V.
PRIVACY OF COMMUNICATIONS AND
CORRESPONDENCE
1. KATZ VS. UNITED STATES
The petitioner, Katz (the “petitioner”), was convicted
of transmitting wagering information over telephone
lines in violation of federal law. The government had
entered into evidence the petitioner’s end of
telephone conversations that the government had
obtained by placing a listening device to the phone
booth that the petitioner used. The Court of Appeals
rejected the petitioner’s contention that the evidence
should be suppressed.
Synopsis of Rule of Law. The protection of the Fourth
Amendment of the United States Constitution
(“Constitution”), against unreasonable searches and
seizures, follows the person and not the place.
FACTS:
The petitioner used a public telephone booth to
transmit wagering information from Los Angeles to
Boston and Miami in violation of federal law. After
extensive surveillance, the FBI placed a listening
device to the top of the telephone booth and recorded
the petitioner’s end of the telephone conversations
which was then used as evidence against him at his
trial. The petitioner moved to have the evidence
suppressed under the Fourth Amendment of the
Constitution, and that motion was denied. The Court
of Appeals rejected the contention that the evidence
is inadmissible. Certiorari was granted.
ISSUE
Whether the Fourth Amendment of the Constitution
protects telephone conversations conducted in a
phone booth and secretly recorded from introduction
as evidence against a person?
HELD
Justice Potter Stewart filed the majority opinion. The
petitioner strenuously asserted that the phone booth
was a constitutionally protected area. However, the
Fourth Amendment protects persons and not places
from unreasonable intrusion. Even in a public place,
a person may have a reasonable expectation of
privacy in his person. Although the petitioner did not
seek to hide his self from public view when he entered
the telephone booth, he did seek to keep out the
uninvited ear. He did not relinquish his right to do so
simply because he went to a place where he could be
seen. A person who enters into a telephone booth may
expect the protection of the Fourth Amendment of the
Constitution as he assumes that the words he utters
into the telephone will not be broadcast to the world.
Once this is acknowledged, it is clear that the Fourth
Amendment of the Constitution protects persons and
not areas from unreasonable searches and seizures.
The Government’s activities in electronically
listening to and recording the petitioner’s telephone
conversations constituted a search and seizure under
the Fourth Amendment and absent a search warrant
predicated upon sufficient probable cause, all
evidence obtained is inadmissible.
Dissent. Justice Hugo Black (“J. Black”) filed a
dissenting opinion. J. Black observed that
eavesdropping was an ancient practice that the
Framers were certainly aware of when they drafted
the United States Constitution (“Constitution”). Had
they wished to prohibit this activity under the Fourth
Amendment of the Constitution they would have
added such language that would have effectively done
so. By clever wording, the Supreme Court finds it
plausible to argue that language aimed specifically at
searches and seizures of things that can be searched
and seized may, to protect privacy, be applied to
eavesdropped evidence of conversations.
Concurrence. Justice John Harlan (“J. Harlan”) filed
a dissenting opinion. The Fourth Amendment of the
Constitution protects persons, not places. There is a
twofold requirement for what protection is afforded
to those people. First, that a person has exhibited an
actual expectation of privacy and, second, that the
expectation be one that society is prepared to
recognize as reasonable. The critical fact in this case
is that a person who enters a telephone booth shuts the
door behind him, pays the toll, and is surely entitled
to assume that his conversation is not being
intercepted. On the other hand, conversations out in
the open public would not be protected against being
overheard as the expectation of privacy would not be
reasonable.
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2.TERESITA SALCEDO-ORTANEZ v. COURT
OF APPEALS, HON. ROMEO F. ZAMORA
G.R. No. 110662, August 4, 1994, Padilla, J.
Absent a clear showing that both parties to
the telephone conversations allowed the recording of
the same, the inadmissibility of the subject tapes is
mandatory under R.A. No. 4200.
Facts:
Respondent Rafael S. Ortanez filed a
complaint for annulment of marriage with damages
against petitioner Teresita Salcedo-Ortanez on
grounds of lack of marriage license and/or
psychological incapacity of the petitioner. Among the
exhibits offered by private respondent were three (3)
cassette tapes of alleged telephone conversations
between petitioner and unidentified persons. CA
dismissed the petition stating that the tape recordings
are not inadmissible per se.
Issue:
Whether the tape recordings are admissible as
evidence.
Ruling:
NO. R.A. No. 4200 entitled "An Act to
Prohibit and Penalize Wire Tapping andOther
Related Violations of the Privacy of Communication,
and for other purposes" expressly makes such tape
recordings inadmissible in evidence. Clearly,
respondent’s trial court and Court of Appeals failed
to consider the afore-quoted provisions of the law in
admitting in evidence the cassette tapes in question.
Absent a clear showing that both parties to the
telephone conversations allowed the recording of the
same, the inadmissibility of the subject tapes is
mandatory under R.A. No. 4200.
3. FELIPE NAVARRO v. THE COURT OF
APPEALS and the PEOPLE OF THE
PHILIPPINES
G.R. No. 121087, August 26, 1999, Mendoza, J.
The law prohibits the overhearing,
intercepting, or recording of private communications.
Facts:
At around 8:40 in the evening of February 4,
1990, Stanley Jalbuena and Enrique Ike Lingan, who
were reporters of the radio station DWTI in Lucena
City, together with one Mario Ilagan, went to the
Entertainment City following reports that it was
showing nude dancers. After the three had seated
themselves at a table and ordered beer, a scantily clad
dancer appeared on stage and began to perform a strip
act. As she removed her brassieres, Jalbuena brought
out his camera and took a picture. At that point, the
floor manager, Dante Liquin, with a security guard,
Alex Sioco, approached Jalbuena and demanded to
know why he took a picture. Jalbuena replied: Wala
kang pakialam, because this is my job. Sioco pushed
Jalbuena towards the table as he warned the latter that
he would kill him. When Jalbuena saw that Sioco was
about to pull out his gun, he ran out of the joint
followed by his companions. Jalbuena and his
companions went to the police station to report the
matter. Three of the policemen on duty, including
petitioner Navarro, were having drinks in front of the
police station, and they asked Jalbuena and his
companions to join them. Jalbuena declined and went
to the desk officer, Sgt. Aonuevo, to report the
incident. In a while, Liquin and Sioco arrived on a
motorcycle. There was a heated argument between
petitioner and Lingan and as Lingan was about to turn
away, petitioner Navarro hit him with the handle of
his pistol above the left eyebrow. Lingan fell on the
floor, blood flowing down his face. He tried to get up,
but petitioner Navarro gave him a fist blow on the
forehead which floored him. Unknown to petitioner
Navarro, Jalbuena was able to record on tape the
exchange between petitioner and the deceased.
Issue:
Whether the tape recording is admissible in
evidence in view of R.A. No. 4200, which prohibits
wire tapping.
Ruling:
YES. The law prohibits the overhearing,
intercepting, or recording of private communications.
Since the exchange between petitioner Navarro and
Lingan was not private, its tape recording is not
prohibited. Nor is there any question that it was duly
authenticated. A voice recording is authenticated by
the testimony of a witness (1) that he personally
recorded the conversation; (2) that the tape played in
court was the one he recorded; and (3) that the voices
on the tape are those of the persons such are claimed
to belong. In the instant case, Jalbuena testified that
he personally made the voice recording; that the tape
played in court was the one he recorded; and that the
speakers on the tape were petitioner Navarro and
2
Lingan. A sufficient foundation was thus laid for the
authentication of the tape presented by the
prosecution.
4. CECILIA ZULUETA v. COURT OF
APPEALS and ALFREDO MARTIN
G.R. No. 107383, February 20, 1996, Mendoza, J.
The only exception to the constitutional
injunction declaring the privacy of communication
and correspondence to be inviolable is if there is a
lawful order from a court or when public safety or
order requires otherwise, as prescribed by law.
Facts:
Petitioner Cecilia Zulueta is the wife of
private respondent Alfredo Martin. On March 26,
1982, petitioner entered the clinic of her husband, a
doctor of medicine, and in the presence of her mother,
a driver and private respondent’s secretary, forcibly
opened the drawers and cabinet in her husbands clinic
and took 157 documents consisting of private
correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks, diaries,
Dr. Martins passport, and photographs. The
documents and papers were seized for use in evidence
in a case for legal separation and for disqualification
from the practice of medicine which petitioner had
filed against her husband.
Issue:
Whether the documents seized may be used
against the respondent in the case filed by his wife.
Ruling:
NO. Indeed the documents and papers in
question are inadmissible in evidence. The
constitutional injunction declaring the privacy of
communication and correspondence [to be] inviolable
is no less applicable simply because it is the wife
(who thinks herself aggrieved by her husbands
infidelity) who is the party against whom the
constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if
there is a lawful order [from a] court or when public
safety or order requires otherwise, as prescribed by
law. Any violation of this provision renders the
evidence obtained inadmissible for any purpose in
any proceeding. The intimacies between husband and
wife do not justify any one of them in breaking the
drawers and cabinets of the other and in ransacking
them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her
integrity or his right to privacy as an individual and
the constitutional protection is ever available to him
or to her.
The law insures absolute freedom of
communication between the spouses by making it
privileged. Neither husband nor wife may testify for
or against the other without the consent of the affected
spouse while the marriage subsists. Neither one may
be examined without the consent of the other as to any
communication received in confidence by one from
the other during the marriage, save for specified
exceptions. But one thing is freedom of
communication; quite another is a compulsion for
each one to share what one knows with the other. And
this has nothing to do with the duty of fidelity that
each owes to the other.
5. IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF CAPT. GARY
ALEJANO, PN (MARINES) CAPT. NICANOR
FAELDON, PN (MARINES) CAPT. GERARDO
GAMBALA, PA LT. SG JAMES LAYUG, PN
CAPT. MILO MAESTRECAMPO, PA LT. SG
ANTONIO TRILLANES IV, PN
HOMOBONO ADAZA, and ROBERTO
RAFAEL (ROEL) PULIDO v. GEN. PEDRO
CABUAY, GEN. NARCISO ABAYA, SEC.
ANGELO REYES, and SEC. ROILO GOLEZ
G.R. No. 160792, August 25, 2005, Carpio, J.
A pre-trial detainee has no reasonable
expectation of privacy for his incoming mail.
However, incoming mail from lawyers of inmates
enjoys limited protection such that prison officials
can open and inspect the mail for contraband but
could not read the contents without violating the
inmates right to correspond with his lawyer. The
inspection of privileged mail is limited to physical
contraband and not to verbal contraband.
Facts:
Early morning of 27 July 2003, some 321
armed soldiers, led by the now detained junior
officers, entered and took control of the Oakwood
Premier Luxury Apartments (Oakwood), an upscale
apartment complex, located in the business district of
Makati City. The soldiers disarmed the security
officers of Oakwood and planted explosive devices in
its immediate surroundings. The junior officers
publicly renounced their support for the
3
administration and called for the resignation of
President Gloria Macapagal-Arroyo and several
cabinet members. This is known as the Oakwoood
Mutiny.
While in prison, Trillanes and Maestrecampo
handed letters to the petitioners for mailing. These are
personal letters of both Trillanes and Maestrecampo.
These were then confiscated and read by the prison
officials and authorities. Hence, the present
controversy.
The Court of Appeals declared that while the
opening and reading of Trillanes’ letter is an
abhorrent violation of his right to privacy of
communication, this does not justify the issuance of a
writ of habeas corpus. The violation does not amount
to illegal restraint, which is the proper subject of
habeas corpus proceedings.
Issue:
Trillanes and Maestrecampo was merely acting as the
detainees personal courier and not as their counsel
when he received the letters for mailing. In the present
case, since the letters were not confidential
communication between the detainees and their
lawyers, the officials of the ISAFP Detention Center
could read the letters. If the letters are marked
confidential communication between the detainees
and their lawyers, the detention officials should not
read the letters but only open the envelopes for
inspection in the presence of the detainees. That a law
is required before an executive officer could intrude
on a citizens privacy rightsis a guarantee that is
available only to the public at large but not to persons
who are detained or imprisoned. The right to privacy
of those detained is subject to Section 4 of RA 7438,
as well as to the limitations inherent in lawful
detention or imprisonment. By the very fact of their
detention, pre-trial detainees and convicted prisoners
have a diminished expectation of privacy rights.

Whether the opening and reading of

Trillanes’ letter is a violation of his right to privacy of
communication.

Ruling:

NO. American cases recognize that the

unmonitored use of pre-trial detainees non-privileged
mail poses a genuine threat to jail security. Hence,
when a detainee places his letter in an envelope for
non-privileged mail, the detainee knowingly exposes
his letter to possible inspection by jail officials. A pre-
trial detainee has no reasonable expectation of
privacy for his incoming mail. However, incoming
mail from lawyers of inmates enjoys limited
protection such that prison officials can open and
inspect the mail for contraband but could not read the
contents without violating the inmates right to
correspond with his lawyer.

The inspection of privileged mail is limited to

physical contraband and not to verbal contraband.
The opening and reading of the detainees letters in the
present case did not violate the detainees’ right to
privacy of communication. The letters were not in a
sealed envelope. The inspection of the folded letters
is a valid measure as it serves the same purpose as the
opening of sealed letters for the inspection of
contraband. The letters alleged to have been read by
the ISAFP authorities were not confidential letters
between the detainees and their lawyers. The
petitioner who received the letters from detainees

