is directly related to the object of the
statute
In essence, Section 5.4 suppresses a whole class of expression,
while still allowing the expression of opinion concerning the
same subject matter by newspaper columnists, radio/TV
commentators , armchair theorists, and other opinion-makers
A bias is created by the statute since it prefers personal
opinion to statistical results
The prohibition may be for a limited time, but the curtailment
of the right of expression is direct, absolute, and substantial.
NOTE: Inhibition of speech should only be upheld IF the expression falls
within one of the few unprotected categories (the lewd and obscene, the
profane, the libellous, the insulting or fighting wordsthose which by
their very utterance inflict injury or tend to incite an immediate breach of
the peace) as per Chaplinsky vs New Hampshire
 THE NEW ORDER CONSTITUTIONAL LAW II DIGESTS: ARTICLE III (BILL OF RIGHTS) 33
Prohibition imposed by Section 5.4 cannot be justified on the Petition for prohibition is granted and 5.4 of R.A. No. 9006 and 24(h) of
ground that it is only for a limited period and is only incidental COMELEC Resolution 3636, dated March 1, 2001, are declared
Prohibition may be for a limited time but curtailment of the unconstitutional.
right of expression is direct, absolute, and substantial
constitutes a total suppression of a category of speech and
is NOT made less so because it is only for a certain period
Distinguished from National Press Club vs COMELEC in
which the ban imposed by RA no 6646, Section 11(b) is not
only authorized by a specific constitutional provision but
also provided an alternative so that there was actually NO
ban but only a substitution of media advertisements
th
Section 5.4 also failed the 4 requisite of the OBrien test
o The freedom of expression CANNOT be sacrificed in order
to attain the objective of the law which is the prevention
of bandwagon voting - END -
Thus there are better ways and less restrictive means than
the impairment of the freedom of expression
o Ex. Administrative Code of 1987 gives COMELEC
the power to stop any illegal activity, or confiscate,
tear down, and stop any unlawful, libellous,
misleading, or false election propaganda, after due
notice and hearing
As for the phenomena of bandwagon voting it is
doubtful whether the Government can deal with this natural-
enough tendency of some voters who want to be identified
with the winners and who are susceptible to herd
mentality
o It has been held that legislative preferences or
beliefs may support regulation directed at other
personal activities, but be insufficient to justify
regulation that diminishes the exercise of rights
so vital to the maintenance of democracy
In summary, 5.4 is invalid because
o It imposes a prior restraint on the freedom of expression
o It is a direct and total suppression of a category of
expression even though such suppression is only for a
limited period
o The governmental interest sought to be promoted can be
achieved by means other than the suppression of freedom
of expression.
Final Ruling: