EN BANC

x--------------
FRANCISCO CHAVEZ, G.R. No. 168338 ---------------
Petitioner, ---------------
Present: ---------------
---------------
PUNO, C.J., -----------x
QUISUMBING,
YNARES-SANTIAGO,
- versus - SANDOVAL-GUTIERREZ, DECIS
CARPIO, ION
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
RAUL M. GONZALES, CHICO-NAZARIO,
in his capacity as the VELASCO, JR.,
Secretary of the NACHURA,
Department of Justice; REYES, and
and NATIONAL LEONARDO-DE CASTRO, JJ.
TELECOMMUNICATIONS
COMMISSION (NTC), Promulgated:
Respondents.
February 15, 2008

PUNO, C.J.:

A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven
into the right to free speech and free expression, that any attempt to restrict it must be met with
an examination so critical that only a danger that is clear and present would be allowed to curtail
it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck
down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief
of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary
Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means
to prevent the free exercise of speech, it must be nullified.
 B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local
elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition
was planning to destabilize the administration by releasing an audiotape of a mobile phone
conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo,
and a high-ranking official of the Commission on Elections (COMELEC). The
conversation was audiotaped allegedly through wire-tapping.[5] Later, in
a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one
supposedly the complete version, and the other, a spliced, doctored or altered version,
which would suggest that the President had instructed the COMELEC official to
manipulate the election results in the Presidents favor. [6] It seems that Secretary Bunye
admitted that the voice was that of President Arroyo, but subsequently made a retraction. [7]

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia,
subsequently released an alleged authentic tape recording of the wiretap. Included in the
tapes were purported conversations of the President, the First Gentleman Jose Miguel
Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers. [8]

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned
reporters that those who had copies of the compact disc (CD) and those broadcasting or
publishing its contents could be held liable under the Anti-Wiretapping Act. These persons
included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing
said tapes were committing a continuing offense, subject to arrest by anybody who had
personal knowledge if the crime was committed or was being committed in their
presence.[9]

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau
of Investigation (NBI) to go after media organizations found to have caused the spread,
the playing and the printing of the contents of a tape of an alleged wiretapped conversation
involving the President about fixing votes in the 2004 national elections. Gonzales said that
he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer
and GMA7 television network, because by the very nature of the Internet medium, it was
able to disseminate the contents of the tape more widely. He then expressed his intention
of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly
declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10]
5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION
OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM STANDARDS
 xxx xxx xxx

Taking into consideration the countrys unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and television
network owners/operators that the conditions of the authorization and permits issued
to them by Government like the Provisional Authority and/or Certificate of Authority
explicitly provides that said companies shall not use [their] stations for the
broadcasting or telecasting of false information or willful
misrepresentation. Relative thereto, it has come to the attention of the [NTC] that
certain personalities are in possession of alleged taped conversations which they
claim involve the President of the Philippines and a Commissioner of the
COMELEC regarding supposed violation of election laws.

These personalities have admitted that the taped conversations are products of illegal
wiretapping operations.

Considering that these taped conversations have not been duly authenticated nor
could it be said at this time that the tapes contain an accurate or truthful
representation of what was recorded therein, it is the position of the [NTC] that the
continuous airing or broadcast of the said taped conversations by radio and television
stations is a continuing violation of the Anti-Wiretapping Law and the conditions of
the Provisional Authority and/or Certificate of Authority issued to these radio and
television stations. It has been subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the concerned
radio and television companies are hereby warned that their broadcast/airing of
such false information and/or willful misrepresentation shall be just cause for
the suspension, revocation and/or cancellation of the licenses or authorizations
issued to the said companies.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program
standards to be observed by radio and television stations.NTC Memorandum
Circular 111-12-85 explicitly states, among others, that all radio broadcasting and
television stations shall, during any broadcast or telecast, cut off from the air the
speech, play, act or scene or other matters being broadcast or telecast the tendency
thereof is to disseminate false information or such other willful misrepresentation,
or to propose and/or incite treason, rebellion or sedition. The foregoing directive had
been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto,
prohibited radio, broadcasting and television stations from using their stations to
broadcast or telecast any speech, language or scene disseminating false information
or willful misrepresentation, or inciting, encouraging or assisting in subversive or
treasonable acts.

The [NTC] will not hesitate, after observing the requirements of due process, to
apply with full force the provisions of said Circulars and their accompanying
sanctions on erring radio and television stations and their owners/operators.
 6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng
mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release
did not violate the constitutional freedom of speech, of expression, and of the press, and
the right to information. Accordingly, NTC and KBP issued a Joint Press
Statement which states, among others, that: [12]

NTC respects and will not hinder freedom of the press and the right to
information on matters of public concern. KBP & its members have always
been committed to the exercise of press freedom with high sense of
responsibility and discerning judgment of fairness and honesty.

NTC did not issue any MC [Memorandum Circular] or Order constituting a

restraint of press freedom or censorship. The NTC further denies and does
not intend to limit or restrict the interview of members of the opposition or
free expression of views.

What is being asked by NTC is that the exercise of press freedom [be] done
responsibly.

KBP has program standards that KBP members will observe in the treatment of
news and public affairs programs. These include verification of sources, non-
airing of materials that would constitute inciting to sedition and/or rebellion.

The KBP Codes also require that no false statement or willful misrepresentation
is made in the treatment of news or commentaries.

The supposed wiretapped tapes should be treated with sensitivity and handled
responsibly giving due consideration to the process being undertaken to
verify and validate the authenticity and actual content of the same.

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents
Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and
prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the
unlawful, unconstitutional and oppressive exercise of authority by the respondents. [13]

Alleging that the acts of respondents are violations of the freedom on expression and of the
press, and the right of the people to information on matters of public concern, [14] petitioner
specifically asked this Court:
 [F]or [the] nullification of acts, issuances, and orders of respondents committed or
made since June 6, 2005 until the present that curtail the publics rights to freedom
of expression and of the press, and to information on matters of public concern
specifically in relation to information regarding the controversial taped conversion
of President Arroyo and for prohibition of the further commission of such acts, and
making of such issuances, and orders by respondents. [15]

Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners
legal standing to file the petition. Among the arguments they raised as to the validity of the fair
warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees
compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate
the telecommunications industry. [17] It was also stressed that most of the [television] and radio
stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon
between the NTC and KBP. [18]

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional challenge peculiar.
Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and
statements made by respondents as violations of the right to free speech, free expression and a
free press. For another, the recipients of the press statements have not come forwardneither
intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement
with respondent NTC that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed
to allege such 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. [19]

But as early as half a century ago, we have already held that where serious constitutional questions
are involved, the transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside if we must, technicalities of
procedure. [20] Subsequently, this Court has repeatedly and consistently refused to wield
procedural barriers as impediments to its addressing and resolving serious legal questions that
greatly impact on public interest,[21] in keeping with the Court's duty under the 1987 Constitution
to determine whether or not other branches of government have kept themselves within the limits
of the Constitution and the laws and that they have not abused the discretion given to them.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of
overarching significance to our society,[22] we therefore brush aside technicalities of procedure
and take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all
the civil rights, the freedom of expression. The petition raises other issues like the extent of
the right to information of the public. It is fundamental, however, that we need not address
all issues but only the most decisive one which in the case at bar is whether the acts of the
respondents abridge freedom of speech and of the press.

But aside from the primordial issue of determining whether free speech and freedom of
the press have been infringed, the case at bar also gives this Court the opportunity: (1) to
distill the essence of freedom of speech and of the press now beclouded by the vagaries of
motherhood statements; (2) to clarify the types of speeches and their differing restraints
allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and
content-based regulations and their constitutional standard of review; (4) to examine the
historical difference in the treatment of restraints between print and broadcast media and
stress the standard of review governing both; and (5) to call attention to the ongoing
blurring of the lines of distinction between print and broadcast media.

E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,

OF EXPRESSION AND OF THE PRESS

No law shall be passed abridging the freedom of speech, of expression, or of the

press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.[24]

Freedom of expression has gained recognition as a fundamental principle of every

democratic government, and given a preferred right that stands on a higher level than substantive
economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the
Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of
Rights,[25] were considered the necessary consequence of republican institutions and the
complement of free speech.[26] This preferred status of free speech has also been codified at the
international level, its recognition now enshrined in international law as a customary norm that
binds all nations.[27]

In the Philippines, the primacy and high esteem accorded freedom of expression is a
fundamental postulate of our constitutional system. [28]This right was elevated to constitutional
status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both
political and legal, that freedom of speech is an indispensable condition for nearly every other
form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of
speech, expression and the press was, at bottom, the struggle for the indispensable preconditions
for the exercise of other freedoms.[30] For it is only when the people have unbridled access to
information and the press that they will be capable of rendering enlightened judgments. In the
oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

E.1. ABSTRACTION OF FREE SPEECH

Surrounding the freedom of speech clause are various concepts that we have adopted as
part and parcel of our own Bill of Rights provision on this basic freedom. [31] What is embraced
under this provision was discussed exhaustively by the Court in Gonzales v. Commission on
Elections, [32]in which it was held:

At the very least, free speech and free press may be identified with the liberty to
discuss publicly and truthfully any matter of public interest without censorship and
punishment. There is to be no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for
damages, or contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. [33]

Gonzales further explained that the vital need of a constitutional democracy for freedom
of expression is undeniable, whether as a means of assuring individual self-fulfillment; of
attaining the truth; of assuring participation by the people in social, including political, decision-
making; and of maintaining the balance between stability and change.[34] As early as the 1920s,
the trend as reflected in Philippine and American decisions was to recognize the broadest scope
and assure the widest latitude for this constitutional guarantee. The trend represents a profound
commitment to the principle that debate on public issue should be uninhibited, robust, and wide-
open. [35]

Freedom of speech and of the press means something more than the right to approve
existing political beliefs or economic arrangements, to lend support to official measures, and to
take refuge in the existing climate of opinion on any matter of public consequence.[36] When
atrophied, the right becomes meaningless.[37] The right belongs as well -- if not more to those who
question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom
are confined not only to those that are conventional or acceptable to the majority. To be truly
meaningful, freedom of speech and of the press should allow and even encourage the articulation
of the unorthodox view, though it be hostile to or derided by others; or though such view induces
a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to
anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than
for the thought that agrees with us. [40]

The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print and assembly regarding secular as well as political
causes, and is not confined to any particular field of human interest. The protection covers myriad
matters of public interest or concern embracing all issues, about which information is needed or
appropriate, so as to enable members of society to cope with the exigencies of their period. The
constitutional protection assures the broadest possible exercise of free speech and free press for
religious, political, economic, scientific, news, or informational ends, inasmuch as the
Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of
ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection
afforded free speech extends to speech or publications that are entertaining as well as instructive
or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,[41] this Court
stated that all forms of media, whether print or broadcast, are entitled to the broad protection of
the clause on freedom of speech and of expression.