4
VI. FREEDOM OF EXPRESSION, RIGHT TO
ASSEMBLY AND ACADEMIC FREEDOM Issue:

A. GENERAL CONSIDERATIONS Whether the official statements made by

respondents on June 8, and 11, 2005 warning the
1. FRANCISCO CHAVEZ v. RAUL M.
media on airing the alleged wiretapped conversation
GONZALES
between the President and other personalities
G.R. No. 168338, February 15, 2008, Puno, C.J.
constitute unconstitutional prior restraint on the
exercise of freedom of speech and of the press.
A governmental action that restricts freedom
of speech or of the press based on content is given the
Ruling:
strictest scrutiny, with the government having the
burden of overcoming the presumed
YES. The Supreme Court applied the
unconstitutionality by the clear and present danger
Content-based restriction test and ruled that
rule. This rule applies equally to all kinds of media,
respondents’ evidence falls short of satisfying the
including broadcast media.
clear and present danger test. With respect to content-
based restrictions, the government must show the
Facts:
type of harm the speech sought to be restrained would
bring about especially the gravity and the imminence
On June 5, 2005, Press Secretary Ignacio
of the threatened harm otherwise the prior restraint
Bunye told reporters that the opposition was planning
will be invalid. Prior restraint on speech based on its
to destabilize the administration by releasing an
content cannot be justified by hypothetical fears, but
audiotape of a mobile phone conversation allegedly
only by showing a substantive and imminent evil that
between the President of the Philippines, Gloria
has taken the life of a reality already on ground. As
Macapagal Arroyo, and a high-ranking official of the
formulated, the question in every case is whether the
Commission on Elections (COMELEC). The
words used are used in such circumstances and are of
conversation was audiotaped allegedly through wire-
such a nature as to create a clear and present danger
tapping. On June 8, 2005, respondent Department of
that they will bring about the substantive evils that
Justice (DOJ) Secretary Raul Gonzales warned
Congress has a right to prevent. It is a question of
reporters that those who had copies of the compact
proximity and degree.
disc (CD) and those broadcasting or publishing its
contents could be held liable under the Anti-
A governmental action that restricts freedom
Wiretapping Act. These persons included Secretary
of speech or of the press based on content is given the
Bunye and Atty. Paguia. He also stated that persons
strictest scrutiny, with the government having the
possessing or airing said tapes were committing a
burden of overcoming the presumed
continuing offense, subject to arrest by anybody who
unconstitutionality by the clear and present danger
had personal knowledge if the crime was committed
rule. This rule applies equally to all kinds of media,
or was being committed in their presence. On June 11,
including broadcast media. This outlines the
2005, the NTC issued a press release giving fair
procedural map to follow in cases like the one at bar
warning to radio and television owners/operators to
as it spells out the following: (a) the test; (b) the
observe anti-wiretapping law and pertinent circulars
presumption; (c) the burden of proof; (d) the party to
on program standards.
discharge the burden; and (e) the quantum of evidence
necessary. On the basis of the records of the case at
The acts of respondents are alleged to be
bar, respondents who have the burden to show that
violations of the freedom on expression and of the
these acts do not abridge freedom of speech and of the
press, and the right of the people to information on
press failed to hurdle the clear and present danger test.
matters of public concern. Respondents denied that
It appears that the great evil which government wants
the acts transgress the Constitution, and questioned
to prevent is the airing of a tape recording in alleged
petitioners’ legal standing to file the petition. Among
violation of the anti-wiretapping law. The records of
the arguments they raised as to the validity of the fair
the case at bar, however, are confused and confusing,
warning issued by respondent NTC, is that broadcast
and respondents evidence falls short of satisfying the
media enjoy lesser constitutional guarantees
clear and present danger test. Firstly, the various
compared to print media, and the warning was issued
statements of the Press Secretary obfuscate the
pursuant to the NTCs mandate to regulate the
identity of the voices in the tape recording. Secondly,
telecommunications industry.
5
the integrity of the taped conversation is also suspect.
The Press Secretary showed to the public two
versions, one supposed to be a complete version and
the other, an altered version. Thirdly, the evidence of
the respondents on the whos and the hows of the
wiretapping act is ambivalent, especially considering
the tapes different versions. The identity of the wire-
tappers, the manner of its commission and other
related and relevant proofs are some of the invisibles
of this case. Fourthly, given all these unsettled facets
of the tape, it is even arguable whether its airing
would violate the anti-wiretapping law.
For this failure of the respondents alone to
offer proof to satisfy the clear and present danger test,
the Court has no option but to uphold the exercise of
free speech and free press. There is no showing that
the feared violation of the anti-wiretapping law
clearly endangers the national security of the State.
2. ELISEO F. SORIANO v. MA. CONSOLIZA P.
LAGUARDIA, et al.
G.R. No. 164785, April 29, 2009, Velasco, Jr., J.
Where a language is categorized as indecent,
as in utterances on a general-patronage rated TV
program, it may be readily proscribed as unprotected
speech.
Facts:
On August 10, 2004, at around 10:00 p.m.,
petitioner, as host of the program Ang Dating Daan,
aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling; Gago ka
talaga Michael, masahol ka pa sa putang babae o di
ba. Yung putang babae ang gumagana lang doon
yung ibaba, [dito] kay Michael ang gumagana ang
itaas, o di ba! O, masahol pa sa putang babae yan.
Sabi ng lola ko masahol pa sa putang babae yan.
Sobra ang kasinungalingan ng mga demonyong ito.
After a preliminary conference in which
petitioner appeared, the MTRCB, by Order of August
16, 2004, preventively suspended the showing of Ang
Dating Daan program for 20 days, in accordance with
Section 3(d) of Presidential Decree No. (PD) 1986,
creating the MTRCB, in relation to Sec. 3, Chapter
XIII of the 2004 Implementing Rules and Regulations
(IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB
Rules of Procedure. On September 27, 2004, in Adm.
Case No. 01-04, the MTRCB issued a decision
suspending him from hosting Ang Dating Daan for
three months. Petitioner moves for the striking down
of the decision suspending him from hosting Ang
Dating Daan for three months on the main ground
that the decision violates, apart from his religious
freedom, his freedom of speech and expression
guaranteed under Sec. 4, Art. III of the Constitution.
Petitioner asserts that his utterance in question is a
protected form of speech.
Issue:
Whether the utterance in question is a
protected form of speech.
Ruling:
NO. It has been established in this jurisdiction that
unprotected speech or low-value expression refers to
libelous statements, obscenity or pornography, false
or misleading advertisement, insulting or fighting
words, i.e., those which by their very utterance inflict
injury or tend to incite an immediate breach of peace
and expression endangering national security. Even if
we concede that petitioner’s remarks are not obscene
but merely indecent speech, still the Court rules that
petitioner cannot avail himself of the constitutional
protection of free speech. Said statements were made
in a medium easily accessible to children. With
respect to the young minds, said utterances are to be
treated as unprotected speech. Petitioner’s offensive
and obscene language uttered in a television
broadcast, without doubt, was easily accessible to the
children. His statements could have exposed children
to a language that is unacceptable in everyday use. As
such, the welfare of children and the States mandate
to protect and care for them, as parens patriae,
constitute a substantial and compelling government
interest in regulating petitioners utterances in TV
broadcast as provided in PD 1986. The suspension
MTRCB imposed under the premises was, in one
perspective, permissible restriction. This disposition
was made against the backdrop of the following
interplaying factors: First, the indecent speech was
made via television, a pervasive medium that, to
borrow from Gonzales v. Kalaw Katigbak, easily
reaches every home where there is a set [and where]
[c]hildren will likely be among the avid viewers of the
programs therein shown; second, the broadcast was
aired at the time of the day when there was a
reasonable risk that children might be in the audience;
and third, petitioner uttered his speech on a G or for
general patronage rated program. Under Sec. 2(A) of
Chapter IV of the IRR of the MTRCB, a show for
6
general patronage is [s]uitable for all ages, meaning
that the material for television x x x in the judgment
of the BOARD, does not contain anything unsuitable
for children and minors, and may be viewed without
adult guidance or supervision. The words petitioner
used were, by any civilized norm, clearly not suitable
for children. Where a language is categorized as
indecent, as in petitioners utterances on a general-
patronage rated TV program, it may be readily
proscribed as unprotected speech.
3. NEW YORK TIMES CO. vs. UNITED
STATES
Brief Fact Summary. The Supreme Court of the
United States (Supreme Court) held that the
Government failed to meet the requisite burden of
proof needed to justify a prior restraint of expression
when attempting to enjoin the New York Times and
Washington Post from publishing contents of a
classified study.
Synopsis of Rule of Law. Any system of prior
restraints on expression comes to the Supreme Court
bearing a heavy presumption against its invalidity.
The Government “thus creates a heavy burden of
showing justification for the enforcement of such a
restraint.”
Facts. The United States sought to enjoin the New
York Times and Washington Post from publishing
contents of a confidential study about the
Government’s decision making with regard to
Vietnam policy. The District Court in the New York
Times case and the District Court and the Court of
Appeals in the Washington Post case held that the
Government had not met the requisite burden
justifying such a prior restraint.
Issue. Whether the United States met the heavy
burden of showing justification for the enforcement
of such a restraint on the New York Times and
Washington Post to enjoin them from publishing
contents of a classified study?
Held. No. Judgments of the lower courts affirmed.
The order of the Court of Appeals for the Second
Circuit is reversed and remanded with directions to
enter a judgment affirming the District Court. The
stays entered June 25, 1971, by the Court are vacated.
The mandates shall issue forthwith.
Dissent. The scope of the judicial function in passing
upon activities of the Executive Branch in the field of
foreign affairs is very narrowly restricted. This view
is dictated by the doctrine of Separation of Powers.
The doctrine prohibiting prior restraints does not
prevent the courts from maintaining status quo long
enough to act responsibly.
The First Amendment is only part of the Constitution.
The cases should be remanded to be developed
expeditiously.
Concurrence. To find that the President has
“inherent power” to halt the publication of news by
resort to the courts would wipe out the First
Amendment of the United States Constitution
[Constitution].
The First Amendment of the Constitution leaves no
room for governmental restraint on the press. There
is, moreover, no statute barring the publication by the
press of the material that the Times and Post seek to
publish.
The First Amendment of the Constitution tolerates no
prior judicial restraints of the press predicated upon
surmise or conjecture that untoward consequences
may result. Thus, only governmental allegation and
proof that publication must inevitably, directly and
immediately cause the occurrence of an event kindred
to imperiling the safety of a transport already at sea
can support the issuance of an interim restraining
order. Unless and until the Government has clearly
made its case, the First Amendment of the
Constitution commands that no injunction be issued.
The responsibility must be where the power is. The
Executive must have the large duty to determine and
preserve the degree of internal security necessary to
exercise its power effectively. The Executive is
correct with respect to some of the documents here,
but disclosure of any of them will not result in
irreparable danger to the public.
The United States has not met the very heavy burden,
which it must meet to warrant an injunction against
publication in these cases.
The ultimate issue in this case is whether this Court
or the Congress has the power to make this law. It is
plain that Congress has refused to grant the authority
the Government seeks from this Court.
Discussion. This very divided opinion shows how
heavy the Government’s burden is to justify a prior
restraint of expression
PER CURIAM (VERBATIM)
7
We granted certiorari in these cases in which the
United States seeks to enjoin the New York Times
and the Washington Post from publishing the contents
of a classified study entitled "History of U.S.
Decision-Making Process on Viet Nam Policy."
"Any system of prior restraints of expression comes
to this Court bearing a heavy presumption against its
constitutional validity." Near v. Minnesota (1931).
The Government "thus carries a heavy burden of
showing justification for the imposition of such a
restraint." The District Court for the Southern District
of New York, in the New York Times case, and the
District Court for the District of Columbia and the
Court of Appeals for the District of Columbia Circuit,
in the Washington Post case, held that the
Government had not met that burden. We agree.
The judgment of the Court of Appeals for the District
of Columbia Circuit is therefore affirmed. The order
of the Court of Appeals for the Second Circuit is
reversed, and the case is remanded with directions to
enter a judgment affirming the judgment of the
District Court for the Southern District of New York.
The stays entered June 25, 1971, by the Court are
vacated. The judgments shall issue forthwith.
So ordered.
CASE DIGEST # 2
Historical Background
Over the years the Supreme Court has disagreed on
the limits that can be placed on the 1st Amendment
guarantees of freedom of speech and press. In 1971,
the Court faced these issues again in a case brought
by the New York Times. The newspaper had obtained
a copy of documents known as “The Pentagon
Papers”—an internal Defense Department report that
detailed government deception with regard to the
Vietnam War. The Pentagon Papers surfaced at a time
when the American people were deeply divided on
the question of United States involvement in the war.
The New York Times fought for the right to publish
the papers under the umbrella of the 1st Amendment.
Circumstances of the Case
The Pentagon Papers, officially known as “History of
U.S. Decision-Making Process on Viet Nam Policy,”
were illegally copied and then leaked to the press.
The New York Times and the Washington Post had
obtained the documents. Acting at the Government's
request, the United States district court in New York
issued a temporary injunction—a court order—that
directed the New York Times not to publish the
documents. The Government claimed that the
publication of the papers would endanger the security
of the United States. The New York Times appealed
the order to the United States Supreme Court, arguing
that prior restraint—preventing publication—
violated the 1st Amendment.
Constitutional Issues
Are the freedoms provided by the 1st Amendment
absolute? Did the threat to national security outweigh
the freedom of press guaranteed by the 1st
Amendment? Did the publication of the Pentagon
Papers in fact pose a threat to national security?
Arguments
For the New York Times: The 1st Amendment's
guarantee of freedom of the press protects the
newspaper in the publication of these documents. One
of the few restraints on executive power in matters of
national defense is a knowledgeable population. The
press must be free to inform the American people. In
addition, the Government has failed to show that
publication of the Pentagon Papers would endanger
national security.
For the United States: The 1st Amendment does not
guarantee an absolute freedom of the press, especially
when the nation's security is involved. The Court
must strike a balance between the fundamentally
important right to a free press and the equally
important duty of the Government to protect the
nation. Allowing the publication of these documents
would establish a dangerous precedent for future
cases involving national security.
Decision and Rationale
By a 6-3 decision, the Court ruled in favor of the New
York Times. In the judgment, the Court cited a
prevailing precedent, noting: “Any system of prior
restraints of expression comes to this Court bearing a
heavy presumption against its constitutional
validity.” In other words, the Court would not be
favorably disposed to stifling the press on the order of
the government.
Justices Hugo Black and William Douglas, members
of the majority, held that the 1st Amendment is
absolute. Justice Black called it “unfortunate” in his
8
view “that some of my Brethren [fellow justices] are
apparently willing to hold that the publication of news
may sometimes be enjoined. Such a holding,” he
wrote, “would make a shambles of the First
Amendment.”
Justice Byron White, joined by Justice Potter Stewart,
believed that while there are situations in which the
1st Amendment may be abridged, they had to “concur
in today's judgments, but only because of the
concededly extraordinary protection against prior
restraints enjoyed by the press under our
constitutional system.” Although the justices thought
that the New York Times had probably gone too far
in publishing the Pentagon Papers, they found
nothing in the law to prevent the newspaper from
doing so.
Deferring to responsibilities of the Executive, Chief
Justice Warren Burger dissented. Given those vast
responsibilities, Burger noted, the Executive also had
to be given broader authority. “In these cases, the
imperative of a free and unfettered press comes into
collision with another imperative, the effective
functioning of a complex modern government and
specifically the effective exercise of certain
constitutional powers of the Executive,” Burger
wrote. “Only those who view the First Amendment as
an absolute in all circumstances—a view I respect,
but reject—can find such cases as these to be simple
or easy.”
The decision reinforced the Court's stance against
prior restraint and has often been noted in subsequent
prior restraint cases. In the spring of 2000, a Texas
district court judge ordered the Associated Press (AP)
not to publish a story about a state-guaranteed loan to
a Texas shrimp farm. Lawyers for the AP cited
the New York Times case in their argument. The
judge lifted the order after two days of hearings.
SHORTEST CASE DIGEST
Facts of the case
In what became known as the "Pentagon Papers
Case," 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. The President
argued that prior restraint was necessary to protect
national security. This case was decided together with
United States v. Washington Post Co.
Question
Did the Nixon administration's efforts to prevent the
publication of what it termed "classified information"
violate the First Amendment?
Conclusion
Yes. In its per curiam opinion the Court held that the
government did not overcome the "heavy
presumption against" prior restraint of the press in
this case. Justices Black and Douglas argued that the
vague word "security" should not be used "to
abrogate the fundamental law embodied in the First
Amendment." Justice Brennan reasoned that since
publication would not cause an inevitable, direct, and
immediate event imperiling the safety of American
forces, prior restraint was unjustified.
4. CHAPLINSKY vs. STATE OF NEW
HAMPSHIRE
FACTS:
On a public sidewalk in downtown Rochester, Walter
Chaplinsky was distributing literature that supported
his beliefs as a Jehovah's Witness and attacked more
conventional forms of religion. The town marshal
warned him against causing a disturbance, but
Chaplinsky's conduct resulted in an upheaval that
blocked the surrounding roads and caused a police
officer to remove (although not arrest) him. On his
way to the police station, Chaplinsky saw the town
marshal again and shouted at him that he was "a God-
damned racketeer" and "a damned Fascist." This
verbal assault led to his arrest. When he was
questioned about what he had said, Chaplinsky
admitted cursing the marshal as a racketeer and a
fascist while denying that he had invoked the name of
God. He was convicted of violating a state law that
prohibited intentionally offensive, derisive, or
annoying speech to any person who is lawfully in a
street or public area. He was arrested and charged
with violating a state statute, which states: No person
shall address any offensive, derisive or annoying
word to any other person who is lawfully in any street
or other public place, nor call him by any offensive or
derisive name, nor make any noise or exclamation in
his presence and hearing with intent to deride, offend
or annoy him, or to prevent him from pursuing his
9
lawful business or occupation. (Chapter 378, Sec. 2,
of the Public Laws of New Hampshire) Appealing his
fine, Chaplinsky argued that the law violated the First
Amendment on the grounds that it was overly vague.
ISSUES: Is speech that incites a breach of the peace
protected by the First Amendment? Does the
application of the state statute violate Chaplinsky's
freedom of speech protected by the First
Amendment?
RULING: Justice Murphy wrote the majority
opinion for the court, which was supported 9-0 (there
were no concurring opinions written). The court held
that the state statute restricting speech was specific
enough that it complied with the requirements of due
process and did not unreasonably impinge on
Chaplinsky’s First Amendment rights to free speech.
Therefore it did not violate the 14th Amendment.
Rationale of the Court: Although Chaplinsky
protested that the statute violated all three of the First
Amendment freedoms (speech, press, and religion),
the court found that only the free speech part applied.
Chaplinsky was not charged for the religious content
of his speech or for the flyers he’d been handing out,
only for the remarks to Marshall Bowering. The court
recognized that the right to free speech was not
unlimited. They found that the following types of
speech were not protected by the First Amendment:
“the lewd and obscene, the profane, the libelous, and
the insulting or ‘fighting’ words – those which by
their very utterance inflict injury or tend to incite an
immediate breach of the peace.” Such speech is
deemed worthless, or of little use with regard to social
values, as it does not contribute to the formation of
ideas or discovery of truth – the speech is simply
unproductive. The state statue was not deemed too
restrictive because it explains that only words with a
tendency to incite violence are not protected. The test
of this is whether the average person would consider
these words likely to cause a fight. For this reason,
this case is popularly known for establishing the
“fighting words” precedent.
VERSION 2
Chaplinsky v. State of New Hampshire
FACTS
Chaplinsky is a member of the Jehovah’s Witnesses.
He distributed literature about his sect on Rochester
public streets. He called all religion as “racket”.
People complained to City Marshal Bowering but
Bowering informed them that Chaplinsky was within
his rights. Bowering warned Chaplinsky against
causing a disturbance. Chaplinsky's conduct blocked
the surrounding roads - police officer removed him.
On the way to the police station, they encountered
Bowering, who had been advised that a riot was under
way and was hurrying to the scene. Bowering
repeated his earlier warning. Chaplinsky shouted to
Bowering that he was "a God-damned racketeer" and
"a damned Fascist." which led to his arrest (breach of
peace; violating New Hampshire state law)
Chaplinsky’s version: When he met Bowering, he
asked him to arrest the ones responsible for the
disturbance. In reply, Bowering cursed him and told
him to come along. He admitted cursing the marshal
as a racketeer & fascist while denying that he had
invoked the name of God.
TRIAL COURT: CONVICTED him for violating a
state law regarding offensive speech used in public.
The state law, Chapter 378, Sec. 2, of the Public Laws
of New Hampshire provides:
“No person shall address any offensive, derisive or
annoying word to any other person who is lawfully in
any street or other public place, nor call him by any
offensive or derisive name, nor make any noise or
exclamation in his presence and hearing with intent to
deride, offend or annoy him, or to prevent him from
pursuing his lawful business or occupation.”
In his appeal before the SUPERIOR COURT,
Chaplinsky argued that the law violated the First
Amendment on the grounds that it was overly vague.
It was tried de novo by jury and he was
CONVICTED.
In the STATE SUPREME COURT:
 Chaplinsky argued that the state law
violated his Fourteenth
Amendment rights – it prohibits states
from infringing on citizens' fundamental
freedoms.
 State law tried to keep him from
exercising his First Amendment rights to
free speech, free press and free worship
and that it was vague and indefinite.
10
State Supreme Court – CONVICTED him.
ISSUE: Does the application of the state law violate
Chaplinsky's freedom of speech protected by the First
Amendment? ---- NO.
RULING:
 STATE LAW does not contravene the
Fourteenth Amendment.
 The state statute restricting speech was
specific enough.
 It did not unreasonably impinge on
Chaplinsky’s First Amendment rights to free
speech. Therefore it did not violate the 14th
Amendment.
 The state law was not deemed too restrictive
because it explains that only words with a
tendency to incite violence are not protected.
 The statute does no more than prohibit the
face-to-face words plainly likely to cause a
breach of the peace by the addressee, words
whose speaking constitutes a breach of the
peace by the speaker -- including 'classical
fighting words,' words in current use less
'classical' but equally likely to cause
violence, and other disorderly words,
including profanity, obscenity and threats."
 CHAPLINSKY’S CONTENTION: the
state law violated the 3 freedoms under First
Amendment (speech, press, and religion)
 SUPREME COURT: This case only
concerns freedom of speech where
Chaplinsky was not convicted for expressing
ideas but for his remarks to the marshall
which are FIGHTING WORDS.
 THE RIGHT TO FREE SPEECH IS NOT
UNLIMITED. There are limited classes of
speech.
SPEECHES NOT PROTECTED BY FIRST
AMENDMENT:
“the lewd and obscene, the profane, the libelous, and
the insulting or ‘fighting’ words – those which by
their very utterance inflict injury or tend to incite an
immediate breach of the peace.”
FIGHTING WORDS
 “Fighting words” do not convey ideas and are
not entitled to protection under the First
Amendment.
 Court denies protection for abusive speech
exchanged face to face that is likely to
provoke an aggressive response.
 EXCEPTION: Speech that is offensive,
vulgar, critical or profane which is not
exchanged in person but likely to incite
violence is still protected.
The words "damned racketeer" and "damned Fascist"
are epithets likely to provoke the average person to
retaliation, and thereby cause a breach of the peace.
WHAT IS THE TEST TO DETERMINE
FIGHTING WORDS? The test is what men of
common intelligence would understand would be
words likely to cause an average addressee to fight
FACTORS TO CONSIDER IN DETERMINING
WHETHER SPEECH IS PROTECTED
 Interpretation of language, tone, place,
context and;
 Who the language is directed
ON THE ISSUE THAT THE STATE LAW IS
VAGUE AND INDEFINITE
The limited scope of the statute does not contravene
the Constitutional right of free expression. It is a
statute narrowly drawn and limited to define and
punish specific conduct lying within the domain of
state power, the use in a public place of words likely
to cause a breach of the peace.
A statute punishing verbal acts, carefully drawn so as
not unduly to impair liberty of expression, is not too
vague for a criminal law.
ON THE ISSUE THAT THE STATE LAW
IMPINGES UPON PRIVILEGE OF FREE
SPEECH
It does not. Argument is unnecessary to demonstrate
that the appellations "damned racketeer" and
"damned Fascist" are epithets likely to provoke the
11
average person to retaliation, and thereby cause a
breach of the peace.
5. UNITED STATES vs. ALVAREZ
FACTS:
On July 23, 2007, Xavier Alvarez, a member of the
Three Valleys Water District Board of Directors,
attended a joint meeting with the Walnut Valley
Water District Board of Directors at the Board's
headquarters. Mr. Alvarez was invited to speak about
his background, and he stated, "I'm a retired marine
of 25 years. I retired in the year 2001. Back in 1987,
I was awarded the Congressional Medal of Honor." In
fact, Mr. Alvarez had not received the Congressional
Medal of Honor, nor any other military medal or
decoration. He had also had never served in the
United States Armed Forces.
The Stolen Valor Act of 2005 makes it a crime to
falsely claim receipt of military decorations or
medals. On September 26, 2007, Mr. Alvarez was
charged in the Central District of California with two
counts of falsely representing that he had been
awarded the Congressional Medal of Honor in
violation the Stolen Valor Act of 2005. Mr. Alvarez
moved to dismiss on the grounds that the statute
violated his first amendment right to free speech. The
district court denied Alvarez's motion to dismiss. The
respondent thereafter pleaded guilty, but reserved his
right to appeal.
Alvarez appealed to the U.S. Court of Appeals for the
Ninth Circuit, and the court reversed and remanded
the lower court's decision. It reasoned that the
Supreme Court had never held that the government
may prohibit speech simply because it is knowingly
false and that some knowingly false speech could
have affirmative constitutional value. The court of
appeals denied the government's request for
rehearing. Thereafter, the government appealed the
court of appeals' decision.
ISSUE: Does 18 U.S.C. 704(b), the Stolen Valor Act,
violate the Free Speech Clause of the First
Amendment?
RULING: Yes. Justice Anthony M. Kennedy,
writing for a 6-3 majority, affirmed the Court of
Appeals. Content-based restrictions on speech are
subject to strict scrutiny and are almost always
invalid, except in rare and extreme circumstances.
While categories of speech, such as defamation and
true threats, present a grave and imminent threat, false
statements alone do not present such a threat.
Congress drafted the Stolen Valor Act too broadly,
attempting to limit speech that could cause no harm.
Criminal punishment for such speech is improper.
Justice Stephen G. Breyer concurred, concluding that
false statements of fact should be subject to
intermediate scrutiny. However, as drafted, the Stolen
Valor Act violates intermediate scrutiny because it
applies to situations that are unlikely to cause harm.
Justice Elena Kagan joined in the concurrence.
Justice Samuel A. Alito dissented. Congress could not
draft the Stolen Valor Act more narrowly, while still
preventing the substantial harm caused by false
statements concerning military decoration. Justice
Antonin Scalia and Justice Clarence Thomas joined
in the dissent.
6. SOUTHERN HEMISPHERE ENGAGEMENT
NETWORK INC vs. ANTI-TERRORISM
COUNCIL
FACTS:
Six petitions for certiorari and prohibition were filed
challenging the constitutionality of RA 9372,
otherwise known as the Human Security Act.
Impleaded as respondents in the various petitions are
the Anti-Terrorism Council composed of, at the time
of the filing of the petitions, Executive Secretary
Eduardo Ermita as Chairperson, Justice Secretary
Raul Gonzales as Vice Chairperson, and Foreign
Affairs Secretary Alberto Romulo, Acting Defense
Secretary and National Security Adviser Norberto
Gonzales, Interior and Local Government Secretary
Ronaldo Puno, and Finance Secretary Margarito
Teves as members. All the petitions, except that of the
IBP, also impleaded Armed Forces of the Philippines
(AFP) Chief of Staff Gen. Hermogenes Esperon and
Philippine National Police (PNP) Chief Gen. Oscar
Calderon.
ISSUE: Whether or not the petitions should prosper
HELD:
12
No. Petitions Dismissed.
REMEDIAL LAW- certiorari does not lie against
respondents who do not exercise judicial or quasi-
judicial functions
Section 1, Rule 65 of the Rules of Court provides:
Section 1. Petition for certiorari. When any tribunal,
board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there
is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and
justice may require.
Parenthetically, petitioners do not even allege with
any modicum of particularity how respondents acted
without or in excess of their respective jurisdictions,
or with grave abuse of discretion amounting to lack
or excess of jurisdiction.
POLITICAL LAW- Requisites of power of
judicial review
In constitutional litigations, the power of judicial
review is limited by four exacting requisites, viz: (a)
there must be an actual case or controversy; (b)
petitioners must possess locus standi; (c) the question
of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality
must be the lis mota of the case.
In the present case, the dismal absence of the first two
requisites, which are the most essential, renders the
discussion of the last two superfluous. Locus standi
or legal standing requires a personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues
upon which the court so largely depends for
illumination of difficult constitutional questions.
For a concerned party to be allowed to raise a
constitutional question, it must show that (1) it has
personally suffered some actual or threatened
injuryas a result of the allegedly illegal conduct of the
government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be
redressed by a favorable action.
Petitioner-organizations assert locus standi on the
basis of being suspected "communist fronts" by the
government, especially the military; whereas
individual petitioners invariably invoke the
"transcendental importance" doctrine and their status
as citizens and taxpayers.
Petitioners in G.R. No. 178890 allege that they have
been subjected to "close security surveillance by state
security forces," their members followed by
"suspicious persons" and "vehicles with dark
windshields," and their offices monitored by "men
with military build." They likewise claim that they
have been branded as "enemies of the State. Even
conceding such gratuitous allegations, the Office of
the Solicitor General (OSG) correctly points out that
petitioners have yet to show any connection between
the purported "surveillance" and the implementation
of RA 9372.
REMEDIAL LAW- Requisites of Judicial Notice
Petitioner-organizations in G.R. No. 178581, would
like the Court to take judicial notice of respondent's
alleged action of tagging them as militant
organizations fronting for the Communist Party of the
Philippines (CPP) and its armed wing, the National
Peoples Army (NPA). The tagging, according to
petitioners, is tantamount to the effects of
proscription without following the procedure under
the law.
Generally speaking, matters of judicial notice have
three material requisites: (1) the matter must be one
of common and general knowledge; (2) it must be
well and authoritatively settled and not doubtful or
uncertain; and (3) it must be known to be within the
limits of the jurisdiction of the court. The principal
guide in determining what facts may be assumed to
be judicially known is that of notoriety. Hence, it can
be said that judicial notice is limited to facts
evidenced by public records and facts of general
notoriety. Moreover, a judicially noticed fact must be
one not subject to a reasonable dispute in that it is
either: (1) generally known within the territorial
jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be
questionable.
No ground was properly established by petitioners for
the taking of judicial notice. Petitioners’
apprehension is insufficient to substantiate their plea.
That no specific charge or proscription under RA
13
9372 has been filed against them, three years after its
effectivity, belies any claim of imminence of their
perceived threat emanating from the so-called
tagging.
The same is true with petitioners KMU, NAFLU and
CTUHR in G.R. No. 178554, who merely harp as
well on their supposed "link" to the CPP and NPA.
They fail to particularize how the implementation of
specific provisions of RA 9372 would result in direct
injury to their organization and members.
The Court takes note of the joint statement of
Executive Secretary Eduardo Ermita and Justice
Secretary Raul Gonzales that the Arroyo
Administration would adopt the US and EU
classification of the CPP and NPA as terrorist
organizations. Such statement notwithstanding, there
is yet to be filed before the courts an application to
declare the CPP and NPA organizations as domestic
terrorist or outlawed organizations under RA 9372.
From July 2007 up to the present, petitioner-
organizations have conducted their activities fully
and freely without any threat of, much less an actual,
prosecution or proscription under RA 9372.
REMEDIAL LAW- A taxpayer suit is proper only
when there is an exercise of the spending or taxing
power of Congress, whereas citizen standing must
rest on direct and personal interest in the
proceeding.
RA 9372 is a penal statute and does not even provide
for any appropriation from Congress for its
implementation, while none of the individual
petitioner-citizens has alleged any direct and personal
interest in the implementation of the law. It bears to
stress that generalized interests, albeit accompanied
by the assertion of a public right, do not establish
locus standi. Evidence of a direct and personal
interest is key.
POLITICAL LAW- judicial power operates only
when there is an actual case or controversy.
An actual case or controversy means an existing case
or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory
opinion.
Petitioners obscure allegations of sporadic
"surveillance" and supposedly being tagged as
"communist fronts" in no way approximate a credible
threat of prosecution. From these allegations, the
Court is being lured to render an advisory opinion,
which is not its function. Without any justiciable
controversy, the petitions have become pleas for
declaratory relief, over which the Court has no
original jurisdiction. Then again, declaratory actions
characterized by "double contingency," where both
the activity the petitioners intend to undertake and the
anticipated reaction to it of a public official are
merely theorized, lie beyond judicial review for lack
of ripeness.
POLITICAL LAW- A facial invalidation of a
statute is allowed only in free speech cases,
wherein certain rules of constitutional litigation
are rightly excepted
Petitioners assail for being intrinsically vague and
impermissibly broad the definition of the crime of
terrorism under RA 9372 in that terms like
"widespread and extraordinary fear and panic among
the populace" and "coerce the government to give in
to an unlawful demand" are nebulous, leaving law
enforcement agencies with no standard to measure the
prohibited acts.
A statute or act suffers from the defect of vagueness
when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its
meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government
muscle. The overbreadth doctrine, meanwhile,
decrees that a governmental purpose to control or
prevent activities constitutionally subject to state
regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the
area of protected freedoms.
As distinguished from the vagueness doctrine, the
overbreadth doctrine assumes that individuals will
understand what a statute prohibits and will
accordingly refrain from that behavior, even though
some of it is protected. Distinguished from anas-
14
applied challenge which considers only extant facts future effect on hypothetical scenarios nor allows the
affecting real litigants, a facial invalidation is an courts to be used as an extension of a failed legislative
examination of the entire law, pinpointing its flaws lobbying in Congress. Petitions Dismissed.
and defects, not only on the basis of its actual
operation to the parties, but also on the assumption or 7. IMBONG VS OCHOA
prediction that its very existence may cause others not -
before the court to refrain from constitutionally
protected speech or activities.
Justice Mendoza accurately phrased the subtitle in his
concurring opinion that the vagueness and
overbreadth doctrines, as grounds for a facial
challenge, are not applicable to penal laws. A litigant
cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or
overbreadth grounds. Since a penal statute may only
be assailed for being vague as applied to petitioners,
a limited vagueness analysis of the definition of
"terrorism" in RA 9372 is legally impermissible
absent an actual or imminent charge against them.
In insisting on a facial challenge on the invocation
that the law penalizes speech, petitioners contend that
the element of "unlawful demand" in the definition of
terrorism must necessarily be transmitted through
some form of expression protected by the free speech
clause.
Before a charge for terrorism may be filed under RA
9372, there must first be a predicate crime actually
committed to trigger the operation of the key
qualifying phrases in the other elements of the crime,
including the coercion of the government to accede to
an "unlawful demand." Given the presence of the first
element, any attempt at singling out or highlighting
the communicative component of the prohibition
cannot recategorize the unprotected conduct into a
protected speech.
Petitioners’ notion on the transmission of message is
entirely inaccurate, as it unduly focuses on just one
particle of an element of the crime. Almost every
commission of a crime entails some mincing of words
on the part of the offender like in declaring to launch
overt criminal acts against a victim, in haggling on the
amount of ransom or conditions, or in negotiating a
deceitful transaction.
As earlier reflected, petitioners have established
neither an actual charge nor a credible threat of
prosecution under RA 9372. Even a limited
vagueness analysis of the assailed definition of
"terrorism" is thus legally impermissible. The Court
reminds litigants that judicial power neither
contemplates speculative counseling on a statutes