While all forms of communication are entitled to the broad protection of freedom of
expression clause, the freedom of film, television and radio broadcasting is somewhat lesser
in scope than the freedom accorded to newspapers and other print media, as will be
subsequently discussed.

E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH

From the language of the specific constitutional provision, it would appear that the right to free
speech and a free press is not susceptible of any limitation. But the realities of life in a complex
society preclude a literal interpretation of the provision prohibiting the passage of a law that
would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it an
unbridled license that gives immunity for every possible use of language and prevents the
punishment of those who abuse this freedom.

Thus, all speech are not treated the same. Some types of speech may be subjected to some
regulation by the State under its pervasive police power, in order that it may not be injurious to
the equal right of others or those of the community or society.[43] The difference in treatment is
expected because the relevant interests of one type of speech, e.g., political speech, may vary
from those of another, e.g., obscene speech. Distinctions have therefore been made in the
treatment, analysis, and evaluation of the permissible scope of restrictions on various categories
of speech. [44] We have ruled, for example, that in our jurisdiction slander or libel, lewd and
obscene speech, as well as fighting words are not entitled to constitutional protection and may be
penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth,
vagueness, and so on) have been applied differently to each category, either consciously or
unconsciously. [46] A study of free speech jurisprudencewhether here or abroadwill reveal that
courts have developed different tests as to specific types or categories of speech in
concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media
and of the traditional print media; libelous speech; speech affecting associational rights; speech
before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech
associated with rights of assembly and petition. [47]

Generally, restraints on freedom of speech and expression are evaluated by either or a

combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations
on speech once a rational connection has been established between the speech restrained and the
danger contemplated; [48] (b) the balancing of interests tests, used as a standard when courts need
to balance conflicting social values and individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given situation of type of
situation; [49] and(c) the clear and present danger rule which rests on the premise that speech
may be restrained because there is substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil consequences sought to be
prevented must be substantive, extremely serious and the degree of imminence extremely high. [50]

As articulated in our jurisprudence, we have applied either the dangerous tendency

doctrine or clear and present danger test to resolve free speech challenges. More recently, we
have concluded that we have generally adhered to the clear and present danger test. [51]

E.3. IN FOCUS: FREEDOM OF THE PRESS

Much has been written on the philosophical basis of press freedom as part of the larger
right of free discussion and expression. Its practical importance, though, is more easily grasped.
It is the chief source of information on current affairs. It is the most pervasive and perhaps most
powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their
government informed of their needs, their aspirations and their grievances. It is the sharpest
weapon in the fight to keep government responsible and efficient. Without a vigilant press, the
mistakes of every administration would go uncorrected and its abuses unexposed. As Justice
Malcolm wrote in United States v. Bustos:[52]

The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and
unjust accusation; the wound can be assuaged with the balm of clear conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection.
Indeed, the press benefits from certain ancillary rights. The productions of writers are classified
as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press
or to maintain a periodical publication are liable for damages, be they private individuals or public
officials.

E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND

CONTENT-BASED REGULATIONS

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized
four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from
punishment subsequent to publication; [53] (3) freedom of access to information; [54] and (4)
freedom of circulation.[55]

Considering that petitioner has argued that respondents press statement constitutes a form of
impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie
of content-based (as distinguished from content-neutral) regulations.

At this point, it should be noted that respondents in this case deny that their acts constitute
prior restraints. This presents a unique tinge to the present challenge, considering that the cases
in our jurisdiction involving prior restrictions on speech never had any issue of whether the
governmental act or issuance actually constituted prior restraint. Rather, the determinations were
always about whether the restraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint
on the freedom of speech has always been based on the circumstances of each case, including the
nature of the restraint. And in its application in our jurisdiction, the parameters of this
principle have been etched on a case-to-case basis, always tested by scrutinizing the
governmental issuance or act against the circumstances in which they operate, and then
determining the appropriate test with which to evaluate.

Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination.[56] Freedom from prior restraint is
largely freedom from government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that required approval of a proposal to publish;
licensing or permits as prerequisites to publication including the payment of license taxes for the
privilege to publish; and even injunctions against publication. Even the closure of the business
and printing offices of certain newspapers, resulting in the discontinuation of theirprinting and
publication, are deemed as previous restraint or censorship. [57] Any law or official that requires
some form of permission to be had before publication can be made, commits an infringement of
the constitutional right, and remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on
speech, and any act that restrains speech is presumed invalid,[58] and any act that restrains speech
is hobbled by the presumption of invalidity and should be greeted with furrowed brows, [59] it is
important to stress not all prior restraints on speech are invalid. Certain previous restraints may
be permitted by the Constitution, but determined only upon a careful evaluation of the
challenged act as against the appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint
on freedom of speech. A distinction has to be made whether the restraint is (1) a content-
neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely
controls the time, place or manner, and under well defined standards; [60] or (2) a content-
based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or
speech. [61] The cast of the restriction determines the test by which the challenged act is assayed
with.

When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity. [62]Because regulations of this type are not
designed to suppress any particular message, they are not subject to the strictest form of judicial
scrutiny but an intermediate approachsomewhere between the mere rationality that is required
of any other law and the compelling interest standard applied to content-based
restrictions.[63] The test is called intermediate because the Court will not merely rubberstamp the
validity of a law but also require that the restrictions be narrowly-tailored to promote an important
or significant governmental interest that is unrelated to the suppression of expression. The
intermediate approach has been formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional

power of the Government, if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incident restriction on alleged [freedom of speech &
expression] is no greater than is essential to the furtherance of that interest. [64]

On the other hand, a governmental action that restricts freedom of speech or of the press based
on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when
the challenged act has overcome the clear and present danger rule will it pass constitutional
muster,[65]with the government having the burden of overcoming the presumed
unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be
struck down.[66]
With respect to content-based restrictions, the government must also show the type of harm the
speech sought to be restrained would bring about especially the gravity and the imminence of the
threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on
its content cannot be justified by hypothetical fears, but only by showing a substantive and
imminent evil that has taken the life of a reality already on ground.[67] As formulated, the question
in every case is whether the words used are used in such circumstances and are of such a nature
as to create aclear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree. [68]

The regulation which restricts the speech content must also serve an important or substantial
government interest, which is unrelated to the suppression of free expression. [69]

Also, the incidental restriction on speech must be no greater than what is essential to the
furtherance of that interest. [70] A restriction that is so broad that it encompasses more than what
is required to satisfy the governmental interest will be invalidated. [71] The regulation, therefore,
must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive
means undertaken. [72]

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an

intermediate review. A content-based regulation,[73]however, bears a heavy presumption of
invalidity and is measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the restrictions imposed are
neither overbroad nor vague. [74]

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected
to the clear and present danger rule, as they are content-based restrictions. The acts of
respondents focused solely on but one objecta specific content fixed as these were on the alleged
taped conversations between the President and a COMELEC official. Undoubtedly these did not
merely provide regulations as to the time, place or manner of the dissemination of speech or
expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents argument that the challenged act is valid on the ground that
broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next
explore and test the validity of this argument, insofar as it has been invoked to validate a content-
based restriction on broadcast media.

The regimes presently in place for each type of media differ from one
other. Contrasted with the regime in respect of books, newspapers, magazines and traditional
printed matter, broadcasting, film and video have been subjected to regulatory schemes.
 The dichotomy between print and broadcast media traces its origins in the United States.
There, broadcast radio and television have been held to have limited First Amendment
protection,[75] and U.S. Courts have excluded broadcast media from the application of the strict
scrutiny standard that they would otherwise apply to content-based restrictions.[76] According to
U.S. Courts, the three major reasons why broadcast media stands apart from print media are:
(a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically
limited while print medium may be limitless]; [77] (b) its pervasiveness as a medium; and (c) its
unique accessibility to children.[78] Because cases involving broadcast media need not follow
precisely the same approach that [U.S. courts] have applied to other media, nor go so far as to
demand that such regulations serve compelling government interests, [79] they are decided on
whether the governmental restriction is narrowly tailored to further a substantial
governmental interest,[80] or the intermediate test.

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation

in treatment between broadcast and print media.Nevertheless, a review of Philippine case law
on broadcast media will show thatas we have deviated with the American conception of the
Bill of Rights[81] we likewise did not adopt en masse the U.S. conception of free speech as it
relates to broadcast media, particularly as to which test would govern content-based prior
restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment,
in the main, is in the regulatory scheme applied to broadcast media that is not imposed on
traditional print media, and narrowly confined to unprotected speech (e.g., obscenity,
pornography, seditious and inciting speech), or is based on a compelling government interest that
also has constitutional protection, such as national security or the electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected to, the
Court has consistently held that the clear and present danger test applies to content-based
restrictions on media, without making a distinction as to traditional print or broadcast media.

The distinction between broadcast and traditional print media was first enunciated in Eastern
Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that [a]ll forms of media,
whether print or broadcast, are entitled to the broad protection of the freedom of speech and
expression clause. The test for limitations on freedom of expression continues to be the clear and
present danger rule[83]

Dans was a case filed to compel the reopening of a radio station which had been summarily
closed on grounds of national security. Although the issue had become moot and academic
because the owners were no longer interested to reopen, the Court still proceeded to do an analysis
of the case and made formulations to serve as guidelines for all inferior courts and bodies
exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what
needs be considered in cases involving broadcast media. Thus:[84]

xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of
the freedom of speech and expression clause. The test for limitations on freedom
of expression continues to be the clear and present danger rule, that words are
used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that the lawmaker has a right
to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief
Justice Enrique M. Fernando cites at least nine of our decisions which apply the test.
More recently, the clear and present danger test was applied in J.B.L. Reyes in
behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger
test, however, does not lend itself to a simplistic and all embracing interpretation
applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated among
qualified users. A broadcast corporation cannot simply appropriate a certain
frequency without regard for government regulation or for the rights of others.
All forms of communication are entitled to the broad protection of the freedom of
expression clause. Necessarily, however, the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper
and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and indecent
regular radio program, explained why radio broadcasting, more than other forms of
communications, receives the most limited protection from the free expression
clause. First, broadcast media have established a uniquely pervasive presence in the
lives of all citizens, Material presented over the airwaves confronts the citizen, not
only in public, but in the privacy of his home. Second, broadcasting is uniquely
accessible to children. Bookstores and motion picture theaters may be prohibited
from making certain material available to children, but the same selectivity cannot
be done in radio or television, where the listener or viewer is constantly tuning in
and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the
lives of all Filipinos. Newspapers and current books are found only in metropolitan
areas and in the poblaciones of municipalities accessible to fast and regular
transportation. Even here, there are low income masses who find the cost of books,
newspapers, and magazines beyond their humble means. Basic needs like food and
shelter perforce enjoy high priorities.
 On the other hand, the transistor radio is found everywhere. The television set is
also becoming universal. Their message may be simultaneously received by a
national or regional audience of listeners including the indifferent or unwilling who
happen to be within reach of a blaring radio or television set. The materials
broadcast over the airwaves reach every person of every age, persons of varying
susceptibilities to persuasion, persons of different I.Q.s and mental capabilities,
persons whose reactions to inflammatory or offensive speech would be difficult to
monitor or predict. The impact of the vibrant speech is forceful and immediate.
Unlike readers of the printed work, the radio audience has lesser opportunity to
cogitate analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular circumstances of
broadcast media into account. The supervision of radio stations-whether by
government or through self-regulation by the industry itself calls for thoughtful,
intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the
listeners to violently overthrow it. Radio and television may not be used to organize
a rebellion or to signal the start of widespread uprising. At the same time, the people
have a right to be informed. Radio and television would have little reason for
existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining
utterances. Since they are the most convenient and popular means of disseminating
varying views on public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a representative
democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was
already stressing that.
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a clear conscience.
A public officer must not be too thin-skinned with reference to comment upon his
official acts. Only thus can the intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of media by the due
process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence
to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to
children), but only after categorically declaring that the test for limitations on freedom of
expression continues to be the clear and present danger rule, for all forms of media, whether
print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the
differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise
deemed as unprotected speech (e.g., obscenity, national security, seditious and inciting speech),
or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast
frequencies, which is absent in print media. Thus, when this Court declared in Dans that the
freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to
newspaper and print media, it was not as to what test should be applied, but the context by which
requirements of licensing, allocation of airwaves, and application of norms to unprotected
speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that
the test to determine free expression challenges was the clear and present danger, again without
distinguishing the media.[87] Katigbak, strictly speaking, does not treat of broadcast media but
motion pictures. Although the issue involved obscenity standards as applied to movies, [88] the
Court concluded its decision with the following obiter dictumthat a less liberal approach would
be used to resolve obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court that where
television is concerned, a less liberal approach calls for observance. This is so
because unlike motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely be among the
avid viewers of the programs therein shown..It cannot be denied though that the
State as parens patriae is called upon to manifest an attitude of caring for the
welfare of the young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the
results by a broadcast company, we reiterated that the clear and present danger rule is the test we
unquestionably adhere to issues that involve freedoms of speech and of the press. [89]

This is not to suggest, however, that the clear and present danger rule has been applied to
all cases that involve the broadcast media. The rule applies to all media, including broadcast,
but only when the challenged act is a content-based regulation that infringes on free speech,
expression and the press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast
media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of
time and manner of advertising of political advertisements because the challenged restriction was
content-neutral.[91] And in a case involving due process and equal protection issues, the Court
in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC [92] treated a
restriction imposed on a broadcast media as a reasonable condition for the grant of the medias
franchise, without going into which test would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also in
other jurisdictions, where the statutory regimes in place over broadcast media include elements
of licensing, regulation by administrative bodies, and censorship. As explained by a British
author:

The reasons behind treating broadcast and films differently from the print media
differ in a number of respects, but have a common historical basis. The stricter
 system of controls seems to have been adopted in answer to the view that owing to
their particular impact on audiences, films, videos and broadcasting require a
system of prior restraints, whereas it is now accepted that books and other printed
media do not. These media are viewed as beneficial to the public in a number of
respects, but are also seen as possible sources of harm.[93]

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of
frequencies was thought to provide a rationale. However, cable and satellite television have
enormously increased the number of actual and potential channels. Digital technology will
further increase the number of channels available. But still, the argument persists that
broadcasting is the most influential means of communication, since it comes into the home, and
so much time is spent watching television. Since it has a unique impact on people and affects
children in a way that the print media normally does not, that regulation is said to be necessary in
order to preserve pluralism. It has been argued further that a significant main threat to free
expressionin terms of diversitycomes not from government, but from private corporate
bodies. These developments show a need for a reexamination of the traditional notions of the
scope and extent of broadcast media regulation. [94]

The emergence of digital technology -- which has led to the convergence of broadcasting,
telecommunications and the computer industry -- has likewise led to the question of whether the
regulatory model for broadcasting will continue to be appropriate in the converged
environment.[95]Internet, for example, remains largely unregulated, yet the Internet and the
broadcast media share similarities, [96] and the rationales used to support broadcast regulation
apply equally to the Internet.[97] Thus, it has been argued that courts, legislative bodies and the
government agencies regulating media must agree to regulate both, regulate neither or develop a
new regulatory framework and rationale to justify the differential treatment. [98]

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go
to its application to the case at bar. To
recapitulate, agovernmental action that restricts freedom of speech
or of the press based on content is given the strictest
scrutiny, with the government having the burden of overcoming the
presumed unconstitutionality by the clear and present danger rule. This rule applies equally
to all kinds of media, including broadcast media.
This outlines the procedural map to follow in cases like the one at bar as it spells out the
following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the
burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar,
respondents who have the burden to show that these acts do not abridge freedom of speech and
of the press failed to hurdle the clear and present danger test. It appears that the great evil which
government wants to prevent is the airing of a tape recording in alleged violation of the anti-
wiretapping law. The records of the case at bar, however, are confused and confusing, and
respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various
statements of the Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, 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.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom
of speech and of the press. Our laws are of different kinds and doubtless, some of them provide
norms of conduct which even if violated have only an adverse effect on a persons private comfort
but does not endanger national security. There are laws of great significance but their
violation, by itself and without more, cannot support suppression of free speech and free press.
In fine, violation of law is just a factor, a vital one to be sure, which should be
weighed in adjudging whether to restrainfreedom of speech and of the press. The totality of the
injurious effects of the violation to private and public interest must be calibrated in light of the
preferred status accorded by the Constitution and by related international covenants protecting
freedom of speech and of the press. In calling for a careful and calibrated measurement of the
circumference of all these factors to determine compliance with the clear and present danger
test, the Court should not be misinterpreted as devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the State for they breed their own
evil consequence. But to repeat, the need to prevent their violation cannot per se trump the
exercise of free speech and free press, a preferred right whose breach can lead to greater
evils. 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.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether
the mere press statements of the Secretary of Justice and of the NTC in question constitute a
form of content-based prior restraint that has transgressed the Constitution. In
resolving this issue, we hold that it is not decisive that the press statements made by
respondents were not reduced in or followed up with formal orders or circulars. It is
sufficient that the press statements were made by respondents while in the exercise of their
official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of
Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such
as a speech uttered, for and on behalf of the government in an official capacity is covered
by the rule on prior restraint. The concept of an act does not limit itself to acts already
converted to a formal order or official circular. Otherwise, the non formalization of an act
into an official order or circular will result in the easy circumvention of the prohibition on
prior restraint. The press statements at bar are acts that should be struck down as they constitute
impermissible forms of prior restraints on the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on

record. The warnings given to media came from no less the NTC, a regulatory agency that can
cancel the Certificate of Authority of the radio and broadcast media. They also came from the
Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute
those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably
joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner
Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on
the sidelines on the part of some media practitioners is too deafening to be the subject of
misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be
exercised with care and in light of the distinct facts of each case. For there are no hard and fast
rules when it comes to slippery constitutional questions, and the limits and construct of relative
freedoms are never set in stone. Issues revolving on their construct must be decided on a case to
case basis, always based on the peculiar shapes and shadows of each case.But in cases where the
challenged acts are patent invasions of a constitutionally protected right, we should be swift in
striking them down as nullities per se. A blow too soon struck for freedom is preferred than a
blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are
hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005
warning the media on airing the alleged wiretapped conversation between the President and other
personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech
and of the press