15
B. LIBEL
8. NEW YORK TIMES CO. VS. SULLIVAN
FACTS.
The Plaintiff was one of three Commissioners of
Montgomery, Alabama, who claimed that he was
defamed in a full-page ad taken out in the New York
Times.
The advertisement was entitled, “Heed Their Rising
Voices” and it charged in part that an unprecedented
wave of terror had been directed against those who
participated in the civil rights movement in the South.
Some of the particulars of the advertisement were
false. Although the advertisement did not mention the
Plaintiff by name, he claimed that it referred to him
indirectly because he had oversight responsibility of
the police.
The Defendant claimed that it authorized publication
of the advertisement because it did not have any
reason to believe that its contents were false.
There was no independent effort to check its
accuracy. The Plaintiff demanded that the Defendant
retract the advertisement.
The Defendant was puzzled as to why the Plaintiff
thought the advertisement reflected adversely on him.
The jury found the ad libelous per se and actionable
without proof of malice. The jury awarded the
Plaintiff $500,000 in damages.
The Alabama Supreme Court affirmed. The
Defendant appealed.
ISSUE.
Is the Defendant liable for defamation for printing an
advertisement, which criticized a public official’s
official conduct?
HELD.
No. Reversed and remanded.
* Safeguards for freedom of speech and of the press
are required by the First and Fourteenth Amendments
of the United States Constitution (Constitution) in a
libel action brought by a public official against critics
of his official conduct.
* Under Alabama law, a publication is libelous per se
if the words tend to injure a person in his reputation
or to bring him into public contempt. The jury must
find that the words were published of and concerning
the plaintiff.
Once libel per se has been established, the defendant
has no defense as to stated facts unless he can
persuade the jury that they were true in all their
particulars.
* Erroneous statement is inevitable in free debate and
it must be protected if the freedoms of expression are
to have the breathing space that the need to survive.
* The constitutional guarantees require a federal rule
that prohibits a public official from recovering
damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement
was made with actual malice – that is, with
knowledge that it was false or with reckless disregard
of whether it was false or not.
* The Supreme Court of the United States (Supreme
Court) holds that the Constitution delimits a State’s
power to award damages for libel in actions brought
by public officials against critics of their official
conduct. In this case, the rule requiring proof of actual
malice is applicable.
* The Defendant’s failure to retract the advertisement
upon the Plaintiff’s demand is not adequate evidence
of malice for constitutional purposes. Likewise, it is
not adequate evidence of malice that the Defendant
failed to check the advertisements accuracy against
the news stories in the Defendant’s own files. Also,
the evidence was constitutionally defective in another
respect: it was incapable of supporting the jury’s
finding that the allegedly libelous statements were
made of and concerning the Plaintiff.
Concurrence. Justice Hugo Black (J. Black) argued
that the First and Fourteenth Amendments of the
Constitution do not merely “delimit” a State’s power
to award damages, but completely prohibit a State
from exercising such a power. The Defendant had an
absolute, unconditional right to publish criticisms of
the Montgomery agencies and officials.
Discussion. In order for a public official to recover in
a defamation action involving his official conduct,
malice must be proved. Without the showing of
malice, the Supreme Court felt that a defamation
action in this case would severely cripple the
safeguards of freedom speech and expression that are
16
guaranteed in the First Amendment of the
Constitution and applicable to the States via the
Fourteenth Amendment of the Constitution.
9. ROSENBLOOM v. METROMEDIA
FACTS:
Petitioner was a distributor of nudist magazines in
Philadelphia. In response to the complaints of the
citizens, the Special Investigations Squad of the
Philadelphia Police Department initiated a series of
enforcement actions under the obscenity laws of the
city.
The police purchased various magazines which were
subsequently determined as obscene. Most of the
newsstand operators were arrested on charges of
selling obscene materials. While the police were
making arrests, petitioner arrived to deliver some of
his nudist magazines and was arrested.
Three days later, police obtained a search warrant for
petitioner’s home and rented barn he uses as
warehouse. The inventory of magazines and books
found in the locations were seized.
Petitioner was released on bail, but he was arrested
for the 2nd time.
Following the 2nd arrest, Captain Ferguson
telephoned respondent’s radio station (WIP) and
other local radio stations, and a local newspaper
informing them of the raid on petitioner’s
home and of his arrest. WIP broadcasted the event on
October 4, 1963. It was broadcasted several times but
from October 5 to 21, WIP did not broadcast further
reports relating to the petitioner.
Petitioner brought an action in the Federal District
Court alleging that the magazines he distributed were
not obscene and for the defamatory broadcasts. The
jury acquitted petitioner in the State Court and he
filed a case for damages. He contends that the
broadcasts of October 4 describing his arrest,
constituted libel per se and was proved false by
petitioner’s subsequent acquittal. District court
awarded the damages, Court of Appeals reversed the
decision.
Hence, the appeal.
ISSUE:
Whether WIP’s October 4 broadcasts regarding the
arrest of the petitioner constituted libel.
HELD:
No. The libel law holds actionable any unprivileged
“malicious” publication of matter tending to harm a
person’s reputation and expose him to public hatred,
contempt, or ridicule.
Pennsylvania’s libel laws recognize truth as a
complete defense to a libel action. The burden of
proof lies with the petitioner to prove that
(a) one or more of the broadcasts were defamatory;
(b) that a reasonable listener would conclude that it
refers to the petitioner;
(c) that WIP forfeited privilege to report official
proceedings fairly and accurately that it intends to
injure the plaintiff personally; and
(d) that the reporting was false. Petitioner was not
able to comply with the requirements of proof
sufficiently.
The police activities which were aimed at
implementing the obscenity laws were for the interest
of the public. The Court opined that if a matter is
subject of public or general interest, it cannot
suddenly become less so merely because a private
individual is involved.
Pennsylvania’s libel law recognizes that society’s
interest in protecting individual reputation often
yields to other important social goals.
10. JAPAN AIRLINES VS. JESUS SIMANGAN
FACTS:
• 1991 - Jesus Simangan decided to donate a kidney
to his ailing cousin, Loreto Simangan, in UCLA
School of Medicine in Los Angeles, California,
U.S.A. Tests proved that his blood and tissue type
were well-matched with his cousin's, so, to facilitate
Simangan's travel to the United States, UCLA wrote
a letter to the American Consulate in Manila to
arrange for his visa.
Simangan was issued an emergency U.S. visa (a
parole visa) by the American Embassy in Manila.
• Simangan purchased a round trip plane ticket from
petitioner Japan Airlines (JAL) for US$1,485.00 and
17
was issued the corresponding boarding pass. He was
scheduled to a particular flight bound for Los Angeles
via Narita, Japan.
• July 29, 1992 - Simangan went to Ninoy Aquino
International Airport. His plane ticket, boarding pass,
travel authority and personal articles were subjected
to rigid immigration and security routines. After
passing through them, he was allowed by JAL to enter
its plane. Inside, JAL's airline crew suspected
Simangan of carrying a falsified travel document and
imputed that he would only use the trip to the United
States as a pretext to stay and work in Japan.
The stewardess asked respondent to show his travel
documents. Shortly after, the crew haughtily ordered
him to stand up and leave the plane.
Simangan protested, explaining that he was issued a
U.S. visa. Just to allow him to board the plane, he
pleaded with JAL to closely monitor his movements
when the aircraft stops over in Narita. His pleas were
ignored. He was then constrained to go out of the
plane.
Simangan waited there for three hours in JAL's
ground office, while the plane took off and left him
behind. Afterwards, he was informed that his travel
documents were, indeed, in order. Respondent was
refunded the cost of his plane ticket less the sum of
US$500.00 which was deducted by JAL.
JAL then booked Simangan a flight the very next day.
However, Simangan's U.S. visa was subsequently
cancelled.
• Simangan filed an action for damages in RTC in
Valenzuela City.
• JAL denied the material allegations of the
complaint, argued there was "a need for his travel
documents to be authenticated by the United States
Embassy" because no one from JAL's airport staff had
encountered a parole visa before, and then lodged a
counterclaim alleging wrongful institution of
complaint.
• During the trial, JAL presented a witness who
testified that JAL suffered further damages.
Allegedly, respondent caused the publications of his
subject complaint against JAL in a newspaper for
which JAL suffered damages. (The issue about the
publications were not alleged in JAL's Answer but
was treated as if it had been raised in the pleadings.)
• September 21, 2000 - RTC ruled in favor of
Simangan, ordering JAL to pay P1,000,000.00 as
moral damages, the amount of P500,000.00 as
exemplary damages and the amount of P250,000.00
as attorney's fees.
• JAL appealed to the CA. This is where JAL first
interposes the defense that the contract of
carriage was novated when JAL booked Simangan a
flight starting the very next day.
• May 31, 2005 - CA affirmed the decision of the RTC
but lowered the amount of moral damages
to P500,000, and exemplary damages to P250,000,
and deleted the award of attorney's fees.
ISSUES:
(1) whether or not Simangan is entitled to moral and
exemplary damages
(4) whether or not JAL is entitled to its counterclaim
for damages
HELD:
(1) YES. Moral damages: Inattention to and lack of
care for the interests of its passengers who are entitled
to its utmost consideration, particularly as to their
convenience, amount to bad faith which entitles the
passenger to an award of moral damages. The
findings of facts state: "[Simangan] was haughtily
ejected by appellant. xxx [In] the presence of other
passengers, the appellant's airline staff shouted at him
to stand up and arrogantly asked him to produce his
travel papers, without the least courtesy xxx
Then, he was compelled to deplane on the grounds
that his papers were fake. His protestation of having
been issued a U.S. visa coupled with his plea to
appellant to closely monitor his movements when the
aircraft stops over in Narita, were ignored.
Worse, he was made to wait for many hours at the
office of appellant only to be told later that he has
valid travel documents."
Exemplary damages: JAL is also liable for exemplary
damages as its above-mentioned acts constitute
18
wanton, oppressive and malevolent acts against
respondent.
Attorney's fees: In its extraordinary concept, an
attorney's fee is an indemnity for damages ordered
by the court to be paid by the losing party in a
litigation. It is discretionary upon the court.
Considering the factual backdrop of this case,
attorney's fees in the amount of P200,000.00 is
reasonably modest.
(2) NO. Even though JAL is not a public official, the
rule on privileged commentaries on matters of public
interest applies to it. The privilege applies not only to
public officials but extends to a great variety of
subjects, and includes matters of public concern,
public men, and candidates for office.
JAL's business is mainly with the traveling public. Its
bumping off of respondent without a valid reason
naturally drew public attention and generated a public
issue. The publications involved matters about which
the public has the right to be informed because they
relate to a public issue.
Assuming that respondent, indeed, caused the
publication of his complaint, he may not be held liable
for damages for it. The constitutional guarantee of
freedom of the speech and of the press includes fair
commentaries on matters of public interest. This is
explained by the Court in Borjal v.
Court of Appeals, to wit:
To reiterate, fair commentaries on matters of public
interest are privileged and constitute a valid defense
in an action for libel or slander. The doctrine of fair
comment means that while in general every
discreditable imputation publicly made is deemed
false, because every man is presumed innocent until
his guilt is judicially proved, and every false
imputation is deemed malicious, nevertheless, when
the discreditable imputation is directed against a
public person in his public capacity, it is not
necessarily actionable. In order that such
discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact
or a comment based on a false supposition. If the
comment is an expression of opinion, based on
established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it might
reasonably be inferred from the facts. (Citations
omitted and underscoring ours)
Hence, pursuant to the Borjal case, there must be an
actual malice in order that a discreditable imputation
to a public person in his public capacity or to a public
official may be actionable. To be considered
malicious, the libelous statements must be shown to
have been written or published with the knowledge
that they are false or in reckless disregard of whether
they are false or not.88
Considering that the published articles involve
matters of public interest and that its expressed
opinion is not malicious but based on established
facts, the imputations against JAL are not actionable.
Therefore, JAL may not claim damages for them.
11. TULFO VS PEOPLE
FACTS:
Atty. Ding So of the Bureau of Customs filed four
separate Informations against Erwin Tulfo
(Writer/Author).
Susan Cambri (Managing Editor), Rey Salao
(National Editor), Jocelyn Barlizo (City Editor), and
Philip Pichay (President of Carlo Publishing House
Inc), accusing them of libel in connection with the
publication of articles in the column “Direct Hit” of
the daily tabloid Remate.
PINAKAMAYAMAN SA CUSTOMS
Ito palang si Atty. Ding So ng Intelligence Division
ng Bureau of Customs and [sic] pinakamayaman na
yata na government official sa buong bansa sa
pangungurakot lamang diyan sa South Harbor.
Hindi matibag ang gagong attorney dahil malakas
daw ito sa Iglesia ni Kristo.
Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata
ang pinakagago at magnanakaw na miyembro nito.
Balita ko, malapit ka nang itiwalag ng nasabing
simbahan dahil sa mga kalokohan mo.
Abangan bukas ang mga raket ni So sa BOC.
SI ATTY. SO NG BOC
LINTEK din sa pangungurakot itong Ding So ng
Bureau of Customs Intelligence Unit sa South
Harbor.
19
Daan-daang libong piso ang kinikita ng masiba at
matakaw na si So sa mga importer na ayaw ideklara
ang totoong laman ng mga container para makaiwas
sa pagbayad ng malaking customs duties at taxes.
Si So ang nagpapadrino sa mga pag-inspection ng
mga container na ito. Siyempre-binibigyan din niya
ng salapi yung ibang mga ahensiya para pumikit na
lang at itikom ang kanilang nga [sic] bibig diyan sa
mga buwayang taga BOC.
Awang-awa ako sa ating gobyerno. Bankrupt na nga,
ninanakawan pa ng mga kawatan tulad ni So.
Ewan ko ba rito kay Atty. So, bakit hindi na lang
tumayo ng sarili niyang robbery-hold-up gang para
kumita ng mas mabilis.
Hoy So.. hindi bagay sa iyo ang pagiging attorney . .
. Mas bagay sa iyo ang pagiging buwayang naka
korbata at holdaper. Magnanakaw
ka So!!
—————
Tulad ni Atty. Ding So ng Bureau of Customs
Intelligence Division, saksakan din ng lakas itong si
Daniel Aquino ng Presidential Anti-Smuggling Unit
na nakatalaga sa South Harbor.
Tulad ni So, magnanakaw na tunay itong si Aquino.
Panghihingi ng pera sa mga brokers, ang lakad nito.
Pag hindi nagbigay ng pera ang mga brokers, maiipit
ang pagre-release ng kanilang kargamento.
—————-
Nagfile ng P10 M na libel suit itong si Atty. Carlos
So ng Bureau of Customs laban sa inyong lingkod at
ilang opisyales ng Remate sa
Pasay City Court. Nagalit itong tarantadong si Atty.
So dahil binanatan ko siya at inexpose ang kagaguhan
niya sa BOC.
Hoy, So . . . dagdagan mo pa ang pagnanakaw mo
dahil hindi kita tatantanan. Buhay ka pa sinusunog na
ang iyong kaluluwa sa
impyerno.
After trial, the RTC found Tulfo, et al. guilty of libel.
The CAaffirmed the decision
ISSUES:
1.Why was Borjal v. CA not applied to this case?
2.W/N the assailed articles are privileged.
3.W/N the assailed articles are fair commentaries.
RULING:
1.Borjal was not applied to this case because:
a.Borjal stemmed from a civil action for damages
based on libel, and was not a criminal case.
b.The ruling in Borjal was that there was no sufficient
identification of the complainant.
c. The subject in Borjal was a private citizen, whereas
in the present case, the subject is a public official.
d. It was held in Borjal that the articles written by Art
Borjal were “fair commentaries on matters of public
interest.”
2. NO. The columns were unsubstantiated attacks
on Atty. So, and cannot be countenanced as being
privileged
simply because the target was a public official.
a. Even with the knowledge that he might be in error,
even knowing of the possibility that someone else
may have used Atty. So’s name, as Tulfo surmised,
he made no effort to verify the information given by
his source or even to ascertain the identity of the
person he was accusing.
b. Although falsity of the articles does not prove
malice, the existence of press freedom must be done
“consistent with good faith and reasonable care.” This
was clearly abandoned by Tulfo when he wrote the
subject articles. This is no case of mere error or honest
mistake, but a case of a journalist abdicating his
responsibility to verify history and instead
misinforming the public.
c. Tulfo had written and published the articles with
reckless disregard of whether the same were false or
not. The test laid down is the “reckless disregard” test,
and Tulfo failed to meet that test.
d. Evidence of malice: The fact that Tulfo published
another article lambasting Atty. So after the
commencement of an action. Tulfo did not relent nor
did he pause to consider his actions, but went on to
continue defaming Atty. So.This is a clear indication
20
of his intent to malign Atty. So, no matter the cost,
and is proof of malice.
3.NO. Good faith is lacking, as Tulfo failed to
substantiate or even attempt to verify his story
before publication.
a. The provided no details o the acts committed by the
subject. They are plain and simple baseless
accusations, backed up by the word of one unnamed
source.
b. Not “fair” or “true” because “fair” is defined as
“having the qualities of impartiality and honesty.”
“True” is defined as “comfortable to fact; correct;
exact; actual; genuine; honest.” Tulfo failed to satisfy
these requirements, as he did not do
research before making his allegations, and it has
been shown that these allegations were baseless. The
articles are not “fair and true reports,” but merely wild
accusations.
Elements of fair commentary (to be considered
privileged):
a. That it is a fair and true report of a judicial,
legislative, or other official proceedings which are not
of confidential nature, or of a statement, report, or
speech delivered ins aid proceedings, or of any other
act performed by a public officer in the exercise of his
functions;
b. That it is made in good faith;
c. That it is without any comments or remarks.
Journalists may be allowed an adequate margin of
error in the exercise of their profession, but this
margin does not expand to cover every defamatory or
injurious statement they may make in the furtherance
of their profession, nor does this margin cover total
abandonment of responsibility.
The mere fact that the subject of an article is a public
figure or a matter of public interest does not mean it
is a fair commentary within the scope of qualified
privileged communication, which would
automatically exclude the author from liability.
The confidentiality of sources and their importance to
journalists are accepted and respected. What cannot
be accepted are journalists making no efforts to verify
the information given by a source, and using that
unverified information to throw wild accusations and
besmirch the name of possibly an innocent person.
Journalists have a responsibility to report the truth,
and in doing so must at least investigate their stories
before publication, and be able to back up their stories
with proof. Journalists are not storytellers or novelists
who may just spin tales out of fevered imaginings,
and pass them off as reality. There must be some
foundation to their reports; these reports must be
warranted by facts.
Freedom of expression as well as freedom of the press
may not be unrestrained, but neither must it be reined
in too harshly
NOTES:
Obiter 1: It may be cliché that the pen is mightier than
the sword, but in this particular case, the lesson to be
learned is that such a mighty weapon should not be
wielded recklessly or thoughtlessly, but always
guided by conscience and careful thought.
Obiter 2: A robust and independently free press is
doubtless one of the most effective checks on
government power and abuses. Hence, it behooves
government functionaries to respect the value of
openness and refrain from concealing from media
corruption and other anomalous practices occurring
within their backyard. On the other hand, public
officials also deserve respect and protection against
false innuendoes and unfounded accusation of official
wrongdoing from an abusive press. As it were, the
law and jurisprudence on libel heavily tilt in favor of
press freedom. The common but most unkind
perception is that government institutions and their
officers and employees are fair game to official and
personal attacks and even ridicule. And the practice
on the ground is just as disconcerting. Reports and
accusation of official misconduct often times merit
front page or primetime treatment, while defenses set
up, retraction issued, or acquittal rendered get no
more, if ever, perfunctory coverage. The unfairness
needs no bel aboring. The balm of clear conscience is
sometimes not enough.
Freedom of Press vs Responsibility of the Press
Freedom of the press was given greater weight over
the rights of individuals, the Court, however, has
stressed that such
21
freedom is not absolute and unbounded. The exercise
of this right or any right enshrined in the Bill of
Rights, indeed,
comes with an equal burden of responsible exercise
of that right. The recognition of a right is not free
license for the one
claiming it to run roughshod over the rights of others.
Journalists Code of Ethics - Art. I of said code states
that journalists recognize the duty to air the other side
and the duty
to correct substantive errors promptly. Art. VIII
states that journalists shall presume persons accused
of crime of being
innocent until proven otherwise.
The exercise of press freedom must be done
consistent with good faith and reasonable care. This
was clearly abandoned by Tulfo when he wrote the
subject articles. This is no case of mere error or honest
mistake, but a case of a journalist abdicating his
responsibility to verify his story and instead
misinforming the public. Journalists may be allowed
an adequate margin of error in the exercise of their
profession, but this margin does not expand to cover
every defamatory or injurious statement they may
make in the furtherance of their profession, nor does
this margin cover total abandonment of
responsibility.
Tulfo et al. guilty beyond reasonable doubt of four (4)
counts of the crime of LIBEL.
12. AYER PRODCUTIONS PTY. LTD. VS
CAPULONG
FACTS:
Petitioner McElroy an Australian film maker, and his
movie production company, Ayer Productions,
envisioned, sometime in 1987, for commercial
viewing and for Philippine and international release,
the historic peaceful struggle of the Filipinos at
EDSA.
The proposed motion picture entitled "The Four Day
Revolution" was endorsed by the MTRCB as and
other government agencies consulted. Ramos also
signified his approval of the intended film production.
It is designed to be viewed in a sixhour mini-series
television play, presented in a "docu-drama" style,
creating four fictional characters interwoven with real
events, and utilizing actual documentary footage as
background.
David Williamson is Australia's leading playwright
and Professor McCoy (University of New South
Wales) is an American historian have developed a
script.
Enrile declared that he will not approve the use,
appropriation, reproduction and/or exhibition of his
name, or picture, or that of any member of his family
in any cinema or television production, film or other
medium for advertising or commercial exploitation.
petitioners acceded to this demand and the name of
Enrile was deleted from the movie script, and
petitioners proceeded to film the projected motion
picture. However, a complaint was filed by Enrile
invoking his right to privacy.
RTC ordered for the desistance of the movie
production and making of any reference to plaintiff or
his family and from creating any fictitious character
in lieu of plaintiff which nevertheless is based on, or
bears substantial or marked resemblance to Enrile.
Hence the appeal.
ISSUE:
Whether or Not freedom of expression was violated
RULING:
1.Petitioners claim that in producing the “The Four
Day Revolution,” they are exercising their freedom of
speech and of expression protected under the
Constitution. Private respondent, on the other hand,
asserts a right of privacy and claims that the
production and filming of the projected mini-series
would constitute an unlawful intrusion into his
privacy which he is entitled to enjoy.
2.The freedom of speech and of expression includes
the freedom to film and produce motion pictures and
to exhibit such motion pictures in theatres or to
diffuse them through television. In our day and age,
motion pictures are a universally utilized vehicle of
communication and medium of expression.
3.This freedom is available in our country both to
locally-owned and to foreign-owned motion picture
companies.
22
Furthermore, the circumstance that the production of
motion picture films is a commercial activity
expected to yield monetary profit, is not a
disqualification for availing of freedom of speech and
of expression. Indeed, commercial media constitute
the bulk of such facilities available in our country and
hence to exclude commercially-owned and operated
media from the exercise of constitutionally protected
freedom of speech and of expression can only result
in the drastic contraction of such constitutional
liberties in our country.
4.The production and filming by petitioners of the
projected motion picture does not constitute an
unlawful intrusion upon private respondent’s right of
privacy. More so, the motion picture is not principally
about, nor is it focused upon, the man Juan Ponce
Enrile, but it is compelled, if it is to be historical, to
refer to the role played by Enrile in the precipitating
and the constituent events of the change of
government.
5.The privilege of enlightening the public is not
limited to the dissemination of news in the scene of
current events. It extends also to information or
education, or even entertainment and amusement, by
books, articles, pictures, films and
broadcasts concerning interesting phases of human
activity in general, as well as the reproduction of the
public scene in newsreel and travelogues. In
determining where to draw the line, the courts were
invited to exercise a species of censorship over what
the public may be permitted to read; and they were
understandably liberal in allowing the benefit of the
doubt.
6.The line of equilibrium in the specific context of the
instant case between the constitutional freedom of
speech and of expression and the right of privacy,
may be marked out in terms of a requirement that the
proposed motion picture must be fairly truthful and
historical in its presentation of events. There must, in
other words, be no knowing or reckless disregard of
truth in depicting the participation of private
respondent in the EDSA Revolution. There must be
no presentation of the private life of the unwilling
private respondent and certainly no revelation of
intimate or embarrassing personal facts. To the extent
that the motion picture limits itself in portraying the
participation of private respondent in the EDSA
Revolution to those events which are directly and
reasonably related to the public facts of the EDSA
Revolution, the intrusion into private respondent’s
privacy cannot be regarded as unreasonable and
actionable. Such portrayal may be carried out even
without a license from private respondent.
5.The privilege of enlightening the public is not
limited to the dissemination of news in the scene of
current events. It extends also to information or
education, or even entertainment and amusement, by
books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in
general, as well as the reproduction of the public
scene in newsreel and travelogues. In determining
where to draw the line, the courts were invited to
exercise a species of censorship over what the public
may be permitted to read; and they were
understandably liberal in allowing the benefit of the
doubt.
6.The line of equilibrium in the specific context of the
instant case between the constitutional freedom of
speech and of expression and the right of privacy,
may be marked out in terms of a requirement that the
proposed motion picture must be fairly truthful and
historical in its presentation of events. There must, in
other words, be no knowing or reckless disregard of
truth in depicting the participation of private
respondent in the EDSA Revolution. There must be
no
presentation of the private life of the unwilling private
respondent and certainly no revelation of intimate or
embarrassing personal facts.
To the extent that the motion picture limits itself in
portraying the participation of private respondent in
the EDSA Revolution to those events which are
directly and reasonably related to the public facts of
the EDSA Revolution, the intrusion into private
respondent’s privacy cannot be regarded as
unreasonable and actionable. Such portrayal may be
carried out even without a license from private
respondent.
13. BARTINICKI VS VOPPER
-
23
C. OBSCENITY
14. MILLER VS. CALIFORNIA
FACTS:
Marvin Miller (appellant) operated a mail-
order business in California. In 1971, he conducted a
mass-mailing campaign to advertise the sale of adult
materials which primarily consist of pictures and
drawings very explicitly depicting men and women in
groups of two or more engaging in variety of sexual
activities with genitals often prominently displayed.
After an unsolicited mail was received by a restaurant
manager and his mother, they complained to the
police.
Miller was convicted in violation of
California Penal Code 311 2(a), a misdemeanor, by
knowingly distributing obscene matter. Appellate
Department of the Superior Court of California,
County of Orange affirmed the judgment.
ISSUES:
WON obscenity is protected by the 1st and 14th
Amendment of the US Constitution
WON states may determine what constitutes
obscenity
WON there is a national standard in defining
“obscenity”
HELD:
No. The 1st and 14th Amendments have never been
treated as absolutes. In Roth’s case, it was held that
obscenity is not within the constitutionally protected
speech or press. The definition of obscenity in Roth’s
case was further underscored by that of Memoir
decision. In the latter decision, it was required that
“...to prove obscenity, it must be affirmatively
established that a material is utterly without social
value”. However, such Memoirs test had been
abandoned as it was impossible to create standards as
to what really constitutes the phrase “without
redeeming social value” relative to proving
obscenity.
Having settled that obscenity is not protected by
the First Amendment, the Supreme Court further
stated that regulation of freedom of expression may
be conducted by States but it must be carefully limited
so as not to infringe any vested rights. The Supreme
Court confined the permissible scope of the
regulation of Freedom of Expression to works which
depict or describe sexual conduct. Such conduct must
be specifically defined by applicable State Laws. The
Court presented basic guidelines for the trier of facts
on identifying obscenity:
(a) whether "the average person, applying
contemporary community standards" would find that
the work, taken as a whole, appeals to the prurient
interest,
(b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically
defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
Moreover, the Court stated that the jury may
measure the essentially factual issues of prurient
appeal and patent offensiveness based on the
standard that prevails in the forum community and
nees not to employ a "national standard.
Although fundamental First Amendment
limitations on the powers of the States do not vary
from community to community, this does not mean
that there are, or should or can be, fixed, uniform
national standards of precisely what appeals to the
"prurient interest" or is "patently offensive."
These are essentially questions of fact, and
United States is simply too big and too diverse for the
Court to reasonably expect that such”national
standards” could be articulated for all 50 States in a
single formulation, even assuming the prerequisite
consensus exists.
Miller’s Case was vacated and remanded to the
trial court for further proceedings (defining obscenity
based on community standards).
Additional infos:
Roth v. United States presumed "obscenity" to be
"utterly without redeeming social
importance," Memoirs required that to prove
obscenity it must be affirmatively established that the
material is "utterly without redeeming social value."
24
California Penal Code 311.2 (a) Every person who
knowingly: sends or causes to be sent, or brings or
causes to be brought, into this state for sale or
distribution, or in this state prepares, publishes, prints,
exhibits, distributes, or offers to distribute, or has in
his possession with intent to distribute or to exhibit or
offer to distribute, any obscene matter is guilty of a
misdemeanor
15. PITA VS. COURT OF APPEALS
178 SCRA 362 (1989)
FACTS:
On December 1 and 3, 1983, pursuing an
Anti-Smut Campaign initiated by the Mayor of the
City of Manila, Ramon D. Bagatsing, elements of the
Special Anti-Narcotics Group, Auxilliary Services
Bureau, Western Police District, INP of the
Metropolitan Police Force of Manila, seized and
confiscated from dealers, distributors, newsstand
owners and peddlers along Manila sidewalks,
magazines, publications and other reading materials
believed to be obscene, pornographic and indecent
and later burned the seized materials in public at the
University belt along C.M. Recto Avenue, Manila, in
the presence of Mayor Bagatsing and several officers
and members of various student organizations.
Among the publications seized, and later
burned, was "Pinoy Playboy" magazines published
and co-edited by plaintiff Leo Pita. After his
injunctive relief was dismissed by the RTC and his
appeal rejected by CA, he seeks review with SC,
invoking the guaranty against unreasonable searches
and seizure.
ISSUE:
WON the defendants and/or their agents
can, without a court order, confiscate or seize
plaintiff’s magazine before any judicial finding is
made on whether said magazine is obscene or not
HELD:
The preliminary issue is whether the
magazines confiscated were obscene or not. In its
ruling, the court has presented past decisions relating
to obscenity but to no avail, such rulings did not
resolve the problem of determining obscenity. What
the Court is impressing, plainly and simply, is that the
question is not, and has not been, an easy one to
answer, as it is far from being a settled matter. The
Court shares disappointment over the discouraging
trend in American decisional law on obscenity as well
as the pessimism on whether or not an "acceptable"
solution is in sight. As the Court stated, ”...individual
tastes develop, adapt to wide-ranging influences, and
keep in step with the rapid advance of civilization.
What shocked our forebears, say, five decades ago, is
not necessarily repulsive to the present generation”.
The Court, in an attempt to provide a
solution to a problem, emphasized the ruling in Reyes
vs. Bagatsing, a case involving the delivery of a
political speech. The presumption is that the speech
may validly be said. The burden is on the State to
demonstrate the existence of a danger, a danger that
must not only be: (1) clear but also, (2) present, to
justify State action to stop the speech. Applying to the
case at bar, there must be a clear and actual danger,
an objective and convincing, not subjective or
conjectural, proof of the existence of such clear and
present danger to justify the interference of the state
in matters involving “immoral” lore or literature.
It is also significant in this case the seizure
of the plaintiff’s belongings, the Court is not
convinced that the private respondents have shown
the required proof to justify a ban and to warrant
confiscation of the literature for which mandatory
injunction had been sought below.
First of all, they were not possessed of a
lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a
search and seizure, by way of a search warrant.
It is basic that searches and seizures may
be done only through a judicial warrant,
otherwise, they become unreasonable and subject
to challenge. In Burgos v. Chief of Staff, AFP, they
counter-minded the orders of the Regional Trial Court
authorizing the search of the premises of We
Forum and Metropolitan Mail, two Metro Manila
dailies, by reason of a defective warrant. We have
greater reason here to reprobate the questioned raid,
in the complete absence of a warrant, valid or invalid.
The fact that the instant case involves an obscenity
rap makes it no different from Burgos, a political
case, because, and as we have indicated, speech is
speech, whether political or "obscene".
25
 The Court is not ruling out warrantless question is to be decided by the "judgment of the
searches, as the Rules of Court (1964 rev.) (the Rules aggregate sense of the community reached by it."
then prevailing) but as the provision itself
People vs. Go Pin- "if the pictures here in question
suggests, the search must have been an incident to a
were used not exactly for art's sake but rather for
lawful arrest, and the arrest must be on account of
commercial purposes," the pictures are not entitled to
a crime committed. Here, no party has been
any constitutional protection.
charged, nor are such charges being readied against
any party, under Article 201, as amended, of the Padan y Alova, like Go Pin, raised more questions
Revised Penal Code. than answers. For one thing, if the exhibition was
attended by "artists and persons interested in art and
We make this resume.
who generally go to art exhibitions and galleries to
1. The authorities must apply for the issuance of a satisfy and improve their artistic tastes," could the
search warrant from a judge, if in their opinion, an same legitimately lay claim to "art"? For another,
obscenity rap is in order; suppose that the exhibition was so presented that
"connoisseurs of [art], and painters and sculptors
2. The authorities must convince the court that the
might find inspiration," in it, would it cease to be a
materials sought to be seized are "obscene", and pose
case of obscenity?
a clear and present danger of an evil substantive
enough to warrant State interference and action; Gonzales vs. Kalaw Katigbak follows an American
Jursprudence “Whether to the average person,
3. The judge must determine whether or not the same
applying contemporary standards, the dominant
are indeed "obscene:" the question is to be resolved
theme of the material taken as a whole appeals to
on a case-to-case basis and on His Honor's sound
prurient interest."
discretion.
Memoirs v. Massachusettes, a 1966
4. If, in the opinion of the court, probable cause exists,
decision,characterized obscenity as one "utterly
it may issue the search warrant prayed for;
without any redeeming social value," marked yet
5. The proper suit is then brought in the court under another development
Article 201 of the Revised Penal Code;
Miller v. California, expressly
6. Any conviction is subject to appeal. The appellate abandoned Massachusettes, and established "basic
court may assess whether or not the properties seized guidelines," to wit: "(a) whether 'the average person,
are indeed "obscene". applying contemporary standards' would find the
work, taken as a whole, appeals to the prurient interest
Petition granted, decision of respondent court . . .; (b) whether the work depicts or describes, in a
reversed and set aside. patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether
the work, taken as a whole, lacks serious literary,
Cases cited (defining obscenity) artistic, political, or scientific value.
People vs. Kottinger- the test in determining the
existence of obscenity, are as follows:
"whether the tendency of the matter charged as
obscene, is to deprave or corrupt those whose minds
are open to such immoral influences and into whose
hands a publication or other article charged as being
obscene may fall." Or that "which shocks the
ordinary and common sense of men as an indecency.
"Kottinger hastened to say, however, that "[w]hether
a picture is obscene or indecent must depend upon the
circumstances of the case, 8and that ultimately, the