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

ELISEO F. SORIANO, G.R. No. 164785

Petitioner,
Present:
- versus -
PUNO, C.J.,
MA. CONSOLIZA P. LAGUARDIA, in
QUISUMBING,
her capacity as Chairperson of the
YNARES-SANTIAGO,
Movie and Television Review and
CARPIO,
Classification Board, MOVIE AND
AUSTRIA-MARTINEZ,
TELEVISION REVIEW AND
CORONA,
CLASSIFICATION BOARD, JESSIE L.
CARPIO MORALES,
GALAPON, ANABEL M. DELA CRUZ,
TINGA,
MANUEL M. HERNANDEZ, JOSE L.
CHICO-NAZARIO,
LOPEZ, CRISANTO SORIANO,
VELASCO, JR.,
BERNABE S. YARIA, JR., MICHAEL M.
NACHURA,
SANDOVAL, and ROLDAN A.
LEONARDO-DE CASTRO,
GAVINO,
BRION,
Respondents.
PERALTA, and
x-------------------------------------------x
BERSAMIN, JJ.
ELISEO F. SORIANO,
Petitioner,
G.R. No. 165636
- versus -

MOVIE AND TELEVISION REVIEW

AND CLASSIFICATION BOARD,
ZOSIMO G. ALEGRE, JACKIE AQUINO-
GAVINO,NOEL R. DEL PRADO,
EMMANUEL BORLAZA, JOSE E.
ROMERO IV, and FLORIMONDO C.
ROUS, in their capacity as members
of the Hearing and Adjudication
Committee of the MTRCB, JESSIE L.
GALAPON, ANABEL M. DELA CRUZ,
MANUEL M. HERNANDEZ, JOSE L.
LOPEZ, CRISANTO SORIANO,
BERNABE S. YARIA, JR., MICHAEL M.
SANDOVAL, and ROLDAN A.
GAVINO, in their capacity as
complainants before
the MTRCB,
Respondents.

Promulgated:

April 29, 2009

x-----------------------------------------------------------------------------------------x

DECISION
VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F.
Soriano seeks to nullify and set aside an order and a decision of the Movie and Television Review
and Classification Board (MTRCB) in connection with certain utterances he made in his television
show, Ang Dating Daan.

Facts of the Case

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.[1]x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints
were lodged by Jessie L. Galapon and seven other private respondents, all members of the
Iglesia ni Cristo (INC),[2] against petitioner in connection with the above broadcast. Respondent
Michael M. Sandoval, who felt directly alluded to in petitioners remark, was then a minister of
INC and a regular host of the TV program Ang Tamang Daan.[3] Forthwith, the MTRCB sent
petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss
words in the August 10, 2004 episode of Ang Dating Daan.[4]
 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.[5] The same order also set the case for
preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order,
praying that Chairperson Consoliza P. Laguardia and two other members of the adjudication
board recuse themselves from hearing the case.[6] Two days after, however, petitioner sought
to withdraw[7] his motion for reconsideration, followed by the filing with this Court of a petition
for certiorari and prohibition,[8] docketed as G.R. No. 164785, to nullify the preventive
suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing
as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding

respondent Soriano liable for his utterances and thereby imposing on him a penalty of
three (3) months suspension from his program, Ang Dating Daan.

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its
owner, PBC, are hereby exonerated for lack of evidence.

SO ORDERED.[9]

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive
relief, docketed as G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No.
165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB]

DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x
x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE
ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.[10]

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED

WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION
AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE
SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;

II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION
UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL
ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE
DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR
THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR],
RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E.
DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH [11]
 G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of
preventive suspension, although its implementability had already been overtaken and veritably
been rendered moot by the equally assailed September 27, 2004 decision.

It is petitioners threshold posture that the preventive suspension imposed against him
and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly
authorize the MTRCB to issue preventive suspension.

Petitioners contention is untenable.

Administrative agencies have powers and functions which may be administrative,

investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be
conferred by the Constitution or by statute.[12] They have in fine only such powers or authority
as are granted or delegated, expressly or impliedly, by law.[13] And in determining whether an
agency has certain powers, the inquiry should be from the law itself. But once ascertained as
existing, the authority given should be liberally construed.[14]

A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the
agency of the authority, albeit impliedly, to issue the challenged order of preventive suspension.
And this authority stems naturally from, and is necessary for the exercise of, its power of
regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.The BOARD shall have the following functions,
powers and duties:
xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the

x x x production, x x x exhibition and/or television broadcast of the motion pictures,
television programs and publicity materials subject of the preceding paragraph, which,
in the judgment of the board applying contemporary Filipino cultural values as
standard, are objectionable for being immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines or its people, or
with a dangerous tendency to encourage the commission of violence or of wrong or
crime such as but not limited to:

xxxx
 vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;
xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production,
copying, distribution, sale, lease, exhibition, and/or television broadcastof all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced,
distributed, sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the

attainment of the purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCBs
authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as
quoted above, which empowers the MTRCB to supervise, regulate, and grant, deny or cancel,
permits for the x x x exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures, programs and materials as
are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall
be x x x exhibited and/or broadcast by television.

Surely, the power to issue preventive suspension forms part of the MTRCBs express
regulatory and supervisory statutory mandate and its investigatory and disciplinary authority
subsumed in or implied from such mandate. Any other construal would render its power to
regulate, supervise, or discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a

preliminary step in an administrative investigation.[15] And the power to discipline and impose
penalties, if granted, carries with it the power to investigate administrative complaints and,
during such investigation, to preventively suspend the person subject of the complaint. [16]

To reiterate, preventive suspension authority of the MTRCB springs from its powers
conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to
impose preventive suspension through the medium of the IRR of PD 1986. It is true that the
matter of imposing preventive suspension is embodied only in the IRR of PD 1986. Sec. 3,
Chapter XIII of the IRR provides:
 Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the
case, and in order to prevent or stop further violations or for the interest and welfare
of the public, the Chairman of the Board may issue a Preventive Suspension Order
mandating the preventive x x x suspension of the permit/permits involved, and/or
closure of the x x x television network, cable TV station x x x provided that the
temporary/preventive order thus issued shall have a life of not more than twenty (20)
days from the date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without more,
would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension.
Recall that the MTRCB is expressly empowered by statute to regulate and supervise television
programs to obviate the exhibition or broadcast of, among others, indecent or immoral
materials and to impose sanctions for violations and, corollarily, to prevent further violations as
it investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the IRR neither
amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the
assailed preventive suspension, outrun its authority under the law. Far from it. The preventive
suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the
MTRCBs duty of regulating or supervising television programs, pending a determination of
whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of
the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize
the MTRCBs assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB to
functions within the literal confines of the law, would give the agency little leeway to operate,
stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a
wide room for flexibility in its operation. Sec. 3(k), we reiterate, provides, To exercise such
powers and functions as may be necessary or incidental to the attainment of the purposes and
objectives of this Act x x x.Indeed, the power to impose preventive suspension is one of the
implied powers of MTRCB. As distinguished from express powers, implied powers are those that
can be inferred or are implicit in the wordings or conferred by necessary or fair implication of
the enabling act.[17] As we held in Angara v. Electoral Commission, when a general grant of
power is conferred or a duty enjoined, every particular power necessary for the exercise of one
or the performance of the other is also conferred by necessary implication. [18] Clearly, the power
to impose preventive suspension pending investigation is one of the implied or inherent powers
of MTRCB.

We cannot agree with petitioners assertion that the aforequoted IRR provision on
preventive suspension is applicable only to motion pictures and publicity materials. The scope
of the MTRCBs authority extends beyond motion pictures. What the acronym MTRCB stands for
would suggest as much. And while the law makes specific reference to the closure of a television
network, the suspension of a television program is a far less punitive measure that can be
undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB
would regretfully be rendered ineffective should it be subject to the restrictions petitioner
envisages.

Just as untenable is petitioners argument on the nullity of the preventive suspension

order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed order
after petitioner, in response to a written notice, appeared before that Board for a hearing on
private respondents complaint. No less than petitioner admitted that the order was issued after
the adjournment of the hearing,[19] proving that he had already appeared before the MTRCB.
Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue [a]ny time
during the pendency of the case. In this particular case, it was done after MTRCB duly apprised
petitioner of his having possibly violated PD 1986[20] and of administrative complaints that had
been filed against him for such violation.[21]

At any event, that preventive suspension can validly be meted out even without a
hearing.[22]
Petitioner next faults the MTRCB for denying him his right to the equal protection of the
law, arguing that, owing to the preventive suspension order, he was unable to answer the
criticisms coming from the INC ministers.

Petitioners position does not persuade. The equal protection clause demands that all
persons subject to legislation should be treated alike, under like circumstances and conditions
both in the privileges conferred and liabilities imposed. [23] It guards against undue favor and
individual privilege as well as hostile discrimination.[24] Surely, petitioner cannot, under the
premises, place himself in the same shoes as the INC ministers, who, for one, are not facing
administrative complaints before the MTRCB. For another, he offers no proof that the said
ministers, in their TV programs, use language similar to that which he used in his own,
necessitating the MTRCBs disciplinary action. If the immediate result of the preventive
suspension order is that petitioner remains temporarily gagged and is unable to answer his
critics, this does not become a deprivation of the equal protection guarantee. The Court need
not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one
hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview
of this case, simply too different to even consider whether or not there is a prima
facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered
was religious speech, adding that words like putang babaewere said in exercise of his religious
freedom.

The argument has no merit.

 The Court is at a loss to understand how petitioners utterances in question can come
within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section
reads as follows:

No law shall be made respecting the establishment of a religion, or prohibiting

the free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.

There is nothing in petitioners statements subject of the complaints expressing any

particular religious belief, nothing furthering his avowed evangelical mission. The fact that he
came out with his statements in a televised bible exposition program does not automatically
accord them the character of a religious discourse. Plain and simple insults directed at another
person cannot be elevated to the status of religious speech. Even petitioners attempts to place
his words in context show that he was moved by anger and the need to seek retribution, not by
any religious conviction.His claim, assuming its veracity, that some INC ministers distorted his
statements respecting amounts Ang Dating Daan owed to a TV station does not convert the foul
language used in retaliation as religious speech. We cannot accept that petitioner made his
statements in defense of his reputation and religion, as they constitute no intelligible defense
or refutation of the alleged lies being spread by a rival religious group. They simply illustrate
that petitioner had descended to the level of name-calling and foul-language discourse.
Petitioner could have chosen to contradict and disprove his detractors, but opted for the low
road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day
preventive suspension order, being, as insisted, an unconstitutional abridgement of the
freedom of speech and expression and an impermissible prior restraint. The main issue
tendered respecting the adverted violation and the arguments holding such issue dovetails with
those challenging the three-month suspension imposed under the assailed September 27, 2004
MTRCB decision subject of review under G.R. No. 165636. Both overlapping issues and
arguments shall be jointly addressed.

G.R. No. 165636

Petitioner urges 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, which reads:
 No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional
for reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general
concepts and principles underlying the freedom of speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion

pictures come within the broad protection of the free speech and expression clause. [25] Each
method though, because of its dissimilar presence in the lives of people and accessibility to
children, tends to present its own problems in the area of free speech protection,
with broadcast media, of all forms of communication, enjoying a lesser degree of
protection.[26]Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g.,
judicial injunction against publication or threat of cancellation of license/franchise, or
subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt
proceedings, are anathema to the freedom of expression. Prior restraint means official
government restrictions on the press or other forms of expression in advance of actual
publication or dissemination.[27] The freedom of expression, as with the other freedoms encased
in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve
important public interests, some forms of speech not being protected. As has been held, the
limits of the freedom of expression are reached when the expression touches upon matters of
essentially private concern.[28] In the oft-quoted expression of Justice Holmes, the constitutional
guarantee obviously was not intended to give immunity for every possible use of
language.[29] From Lucas v. Royo comes this line: [T]he freedom to express ones sentiments and
belief does not grant one the license to vilify in public the honor and integrity of another. Any
sentiments must be expressed within the proper forum and with proper regard for the rights of
others.[30]

Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain well-
defined and narrowly limited classes of speech that are harmful, the prevention and punishment
of which has never been thought to raise any Constitutional problems. In net effect, some forms
of speech are not protected by the Constitution, meaning that restrictions on unprotected
speech may be decreed without running afoul of the freedom of speech clause. [32] A speech
would fall under the unprotected type if the utterances involved are no essential part of any
exposition of ideas, and are of such slight social value as a step of truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order and
morality.[33] Being of little or no value, there is, in dealing with or regulating them, no imperative
call for the application of the clear and present danger rule or the balancing-of-interest test,
they being essentially modes of weighing competing values,[34] or, with like effect, determining
which of the clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. 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.

The Court finds that petitioners statement can be treated as obscene, at least with respect
to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of
Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply
to all cases, but nonetheless stated the ensuing observations on the matter:

There is no perfect definition of obscenity but the latest word is that of Miller
v. California which established basic guidelines, to wit: (a) whether to the average
person, applying contemporary standards would find 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. But, it would be a serious misreading of Miller to conclude that the
trier of facts has the unbridled discretion in determining what is patently offensive. x
x x What remains clear is that obscenity is an issue proper for judicial determination
and should be treated on a case to case basis and on the judges sound discretion. [35]

Following the contextual lessons of the cited case of Miller v. California,[36] a patently
offensive utterance would come within the pale of the term obscenity should it appeal to the
prurient interest of an average listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the case reveal
that to an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x
x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana
ang itaas, o di ba! may not constitute obscene but merely indecent utterances. They can be
viewed as figures of speech or merely a play on words. In the context they were used, they may
not appeal to the prurient interests of an adult. The problem with the challenged statements is
that they were uttered in a TV program that is rated G or for general viewership, and in a time
slot that would likely reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken literally,
children could hardly be expected to have the same discernment. Without parental guidance,
the unbridled use of such language as that of petitioner in a television broadcast could corrupt
impressionable young minds. The term putang babae means a female prostitute, a term wholly
inappropriate for children, who could look it up in a dictionary and just get the literal meaning,
missing the context within which it was used. Petitioner further used the terms, ang gumagana
lang doon yung ibaba, making reference to the female sexual organ and how a female prostitute
uses it in her trade, then stating that Sandoval was worse than that by using his mouth in a
similar manner. Children could be motivated by curiosity and ask the meaning of what petitioner
said, also without placing the phrase in context.They may be inquisitive as to why Sandoval is
different from a female prostitute and the reasons for the dissimilarity. And upon learning the
meanings of the words used, young minds, without the guidance of an adult, may, from their
end, view this kind of indecent speech as obscene, if they take these words literally and use
them in their own speech or form their own ideas on the matter. In this particular case, where
children had the opportunity to hear petitioners words, when speaking of the average person
in the test for obscenity, we are speaking of the average child, not the average adult. The
average child may not have the adults grasp of figures of speech, and may lack the
understanding that language may be colorful, and words may convey more than the literal
meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its
function as such. In this sense, we find petitioners utterances obscene and not entitled to
protection under the umbrella of freedom of speech.

Even if we concede that petitioners 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.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different mediums
has emerged, this case is veritably one of first impression, it being the first time that indecent
speech communicated viatelevision and the applicable norm for its regulation are, in this
jurisdiction, made the focal point. Federal Communications
[37]
Commission (FCC) v. Pacifica Foundation, a 1978 American landmark case cited in Eastern
Broadcasting Corporation v. Dans, Jr.[38] and Chavez v. Gonzales,[39] is a rich source of persuasive
lessons. Foremost of these relates to indecent speech without prurient appeal component
coming under the category of protected speech depending on the context within which it was
made, irresistibly suggesting that, within a particular context, such indecent speech may validly
be categorized as unprotected, ergo, susceptible to restriction.

In FCC, seven of what were considered filthy words[40] earlier recorded in a monologue by a
satiric humorist later aired in the afternoon over a radio station owned by Pacifica Foundation.
Upon the complaint of a man who heard the pre-recorded monologue while driving with his
son, FCC declared the language used as patently offensive and indecent under a prohibiting
law, though not necessarily obscene. FCC added, however, that its declaratory order was issued
in a special factual context, referring, in gist, to an afternoon radio broadcast when children
were undoubtedly in the audience. Acting on the question of whether the FCC could regulate
the subject utterance, the US Supreme Court ruled in the affirmative, owing to two special
features of the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting
is uniquely accessible to children. The US Court, however, hastened to add that the monologue
would be protected speech in other contexts, albeit it did not expound and identify a compelling
state interest in putting FCCs content-based regulatory action under scrutiny.

The Court in Chavez[41] elucidated on the distinction between regulation or restriction of

protected speech that is content-based and that which is content-neutral. A content-based
restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint
intends to regulate the time, place, and manner of the expression under well-defined standards
tailored to serve a compelling state interest, without restraint on the message of the expression.
Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises was, in
one perspective, permissible restriction. We make this disposition 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,[42] 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 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.

A view has been advanced that unprotected speech refers only to pornography, [43] false or
misleading advertisement,[44] advocacy of imminent lawless action, and expression endangering
national security. But this list is not, as some members of the Court would submit, exclusive or
carved in stone. Without going into specifics, it may be stated without fear of contradiction
that US decisional law goes beyond the aforesaid general exceptions.As the Court has been
impelled to recognize exceptions to the rule against censorship in the past, this particular case
constitutes yet another exception, another instance of unprotected speech, created by the
necessity of protecting the welfare of our children. As unprotected speech, petitioners
utterances can be subjected to restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts
that his utterances must present a clear and present danger of bringing about a substantive evil
the State has a right and duty to prevent and such danger must be grave and imminent. [45]

Petitioners invocation of the clear and present danger doctrine, arguably the most permissive
of speech tests, would not avail him any relief, for the application of said test is uncalled for
under the premises. The doctrine, first formulated by Justice Holmes, accords protection for
utterances so that the printed or spoken words may not be subject to prior restraint or
subsequent punishment unless its expression creates a clear and present danger of bringing
about a substantial evil which the government has the power to prohibit.[46] Under the doctrine,
freedom of speech and of press is susceptible of restriction when and only when necessary to
prevent grave and immediate danger to interests which the government may lawfully
protect. As it were, said doctrine evolved in the context of prosecutions for rebellion and other
crimes involving the overthrow of government.[47] It was originally designed to determine the
latitude which should be given to speech that espouses anti-government action, or to have
serious and substantial deleterious consequences on the security and public order of the
community.[48] The clear and present danger rule has been applied to this jurisdiction. [49] As a
standard of limitation on free speech and press, however, the clear and present danger test is
not a magic incantation that wipes out all problems and does away with analysis and judgment
in the testing of the legitimacy of claims to free speech and which compels a court to release a
defendant from liability the moment the doctrine is invoked, absent proof of imminent
catastrophic disaster.[50] As we observed in Eastern Broadcasting Corporation, the clear and
present danger test does not lend itself to a simplistic and all embracing
interpretation applicable to all utterances in all forums.[51]

To be sure, the clear and present danger doctrine is not the only test which has been applied by
the courts. Generally, said doctrine is applied to cases involving the overthrow of the
government and even other evils which do not clearly undermine national security. Since not all
evils can be measured in terms of proximity and degree the Court, however, in several casesAyer
Productions v. Capulong[52] and Gonzales v. COMELEC,[53] applied the balancing of interests
test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate
Opinion that where the legislation under constitutional attack interferes with the freedom of
speech and assembly in a more generalized way and where the effect of the speech and
assembly in terms of the probability of realization of a specific danger is not susceptible even of
impressionistic calculation,[54] then the balancing of interests test can be applied.