26
D. FILM AND TELEVISION REVIEW AND
CENSORSHIP
16. MOVIE AND TELEVISION REVIEW AND
CLASSIFICATION BOARD (MTRCB) v. ABS-
CBN BROADCASTING CORPORATION and
LOREN LEGARDA
G.R. No. 155282, January 17, 2005, Sandoval-
Gutierrez, J.
There has been no declaration at all by the
framers of the Constitution that freedom of expression
and of the press has a preferred status.
Facts:
On October 15, 1991, at 10:45 in the evening,
respondent ABS-CBN aired Prosti-tuition, an
episode of the television (TV) program The Inside
Story produced and hosted by respondent Legarda. It
depicted female students moonlighting as prostitutes
to enable them to pay for their tuition fees. In the
course of the program, student prostitutes, pimps,
customers, and some faculty members were
interviewed. The Philippine Womens University
(PWU) was named as the school of some of the
students involved and the facade of PWU Building at
Taft Avenue, Manila conspicuously served as the
background of the episode. The showing of The
Inside Story caused uproar in the PWU community.
Dr. Leticia P. de Guzman, Chancellor and Trustee of
the PWU, and the PWU Parents and Teachers
Association filed letter-complaints with petitioner
MTRCB. Both complainants alleged that the episode
besmirched the name of the PWU and resulted in the
harassment of some of its female students. Acting on
the letter-complaints, the MTRCB Legal Counsel
initiated a formal complaint with the MTRCB
Investigating Committee, alleging among others, that
respondents (1) did not submit The Inside Story to
petitioner for its review and (2) exhibited the same
without its permission, thus, violating Section 7 of
Presidential Decree (P.D.) No. 1986 and Section 3,
Chapter III and Section 7,Chapter IV of the MTRCB
Rules and Regulations. In their answer, respondents
explained that the The Inside Story is a public affairs
program, news documentary and socio-political
editorial, the airing of which is protected by the
constitutional provision on freedom of expression and
of the press. Accordingly, petitioner has no power,
authority and jurisdiction to impose any form of prior
restraint upon respondents. Respondents claim that
the showing of The Inside Story is protected by the
constitutional provision on freedom of speech and of
the press.
Issues:
Whether the showing of The Inside Story is
protected by the constitutional provision on freedom
of speech and of the press.
Ruling:
NO. The task is not Herculean because it
merely resurrects this Court En Banc’s ruling in
Iglesia ni Cristo v. Court of Appeals. Here,
respondents sought exemption from the coverage of
the term television programs on the ground that the
The Inside Story is a public affairs program, news
documentary and socio-political editorial protected
under Section 4, Article III of the Constitution.
Albeit, respondents’ basis is not freedom of religion,
as in Iglesia ni Cristo, but freedom of expression and
of the press, the ruling in Iglesia ni Cristo applies
squarely to the instant issue. It is significant to note
that in Iglesia ni Cristo, the Court declared that
freedom of religion has been accorded a preferred
status by the framers of our fundamental laws, past
and present, designed to protect the broadest possible
liberty of conscience, to allow each man to believe as
his conscience directs x x x. Yet despite the fact that
freedom of religion has been accorded a preferred
status, still this Court, did not exempt the Iglesia ni
Cristo’s religious program from petitioner’s review
power.
Respondents claim that the showing of The Inside
Story is protected by the constitutional provision on
freedom of speech and of the press. However, there
has been no declaration at all by the framers of the
Constitution that freedom of expression and of the
press has a preferred status. If this Court, in Iglesia ni
Cristo, did not exempt religious programs from the
jurisdiction and review power of petitioner MTRCB,
with more reason, there is no justification to exempt
therefrom The Inside Story which, according to
respondents, is protected by the constitutional
provision on freedom of expression and of the press,
a freedom bearing no preferred status. The only
exceptions from the MTRCBs power of review are
those expressly mentioned in Section 7 of P.D. No.
1986, such as (1) television programs imprinted or
exhibited by the Philippine Government and/or its
departments and agencies, and (2) newsreels
27
E. CYBERSPACE COMMUNICATIONS
17. RENO V. AMERICAN CIVIL LIBERTIES
UNION
FACTS
Twenty plaintiffs (including the ACLU) filed suit
challenging provisions of the 1996 Communications
Decency Act (CDA) on First Amendment
grounds. The district court entered a temporary
restraining order prohibiting the enforcement of the
CDA as it applied to “‘indecent’ communications.” A
second suit was filed by 27 plaintiffs, challenging two
provisions of the CDA. The district court granted a
preliminary injunction against the enforcement of
both provisions. Under special provisions of the
CDA, the government appealed directly to the U.S.
Supreme Court, claiming the district court erred in
finding the provisions unconstitutional under the First
Amendment.
The first provision challenged the criminalization of
the “’knowing’ transmission of ‘obscene or indecent’
messages to any recipient under 18 years of
age.” The second provision challenged the
prohibition of the “’knowin[g]’ sending or displaying
to a person under 18 of any message that, in context,
depicts or describes, in terms patently offensive as
measured by contemporary community standards,
sexual or excretory activities or organs.”
ISSUE. Whether the two CDA statutory provisions at
issue are constitutional?
DECISION:
Stevens, J., delivered the opinion of the Court. He
emphasized the variety of content on the Internet,
holding that it is “no exaggeration to conclude that the
content on the Internet is as diverse as human
thought.” [p. 852]
The government had argued that the provisions were
needed to protect minors from harmful material on the
Internet, particularly sexually explicit material, and
that similar regulation as already existed for
broadcasting should be applied to the Internet. The
Court strongly disagreed with this contention, holding
that there was no history of Internet regulation and the
Internet was not as invasive as radio or television.
Furthermore, unlike the broadcast media, which
could be regulated partly because of the scarcity of
broadcast frequencies available, Internet bandwidth
was almost unlimited, providing relatively low-cost
capacity for communication of all kinds. The Court
also stressed that users seldom encounter content by
accident.
As to the text of the provisions, the Court considered
that they were vaguely worded and failed to
adequately define or limit “indecent” or “patently
offensive” material. The provisions would potentially
criminalise large amounts of non-pornographic
material with serious educational or other value, and
the “community standards” criterion as applied to the
Internet meant that any website available to a nation-
wide audience would be judged by the standards of
the community most likely to be offended by it. This
would provoke uncertainty and raise questions
whether the Act criminalized serious discussion about
issues such as birth control, homosexuality, or the
consequences of prison rape.
None of the defenses provided for saved the
provisions. The Court disagreed that the proposed
coding of specific sites as indecent would suffice;
there would be no way of knowing whether a
potential recipient would actually block such sites.
Age verification was prohibitively expensive,
particularly for non-commercial websites and
individuals, and even if it was affordable there was no
evidence that this would preclude minors from posing
as adults.
The Court held that, “[i]t is true that we have
repeatedly recognized the governmental interest in
protecting children from harmful materials. But that
interest does not justify an unnecessarily broad
suppression of speech addressed to adults. As we
have explained, the Government may not “reduc[e]
the adult population…to…only what is fit for
children.”” [p. 875] The Court therefore agreed with
the district court’s conclusion that “the CDA places
an unacceptably heavy burden on protected speech,
and that the defenses do not constitute the sort of
‘narrow tailoring’ that will save an otherwise patently
invalid unconstitutional provision.” [p. 882]
Finally, the government had said that the Act was
needed to foster the growth of the Internet, arguing
that the unregulated availability of “indecent” and
“patently offensive” material would drive people
away. The Court held that this contention was clearly
wrong, as illustrated by the dramatic ongoing growth
of the internet, and held that, “governmental
28
regulation of the content of speech is more likely to
interfere with the free exchange of ideas than to
encourage it. The interest in encouraging freedom of
expression in a democratic society outweighs any
theoretical but unproven benefit of censorship.
18. JOSE JESUS M. DISINI, JR., et al. v.
SECRETARY OF JUSTICE, et al.
G.R. No. 203335, February 11, 2014, Abad, J.
The government has a legitimate right to
regulate the use of cyberspace and contain and
punish wrongdoings.
Facts:
The cybercrime law aims to regulate access
to and use of the cyberspace. And because linking
with the internet opens up a user to communications
from others, the ill-motivated can use the cyberspace
for committing theft by hacking into or surreptitiously
accessing his bank account or credit card or
defrauding him through false representations. The
wicked can use the cyberspace, too, for illicit
trafficking in sex or for exposing to pornography
guileless children who have access to the internet. For
this reason, the government has a legitimate right to
regulate the use of cyberspace and contain and punish
wrongdoings.
Petitioners question the constitutionality of
the following provisions of the Cybercrime Law:
1. Section 4(a)(1) which punishes Illegal
Access- The access to the whole or any part of a
computer system without right. Petitioners contend
that Section 4(a)(1) fails to meet the strict scrutiny
standard required of laws that interfere with the
fundamental rights of the people and should thus be
struck down.
2. Section 4(a)(3) which punishes Data
Interference. – The intentional or reckless alteration,
damaging, deletion or deterioration of computer data,
electronic document, or electronic data message,
without right, including the introduction or
transmission of viruses. Petitioners claim that Section
4(a)(3) suffers from overbreadth in that, while it seeks
to discourage data interference, it intrudes into the
area of protected speech and expression, creating a
chilling and deterrent effect on these guaranteed
freedoms.
3. Section 4(a)(6) which punishes Cyber-
squatting. – The acquisition of domain name over the
internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the
same, if such a domain name is: (i) Similar, identical,
or confusingly similar to an existing trademark
registered with the appropriate government agency at
the time of the domain name registration; (ii) Identical
or in any way similar with the name of a person other
than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual
property interests in it. Petitioners claim that Section
4(a)(6) or cyber-squatting violates the equal
protection clause in that, not being narrowly tailored,
it will cause a user using his real name to suffer the
same fate as those who use aliases or take the name
of another in satire, parody, or any other literary
device.
4. Section 4(b)(3) punishes Computer-related
Identity Theft. – The intentional acquisition, use,
misuse, transfer, possession, alteration, or deletion of
identifying information belonging to another,
whether natural or juridical, without right: Provided:
that if no damage has yet been caused, the penalty
imposable shall be one (1) degree lower. Petitioners
claim that Section 4(b)(3) violates the constitutional
rights to due process and to privacy and
correspondence, and transgresses the freedom of the
press.
5. Section 4(c)(1) punishes Cybersex.– The
willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the
aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom
of expression clause of the Constitution. They express
fear that private communications of sexual character
between husband and wife or consenting adults,
which are not regarded as crimes under the penal
code, would now be regarded as crimes when done
"for favor" in cyberspace. In common usage, the term
"favor" includes "gracious kindness," "a special
privilege or right granted or conceded," or "a token of
love (as a ribbon) usually worn conspicuously." This
meaning given to the term "favor" embraces socially
tolerated trysts. The law as written would invite law
enforcement agencies into the bedrooms of married
couples or consenting individuals.
6. Section 4(c)(2) punishes Child
Pornography. — The unlawful or prohibited acts
defined and punishable by Republic Act No. 9775 or
29
the Anti-Child Pornography Act of 2009, committed
through a computer system: Provided, That the
penalty to be imposed shall be (1) one degree higher
than that provided for in Republic Act No. 9775.
Petitioners point out that the provision of ACPA that
makes it unlawful for any person to "produce, direct,
manufacture or create any form of child
pornography"clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA
seeks to punish. Petitioners are wary that a person
who merely doodles on paper and imagines a sexual
abuse of a 16-year-old is not criminally liable for
producing child pornography but one who formulates
the idea on his laptop would be. Further, if the author
bounces off his ideas on Twitter, anyone who replies
to the tweet could be considered aiding and abetting a
cybercrime.
7. Section 4(c)(3) Unsolicited Commercial
Communications. – The transmission of commercial
electronic communication with the use of computer
system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:
(i) There is prior affirmative consent from the
recipient; or
(ii) The primary intent of the communication
is for service and/or administrative
announcements from the sender to its
existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic
communication contains a simple, valid, and
reliable way for the recipient to reject receipt
of further commercial electronic messages
(opt-out) from the same source;
(bb) The commercial electronic
communication does not purposely disguise
the source of the electronic message; and
(cc) The commercial electronic
communication does not purposely include
misleading information in any part of the
message in order to induce the recipients to
read the message.
The Government, represented by the
Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance
that wastes the storage and network capacities of
internet service providers, reduces the efficiency of
commerce and technology, and interferes with the
owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s
privacy since the person sending out spams enters the
recipient’s domain without prior permission. The
OSG contends that commercial speech enjoys less
protection in law.
8. Section 4(c)(4) punishes Libel. — The
unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended,
committed through a computer system or any other
similar means which may be devised in the future.
Petitioners dispute the constitutionality of both the
penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on
cyberlibel. Petitioners lament that libel provisions of
the penal code and, in effect, the libel provisions of
the cybercrime law carry with them the requirement
of "presumed malice" even when the latest
jurisprudence already replaces it with the higher
standard of "actual malice" as a basis for conviction.
Petitioners argue that inferring "presumed malice"
from the accused’s defamatory statement by virtue of
Article 354 of the penal code infringes on his
constitutionally guaranteed freedom of expression.
9. Sec. 5. Other Offenses. — The following
acts shall also constitute an offense: (a) Aiding or
Abetting in the Commission of Cybercrime. – Any
person who willfully abets or aids in the commission
of any of the offenses enumerated in this Act shall be
held liable. (b) Attempt in the Commission of
Cybercrime. — Any person who willfully attempts to
commit any of the offenses enumerated in this Act
shall be held liable. Petitioners assail the
constitutionality of Section 5 that renders criminally
liable any person who willfully abets or aids in the
commission or attempts to commit any of the offenses
enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect
on protected expression.
10. Sec. 6. All crimes defined and penalized
by the Revised Penal Code, as amended, and special
laws, if committed by, through and with the use of
information and communications technologies shall
be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the
Revised Penal Code, as amended, and special laws, as
the case may be.
Issue:
Whether the questioned provisions are
constitutional.
Ruling:
30