The Court explained also in Gonzales v. COMELEC the balancing of interests test:
When particular conduct is regulated in the interest of public order, and the
regulation results in an indirect, conditional, partial abridgment of speech, the duty
of the courts is to determine which of the two conflicting interests demands the
greater protection under the particular circumstances presented. x x x We must,
therefore, undertake the delicate and difficult task x x x to weigh the circumstances
and to appraise the substantiality of the reasons advanced in support of the
regulation of the free enjoyment of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social

values and individual interests competing for ascendancy in legislation which
restricts expression, the court in Douds laid the basis for what has been called the
balancing-of-interests test which has found application in more recent decisions of
the U.S. Supreme Court. Briefly stated, the balancing test requires a court to take
conscious and detailed consideration of the interplay of interests observable in a
given situation or type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional

power restricting the individuals freedom, and the social importance and value of
the freedom so restricted, are to be judged in the concrete, not on the basis of
abstractions, a wide range of factors are necessarily relevant in ascertaining the
point or line of equilibrium. Among these are (a) the social value and importance
of the specific aspect of the particular freedom restricted by the legislation; (b) the
specific thrust of the restriction, i.e., whether the restriction is direct or indirect,
whether or not the persons affected are few; (c) the value and importance of the
public interest sought to be secured by the legislationthe reference here is to the
nature and gravity of the evil which Congress seeks to prevent; (d) whether the
specific restriction decreed by Congress is reasonably appropriate and necessary
for the protection of such public interest; and (e) whether the necessary
safeguarding of the public interest involved may be achieved by some other
measure less restrictive of the protected freedom.[55]

This balancing of interest test, to borrow from Professor Kauper,[56] rests on the theory that it is
the courts function in a case before it when it finds public interests served by legislation, on the
one hand, and the free expression clause affected by it, on the other, to balance one against the
other and arrive at a judgment where the greater weight shall be placed. If, on balance, it
appears that the public interest served by restrictive legislation is of such nature that it
outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the
balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not
even those stated in the free speech and expression clause, and that they may be abridged to
some extent to serve appropriate and important interests. [57] To the mind of the Court, the
balancing of interest doctrine is the more appropriate test to follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-month
suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by
petitioner of his enjoyment of his freedom of speech is ranged against the duty of the
government to protect and promote the development and welfare of the youth.

After a careful examination of the factual milieu and the arguments raised by petitioner in
support of his claim to free speech, the Court rules that the governments interest to protect and
promote the interests and welfare of the children adequately buttresses the reasonable
curtailment and valid restraint on petitioners prayer to continue as program host of Ang Dating
Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is the
freedom of speech or expression, for without the enjoyment of such right, a free, stable,
effective, and progressive democratic state would be difficult to attain. Arrayed against the
freedom of speech is the right of the youth to their moral, spiritual, intellectual, and social being
which the State is constitutionally tasked to promote and protect. Moreover, the State is also
mandated to recognize and support the vital role of the youth in nation building as laid down in
Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the State
to provide protection to the youth against illegal or improper activities which may prejudice
their general well-being. The Article on youth, approved on second reading by the Constitutional
Commission, explained that the State shall extend social protection to minors against all forms
of neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or
other forms of discrimination.[58]

Indisputably, the State has a compelling interest in extending social protection to minors against
all forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a
compelling interest in helping parents, through regulatory mechanisms, protect their childrens
minds from exposure to undesirable materials and corrupting experiences. The Constitution, no
less, in fact enjoins the State, as earlier indicated, to promote and protect the physical, moral,
spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their role
in the field of nation-building.[59] In the same way, the State is mandated to support parents in
the rearing of the youth for civic efficiency and the development of moral character. [60]

Petitioners 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,[61] constitute a substantial and compelling
government interest in regulating petitioners utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the children who,
because of age or interest capacity, are susceptible of being corrupted or prejudiced by
offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to

read. Although Cohens written message, [Fuck the Draft], might have been
incomprehensible to a first grader, Pacificas broadcast could have enlarged a childs
vocabulary in an instant. Other forms of offensive expression may be withheld from
the young without restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent material
available to children. We held in Ginsberg v. New York that the governments interest
in the well-being of its youth and in supporting parents claim to authority in their own
household justified the regulation of otherwise protected expression. The ease with
which children may obtain access to broadcast material, coupled with the concerns
recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the
welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less liberal
approach calls for observance. This is so because unlike motion pictures where the
patrons have to pay their way, television reaches every home where there is a
set. Children then will likely will be among the avid viewers of the programs therein
shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly
the concern of the law to deal with the sexual fantasies of the adult population. It
cannot be denied though that the State as parens patriae is called upon to manifest
an attitude of caring for the welfare of the young.[62]

The compelling need to protect the young impels us to sustain the regulatory action MTRCB
took in the narrow confines of the case. To reiterate, FCCjustified the restraint on the TV
broadcast grounded on the following considerations: (1) the use of television with its unique
accessibility to children, as a medium of broadcast of a patently offensive speech; (2) the time
of broadcast; and (3) the G rating of the Ang Dating Daan program. And in agreeing with MTRCB,
the court takes stock of and cites with approval the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding.

This case does not involve a two-way radio conversation between a cab driver and a
dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an
occasional expletive in either setting would justify any sanction. x x x The [FFCs]
decision rested entirely on a nuisance rationale under which context is all important.
The concept requires consideration of a host of variables. The time of day was
emphasized by the [FFC]. The content of the program in which the language is used
will affect the composition of the audience x x x. As Mr. Justice Sutherland wrote a
nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead
of the barnyard. We simply hold that when the [FCC] finds that a pig has entered the
parlor, the exercise of its regulatory power does not depend on proof that the pig is
obscene. (Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time
television are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986
proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of
speech that the State has the inherent prerogative, nay duty, to regulate and prevent should
such action served and further compelling state interests. One who utters indecent, insulting,
or offensive words on television when unsuspecting children are in the audience is, in the
graphic language of FCC, a pig in the parlor. Public interest would be served if the pig is
reasonably restrained or even removed from the parlor.

Ergo, petitioners offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent
punishment that, however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene language
in Ang Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are
movies, television, and radio broadcast censorship in view of its access to numerous people,
including the young who must be insulated from the prejudicial effects of unprotected
speech. PD 1986 was passed creating the Board of Review for Motion Pictures and Television
(now MTRCB) and which requires prior permit or license before showing a motion picture or
broadcasting a TV program. The Board can classify movies and television programs and can
cancel permits for exhibition of films or television broadcast.

The power of MTRCB to regulate and even impose some prior restraint on radio and television
shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking
through Chief Justice Reynato S. Puno, the Court wrote:

We thus reject petitioners postulate that its religious program is per se beyond review
by the respondent Board. Its public broadcast on TV of its religious program brings it
out of the bosom of internal belief. Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that the exercise of religious freedom
can be regulated by the State when it will bring about the clear and present danger of
some substantive evil which the State is duty bound to prevent, i.e., serious detriment
to the more overriding interest of public health, public morals, or public welfare. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986]
is unconstitutional for Congress to grant an administrative body quasi-judicial power
to preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:

The use of the mails by private persons is in the nature of a privilege

which can be regulated in order to avoid its abuse. Persons possess no absolute
right to put into the mail anything they please, regardless of its character. [63]

Bernas adds:

Under the decree a movie classification board is made the arbiter of what
movies and television programs or parts of either are fit for public consumption.It
decides what movies are immoral, indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the Philippines or its people, and what tend
to incite subversion, insurrection, rebellion or sedition, or tend to undermine the faith
and confidence of the people in their government and/or duly constituted authorities,
etc. Moreover, its decisions are executory unless stopped by a court.[64]

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the power of
review and prior approval of MTRCB extends to all television programs and is valid despite the
freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated
by the MTRCB since they are required to get a permit before they air their television
programs. Consequently, their right to enjoy their freedom of speech is subject to that
requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through
the MTRCB became a necessary evil with the government taking the role of assigning bandwidth
to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise,
chaos would result in the television broadcast industry as competing broadcasters will interfere
or co-opt each others signals. In this scheme, station owners and broadcasters in effect waived
their right to the full enjoyment of their right to freedom of speech in radio and television
programs and impliedly agreed that said right may be subject to prior restraintdenial of permit
or subsequent punishment, like suspension or cancellation of permit, among others.

The three (3) months suspension in this case is not a prior restraint on the right of petitioner to
continue with the broadcast of Ang Dating Daan as a permit was already issued to him by
MTRCB for such broadcast. Rather, the suspension is in the form of permissible administrative
sanction or subsequent punishment for the offensive and obscene remarks he uttered on the
evening of August 10, 2004 in his television program, Ang Dating Daan. It is a sanction that the
MTRCB may validly impose under its charter without running afoul of the free speech
clause. And the imposition is separate and distinct from the criminal action the Board may take
pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the aggrieved private
party under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of
sanctions on broadcasters who indulge in profane or indecent broadcasting does not constitute
forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for petitioners
exercise of his freedom of speech via television, but for the indecent contents of his utterances
in a G rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his
freedom of speech to regulation under PD 1986 and its IRR as television station owners, program
producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast
industry.
Neither can petitioners virtual inability to speak in his program during the period of suspension
be plausibly treated as prior restraint on future speech.For viewed in its proper perspective, the
suspension is in the nature of an intermediate penalty for uttering an unprotected form of
speech. It is definitely a lesser punishment than the permissible cancellation of exhibition or
broadcast permit or license. In fine, the suspension meted was simply part of the duties of the
MTRCB in the enforcement and administration of the law which it is tasked to
implement. Viewed in its proper context, the suspension sought to penalize past speech made
on prime-time G rated TV program; it does not bar future speech of petitioner in other television
programs; it is a permissible subsequent administrative sanction; it should not be confused with
a prior restraint on speech. While not on all fours, the Court, in MTRCB,[66] sustained the power
of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode
without Board authorization in violation of Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority
were it to regulate and even restrain the prime-time television broadcast of indecent or obscene
speech in a G rated program is not acceptable. As made clear in Eastern Broadcasting
Corporation, the freedom of television and radio broadcasting is somewhat lesser in scope than
the freedom accorded to newspaper and print media. The MTRCB, as a regulatory agency, must
have the wherewithal to enforce its mandate, which would not be effective if its punitive actions
would be limited to mere fines. Television broadcasts should be subject to some form of
regulation, considering the ease with which they can be accessed, and violations of the
regulations must be met with appropriate and proportional disciplinary action. The suspension
of a violating television program would be a sufficient punishment and serve as a deterrent for
those responsible. The prevention of the broadcast of petitioners television program is justified,
and does not constitute prohibited prior restraint. It behooves the Court to respond to the
needs of the changing times, and craft jurisprudence to reflect these times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very
law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his
freedom of religion. The Court has earlier adequately explained why petitioners undue reliance
on the religious freedom cannot lend justification, let alone an exempting dimension to his
licentious utterances in his program. The Court sees no need to address anew the repetitive
arguments on religious freedom. As earlier discussed in the disposition of the petition in G.R.
No. 164785, what was uttered was in no way a religious speech. Parenthetically, petitioners
attempt to characterize his speech as a legitimate defense of his religion fails miserably. He tries
to place his words in perspective, arguing evidently as an afterthought that this was his method
of refuting the alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But
on the night he uttered them in his television program, the word simply came out as profane
language, without any warning or guidance for undiscerning ears.

As to petitioners other argument about having been denied due process and equal protection
of the law, suffice it to state that we have at length debunked similar arguments in G.R. No.
164785. There is no need to further delve into the fact that petitioner was afforded due process
when he attended the hearing of the MTRCB, and that he was unable to demonstrate that he
was unjustly discriminated against in the MTRCB proceedings.

Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986
does not provide for the range of imposable penalties that may be applied with respect to
violations of the provisions of the law.

The argument is without merit.

 In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power
in the following wise:

It is a fundamental principle flowing from the doctrine of separation of powers

that Congress may not delegate its legislative power to the two other branches of the
government, subject to the exception that local governments may over local affairs
participate in its exercise. What cannot be delegated is the authority under the
Constitution to make laws and to alter and repeal them; the test is the completeness
of the statute in all its term and provisions when it leaves the hands of the
legislature. To determine whether or not there is an undue delegation of legislative
power, the inquiry must be directed to the scope and definiteness of the measure
enacted. The legislature does not abdicate its functions when it describes what job
must be done, who is to do it, and what is the scope of his authority. For a complex
economy, that may indeed be the only way in which the legislative process can go
forward. A distinction has rightfully been made between delegation of power to make
laws which necessarily involves a discretion as to what it shall be, which
constitutionally may not be done, and delegation of authority or discretion as to its
execution to be exercised under and in pursuance of the law, to which no valid
objection can be made. The Constitution is thus not to be regarded as denying the
legislature the necessary resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a standard, which

implies at the very least that the legislature itself determines matters of principle and
lays down fundamental policy. Otherwise, the charge of complete abdication may be
hard to repel. A standard thus defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances
under which the legislative command is to be effected. It is the criterion by which
legislative purpose may be carried out. Thereafter, the executive or administrative
office designated may in pursuance of the above guidelines promulgate supplemental
rules and regulations.[67]

Based on the foregoing pronouncements and analyzing the law in question, petitioners
protestation about undue delegation of legislative power for the sole reason that PD 1986 does
not provide for a range of penalties for violation of the law is untenable. His thesis is that
MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of
the provisions of the decree, went beyond the terms of the law.

Petitioners posture is flawed by the erroneous assumptions holding it together, the first
assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB
to impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by
express and direct conferment of power and functions, is charged with supervising and
regulating, granting, denying, or canceling permits for the exhibition and/or television broadcast
of all motion pictures, television programs, and publicity materials to the end that no such
objectionable pictures, programs, and materials shall be exhibited and/or broadcast by
television. Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB to
exercise such powers and functions as may be necessary or incidental to the attainment of the
purpose and objectives of [the law]. As earlier explained, the investiture of supervisory,
regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with it
the power to penalize the supervised or the regulated as may be proportionate to the offense
committed, charged, and proved. As the Court said in Chavez v. National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every

particular power necessary for the exercise of the one or the performance of the other
is also conferred. x x x [W]hen the statute does not specify the particular method to
be followed or used by a government agency in the exercise of the power vested in it
by law, said agency has the authority to adopt any reasonable method to carry out its
function.[68]

Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate
and supervise the exhibition of TV programs carries with it or necessarily implies the authority
to take effective punitive action for violation of the law sought to be enforced. And would it not
be logical too to say that the power to deny or cancel a permit for the exhibition of a TV program
or broadcast necessarily includes the lesser power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference,
provides that agency with the power [to] promulgate such rules and regulations as are necessary
or proper for the implementation of this Act, and the accomplishment of its purposes and
objectives x x x. And Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to
the immediate filing of the appropriate criminal action and the immediate seizure of
the pertinent articles pursuant to Section 13, any violation of PD 1986 and its
Implementing Rules and Regulations governing motion pictures, television
programs, and related promotional materials shall be penalized with suspension or
cancellation of permits and/or licenses issued by the Board and/or with the
imposition of fines and other administrative penalty/penalties. The Board recognizes
the existing Table of Administrative Penalties attached without prejudice to the power
of the Board to amend it when the need arises. In the meantime the existing revised
Table of Administrative Penalties shall be enforced. (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the aforequoted
provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the
mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative
legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ
such means as it can as a guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the
standards to be applied to determine whether there have been statutory breaches. The MTRCB
may evaluate motion pictures, television programs, and publicity materials applying
contemporary Filipino cultural values as standard, and, from there, determine whether these
audio and video materials are objectionable for being immoral, indecent, contrary to law and/or
good customs, [etc.] x x x and apply the sanctions it deems proper. The lawmaking body cannot
possibly provide for all the details in the enforcement of a particular statute. [69] The grant of the
rule-making power to administrative agencies is a relaxation of the principle of separation of
powers and is an exception to the non-delegation of legislative powers.[70] Administrative
regulations or subordinate legislation calculated to promote the public interest are necessary
because of the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the law. [71] Allowing the
MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory
disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance,
administrative penalties with due regard for the severity of the offense and attending mitigating
or aggravating circumstances, as the case may be, would be consistent with its mandate to
effectively and efficiently regulate the movie and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for
violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that
issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative
Penalties effective January 1, 1999 is the Board empowered to suspend the program host or
even to prevent certain people from appearing in television programs. The MTRCB, to be sure,
may prohibit the broadcast of such television programs or cancel permits for exhibition, but it
may not suspend television personalities, for such would be beyond its jurisdiction. The MTRCB
cannot extend its exercise of regulation beyond what the law provides. Only persons, offenses,
and penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to
be within the decrees penal or disciplinary operation. And when it exists, the reasonable doubt
must be resolved in favor of the person charged with violating the statute and for whom the
penalty is sought. Thus, the MTRCBs decision in Administrative Case No. 01-04 dated September
27, 2004 and the subsequent order issued pursuant to said decision must be modified. The
suspension should cover only the television program on which petitioner appeared and uttered
the offensive and obscene language, which sanction is what the law and the facts obtaining call
for.
 In ending, what petitioner obviously advocates is an unrestricted speech paradigm in
which absolute permissiveness is the norm. Petitioners flawed belief that he may simply utter
gutter profanity on television without adverse consequences, under the guise of free speech,
does not lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and
expression are not absolute freedoms. To say any act that restrains speech should be greeted
with furrowed brows is not to say that any act that restrains or regulates speech or expression
is per se invalid. This only recognizes the importance of freedoms of speech and expression, and
indicates the necessity to carefully scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27,
2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to the
program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered,

imposing a penalty of THREE (3) MONTHS SUSPENSION on the television
program, Ang Dating Daan, subject of the instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its
owner, PBC, are hereby exonerated for lack of evidence.

Costs against petitioner.

SO ORDERED.
U.S. Supreme Court

New York Times Co. v. United States, 403 U.S. 713 (1971)

New York Times Co. v. United States

No. 1873

Argued June 26, 1971

Decided June 30, 1971*

403 U.S. 713

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

The United States, which brought these actions to enjoin publication in the New York Times and in
the Washington Post of certain classified material, has not met the "heavy burden of showing
justification for the enforcement of such a [prior] restraint."

No. 1873, 44 F.2d 544, reversed and remanded; No. 1885, ___ U.S.App.D.C. ___, 446 F.2d 1327,
affirmed.

Page 403 U. S. 714

PER CURIAM

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." Post, pp. 942, 943.

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption
against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S.
70 (1963); see also Near v. Minnesota, 283 U. S. 697 (1931). The Government "thus carries a heavy
burden of showing justification for the imposition of such a restraint." Organization for a Better Austin
v. Keefe, 402 U. S. 415, 402 U. S. 419 (1971). 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.
* Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to the United
States Court of Appeals for the District of Columbia Circuit.

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.