1. YES. The Court found nothing in Section
4(a)(1) that calls for the application of the strict
scrutiny standard since no fundamental freedom, like
speech, is involved in punishing what is essentially a
condemnable act – accessing the computer system of
another without right. It is a universally condemned
conduct.
2. YES. All penal laws, like the cybercrime
law, have of course an inherent chilling effect, an in
terrorem effect or the fear of possible prosecution that
hangs on the heads of citizens who are minded to step
beyond the boundaries of what is proper. But to
prevent the State from legislating criminal laws
because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially
harmful conduct. Here, the chilling effect that results
in paralysis is an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and creates
no tendency to intimidate the free exercise of one’s
constitutional rights.
3. YES. It is the evil purpose for which he
uses the name that the law condemns. The law is
reasonable in penalizing him for acquiring the domain
name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-
motivated of the rightful opportunity of registering
the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal
protection is baseless.
4. YES. The usual identifying information
regarding a person includes his name, his citizenship,
his residence address, his contact number, his place
and date of birth, the name of his spouse if any, his
occupation, and similar data. The law punishes those
who acquire or use such identifying information
without right, implicitly to cause damage. Petitioners
simply fail to show how government effort to curb
computer-related identity theft violates the right to
privacy and correspondence as well as the right to due
process of law. Also, the charge of invalidity of this
section based on the overbreadth doctrine will not
hold water since the specific conducts proscribed do
not intrude into guaranteed freedoms like speech.
Clearly, what this section regulates are specific
actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no
fundamental right to acquire another’s personal data.
5. YES. The deliberations of the Bicameral
Committee of Congress on this section of the
Cybercrime Prevention Act give a proper perspective
on the issue. These deliberations show a lack of intent
to penalize a "private showing x x x between and
among two private persons x x x although that may
be a form of obscenity to some." The understanding
of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to
constitute the illegal cybersex. The Act actually seeks
to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This
includes interactive prostitution and pornography,
i.e., by webcam.
6. YES. The provision merely expands the
scope of the Anti-Child Pornography Act of 2009
(ACPA) to cover identical activities in cyberspace. In
theory, nothing prevents the government from
invoking the ACPA when prosecuting persons who
commit child pornography using a computer system.
Actually, ACPA’s definition of child pornography
already embraces the use of "electronic, mechanical,
digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.
7. NO. To prohibit the transmission of
unsolicited ads would deny a person the right to read
his emails, even unsolicited commercial ads
addressed to him. Commercial speech is a separate
category of speech which is not accorded the same
level of protection as that given to other
constitutionally guaranteed forms of expression but is
nonetheless entitled to protection. The State cannot
rob him of this right without violating the
constitutionally guaranteed freedom of expression.
Unsolicited advertisements are legitimate forms of
expression.
8. The Court agreed with the Solicitor
General that libel is not a constitutionally protected
speech and that the government has an obligation to
protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article
353, in relation to Article 355 of the penal code,
already punishes it. In effect, Section 4(c)(4) above
merely affirms that online defamation constitutes
"similar means" for committing libel. But the Court’s
acquiescence goes only insofar as the cybercrime law
penalizes the author of the libelous statement or
article. Cyberlibel brings with it certain intricacies,
unheard of when the penal code provisions on libel
were enacted. The culture associated with internet
media is distinct from that of print.
31
 9. Section 5 with respect to Section 4(c)(4) is
unconstitutional. Its vagueness raises apprehension
on the part of internet users because of its obvious
chilling effect on the freedom of expression,
especially since the crime of aiding or abetting
ensnares all the actors in the cyberspace front in a
fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless
consummated. In the absence of legislation tracing
the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in
relation to Section 4(c)(4) on Libel, Section 4(c)(3)
on Unsolicited Commercial Communications, and
Section 4(c)(2) on Child Pornography, cannot stand
scrutiny. But the crime of aiding or abetting the
commission of cybercrimes under Section 5 should be
permitted to apply to Section 4(a)(1) on Illegal
Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4)
on System Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting, Section
4(b)(1) on Computer-related Forgery, Section 4(b)(2)
on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1)
on Cybersex. None of these offenses borders on the
exercise of the freedom of expression. That Section 5
penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section
4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System.
10. Section 6 merely makes commission of existing
crimes through the internet a qualifying circumstance.
As the Solicitor General points out, there exists a
substantial distinction between crimes committed
through the use of information and communications
technology and similar crimes committed using other
means. In using the technology in question, the
offender often evades identification and is able to
reach far more victims or cause greater harm. The
distinction, therefore, creates a basis for higher
penalties for cybercrimes
F. ELECTIONS AND EXPRESSIONS
19. GONZALES VS. COMELEC
21 SCRA 774; G.R. No. L-28196; 9 Nov 1967
FACTS:
On March 16, 1967, the Senate and the House of
Representatives passed the following resolutions:
1. R. B. H. (Resolution of Both Houses) No. 1,
proposing that Section 5, Article VI, of the
Constitution of the Philippines, be amended so as to
increase the membership of the House of
Representatives from a maximum of 120, as provided
in the present Constitution, to a maximum of 180, to
be apportioned among the several provinces as nearly
as may be according to the number of their respective
inhabitants, although each province shall have, at
least, one (1) member;
2. R. B. H. No. 2, calling a convention to propose
amendments to said Constitution, the convention to
be composed of two (2) elective delegates from each
representative district, to be "elected in the general
elections to be held on the second Tuesday of
November, 1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article
VI, of the same Constitution, be amended so as to
authorize Senators and members of the House of
Representatives to become delegates to the
aforementioned constitutional convention, without
forfeiting their respective seats in Congress.
Subsequently, Congress passed a bill, which, upon
approval by the President, on June 17, 1967, became
Republic Act No. 4913, providing that the
amendments to the Constitution proposed in the
aforementioned Resolutions No. 1 and 3 be
submitted, for approval by the people, at the general
elections, which shall be held on November 14, 1967.
ISSUE:
1. Does the Congress (through ordinary
legislative process) have the power to amend
or propose amendment to the Constitution?
2. May the proposed amendments be submitted
at a plebiscite scheduled on the same day as
the regular elections?
32
HELD:
1. No. The power to amend the Constitution or
to propose amendments is not included in the general
grant of legislative powers to Congress. It is part of
the inherent powers of the people - as the repository
of sovereignty in a republican state, to make, and,
hence, to amend their own Fundamental Law.
Congress may propose amendments to the
Constitution merely because the same explicitly
grants such power. Hence, when exercising the same,
it is said that Senators and Members of the House of
Representatives act, not as members of Congress, but
as component elements of a constituent assembly.
When acting as such, the members of Congress derive
their authority from the Constitution, unlike the
people, when performing the same function, for their
authority does not emanate from the Constitution -
they are the very source of all powers of
government, including the Constitution itself.
Since, when proposing, as a constituent
assembly, amendments to the Constitution, the
members of Congress derive their authority from the
Fundamental Law, it follows that they do not have the
final say on whether or not their acts are within or
beyond constitutional limits. The Constitution
expressly confers upon the Supreme Court, the power
to declare a treaty unconstitutional, despite the
eminently political character of treaty-making power.
The issue whether or not a Resolution of
Congress - acting as a constituent assembly - violates
the Constitution essentially justiciable, not political,
and, hence, subject to judicial review.
2. Yes. The term “election” in article XV of the
1935 Constitution does not indicate that the
“election” therein referred to is a “special”, not a
general election. The circumstance that three previous
amendments to the Constitution had been submitted
to the people for ratification in special elections
merely shows that congress deemed it best to do so
under the circumstances then obtaining. It does not
negate its authority to submit proposed amendments
for ratification in general elections.
20. BLO UMPAR ADIONG v. COMMISSION
ON ELECTIONS
G.R. No. 103956, March 31, 1992, Gutierrez, Jr.,
J.
COMELEC's prohibition on posting of decals and
stickers on "mobile" places whether public or private
except in designated areas provided for by the
COMELEC itself unduly infringes on the citizen's
fundamental right of free speech enshrined in the
Constitution since there is no public interest
substantial enough to warrant this kind of restriction.
Facts:
The COMELEC promulgated Resolution No. 2347
pursuant to its powers granted by the Constitution, the
Omnibus Election Code, Republic Acts Nos. 6646
and 7166 and other election laws. The resolution
prohibits the posting of decals and stickers not more
than eight and one-half (8-1/2) inches in width and
fourteen (14) inches in length in any place, including
mobile places whether public or private except in
areas designated by the COMELEC. Petitioner Blo
Umpar Adiong, a senatorial candidate in the May 11,
1992 elections now assails the COMELEC's
Resolution insofar as it prohibits the posting of decals
and stickers in "mobile" places like cars and other
moving vehicles. According to him such prohibition
is violative of Section 82 of the Omnibus Election
Code and Section 11(a) of Republic Act No. 6646. In
addition, the petitioner believes that with the ban on
radio, television and print political advertisements,
he, being a neophyte in the field of politics stands to
suffer grave and irreparable injury with this
prohibition. The posting of decals and stickers on cars
and other moving vehicles would be his last medium
to inform the electorate that he is a senatorial
candidate in the May 11, 1992 elections. Finally, the
petitioner states that as of February 22, 1992 (the date
of the petition) he has not received any notice from
any of the Election Registrars in the entire country as
to the location of the supposed "Comelec Poster
Areas."
Issue:
33
Whether the prohibition unduly infringes on the
citizen's fundamental right of free speech enshrined in
the Constitution.
Ruling:
YES. The COMELEC's prohibition on posting of
decals and stickers on "mobile" places whether public
or private except in designated areas provided for by
the COMELEC itself is null and void on
constitutional grounds. First — the prohibition
unduly infringes on the citizen's fundamental right of
free speech enshrined in the Constitution (Sec. 4,
Article III). There is no public interest substantial
enough to warrant the kind of restriction involved in
this case. All of the protections expressed in the Bill
of Rights are important but the Court has accorded to
free speech the status of a preferred freedom. Second
— the questioned prohibition premised on the statute
and as couched in the resolution is void for
overbreadth. 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 means which
sweep unnecessarily broadly and thereby invade the
area of protected freedoms." The posting of decals
and stickers in mobile places like cars and other
moving vehicles does not endanger any substantial
government interest. There is no clear public interest
threatened by such activity so as to justify the
curtailment of the cherished citizen's right of free
speech and expression. Under the clear and present
danger rule not only must the danger be patently clear
and pressingly present but the evil sought to be
avoided must be so substantive as to justify a clamp
over one's mouth or a writing instrument to be stilled.
Significantly, the freedom of expression curtailed by
the questioned prohibition is not so much that of the
candidate or the political party. The regulation strikes
at the freedom of an individual to express his
preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner
agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner,
primarily his own and not of anybody else
21. ABS-CBN BROADCASTING
CORPORATION v. COMMISSION ON
ELECTIONS
G.R. No. 133486, January 28, 2000, Panganiban,
J.
The absolute ban on conducting exit surveys imposed
by the Comelec cannot be justified. It does not leave
open any alternative channel of communication to
gather the type of information obtained through exit
polling.
Facts:
COMELEC en banc issued Resolution No. 98-1419
dated April 21, 1998 which reads: "RESOLVED to
approve the issuance of a restraining order to stop
ABS-CBN or any other groups, its agents or
representatives from conducting such exit survey and
to authorize the Honorable Chairman to issue the
same."
The Resolution was issued by the COMELEC
allegedly upon "information from [a] reliable source
that ABS-CBN (Lopez Group) has prepared a project,
with PR groups, to conduct radio-TV coverage of the
elections x x x and to make [an] exit survey of the x x
x vote during the elections for national officials
particularly for President and Vice President, results
of which shall be [broadcast] immediately." The
electoral body believed that such project might
conflict with the official COMELEC count, as well as
the unofficial quick count of the National Movement
for Free Elections (NAMFREL). It also noted that it
had not authorized or deputized petitioner ABS-CBN
to undertake the exit survey.
Issue:
Whether COMELEC acted with grave abuse of when
it approved the issuance of a restraining order
enjoining the petitioner or any [other group], its
agents or representatives from conducting exit polls
during the May 11 elections.
34
Ruling:
YES. COMELEC’S arguments are purely speculative
and clearly untenable. First, by the very nature of a
survey, the interviewees or participants are selected at
random, so that the results will as much as possible be
representative or reflective of the general sentiment
or view of the community or group polled. 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.
In Daily Herald Co. v. Munro, the US Supreme Court
held that a statute, one of the purposes of which was
to prevent the broadcasting of early returns, was
unconstitutional because such purpose was
impermissible, and the statute was neither narrowly
tailored to advance a state interest nor the least
restrictive alternative. Furthermore, the general
interest of the State in insulating voters from outside
influences is insufficient to justify speech regulation.
Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might
indirectly affect the voters' choices is impermissible,
so is regulating speech via an exit poll restriction. The
absolute ban imposed by the COMELEC cannot,
therefore, be justified. It does not leave open any
alternative channel of communication to gather the
type of information obtained through exit polling. On
the other hand, there are other valid and reasonable
ways and means to achieve the COMELEC end of
avoiding or minimizing disorder and confusion that
may be brought about by exit surveys
22. SOCIAL WEATHER STATIONS,
INCORPORATED and KAMAHALAN
PUBLISHING CORPORATION, doing business
as MANILA STANDARD v. COMMISSION ON
ELECTIONS
G.R. No. 147571, May 5, 2001, Mendoza, J.
Under O’Brien 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.
Facts:
The COMELEC sought to enforce 5.4 of R.A. No.
9006 (Fair Election Act), which provides: Surveys
affecting national candidates shall not be published
fifteen (15) days before an election and surveys
affecting local candidates shall not be published
seven (7) days before an election.
Petitioners brought this action for prohibition to
enjoin the Commission on Elections from enforcing
5.4 of R.A. No. 9006 (Fair Election Act). Petitioners
argue that the restriction on the publication of election
survey results constitutes a prior restraint on the
exercise of freedom of speech without any clear and
present danger to justify such restraint. They claim
that SWS and other pollsters conducted and published
the results of surveys prior to the 1992, 1995, and
1998 elections up to as close as two days before the
election day without causing confusion among the
voters and that there is neither empirical nor historical
evidence to support the conclusion that there is an
immediate and inevitable danger to the voting process
posed by election surveys. They point out that no
similar restriction is imposed on politicians from
explaining their opinion or on newspapers or
broadcast media from writing and publishing articles
concerning political issues up to the day of the
election. Consequently, they contend that there is no
reason for ordinary voters to be denied access to the
results of election surveys which are relatively
objective.
Respondent Commission on Elections justifies the
restrictions in 5.4 of R.A. No. 9006 as necessary to
prevent the manipulation and corruption of the
electoral process by unscrupulous and erroneous
surveys just before the election.
Issue:
Whether 5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech,
expression, and the press.
Ruling:
YES. The Supreme Court held that 5.4 of R.A. No.
9006 constitutes an unconstitutional abridgment of
35
freedom of speech, expression, and the press. The
Supreme Court applied the O’Brien Test in the case
at bar. 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.
Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should
nevertheless be invalidated if the restriction on
freedom of expression is greater than is necessary to
achieve the governmental purpose in question.
Thus, using the aforementioned test, the Supreme
Court ruled that 5.4 is invalid because (1) it imposes
a prior restraint on the freedom of expression, (2) it is
a direct and total suppression of a category of
expression even though such suppression is only for
a limited period, and (3) the governmental interest
sought to be promoted can be achieved by means
other than the suppression of freedom of expression.
Thus, contrary to the claim of the Solicitor General,
the prohibition imposed by 5.4 cannot be justified on
the ground that it is only for a limited period and is
only incidental. The prohibition may be for a limited
time, but the curtailment of the right of expression is
direct, absolute, and substantial. It constitutes a total
suppression of a category of speech and is not made
less so because it is only for a period of fifteen (15)
days immediately before a national election and seven
(7) days immediately before a local election
23. GMA NETWORK, INC. v. COMMISSION
ON ELECTIONS
G.R. No. 205357, September 2, 2014, Peralta, J.
Political speech is one of the most important
expressions protected by the Fundamental Law. It
must remain unfettered unless otherwise justified by
a compelling state interest.
Facts:
Petitioners allege the constitutionality of Section 9(a)
of COMELEC Resolution No. 9615 limiting the
broadcast and radio advertisements of candidates and
political parties for national election positions to an
aggregate total of one hundred twenty (120) minutes
and one hundred eighty (180) minutes, respectively.
They contend that such restrictive regulation on
allowable broadcast time violates freedom of the
press, impairs the people's right to suffrage as well as
their right to information relative to the exercise of
their right to choose who to elect during the forth
coming elections.
Respondent maintains that the per candidate rule or
total aggregate airtime limit is in accordance with
R.A. No. 9006 as this would truly give life to the
constitutional objective to equalize access to media
during elections. It sees this as a more effective way
of levelling the playing field between
candidates/political parties with enormous resources
and those without much. Moreover, the COMELEC's
issuance of the assailed Resolution is pursuant to
Section 4, Article IX (C) of the Constitution which
vests on the COMELEC the power to supervise and
regulate, during election periods, transportation and
other public utilities, as well as mass media.
Issue:
Whether Section 9(a) of COMELEC Resolution No.
9615 on airtime limits goes against the constitutional
guaranty of freedom of expression, of speech and of
the press.
Ruling:
YES. Political speech is one of the most important
expressions protected by the Fundamental Law. It
must remain unfettered unless otherwise justified by
a compelling state interest.
The assailed rule on "aggregate-based"
airtime limits is unreasonable and arbitrary as it
unduly restricts and constrains the ability of
candidates and political parties to reach out and
communicate with the people. Here, the adverted
reason for imposing the "aggregate-based" airtime
limits - leveling the playing field - does not constitute
a compelling state interest which would justify such a
substantial restriction on the freedom of candidates
and political parties to communicate their ideas,
philosophies, platforms and programs of government.
And, this is specially so in the absence of a clear-cut
basis for the imposition of such a prohibitive measure.
It is also particularly unreasonable and whimsical to
adopt the aggregate-based time limits on broadcast
time when we consider that the Philippines is not only
composed of so many islands. There are also a lot of
languages and dialects spoken among the citizens
across the country. Accordingly, for a national
candidate to really reach out to as many of the
36
electorates as possible, then it might also be necessary
that he conveys his message through his
advertisements in languages and dialects that the
people may more readily understand and relate to. To
add all of these airtimes in different dialects would
greatly hamper the ability of such candidate to
express himself - a form of suppression of his political
speech
24. THE DIOCESE OF BACOLOD,
REPRESENTED BY THE MOST REV. BISHOP
VICENTE M. NAVARRA and THE BISHOP
HIMSELF IN HIS PERSONAL CAPACITY v.
COMMISSION ON ELECTIONS AND THE
ELECTION OFFICER OF BACOLOD CITY,
ATTY. MAVIL V. MAJARUCON
G.R. No. 205728, January 21, 2015, Leonen, J.
Speech with political consequences is at the core of
the freedom of expression and must be protected.
Every citizen’s expression with political
consequences enjoys a high degree of protection.
Thus, regulation of speech in the context of electoral
campaigns made by persons who are not candidates
or who do not speak as members of a political party
which are, taken as a whole, principally advocacies
of a social issue that the public must consider during
elections is unconstitutional. A political speech
enjoys preferred protection within our constitutional
order.
Facts:
Bishop Vicente M. Navarra posted tarpaulins on the
front walls of San Sebastian Cathedral within public
view. One of the tarpaulins contains the heading
“Conscience Vote” and lists candidates as either
“(Anti-RH) Team Buhay” with a check mark, or
“(Pro-RH) Team Patay” with an “X” mark. The
electoral candidates were classified according to their
vote on the adoption of the RH Law. Subsequently,
the COMELEC sent a letter to Bishop Navarra
ordering the immediate removal of the tarpaulin
because its size was in violation of COMELEC
Resolution No. 9615 which sets the sizes of election
propaganda materials. Consequently, Bishop Navarra
filed a petition for certiorari, assailing the order of
COMELEC for being in violation of the
constitutional right to freedom of speech and
expression.
Issue:
Whether prohibiting the subject tarpaulin constitutes
a violation of the freedom of speech.
Ruling:
YES. Speech with political consequences is at the
core of the freedom of expression and must be
protected. Every citizen’s expression with political
consequences enjoys a high degree of protection.
Thus, regulation of speech in the context of electoral
campaigns made by persons who are not candidates
or who do not speak as members of a political party
which are, taken as a whole, principally advocacies of
a social issue that the public must consider during
elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the
fullest possible range of opinions coming from the
electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the
choice of a candidate.
In this case, the principal message in the tarpaulin
consists of a social advocacy. While it tarpaulin may
influence the success or failure of the named
candidates and political parties, this does not
necessarily mean it is election propaganda.
Furthermore, the tarpaulin was not paid for or posted
"in return for consideration" by any candidate,
political party, or party-list group. It may therefore be
considered as a political speech which enjoys
preferred protection within our constitutional order
25. 1-UNITED TRANSPORT KOALISYON (1-
UTAK) v. COMMISSION ON ELECTIONS
G.R. NO. 206020, April 14, 2015, Reyes, J.
Prohibition on posting any election
campaign materials in public utility vehicles and
within the premises of public transport terminals
restricts the rught to free expression.
Facts:
Section 7(g) items (5) and (6) of COMELEC
Resolution No. 9615 prohibits the posting, displaying
or exhibiting any election campaign or propaganda
material outside of authorized common poster areas,
in public places such as public utility vehicles and
within the premises of public transport terminals.
37
Violation of which shall be a cause for the revocation
of the public utility franchise and will make the owner
and/or operator of the transportation service and/or
terminal liable for an election offense. Petitioner
requested COMELEC to reconsider the
implementation of the said provisions and allow
private owners of PUVs and transport terminals to
post election campaign materials on their vehicles and
transport terminals.
Issue:
Whether Section 7(g) items (5) and (6) of COMELEC
Resolution No. 9615 restricts the right to free
expression.
Ruling:
YES. Central to the prohibition is the freedom of
individuals, i.e., the owners of PUVs and private
transport terminals, to express their preference,
through the posting of election campaign material in
their property, and convince others to agree with
them.
Meanwhile, the penalty of revocation of the public
utility franchise and liability of election offense
constitutes a clear prior restraint on the right to free
expression of the owners of PUVs and transport
terminals. As a result of the prohibition, owners of
PUVs and transport terminals are forcefully and
effectively inhibited from expressing their
preferences under the pain of indictment for an
election offense and the revocation of their franchise
or permit to operate.
Section 7(g) items (5) and (6) of Resolution
No. 9615 are content-neutral regulations since they
merely control the place where election campaign
materials may be posted. However, the prohibition is
still repugnant to the free speech clause as it fails to
satisfy all of the requisites for a valid content-neutral
regulation.
Section 7(g) items (5) and (6), in relation to Section
7(f), of Resolution No. 9615, are not within the
constitutionally delegated power of the COMELEC
under Section 4, Article IX-C of the Constitution.
Also, there is absolutely no necessity to restrict the
right to free speech of the owners of PUVs and
transport terminals
26. SOCIAL WEATHER STATIONS, INC. and
PULSE ASIA, INC. v. COMMISSION ON
ELECTIONS
G.R. No. 208062, April 07, 2015, Leonen, J.
Resolution No. 9674 serves a constitutional purpose
and works well within the bounds of the Constitution
and of statute. Therefore, it does not constitute prior
restraint.
Facts:
Social Weather Stations, Inc. (SWS) and Pulse Asia
are social research firms. Among their activities is the
conduct of pre-election surveys. SWS conducted a
pre-election survey on voters' preferences for
senatorial candidates. Thereafter, it published its
findings. Representative Tobias M. Tiangco
(Tiangco) asked COMELEC to compel SWS to either
comply with the Fair Election Act and COMELEC
Resolution which required the submission of the
names of the subscribers who paid for the pre-election
survey conducted. As basis for Resolution No. 9674,
COMELEC cited Article IX-C, Section 2(1) of the
1987 Constitution and Sections 5.1 to 5.3 of the Fair
Election Act.
Issue:
Whether COMELEC can prosecute
petitioners for violation of Resolution No. 9674.
Ruling:
NO. Nonetheless, Resolution No. 9674 is valid. The
names of those who pay for election surveys must be
disclosed pursuant to the Fair Election Act. This
requirement is a valid regulation in the exercise of
police power and effects the constitutional policy of
"guarantee[ing] equal access to opportunities for
public service". The requirement neither curtails free
speech rights nor violates the constitutional
proscription against the impairment of contracts. The
inclusion of election surveys in the list of items
regulated by the Fair Election Act is a recognition that
publishing surveys is a means to shape the preference
of voters, inform the strategy of campaign
machineries, and affect the outcome of elections.
They have a similar nature as election propaganda:
they are expensive, normally paid for by those
interested in the outcome of elections, and have
38
tremendous consequences on election results.
Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak
as members of a political party if they are not
candidates, only if what is regulated is declarative
speech that, taken as a whole, has for its principal
object the endorsement of a candidate only.
While it does regulate expression, it does not go so far
as to suppress desired expression. All Resolution No.
9674 does is articulate a regulation as regards the
manner of publication, that is, that the disclosure of
those who commissioned and/or paid for, including
those subscribed to, published election surveys must
be made. Resolution No. 9674 serves a constitutional
purpose and works well within the bounds of the
Constitution and of statute. Therefore, it does not
constitute prior restraint.
However, the resolution was promulgated in violation
of the period set by the Fair Election Act. Petitioners
were not served a copy of Resolution No. 9674 with
which they were asked to comply. They were neither
shown nor served copies of the criminal complaint.
Petitioners' right to due process was violated.
COMELEC’s failure to serve copies of Resolution
No. 9674 on petitioners prevented this three-day
period from even commencing. Not having been
served with copies of Resolution No. 9674 itself,
petitioners are right in construing the three-day period
for compliance as not having begun to run. There was
no basis for considering petitioners to have
committed an election offense arising from this
alleged violation
G. SPEECH, COURTS AND CONTEMPT
27. SOCIAL WEATHER STATIONS, INC. v.
JUDGE MAXIMIANO C. ASUNCION, Regional
Trial Court, Branch 104, Quezon City
A.M. No. RTJ-93-1049
No question of prior restraint or violation of
the guarantee of free speech arises when what an
individual did was to initiate an inquiry into the
source and basis of the derogatory news report.
Facts:
In June 17, 1993 issue of the Manila
Standard; an article titled “Judiciary worse than
PNP,” was published which reported that the results
of the latest opinion polls conducted by petitioner
SWS showed the Judiciary to have an even lower
satisfaction rating than the Philippine National Police.
Said report prompted Judge Maximiano C. Asuncion,
motu proprio, to initiate on the same date,
proceedings ordering the President of the SWS to
explain why he should not be held in contempt for
distributing to the general public without prior
permission from any court, its (SWS) findings that the
people have more confidence with the police than
with judges thereby tending directly or indirectly to
degrade the administration of justice.
On June 21, 1993, Prof. Mahar Mangahas
through Atty. Antonio M. Abad, Jr. submitted his
comment and explanation stating that said survey was
privately given to Pres. Ramos and the cabinet and
was not intended for publication nor for public
consumption and that if ever it reaches the media, he
had not authorized anyone to do so. The hearing was
scheduled on June 23, 1993, after which Judge
Asuncion promulgated an Order dated July 2, 1993,
finding Professor Mangahas’ explanation satisfactory
and dismissing the contempt charge against him.
Thereafter, Professor Mangahas addressed a
letter to the Chief Justice intended “as a formal
complaint against Honorable Maximiano C.
Asuncion for grave abuse of authority and gross
ignorance of the law, in connection with his issuance
of an Order dated 17 June 1993.
Issue:
Whether the Order dated 17 June 1993 is
violative of the constitutional guarantees of freedom
of speech and freedom from prior restraint.
39

Ruling:
NO. What was clearly implicit in the
newspaper report about the results of the SWS poll -
in the words of Judge Asuncion, “that the people have
more confidence with the police than with the judges”
– in light of the fact, of which judicial notice is taken,
that said report came out at a time when there already
was widespread publicity adverse to the judiciary,
there can be no doubt of its clear tendency to degrade
the administration of justice. Thus, Judge Asuncion
can hardly be faulted for what, at a minimum, he must
have felt duty-bound to do in the circumstances.
a televised broadcast by respondent media groups and
personalities. He further alleged that the public
circulation of the disbarment complaint against him
exposed this Court and its investigators to outside
influence and public interference. On the other hand,
the respondents argued that the news article is
covered by the protection of the freedom of
expression, speech, and of the press under the
Constitution.
Issue:
Whether the publication of the disbarment
complaint is covered by the protection of the freedom
of speech.

No question of prior restraint or violation of the Ruling:

guarantee of free speech arises here, what he did
being, in essence, merely to initiate an inquiry into the
source and basis of the derogatory news report. And
he forthwith abated the proceedings upon receiving
an explanation he deemed satisfactory
28) RE: LETTER OF THE UP LAW FACULTY
ENTITLED “RESTORING INTEGRITY: A
STATEMENT BY THE FACULTY OF THE
UNIVERSITY OF THE PHILIPPINES
COLLEGE OF LAW ON THE ALLEGATIONS
OF PLAGIARISM AND
MISREPRESENTATION IN THE SUPREME
COURT” (SEE PDF)
29. FORTUN VS QUINSAYAS
If there is a legitimate public interest, the
media is not prohibited from making a fair, true, and
accurate news report of a disbarment complaint
under freedom of the press. However, in the absence
of a legitimate public interest in a disbarment
complaint, members of the media must preserve the
confidentiality of disbarment proceedings during its
pendency.
YES. As a general rule, disbarment proceedings are
confidential in nature until their final resolution and
the final decision of the Court. In this case, however,
since petitioner is a public figure or has become a
public figure because he is representing a matter of
public concern, and because the event itself that led
to the filing of the disbarment case against petitioner
is a matter of public concern, the media has the right
to report the filing of the disbarment case as
legitimate news. It would have been different if the
disbarment case against petitioner was about a private
matter as the media would then be bound to respect
the confidentiality provision of disbarment
proceedings. Since the disbarment complaint is a
matter of public interest, legitimate media had a right
to publish such fact under freedom of the press

Facts:

Atty. Fortun, the lawyer of Ampatuan in the

Maguindanao Massacre case, filed a petition for
contempt against respondents Atty. Quinsayas and
others. Atty. Fortun alleged that Atty. Quinsayas, et
al. actively disseminated the details of the disbarment
complaint against him in violation of Rule 139-B of
the Rules of Court on the confidential nature of
disbarment proceedings. The filing of the disbarment
complaint had been published and was the subject of
40
H. COMMERCIAL SPEECH
30. VIRGINIA STATE BOARD OF PHARMACY
VS. VIRGINIA CITIZENS CONSUMER
COUCIL, INC.
Brief Fact Summary. A statute banning pharmacists
from advertising the prices of prescription drug prices
was found to be in violation of the First Amendment
of the United States Constitution (Constitution) by the
Supreme Court of the United States (Supreme Court).
Synopsis of Rule of Law. If there is a right to
advertise, there is a reciprocal right to receive the
advertising and it may be asserted by the consumers
here.
Facts. Prescription drug consumers challenged a
statute banning pharmacists from advertising the
prices of prescription drug prices on behalf of the
pharmacists. They claimed that the statute was
unconstitutional and that the First Amendment of the
Constitution entitled the consumers to receive the
drug price information. The lower court invalidated
the law on First Amendment constitutional grounds.
Issue. Whether the prescription drug consumers have
standing to challenge the law?
Whether the advertisement of prescription drug prices
is outside the protection of the First Amendment of
the Constitution because it is commercial speech?
Held. Yes. Judgment of the lower court affirmed.
Where exists, as here, the protection afforded by the
First Amendment of the Constitution is to the
communication, to its source and to its recipients
both. If there is a right to advertise, there is a
reciprocal right to receive the advertising and it may
be asserted by the consumers here. Therefore, the
prescription drug consumers do have standing to
challenge the law.
No. Judgment of the lower court affirmed. The idea
that the pharmacist wishes to communicate is merely,
“I will sell you the X prescription at the Y price.”
Speech does not lose its First Amendment protection
because money is spent to project it as an
advertisement. When drug prices vary as much as
they do, information as to who is charging what
becomes more than a convenience. This information
(drug prices) is not harmful. The people will know
their own best interests only if they are well informed.
The best means to that end is to open the channels of
communication by making such information
available to the consumers rather than closing the
modes of communication by not prohibiting such
advertising. Therefore, the ban on advertising prices
of prescription drugs is constitutional.
Dissent. In a democracy, the economic is subordinate
to the political. The First Amendment of the
Constitution does not mandate the Court’s “open door
policy” toward such commercial advertising.
Discussion. Here the majority holds that speech is not
taken out of the First Amendment’s protection merely
because it is commercial in nature.
31. PHARMACEUTICAL AND HEALTH
CARE ASSOCIATION OF THE PHILIPPINES
v. HEALTH SECRETARY FRANCISCO T.
DUQUE III; HEALTH UNDER SECRETARIES
DR. ETHELYN P. NIETO, DR. MARGARITA
M. GALON, ATTY. ALEXANDER A.
PADILLA, & DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES DR. MARIO C.
VILLAVERDE, DR. DAVID J. LOZADA, AND
DR. NEMESIO T. GAKO
G.R. No. 173034, October 9, 2007, Austria-
Martinez, J.
Trade must be subjected to some form of
regulation for the public good. Public interest must
be upheld over business interests.
Facts:
Executive Order No. 51 (Milk Code) was
issued by President Corazon Aquino. One of the
preambular clauses of the Milk Code states that the
law seeks to give effect to Article 11 of the
International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World
Health Assembly (WHA). The WHA adopted several
Resolutions to the effect that breastfeeding should be
supported. The Philippines ratified the International
Convention on the Rights of the Child. Article 24 of
said instrument provides that State Parties should take
measures to diminish infant and child mortality, and
ensure that society is informed of the advantages of
breastfeeding. The DOH issued the Revised
Implementing Rules and Regulations (RIRR) of
Executive Order No. 51 (Milk Code) which provides
for classes and seminars for women and children; the
giving of assistance, support and logistics or training;
41
and the giving of donations. Petitioner, representing
its members that are manufacturers of breastmilk
substitutes, filed the present petition alleging that the
said order would unreasonably hamper the trade of
breastmilk substitutes.
Issue:
Whether RIRR is unconstitutional for having
provisions which unreasonably restrains trade.
Ruling:
NO. The framers of the Constitution were
well aware that trade must be subjected to some form
of regulation for the public good. Public interest must
be upheld over business interests. Despite the fact that
our present Constitution enshrines free enterprise as a
policy, it nonetheless reserves to the government the
power to intervene whenever necessary to promote
the general welfare. Free enterprise does not call for
removal of protective regulations.
In this case, petitioner failed to show that the
proscription of milk manufacturers’ participation in
any policymaking body (Section 4(i)), classes and
seminars for women and children (Section 22); the
giving of assistance, support and logistics or training
(Section 32); and the giving of donations (Section 52)
would unreasonably hamper the trade of breastmilk
substitutes. Petitioner has not established that the
proscribed activities are indispensable to the trade of
breastmilk substitutes. Petitioner failed to
demonstrate that the aforementioned provisions of the
RIRR are unreasonable and oppressive for being in
restraint of trade
I. GOVERNMENT SPEECH DOCTRINE
FACTS:
Pioneer Park (Park), a public park in petitioner
Pleasant Grove City (City), has at least 11 permanent,
privately donated displays, including a Ten
Commandments monument. In rejecting the request
of respondent Summum, a religious organization, to
erect a monument containing the Seven Aphorisms of
Summum, the City explained that it limited Park
monuments to those either directly related to the
City's history or donated by groups with longstanding
community ties. After the City put that policy and
other criteria into writing, respondent renewed its
request, but did not describe the monument's
historical significance or respondent's connection to
the community. The City rejected the request, and
respondent filed suit, claiming that the City and
petitioner officials had violated the First
Amendment's Free Speech Clause by accepting the
Ten Commandments monument but rejecting
respondent's proposed monument. The District Court
denied respondent's preliminary injunction request,
but the Tenth Circuit reversed. Noting that it had
previously found the Ten Commandments monument
to be private rather than government speech and that
public parks have traditionally been regarded as
public forums, the court held that, because the
exclusion of the monument was unlikely to survive
strict scrutiny, the City was required to erect it
immediately.
ISSUE:
Whether a permanent monument donated by a private
organization to Pleasant Grove retains its character as
private speech, or whether it becomes government
speech because the city owns, controls, and decides
to display it?
HELD:
The placement of a permanent monument in a public
park is a form of government speech and is therefore
not subject to scrutiny under the Free Speech Clause.
(a) Because that Clause restricts government
regulation of private speech but not government
speech, whether petitioners were engaging in their
own expressive conduct or providing a forum for
private speech determines which precedents govern
here.
42
 (1) A government entity "is entitled to say what
it wishes," Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U. S. 819, 833, and to select the
views that it wants to express, see, e.g., Rust
v.Sullivan, 500 U. S. 173, 194. It may exercise this
same freedom when it receives private assistance for
the purpose of delivering a government-controlled
message. See Johanns v. Livestock Marketing Assn.,
544 U. S. 550, 562. This does not mean that there are
no restraints on government speech. For example,
government speech must comport with the
Establishment Clause. In addition, public
officials'involvement in advocacy may be limited by
law, regulation, or practice; and a government entity
is ultimately "accountable to the electorate and the
political process for its advocacy," Board of Regents
of Univ. of Wis. System v. Southworth, 529 U. S.
217, 235.
(2) In contrast, government entities are strictly
limited in their ability to regulate private speech in
"traditional public fora." Cornelius v. NAACP Legal
Defense & Ed. Fund, Inc., 473 U. S. 788, 800.
Reasonable time, place, and manner restrictions are
allowed, see Perry Ed. Assn. v. Perry Local
Educators' Assn., 460 U. S. 37, 45, but content-based
restrictions must satisfy strict scrutiny, i.e., they must
be narrowly tailored to serve a compelling
government interest, see Cornelius, supra, at 800.
Restrictions based on viewpoint are also prohibited.
Carey v. Brown, 447 U. S. 455, 463. Government
restrictions on speech in a "designated public forum"
are subject to the same strict scrutiny as restrictions in
a traditional public forum. Cornelius, supra, at 800.
And where government creates a forum that is limited
to use by certain groups or dedicated to the discussion
of certain subjects, Perry Ed. Assn., supra, at 46, n. 7,
it may impose reasonable and viewpoint-neutral
restrictions, see Good News Club v. Milford Central
School, 533 U. S. 98, 106-107.
(b) Permanent monuments displayed on public
property typically represent government speech.
Governments have long used monuments to speak to
the public. Thus, a government-commissioned and
government-financed monument placed on public
land constitutes government speech. So, too, are
privately financed and donated monuments that the
government accepts for public display on government
land. While government entities regularly accept
privately funded or donated monuments, their general
practice has been one of selective receptivity.
Because city parks play an important role in defining
the identity that a city projects to its residents and the
outside world, cities take care in accepting donated
monuments, selecting those that portray what the
government decisionmakers view as appropriate for
the place in question, based on esthetics, history, and
local culture. The accepted monuments are meant to
convey and have the effect of conveying a
government message and thus constitute government
speech.
(c) Here, the Park's monuments clearly represent
government speech. Although many were donated in
completed form by private entities, the City has
"effectively controlled" their messages by exercising
"final approval authority" over their selection.
Johanns, supra, at 560-561. The City has selected
monuments that present the image that the City
wishes to project to Park visitors; it has taken
ownership of most of the monuments in the Park,
including the Ten Commandments monument; and it
has now expressly set out selection criteria.
(d) Respondent's legitimate concern that the
government speech doctrine not be used as a
subterfuge for favoring certain viewpoints does not
mean that a government entity should be required to
embrace publicly a privately donated monument's
"message" in order to escape Free Speech Clause
restrictions. A city engages in expressive conduct by
accepting and displaying a privately donated
monument, but it does not necessarily endorse the
specific meaning that any particular donor sees in the
monument. A government's message may be altered
by the subsequent addition of other monuments in the
same vicinity. It may also change over time.
(e) "[P]ublic forum principles ... are out of place in
the context of this case." United States v.American
Library Assn., Inc., 539 U. S. 194, 205. The forum
doctrine applies where a government property or
program is capable of accommodating a large number
of public speakers without defeating the essential
function of the land or program, but public parks can
accommodate only a limited number of permanent
monuments. If governments must maintain viewpoint
neutrality in selecting donated monuments, they must
either prepare for cluttered parks or face pressure to
remove longstanding and cherished monuments.
Were public parks considered traditional public
forums for the purpose of erecting privately donated
43
monuments, most parks would have little choice but
to refuse all such donations. And if forum analysis
would lead almost inexorably to closing of the forum,
forum analysis is out of place. Capitol Square Review
and Advisory Bd. v. Pinette, 515 U. S. 753,
distinguished.
J. FREEDOM OF ASSEMBLY
33. BAYAN, KARAPATAN, KILUSANG
MAGBUBUKID NG PILIPINAS (KMP),
GABRIELA, FR. JOSE DIZON, RENATO
CONSTANTINO, JR., FROYEL YANEZA, and
FAHIMA TAJAR v. EDUARDO ERMITA, in his
capacity as Executive Secretary, Manila City
Mayor LITO ATIENZA, Chief of the Philippine
National Police, Gen. ARTURO M. LOMIBAO,
NCRPO Chief Maj. Gen. VIDAL QUEROL, and
Western Police District Chief Gen. PEDRO
BULAONG
G.R. No. 169838, April 25, 2006, Azcuna, J.
B.P. No. 880 is constitutional; it does not
unduly restrict freedoms but merely regulates the use
of public places as to the time, place and manner of
assemblies.
Facts:
Bayan, et al. allege that their rights as
organizations and individuals were violated when the
rally they participated in was violently dispersed by
policemen implementing Batas Pambansa (B.P.) No.
880. Kilusang Mayo Uno (KMU), et al. allege that
they conduct peaceful mass actions and that their
rights as organizations and those of their individual
members as citizens, specifically the right to peaceful
assembly, are affected by Batas Pambansa No. 880
and the policy of "Calibrated Preemptive Response"
(CPR) being followed to implement it.
All petitioners assail Batas Pambansa No.
880 (BP 880), some of them in toto and others only
Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the
policy of Calibrated Pre-emptive Response (CPR).
They seek to stop violent dispersals of rallies under
the "no permit, no rally" policy and the CPR policy
recently announced.
Issue:
Whether CPR and BP 880 violate the right of
the people to peaceably assemble.
Ruling:
As regards CPR: YES. In view of the
maximum tolerance mandated by BP 880, CPR
serves no valid purpose if it means the same thing as
maximum tolerance and is illegal if it means
something else. What is to be followed is that
mandated by the law itself, namely, maximum
44
tolerance, which specifically means the highest
degree of restraint that the military, police and other
peace keeping authorities shall observe during a
public assembly or in the dispersal of the same.
As regards BP 880: NO. BP 880 is not an
absolute ban of public assemblies but a restriction that
simply regulates the time, place and manner of the
assemblies. A fair and impartial reading of B.P. No.
880 thus readily shows that it refers to all kinds of
public assemblies that would use public places. The
reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful
causes, otherwise they would not be "peaceable" and
entitled to protection. Neither are the words
"opinion," "protesting" and "influencing" in the
definition of public assembly content based, since
they can refer to any subject. The words "petitioning
the government for redress of grievances" come from
the wording of the Constitution, so its use cannot be
avoided. Finally, maximum tolerance is for the
protection and benefit of all rallyists and is
independent of the content of the expressions in the
rally. Furthermore, the permit can only be denied on
the ground of clear and present danger to public order,
public safety, public convenience, public morals or
public health.
Respondents are directed to comply with Section 15
of BP 880 through the establishment of at least one
suitable freedom park in every city and municipality
of the country. CPR, insofar as it would purport to
differ from or be in lieu of maximum tolerance, is null
and void and respondents are enjoined to refrain from
using it and to strictly observe the requirements of
maximum tolerance. The petitions are dismissed in all
other respects, and the constitutionality of Batas
Pambansa No. 880 is sustained
34. INTEGRATED BAR OF THE PHILIPPINES
represented by its National President, JOSE
ANSELMO I. CADIZ, HARRY L. ROQUE, and
JOEL RUIZ BUTUYAN v. HONORABLE
MANILA MAYOR JOSE "LITO" ATIENZA
G.R. No. 175241, February 24, 2010, Carpio-
Morales, J.
The sole justification for a limitation on the
exercise of the right of the people peaceably to
assemble and to petition the government for redress
of grievances is the danger, of a character both grave
and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public
interest.
Facts:
The Integrated Bar of the Philippines (IBP),
through its then National President Jose Anselmo
Cadiz (Cadiz), filed with the Office of the City Mayor
of Manila an application for a permit to rally at the
foot of Mendiola Bridge. Manila Mayor Jose “Lito”
Atienza issued a permit allowing the IBP to rally on
given date but indicated Plaza Miranda as the venue,
instead of Mendiola Bridge. IBP filed before the
Court of Appeals (CA) a petition for certiorari. The
petition having been unresolved within 24 hours from
its filing, petitioners filed before the Supreme Court a
petition for certiorari which assailed the CA’s refusal
to resolve the petition within the period provided
under the Public Assembly Act of 1985.
The rally pushed through at Mendiola Bridge.
The Manila Police District (MPD) instituted a
criminal action against Cadiz for violating the Public
Assembly Act in staging a rally at a venue not
indicated in the permit, to which charge Cadiz filed a
Counter-Affidavit.
Issue:
Whether Mayor Atienza committed grave
abuse of discretion in modifying the venue in IBP’s
rally permit.
Ruling:
YES. Freedom of assembly connotes the
right of the people to meet peaceably for consultation
and discussion of matters of public concern. It is not
to be limited except on a showing of a clear and
present danger of a substantive evil that the state has
a right to prevent. The sole justification for a
limitation on the exercise of this right, so fundamental
to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public
health, or any other legitimate public interest.
In modifying the permit outright, Mayor
Atienza gravely abused his discretion when he did not
immediately inform the IBP who should have been
heard first on the matter of his perceived imminent
and grave danger of a substantive evil that may
warrant the changing of the venue. The opportunity to
45
be heard precedes the action on the permit, since the
applicant may directly go to court after an
unfavorable action on the permit. Respondent failed
to indicate how he had arrived at modifying the terms
of the permit against the standard of a clear and
present danger test which, it bears repeating, is an
indispensable condition to such modification.
Nothing in the issued permit adverts to an imminent
and grave danger of a substantive evil, which "blank"
denial or modification would, when granted
imprimatur as the appellate court would have it,
render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent
Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not,
however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what
may possibly occur but of what may probably occur,
given all the relevant circumstances, still the
assumption – especially so where the assembly is
scheduled for a specific public place – is that the
permit must be for the assembly being held there.
Notably, respondent failed to indicate in his
Comment any basis or explanation for his action. It
smacks of whim and caprice for respondent to just
impose a change of venue for an assembly that was
slated for a specific public place. It is thus reversible
error for the appellate court not to have found such
grave abuse of discretion and, under specific statutory
provision, not to have modified the permit "in terms
satisfactory to the applicant
K. ACADEMIC FREEDOM
MIRIAM COLLEGE FOUNDATION, INC. v. HON.
COURT OF APPEALS, JASPER BRIONES, JEROME
GOMEZ, RELLY CARPIO, ELIZABETH VALDEZCO,
JOSE MARI RAMOS, CAMILLE PORTUGAL, JOEL TAN
AND GERALD GARY RENACIDO
The right of the students to free speech in
school premises is not absolute. The school can
suspend or expel a student solely on the basis of the
articles he or she has written when such articles
materially disrupt class work or involve substantial
disorder or invasion of the rights of others.
Facts:
A story entitled Kaskas, written in Tagalog
was published in Miriam College Foundation’s
school paper. The story treats of the experience of a
group of young men who, one evening, after their
performance went to see a bold show. Following the
publication, the student members of the editorial
board of the Miriam College Foundation’s school
paper were subjected to disciplinary sanction by the
College Discipline Committee after letters of
complaint were filed before the Board alleging that
the story contains obscene, vulgar, and sexually
explicit contents. After investigation, the Committee
found the students guilty and imposed upon them
disciplinary sanctions. So, the students filed a petition
for prohibition, invoking their freedom of speech.
Issue:
Whether the school can impose disciplinary
action on the basis of the subject story without
violating the freedom of expression.
Ruling:
YES. Students, like the rest of the citizens, enjoy the
freedom to express their views and communicate their
thoughts. However, the right of the students to free
speech in school premises is not absolute. Their right
to free speech must always be applied in light of the
special characteristics of the school environment.
Thus, while the right of the students to free expression
in this case must be upheld, disciplinary action by the
school for conduct by the student, in class or out of it,
which for any reason - whether it stems from time,
place, or type of behavior - materially disrupts
classwork or involves substantial disorder or invasion
of the rights of others cannot be ruled out. This finds
basis on section 7 of the Campus Journalism Act and
in jurisprudence
46
V11. FREEDOM OF RELIGION
A. NON-ESTABLISHMENT CLAUSE
1. ANG LADAD LGBT PARTY VS COMELEC
What our non-establishment clause calls for is
government neutrality in religious matters. Clearly,
governmental reliance on religious justification is
inconsistent with this policy of neutrality.
Facts:
Ang Ladlad is an organization composed of persons
who identify themselves as lesbians, gays, bisexuals,
or trans-gendered individuals (LGBTs). Ang Ladlad
applied for registration with the COMELEC. The
application for accreditation was denied on the
ground that the organization had no substantial
membership. Ang Ladlad again filed a petition for
registration with the COMELEC. Petitioner argued
that the LGBT community is a marginalized and
under-represented sector that is particularly
disadvantaged because of their sexual orientation and
gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their
sexual orientation; and that Ang Ladlad complied
with the 8-point guidelines enunciated in
jurisprudence. Ang Ladlad laid out its national
membership base consisting of individual members
and organizational supporters, and outlined its
platform of governance. After admitting the
petitioners evidence, the COMELEC Second
Division dismissed the petition on moral grounds.
Issue:
Whether COMELEC violated the non-establishment
clause of the Constitution in dismissing the petition.
Ruling:
YES. COMELEC mistakenly opines that the Court’s
ruling in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections (412 Phil. 308, 2001)
stands for the proposition that only those sectors
specifically enumerated in the law or related to said
sectors (labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas
workers, and professionals) may be registered under
the party-list system. The enumeration of
marginalized and under-represented sectors is not
exclusive. The crucial element is not whether a sector
is specifically enumerated, but whether a particular
organization complies with the requirements of the
Constitution and RA 7941. Ang Ladlad has
sufficiently demonstrated its compliance with the
legal requirements for accreditation. Indeed, aside
from COMELECs moral objection and the belated
allegation of non-existence, nowhere in the records
has the respondent ever found that Ang Ladlad is not
qualified to register as a party-list organization under
any of the requisites under RA 7941 or the guidelines
in Ang Bagong Bayani.
Our Constitution provides in Article III, Section 5 that
no law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. At
bottom, what our non-establishment clause calls for is
government neutrality in religious matters. Clearly,
governmental reliance on religious justification is
inconsistent with this policy of neutrality. The Court
found that it was a grave violation of the non-
establishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang
Ladlad.
Rather than relying on religious belief, the legitimacy
of the Assailed Resolutions should depend, instead,
on whether the COMELEC is able to advance some
justification for its rulings beyond mere conformity to
religious doctrine. Otherwise stated, government
must act for secular purposes and in ways that have
primarily secular effects.
47
C. FREE EXERCISE CLAUSE
2. GERONA VS SEC. OF EDUCATION
FACTS:
1. When RA 1265 (An Act Making Flag Ceremony
Compulsary In All Educational Institutions) took
effect, the Sec. of Education issued Dept. Order No.
8 prescribing the rules and regulations for the proper
conduct of the flag ceremony.
2. The said order mandates that a proper salute must
be given, or at least standing still with arms and hands
straight at sides along with the singing of the National
Anthem and recital of the pledge. However,
petitioners’ children attending the Buenavista
Community School in Uson, Masbate refused to do
so.
3. This was because, as members of Jehova’s
Witnesses, they believe that the obligation imposed
by law of God is superior to that of laws enacted by
the State. This is based on a verse which states:
“Thou shalt not make unto thee any graven image, or
any likeness of anything that is in heaven above, or
that is in the earth beneath, or that is in the water under
the earth; thou shalt not bow down thyself to them,
nor serve them.”
They consider that the flag is an “image” within this
command and thus refuse to salute it. Because of this,
they were expelled from the school.
4. The counsel of petitioners wrote to the Sec. of
Education that the children be allowed to just remain
silent and stand still with their arms and hands straight
at their sides. This was, however, denied along with
the children’s reinstatement.
5. An action was then filed before the CFI with prayer
for a writ of preliminary injunction but the complaint
was dismissed. Hence, the present petition with the
SC issuing a temporary writ subject to the result of
the case.
ISSUE: Should the department order be upheld?
RULING: Yes. The CFI decision was affirmed and
the writ of preliminary injunction was dissolved.
1. First, there was no question with the act of saluting
since the department order allows that students can
just stand still with their arms and hands straight at
their sides. The issue was focused on the singing of
the national anthem and the recital of pledge.
2. The court eventually held that if the exercise of said
religious belief clashes with the established
institutions of society and with the law, then the
former must yield and give way to the latter. The
reasons are:
a. the flag is not an image nor the flag ceremony a
religious rite; the flag is a symbol of the Republic of
the Philippines, an emblem of national sovereignty,
unity and cohesion and of freedom and liberty.
b. the wordings of the patriotic pledge or the national
anthem does not have anything that is religiously
objectionable as they speak only of love of country,
patriotism, liberty and the glory of suffering and
dying for it.
c. the State was merely carrying out its constitutional
duty to supervise and regulate educational institutions
and see to it that all schools aim to develop civic
conscience and teach the duties of citizenship. (Art.
XIV, section 5 of the Constitution).
d. considering the separation of the State and Church,
the flag does not have any religious significance.
e. also, the determination of whether a certain ritual is
or is not a religious ceremony must rest with the court;
it cannot be left to a religious group or sect or to its
follower as there would be confusion and
misunderstanding for there might be as many
interpretations and meaning to be given as there are
religious groups or sects or followers.
f. as emphatically stated, if a man lived on an island,
alone and all by himself, he would normally have
complete and absolute rights as to the way he lives,
his religion, incuding the manners he practices his
religious beliefs with no laws to obey, no rules and
regulations to follow; but since man is gregarious by
nature and instinct and he gravitates toward
community life, to receive and enjoy the benefits of
society, he becomes a member of a community or
nation; thus, he has to give up rights for the benefit of
his fellow citizens and for the general welfare, just as
his fellow men and companions also agree to a
limitation of their rights in his favor.
48
g. also, exempting the children will disrupt school
discipline and demoralize the rest of the school
population which by far constitutes the great
majority; other pupils would naturally ask for the
same privilege because they might want to do
something else such as play or study; if this
exemption is extended, then the flag ceremony would
soon be a thing of the past or perhaps conducted with
very few participants, and the time will come when
we would have citizens untaught and uninculcated in
and not imbued with reverence for the flag and love
of country, admiration for national heroes, and
patriotism — a pathetic, even tragic situation, and all
because a small portion of the school population
imposed its will, demanded and was granted an
exemption.
3. US jurisprudence made as basis:
a. Reynolds vs. US – the law prohibited polygamy
which was allowed for Mormons
“Can a man excuse his practices to the contrary
because of his religious belief? To permit this would
be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit
every citizen to become a law unto himself.”
b. Hamilton vs. University of California – the
university requires military science and tactics
training but the objectioners believe that war and
preparation for war is a violation of their religious
belief
– it was held untenable. The Court stated that
California did not call them. They sought education
in the university and the due process clause secured
by law will be violated if they are to be exempted
from the training.
In this case, having elected not to comply with the
regulations about the flag salute, they forfeited their
right to attend public schools.
c. Minersville School District vs. Gobitis – same facts
with present case; the US Supreme Court upheld the
conduct of flag ceremony but after 3 years, it was
reversed in West Virginia State Board of Education
vs. Bernette. This was only because in the latter case,
the parents are to be prosecuted criminally if their
children are not in school. It turned out as a dilemma
with the authority against individual rights so the
Court then approved the exemption. However, it is
not the ruling in the present case.
Mr. Justice Frankfurter dissented in the latter case
stating:
“The constitutional protection of religious freedom
… gave religious equality, not civil immunity. Its
essence is freedom from conformity to religious
dogma, not freedom from conformity to law because
of religious dogma…”
3. EBRALINAG VS. DIVISION
SUPERINTENDENT OF SCHOOLS OF CEBU
FACTS:
The petitioners in both (consolidated) cases were
expelled from their classes by the public school
authorities in Cebu for refusing to salute the flag, sing
the national anthem and recite the patriotic pledge as
required by Republic Act No. 1265 (An Act making
flag ceremony compulsory in all educational
institutions) of July 11, 1955 , and by Department
Order No. 8 (Rules and Regulations for Conducting
the Flag Ceremony in All Educational Institutions)
dated July 21, 1955 of the Department of Education,
Culture and Sports (DECS) making the flag ceremony
compulsory in all educational institutions.
Jehovah's Witnesses admitted that they taught their
children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they
believe that those are "acts of worship" or "religious
devotion" which they "cannot conscientiously give to
anyone or anything except God". They consider the
flag as an image or idol representing the State. They
think the action of the local authorities in compelling
the flag salute and pledge transcends constitutional
limitations on the State's power and invades the
sphere of the intellect and spirit which the
Constitution protect against official control.
ISSUE:
Whether or not school children who are
members or a religious sect may be expelled from
school for disobedience of R.A. No. 1265 and
Department Order No. 8
HELD:
No. Religious freedom is a fundamental right which
is entitled to the highest priority and the amplest
49
protection among human rights, for it involves the
relationship of man to his Creator
The sole justification for a prior restraint or limitation
on the exercise of religious freedom is the existence
of a grave and present danger of a character both
grave and imminent, of a serious evil to public safety,
public morals, public health or any other legitimate
public interest, that the State has a right (and duty) to
prevent." Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not
justified. (Teehankee)
The petitioners further contend that while they do not
take part in the compulsory flag ceremony, they do
not engage in "external acts" or behavior that would
offend their countrymen who believe in expressing
their love of country through the observance of the
flag ceremony. They quietly stand at attention during
the flag ceremony to show their respect for the right
of those who choose to participate in the solemn
proceedings. Since they do not engage in disruptive
behavior, there is no warrant for their expulsion.
The Court is not persuaded that by exempting the
Jehovah's Witnesses from saluting the flag, singing
the national anthem and reciting the patriotic pledge,
this religious group which admittedly comprises a
"small portion of the school population" will shake up
our part of the globe and suddenly produce a nation
"untaught and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country and
admiration for national heroes" . What the petitioners
seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may
study the Constitution, the democratic way of life and
form of government, and learn not only the arts,
sciences, Philippine history and culture but also
receive training for a vocation of profession and be
taught the virtues of "patriotism, respect for human
rights, appreciation for national heroes, the rights and
duties of citizenship, and moral and spiritual values
(Sec. 3[2], Art. XIV, 1987 Constitution) as part of the
curricula. Expelling or banning the petitioners from
Philippine schools will bring about the very situation
that this Court had feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to
participate in a ceremony that violates their religious
beliefs, will hardly be conducive to love of country or
respect for dully constituted authorities.
Also, the expulsion of members of Jehovah's
Witnesses from the schools where they are enrolled
violates their right as Philippine citizens, under the
1987 Constitution, to "protect and promote the right
of all citizens to quality education . . . and to make
such education accessible to all (Sec. 1, Art. XIV).
4. IGLESIA NI CRISTO VS CA
The right to religious profession and worship has a
two-fold aspect: freedom to believe and freedom to
act on one’s beliefs. The first is absolute as long as
the belief is confined within the realm of thought. The
second is subject to regulation where the belief is
translated into external acts that affect the public
welfare.
FACTS:
Iglesia ni Cristo, Inc. (INC), has a television program
entitled “Ang Iglesia ni Cristo” aired every Sunday.
The program presents INC’s religious beliefs, often
in comparative studies with other religions. INC
submitted to the respondent Board of Review for
Motion Pictures and Television the VTR tapes of its
TV program. The Board classified the series as X or
not for public viewing on the ground that they offend
other religions. INC pursued two courses of action
against the Board. It appealed to the Office of the
President the classification of its TV Series. The
Office of the President reversed the decision of the
Board. Forthwith, the Board allowed the series to be
publicly telecast. INC also filed against the Board a
civil case with the RTC. INC alleged that the Board
acted with grave abuse of discretion in requiring
petitioner to submit the VTR tapes of its TV program
and in x-rating them. The Court of Appeals (CA)
reversed the trial court and held that the Board did not
abuse its discretion when it denied the permit for the
exhibition on TV of the three series of Ang Iglesia ni
Cristo on the ground that the materials constitute an
attack against another religion. It also found the series
indecent, contrary to law and contrary to good
customs.
Issue:
Whether the Board gravely abused its discretion when
it prohibited the airing of INC’s religious program.
50

RULING:
YES. Any act that restrains speech is hobbled by the
presumption of invalidity. It is the burden of the
Board to overthrow this presumption. It failed to do
this in the case at bar. An examination of the evidence
show that the “attacks” are mere criticisms of the
tenets of other religions. The videotapes were not
viewed by the CA yet they were considered as
indecent, contrary to law and good customs, hence,
can be prohibited from public viewing. This clearly
suppresses petitioner’s freedom of speech and
interferes with its right to free exercise of religion.
The Board may disagree with the criticisms of other
religions by petitioner but that gives it no excuse to
interdict such criticisms however unclean they may
be. Under our Constitutional scheme, it is not the task
of the State to favor any religion by protecting it
against an attack by another religion. Religious
beliefs are often at war and to preserve peace among
their followers, especially the fanatics, the
establishment clause of freedom of religion prohibits
the State from leaning towards any religion.
Neutrality alone is its fixed and immovable stance. In
fine, the board cannot squelch the speech of INC
simply because it attacks other religions, even if said
religion happens to be the most numerous church in
our country. In a State where there ought to be no
difference between the appearance and the reality of
freedom of religion, the remedy against bad theology
is better theology. The bedrock of freedom of religion
is freedom of thought and it is best served by
encouraging the marketplace of dueling ideas. When
the luxury of time permits, the marketplace of ideas
demands that speech should be met by more speech
for it is the spark of opposite speech, the heat of
colliding ideas that can fan the embers of truth.
In x-rating the TV program of the petitioner, the
respondents failed to apply the clear and present
danger rule. Any restraint of such right can be
justified like other restraints on freedom of expression
on the ground that there is a clear and present danger
of any substantive evil which the State has the right
to prevent. It is only where it is unavoidably necessary
to prevent an immediate and grave danger to the
security and welfare of the community that
infringement of religious freedom may be justified,
and only to the smallest extent necessary to avoid the
danger.
5. WINSCONSIN VS. YODER, 406 U.S. 205, 32 L
ED 2D 15, 92 S CT 1526 (1972) [AMISH
RELIGION AND WORLDLY EUDCATION]
FACTS:
Jonas Yoder and Wallace Miller, both members of the
Old Order Amish religion, and Adin Yutzy, a member
of the Conservative Amish Mennonite Church, were
prosecuted under a Wisconsin law that required all
children to attend public schools until age 16. The
three parents refused to send their children to such
schools after the eighth grade, arguing that high
school attendance was contrary to their religious
beliefs.
Three Amish students from three different families
stopped attending New Glarus High School in
the New Glarus, Wisconsin school district at the end
of the eighth grade, all because of their parents'
religious beliefs.
The three families were represented by Jonas Yoder
(one of the fathers involved in the case) when the case
went to trial. They were convicted in the Green
County Court. Each defendant was fined the nominal
sum of $5. Thereafter the Wisconsin Supreme
Court found in Yoder's favor. At this
point Wisconsin appealed that ruling in the U.S.
Supreme Court.
The Amish did not believe in going to court to settle
disputes but instead follow the biblical command to
"turn the other cheek." Thus, the Amish are at a
disadvantage when it comes to defending themselves
in courts or before legislative committees. However,
a Lutheran minister, Reverend William C. Lindholm,
took an interest in Amish legal difficulties from a
religious freedom perspective and founded The
National Committee for Amish Religious Freedom
(partly as a result of this case) and then provided them
with legal counsel.
Under Amish church standards, higher education was
deemed not only unnecessary for their simple way of
life, but also endangering to their salvation. These
51
men appealed for exemption from compulsory
education under the basis of these religious
convictions. They sincerely held to the belief that the
values their children would learn at home would
surpass the worldly knowledge taught in school.
ISSUE:
RULING:
The U.S. Supreme Court ruled in favor of Yoder in its
decision. Justice William O. Douglas filed a partial
dissent, but voted with the court regarding Yoder's
case. Justices Lewis F. Powell, Jr. and William H.
Rehnquist took no part in the consideration or
decision of the case.
The Wisconsin Supreme Court "sustained
respondents' claim that application of the compulsory
school-attendance law to them violated their rights
under the Free Exercise Clause of the First
Amendment, made applicable to the States by
the Fourteenth Amendment. The U.S. Supreme Court
held as follows:
1. States cannot force individuals to attend
school when it infringes on their First
Amendment rights. In this case, the state of
Wisconsin interfered with the practice of a
legitimate religious belief.
2. Not all beliefs rise to the demands of the
religious clause of the First Amendment.
There needs to be evidence of true and
objective religious practices, instead of an
individual making his or her standards on
such matters. The Amish way of life is one
of deep religious convictions that stems from
the Bible. It is determined by their religion,
which involves their rejection of worldly
goods and their living in the Biblical
simplicity. The modern compulsory
secondary education is in sharp conflict with
their way of life.
3. With respect to the State of Wisconsin’s
argument that additional modern education
beyond 8th grade is necessary to prepare
citizens to participate effectively and
productively in America’s political system,
the Court disagreed. It argued that the State
provided no evidence showing any great
benefit to having two extra years in the
public schools. Furthermore, the Court
contended that the Amish community was a
very successful social unit in American
society, a self-sufficient, law-abiding
member of society, which paid all of the
required taxes and rejected any type of
public welfare. The Amish children, upon
leaving the public school system, continued
their education in the form of vocational
training.
4. The Court found no evidence that by leaving
the Amish community without two
additional years of schooling, young Amish
children would become burdens on society.
To the contrary, the Court argued that they
had good vocational background to rely
upon. It was the State’s mistaken assumption
that Amish children were ignorant.
Compulsory education after elementary
school was a recent movement that
developed in the early 20th century in order
to prevent child labor and keep children of
certain ages in school. The State of
Wisconsin’s arguments about compelling
the school attendance were therefore less
substantial.
5. Responding to Justice Douglas's dissent, the
Court argued that the question before it was
about the interests of the parents to exercise
free religion, and did not relate to the child's
First Amendment's rights. As such, the
argument pertaining to the child's right to
exercise free religion was irrelevant in this
case.
Ruling 2nd version:
The application of the law is unconstitutional as
applied to the Amish.
The Amish object to the high school education
because the values taught there are in marked
variance from the Amish values and way of life. It
places Amish children in an environment hostile to
their beliefs and takes them away from their
52
community during a crucial period in their life. The
Amish do not object to elementary education. Expert
Dr. Hostetler testified that the compulsory attendance
could result in not only great psychological harm to
Amish children but ultimately the destruction of the
Old Order Amish church community.
The State has the power to impose reasonable
regulations for the control and duration of basic
education. Previous precedent has held that this
power must yield to the right of parents to provide an
equivalent education in a privately operated system.
The State’s power is subject to a balancing test when
it impinges on fundamental rights such as those
protected by the Free Exercise Clause of the First
Amendment and the traditional interest of parents
with respect to the religious upbringing of their
children.
In order for Wisconsin to compel such attendance, it
must follow that either the State does not deny the free
exercise of religious belief by its requirement or that
there is a state interest of sufficient magnitude to
override the interest claiming protection under the
Free Exercise Clause. This Court determines that the
Amish objection to the attendance is rooted in
religious beliefs that directly conflict with the
compulsory school attendance law.
The State advances two arguments. First, it notes that
some degree of education is necessary to prepare
citizens to participate effectively and intelligently in
our open political system. Second, education prepares
individuals to be self-reliant and self-sufficient
participants in society. We accept these propositions.
However, the evidence adduced shows that an
additional one or two years of formal high school
would do little to serve those interests. Such
education may be necessary for preparation for the
modern society in which we live, but is not for the
separated agrarian community of the Amish faith.
The State attacks respondents’ position as fostering
ignorance from which children must be protected by
the State. However, the record shows that the Amish
community has been a highly successful social unit
within our society, producing productive and law-
abiding citizens. The State also supports its position
on the possibility that some children will choose to
leave the Amish community. This argument is highly
speculative on the record, and the practical
agricultural training and habits of industry would
support children that did choose to leave.
The requirement for compulsory high school
education is a fairly recent development, designed to
not only provide educational opportunities, but also
to avoid child labor or forced idleness. In these terms,
Wisconsin’s interest in compelling school attendance
is less substantial for Amish children than for children
generally.
The State finally argues that exempting the Amish
children fails to recognize the children’s substantive
right to a secondary education, giving due regard to
the power of the State as parens patriae. On this
record there is no need to decide an issue in which the
Amish parent’s are preventing children who wish to
further their education from attending school.
*Free Exercise Clause
The Free Exercise Clause guarantees a person the
right to practice a religion and propagate it without
government interference. This right is a liberty
interest that cannot be deprived without due process
of law. Although the government cannot restrict a
person's religious beliefs, it can limit the practice of
faith when a substantial and compelling state interest
exists. The courts have found that a substantial and
compelling state interest exists when the religious
practice poses a threat to the health, safety, or welfare
of the public.
For example, the government could legitimately
outlaw the practice of polygamy that was formerly
mandated by the doctrines of the Church of Jesus
Christ of Latter-Day Saints (Mormons) but could not
outlaw the religion or belief in Mormonism itself
(Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244
[1878]). The Supreme Court has invalidated very few
actions of the government on the basis of this clause.
53
Religious practices are not the only method by which
a violation of the Free Exercise Clause can occur.
In West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628
(1943), the Supreme Court held that a public school
could not expel children because they refused on
religious grounds to comply with a requirement of
saluting the U.S. flag and reciting the Pledge of
Allegiance. In that case, the children were Jehovah's
Witnesses, and they believed that saluting the flag fell
within the scope of the biblical command against
worshipping false gods.
6. ESTRADA vs ESCRITOR
To validly override a free exercise of religion
claim, the compelling state interest test must be
satisfied. The State must articulate in specific terms
the state interest, which must be compelling, involved
in preventing the free exercise of religion. It has to
further demonstrate that the state has used the least
intrusive means possible so that the free exercise is
not infringed any more than necessary. Otherwise,
the exercise of the freedom of religion must be
respected.
Facts:
Soledad Escritor was charged with immoral
conduct for living with a man not her husband, and
having borne a child within this live-in arrangement.
She admitted living with another man without the
benefit of marriage more than twenty years ago when
her husband was still alive but living with another
woman. However, as a member of the religious sect
known as the Jehovah's Witnesses, she asserted that
their conjugal arrangement is in conformity with their
religious beliefs and has the approval of her
congregation. In fact, she was able to secure a
"Declaration of Pledging Faithfulness," which allows
members of the congregation who have been
abandoned by their spouses to enter into marital
relations, and thus makes the resulting union moral
and binding within the congregation all over the
world. In sum, therefore, insofar as the congregation
is concerned, there is nothing immoral about the
conjugal arrangement between Escritor and her
common-law-husband.
Issue:
Whether Escritor’s conjugal arrangement is
not immoral in light of the freedom of religion.
Ruling:
YES. In this particular case and under these
distinct circumstances, Escritor's conjugal
arrangement cannot be penalized as she has made out
a case for exemption from the law based on her
fundamental right to freedom of religion. The Court
recognizes that state interests must be upheld in order
that freedoms - including religious freedom - may be
enjoyed. In the area of religious exercise as a
preferred freedom, however, man stands accountable
to an authority higher than the state, and so the state
interest sought to be upheld must be so compelling
that its violation will erode the very fabric of the state
that will also protect the freedom. In addition, it must
also be shown that the state has used the least
intrusive means possible so that the free exercise is
not infringed any more than necessary. Accordingly,
in the absence of a showing that a compelling state
interest exists and the least intrusive means is
employed, man must be allowed to subscribe to the
Infinite.
In this case, the state has not evinced any concrete
interest in enforcing the concubinage or bigamy
charges against Escritor or her partner as it has never
sought to prosecute Escritor nor her partner. It cannot
therefore assert that unbending application of a
criminal prohibition is essential to fulfill any
compelling interest, if it does not, in fact, attempt to
enforce that prohibition. Thus, the State's asserted
interest, in this case, is only abstract. Nonetheless,
even assuming that there is a compelling state
interest, the state failed to show that it used the least
intrusive means possible. The records are bereft of
even a feeble attempt to procure any such evidence to
show that the means the state adopted in pursuing this
compelling interest is the least restrictive to
respondent's religious freedom
7. RE: REQUEST OF MUSLIM EMPLOYEES
IN THE DIFFERENT COURTS IN ILIGAN
CITY (RE: OFFICE HOURS), 477 SCRA 648
(2005)
*see pdf
54
D. RELIGIOUS AFFAIRS AND SECULAR
JURISDICTION
8. AUSTRIA VS NLRC
FACTS:
Private respondent Central Philippine Union Mission
Corporation of the Seventh Day Adventists (SDA) is
a religious corporation under Philippine law and is
represented by the other private respondents.
Petitioner was a pastor of SDA until 1991, when his
services were terminated.
Austria worked with SDA for 28 years. He started as
a literature evangelist in 1963 then got promoted
several times. He became the Assistant Publishing
Director in the West Visayan Mission of the SDA in
1968 and Pastor in the West Visayan Mission in 1972.
Finally in 1989, he was promoted as District Pastor of
the Negros Mission of the SDA.
On various occasions from August to October 1991,
Austria received several communications from Mr.
Ibesate, treasurer of the Negros Mission, asking the
former to admit accountability and responsibility for
the church tithes and offerings collected by his wife,
Thelma Austria, in his district and to remit the same
to the Negros Mission.
In his answer, petitioner said that he should not be
made accountable since it was private respondent
Pastor Buhat and Mr. Ibesate who authorized his wife
to collect the tithes and offerings since he was very
sick to do the collecting at that time.
Thereafter, petitioner went to the office of Pastor
Buhat, president of the Negros Mission, and asked for
a convention to settle the dispute between petitioner
and Pastor Rodrigo. Pastor Buhat denied the request
of petitioner because there was no quorum. The two
exchanged heated arguments until petitioner left the
office. However, while on his way out, he heard
Pastor Buhat saying, "Pastor daw inisog na ina iya
(Pador you are talking tough)” which prompted him
to go back and overturn Pastor Buhat’s table, scatter
books in the office, bang Buhat’s attaché case and
throw the phone.
Petitioner received a letter inviting him and his wife
to attend the meeting to discuss the non-remittance of
church collection and the events that transpired
between him and Pastor Buhat. A fact-finding
committee was created to investigate petitioner.
Subsequently, petitioner received a letter of dismissal
citing misappropriation of denominational funds,
willful breach of trust, serious misconduct, gross and
habitual neglect of duties, and commission of an
offense against the person of employer's duly
authorized representative, as grounds for the
termination of his services.
1) Petitioner filed a complaint with the Labor Arbiter
for illegal dismissal. = decision rendered in favor of
petitioner
2) SDA appealed to NLRC = decision rendered in
favor of respondent
3) Petitioner filed motion for reconsideration =
reinstated decision of Labor Arbiter
4) SDA filed motion for reconsideration = decision
rendered in favor of respondent
Hence, this recourse to the court by the petitioner.
ISSUES:
1) WON the Labor Arbiter/NLRC has jurisdiction to
try and decide the complaint filed by petitioner
against the SDA;
2) WON the termination of the services of petitioner
is an ecclesiastical affair, and, as such, involves the
separation of church and state;
RULING:
1) YES.
2) NO.
RATIO DECIDENDI:
The principle of separation of church and state finds
no application in this case. The rationale of the
principle of the separation of church and state is
summed up in the familiar saying, "Strong fences
make good-neighbors." The idea advocated by this
principle is to delineate the boundaries between the
two institutions and thus avoid encroachments by
55
one against the other because of a misunderstanding
of the limits of their respective exclusive
jurisdictions.
The case at bar does not concern an ecclesiastical or
purely religious affair as to bar the State from taking
cognizance of the same. An ecclesiastical affair is
"one that concerns doctrine, creed, or form of worship
of the church, or the adoption and enforcement within
a religious association of needful laws and regulations
for the government of the membership, and the power
of excluding from such associations those deemed
unworthy of membership. Examples of this so-called
ecclesiastical affaits are proceedings for
excommunication, ordinations of religious ministers,
administration of sacraments and other activities with
attached religious significance. The case at bar does
not even remotely concern any of the given examples.
What is involved here is the relationship of the church
as an employer and the minister as an employee. It is
purely secular and has no relation whatsoever with the
practice of faith, worship or doctrines of the church.
The matter of terminating an employee, which is
purely secular in nature, is different from the
ecclesiastical act of expelling a member from the
religious congregation.
9. Islamic Da’wah Council of the Philippines, Inc.
vs. Office of the Secretary, 405 SCRA 497 (2003)
FACTS:
Petitioner is a non-governmental organization that
extends voluntary services to the Filipino people,
especially to Muslim Communities. Petitioner began
to issue, for a fee, halal certifications to qualified
products and food manufacturers on account of the
actual need to certify food products as halal and also
due to halal food producers' request. Subsequently,
Executive Order (EO) 46 was issued creating the
Philippine Halal Certification Scheme and
designating respondent Office of Muslim Affairs
(OMA) to oversee its implementation. In this petition
for prohibition, petitioner alleged, among others, that
the subject EO violates the constitutional provision on
the separation of Church and State.
In granting the petition, the Supreme Court
ruled that freedom of religion was accorded preferred
status by the framers of the fundamental law and it
has consistently affirmed this preferred status.
Without doubt, classifying a food product as halal is
a religious function because the standards used are
drawn from the Qur'an and Islamic beliefs. By giving
the OMA the exclusive power to classify food
products as halal, EO 46 encroached on the religious
freedom of Muslim organizations like herein
petitioner to interpret for Filipino Muslims what food
products are fit for Muslim consumption. Also, by
arrogating to itself the task of issuing halal
certifications, the State has in effect forced Muslims
to accept its own interpretation of the Qur'an and
Sunnah on halal food.
The Court further ruled that only the
prevention of an immediate and grave danger to the
security and welfare of the community can justify the
infringement of religious freedom. In the case at bar,
the Court found no compelling justification for the
government to deprive Muslim organizations, like
herein petitioner, of their religious right to classify a
product as halal, even on the premise that the health
of Muslim Filipinos can be effectively protected by
assigning to OMA the exclusive power to issue halal
certificates.
ISSUE: Whether or not Executive Order 46 violates
the constitutional provision on the separation of
Church and State.
RULING: No. In granting the petition, the Supreme
Court ruled that freedom of religion was accorded
preferred status by the framers of the fundamental law
and it has consistently affirmed this preferred status.
Without doubt, classifying a food product as halal is
a religious function because the standards used are
drawn from the Qur'an and Islamic beliefs. By giving
the OMA the exclusive power to classify food
products as halal, Executive Order 46 encroached on
the religious freedom of Muslim organizations like
herein petitioner to interpret for Filipino Muslims
what food products are fit for Muslim consumption.
Also, by arrogating to itself the task of issuing halal
certifications, the State has in effect forced Muslims
56
to accept its own interpretation of the Qur'an and
Sunnah on halal food.

The Court further ruled that only the prevention of an

immediate and grave danger to the security and
welfare of the community can justify the infringement
of religious freedom. In the case at bar, the Court
found no compelling justification for the government
to deprive Muslim organizations, like herein
petitioner, of their religious right to classify a product
as halal, even on the premise that the health of
Muslim Filipinos can be effectively protected by
assigning to OMA the exclusive power to issue halal
certificates.

Only the prevention of an immediate and grave

danger to the security and welfare of the community
can justify the infringement of religious freedom. If
the government fails to show the seriousness and
immediacy of the threat, State intrusion is
constitutionally unacceptable. In a society with a
democratic framework like ours, the State must
minimize its interference with the affairs of its
citizens and instead allow them to exercise reasonable
freedom of personal and religious activity.
In the case at bar, we find no compelling justification
for the government to deprive Muslim organizations,
like herein petitioner, of their religious right to
classify a product as halal, even on the premise that
the health of Muslim Filipinos can be effectively
protected by assigning to OMA the exclusive power
to issue halal certifications.
The protection and promotion of the Muslim
Filipinos' right to health are already provided for in
existing laws and ministered to by government
agencies charged with ensuring that food products
released in the market are fit for human consumption,
properly labeled and safe. Unlike EO 46, these laws
do not encroach on the religious freedom of Muslims.

57
VIII. LIBERTY OF ABODE AND FREEDOM
OF MOVEMENT
1. MARCOS V. MANGLAPUS
G.R. No. 88211, September 15, 1989, Cortes, J.
The request or demand of the Marcoses to be allowed
to return to the Philippines cannot be considered in
the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel.
It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the
President which are implicit in and correlative to the
paramount duty residing in that office to safeguard
and protect general welfare.
Facts:
President Ferdinand Marcos was deposed from the
presidency via the non-violent “people power”
revolution and forced into exile in Hawaii. Mr.
Marcos, in his deathbed, has signified his wish to
return to the Philippines to die but Mrs. Aquino,
considering the dire consequences to the nation of his
return at a time when the stability of government is
threatened from various directions and the economy
is just beginning to rise and move forward, has stood
firmly on the decision to bar the return of Mr. Marcos
and his family.
The case for petitioners is founded on the assertion
that the right of the Marcoses to return to the
Philippines is guaranteed under the Bill of Rights.
The petitioners contend that the President is without
power to impair the liberty of abode of the Marcoses
because only a court may do so "within the limits
prescribed by law.” Respondents argue for the
primacy of the right of the State to national security
over individual rights.
Issue:
Whether former President Aquino acted whimsically
in denying the Marcos’s return in the country.
Ruling:
NO. To the President, the problem is one of balancing
the general welfare and the common good against the
exercise of rights of certain individuals. The power
involved is the President's residual power to protect
the general welfare of the people. It is founded on the
duty of the President, as steward of the people.
What we are saying in effect is that the request or
demand of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of
the constitutional provisions guaranteeing liberty of
abode and the right to travel, subject to certain
exceptions, or of case law which clearly never
contemplated situations even remotely similar to the
present one. It must be treated as a matter that is
appropriately addressed to those residual unstated
powers of the President which are implicit in and
correlative to the paramount duty residing in that
office to safeguard and protect general welfare. In that
context, such request or demand should submit to the
exercise of a broader discretion on the part of the
President to determine whether it must be granted or
denied.
The Court cannot close its eyes to present realities and
pretend that the country is not besieged from within
by a well-organized communist insurgency, a
separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the
murder with impunity of military men, police officers
and civilian officials, to mention only a few. The
documented history of the efforts of the Marcoses and
their followers to destabilize the country, as earlier
narrated in the ponencia bolsters the conclusion that
the return of the Marcoses at this time would only
exacerbate and intensify the violence directed against
the State and instigate more chaos.
As divergent and discordant forces, the enemies of the
State may be contained. The military establishment
has given assurances that it could handle the threats
posed by particular groups. But it is the catalytic
effect of the return of the Marcoses that may prove to
be the proverbial final straw that would break the
camel's back. With these before her, the President
cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the
return of the Marcoses poses a serious threat to the
national interest and welfare and in prohibiting their
return.
2. GUDANI V. SENGA
 G.R. No. 170165, August
15, 2006, Tinga, J.
Mobility of travel is another necessary restriction on
members of the military. A soldier cannot leave
his/her post without the consent of the commanding
officer.
58
Facts:
The petitioners are high-ranking officers of the
Armed Forces of the Philippines tasked with the
maintenance of peace and order during the 2004
elections. Senator Rodolfo Biazon invited them to
appear at a public hearing before the Senate. The
hearing was scheduled after topics concerning the
conduct of the 2004 elections emerged in the public
eye, particularly allegations of massive cheating.
However, an instruction from the President barred
them from attending the hearing. Nonetheless, both
Gen. Gudani and Col. Balutan were present as the
hearing started, and they both testified as to the
conduct of the 2004 elections. They were then
charged with a violation of Article of War on wilfully
disobeying a superior officer.
Issue:
Whether petitioners’ right to travel may be impaired.
Ruling:
YES. The principle that mobility of travel is another
necessary restriction on members of the military. A
soldier cannot leave his/her post without the consent
of the commanding officer. The reasons are self-
evident. The commanding officer has to be aware at
all times of the location of the troops under command,
so as to be able to appropriately respond to any
exigencies. For the same reason, commanding
officers have to be able to restrict the movement or
travel of their soldiers, if in their judgment, their
presence at place of call of duty is necessary. At
times, this may lead to unsentimental, painful
consequences, such as a soldier being denied
permission to witness the birth of his first-born, or to
attend the funeral of a parent. Yet again, military life
calls for considerable personal sacrifices during the
period of conscription, wherein the higher duty is not
to self but to country.
Petitioners seek to be exempted from military justice
for having traveled to the Senate to testify before the
Senate Committee against the express orders of Gen.
Senga, the AFP Chief of Staff. If petitioners position
is affirmed, a considerable exception would be carved
from the unimpeachable right of military officers to
restrict the speech and movement of their juniors. The
ruinous consequences to the chain of command and
military discipline simply cannot warrant the Courts
imprimatur on petitioner’s position.
3. LEAVE DIVISION, OFFICE OF
ADMINISTRATIVE SERVICES-OFFICE OF
THE COURT ADMINISTRATOR (OFFICE OF
THE COURT ADMINISTRATOR) v.
HEUSDENS
 A.M. No. P-11-2927, December 13,
2011, Mendoza, J.
Regulation is necessary for the orderly administration
of justice. If judges and court personnel can go on
leave and travel abroad at will and without restrictions
or regulations, there could be a disruption in the
administration of justice.
Facts:
Heusdens, a staff clerk of MTC Tagum, left abroad
without waiting for the results of her leave
application. It turned out that no travel authority was
issued in her favor. Heusdens explained that it was
not her intention to violate the rules (OCA Circular)
as her leave was approved by her superior judge.
Issue:
Whether the circular issued by the OCA can restrict a
citizen’s right to travel as guaranteed by the
Constitution.
Ruling:
YES. The exercise of ones right to travel or the
freedom to move from one place to another, as
assured by the Constitution, is not absolute. There are
constitutional, statutory and inherent limitations
regulating the right to travel. Section 6 itself provides
that neither shall the right to travel be impaired except
in the interest of national security, public safety or
public health, as may be provided by law.
59
With respect to the power of the Court, Section 5 (6),
Article VIII of the 1987 Constitution provides that the
Supreme Court shall have administrative supervision
over all courts and the personnel thereof.

As earlier stated, with respect to members and

employees of the Judiciary, the Court issued OCA
Circular No. 49-2003 to regulate their foreign travel
in an unofficial capacity. Such regulation is necessary
for the orderly administration of justice. If judges and
court personnel can go on leave and travel abroad at
will and without restrictions or regulations, there
could be a disruption in the administration of justice.
A situation where the employees go on mass leave
and travel together, despite the fact that their
invaluable services are urgently needed, could
possibly arise. For said reason, members and
employees of the Judiciary cannot just invoke and
demand their right to travel.

60