I adhere to the view that the Government's case against the Washington Post should have been
dismissed, and that the injunction against the New York Times should have been vacated without oral
argument when the cases were first presented to this Court. I believe

Page 403 U. S. 715

that every moment's continuance of the injunctions against these newspapers amounts to a flagrant,
indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I
agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia
Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated
by my Brothers DOUGLAS and BRENNAN. In my view, it is unfortunate that some of my Brethren are
apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding
would make a shambles of the First Amendment.

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights,
including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the
founding of the Republic, the federal courts are asked to hold that the First Amendment does not
mean what it says, but rather means that the Government can halt the publication of current news of
vital importance to the people of this country.

In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive
Branch seems to have forgotten the essential purpose and history of the First Amendment. When the
Constitution was adopted, many people strongly opposed it because the document contained no Bill
of Rights to safeguard certain basic freedoms. [Footnote 1] They especially feared that the

Page 403 U. S. 716

new powers granted to a central government might be interpreted to permit the government to curtail
freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor,
James Madison offered a series of amendments to satisfy citizens that these great liberties would
remain safe and beyond the power of government to abridge. Madison proposed what later became
the First Amendment in three parts, two of which are set out below, and one of which proclaimed:

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their
sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be
inviolable. [Footnote 2]"

(Emphasis added.) The amendments were offered to curtail and restrict the general powers granted
to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The
Bill of Rights changed the original Constitution into a new charter under which no branch of
government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the
Solicitor General argues and some members of the Court appear to agree that the general powers of
the Government adopted in the original Constitution should be interpreted to limit and restrict the
specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater
perversion of history. Madison and the other Framers of the First Amendment, able men

Page 403 U. S. 717

that they were, wrote in language they earnestly believed could never be misunderstood: "Congress
shall make no law . . . abridging the freedom . . . of the press. . . ." Both the history and language of
the First Amendment support the view that the press must be left free to publish news, whatever the
source, without censorship, injunctions, or prior restraints.

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill
its essential role in our democracy. The press was to serve the governed, not the governors. The
Government's power to censor the press was abolished so that the press would remain forever free to
censure the Government. The press was protected so that it could bare the secrets of government
and inform the people. Only a free and unrestrained press can effectively expose deception in
government. And paramount among the responsibilities of a free press is the duty to prevent any part
of the government from deceiving the people and sending them off to distant lands to die of foreign
fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous
reporting, the New York Times, the Washington Post, and other newspapers should be commended
for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of
government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders
hoped and trusted they would do.

The Government's case here is based on premises entirely different from those that guided the
Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:

"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I
certainly respect it. You say that no law means no law, and that should be obvious. I can only

Page 403 U. S. 718

say, Mr. Justice, that to me it is equally obvious that 'no law' does not mean 'no law,' and I would seek
to persuade the Court that that is true. . . . [T]here are other parts of the Constitution that grant
powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make
it impossible for the Executive to function or to protect the security of the United States. [Footnote 3]"

And the Government argues in its brief that, in spite of the First Amendment,

"[t]he authority of the Executive Department to protect the nation against publication of information
whose disclosure would endanger the national security stems from two interrelated sources: the
constitutional power of the President over the conduct of foreign affairs and his authority as
Commander-in-Chief. [Footnote 4]"

In other words, we are asked to hold that, despite the First Amendment's emphatic command, the
Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current
news and abridging freedom of the press in the name of "national security." The Government does
not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-
reaching contention that the courts should take it upon themselves to "make" a law abridging freedom
of the press in the name of equity, presidential power and national security, even when the
representatives of the people in Congress have adhered to the command of the First Amendment and
refused to make such a law. [Footnote 5] See concurring opinion of MR. JUSTICE DOUGLAS,

Page 403 U. S. 719

post at 403 U. S. 721-722. 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 and destroy the fundamental liberty
and security of the very people the Government hopes to make "secure." No one can read the history
of the adoption of the First Amendment without being convinced beyond any doubt that it was
injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation
for all time.

The word "security" is a broad, vague generality whose contours should not be invoked to abrogate
the fundamental law embodied in the First Amendment. The guarding of military and diplomatic
secrets at the expense of informed representative government provides no real security for our
Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation
and the abuses of the English and Colonial governments, sought to give this new society strength
and security by providing that freedom of speech, press, religion, and assembly should not be
abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes -- great man
and great Chief Justice that he was -- when the Court held a man could not be punished for attending
a meeting run by Communists.

"The greater the importance of safeguarding the community from incitements to the overthrow of our
institutions by force and violence, the more imperative is the need to preserve inviolate the
constitutional rights of free speech, free press and free

Page 403 U. S. 720

assembly in order to maintain the opportunity for free political discussion, to the end that government
may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very foundation of constitutional government.
[Footnote 6]"

[Footnote 1]

In introducing the Bill of Rights in the House of Representatives, Madison said:

"[B]ut I believe that the great mass of the people who opposed [the Constitution] disliked it because it
did not contain effectual provisions against the encroachments on particular rights. . . ."

1 Annals of Cong. 433. Congressman Goodhue added:

"[I]t is the wish of many of our constituents that something should be added to the Constitution to
secure in a stronger manner their liberties from the inroads of power."

Id. at 426.

[Footnote 2]

The other parts were:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any
national religion be established, nor shall the full and equal rights of conscience be in any manner, or
on any pretext, infringed."

"The people shall not be restrained from peaceably assembling and consulting for their common
good, nor from applying to the Legislature by petitions, or remonstrances, for redress of their
grievances."
1 Annals of Cong. 434.

[Footnote 3]

Tr. of Oral Arg. 76.

[Footnote 4]

Brief for the United States 13-14.

[Footnote 5]

Compare the views of the Solicitor General with those of James Madison, the author of the First
Amendment. When speaking of the Bill of Rights in the House of Representatives, Madison said:

"If they [the first ten amendments] are incorporated into the Constitution, independent tribunals of
justice will consider themselves in a peculiar manner the guardians of those rights; they will be an
impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be
naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by
the declaration of rights."

1 Annals of Cong. 439.

[Footnote 6]

De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.

While I join the opinion of the Court, I believe it necessary to express my views more fully.

It should be noted at the outset that the First Amendment provides that "Congress shall male no law .
. . abridging the freedom of speech, or of the press." That leaves, in my view, no room for
governmental restraint on the press. [Footnote 2/1]

There is, moreover, no statute barring the publication by the press of the material which the Times
and the Post seek to use. Title 18 U.S.C. § 793(e) provides that

"[w]hoever having unauthorized possession of, access to, or control over any document, writing . . . or
information relating to the national defense which information the possessor has reason to believe
could be used to the injury of the United States or to the advantage of any foreign nation, willfully
communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined

Page 403 U. S. 721

not more than $10,000 or imprisoned not more than ten years, or both."

The Government suggests that the word "communicates" is broad enough to encompass publication.

There are eight sections in the chapter on espionage and censorship, §§ 792-799. In three of those
eight, "publish" is specifically mentioned: § 794(b) applies to
"Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects,
records, publishes, or communicates . . . [the disposition of armed forces]."

Section 797 applies to whoever "reproduces, publishes, sells, or gives away" photographs of defense
installations.

Section 798, relating to cryptography, applies to whoever: "communicates, furnishes, transmits, or

otherwise makes available . . . or publishes" the described material. [Footnote 2/2] (Emphasis added.)

Thus, it is apparent that Congress was capable of, and did, distinguish between publishing and
communication in the various sections of the Espionage Act.

The other evidence that § 793 does not apply to the press is a rejected version of § 793. That version
read:

"During any national emergency resulting from a war to which the United States is a party, or from
threat of such a war, the President may, by proclamation, declare the existence of such emergency
and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or
communicate any information relating to the national defense which, in his judgment, is of such
character that it is or might be useful to the

Page 403 U. S. 722

enemy."

55 Cong.Rec. 1763. During the debates in the Senate, the First Amendment was specifically cited,
and that provision was defeated. 55 Cong.Rec. 2167.

Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore
preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states
in § 1(b) that:

"Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship
or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the
Constitution of the United States and no regulation shall be promulgated hereunder having that
effect."

64 Stat. 987. Thus, Congress has been faithful to the command of the First Amendment in this area.

So any power that the Government possesses must come from its "inherent power."

The power to wage war is "the power to wage war successfully." See Hirabayashi v. United
States, 320 U. S. 81, 320 U. S. 93. But the war power stems from a declaration of war. The
Constitution by Art. I, § 8, gives Congress, not the President, power "[t]o declare War." Nowhere are
presidential wars authorized. We need not decide, therefore, what leveling effect the war power of
Congress might have.

These disclosures [Footnote 2/3] may have a serious impact. But that is no basis for sanctioning a
previous restraint on

Page 403 U. S. 723

the press. As stated by Chief Justice Hughes in Near v. Minnesota, 283 U. S. 697, 283 U. S. 719-720:

"While reckless assaults upon public men, and efforts to bring obloquy upon those who are
endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest
condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be
less, than that which characterized the period in which our institutions took shape. Meanwhile, the
administration of government has become more complex, the opportunities for malfeasance and
corruption have multiplied, crime has grown to most serious proportions, and the danger of its
protection by unfaithful officials and of the impairment of the fundamental security of life and property
by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous
press, especially in great cities. The fact that the liberty of the press may be abused by miscreant
purveyors of scandal does not make any the less necessary the immunity of the press from previous
restraint in dealing with official misconduct."

As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U. S. 415, 402 U. S.
419, "[a]ny prior restraint on expression comes to this Court with a "heavy presumption" against its
constitutional validity."

The Government says that it has inherent powers to go into court and obtain an injunction to protect
the national interest, which, in this case, is alleged to be national security.

Near v. Minnesota, 283 U. S. 697, repudiated that expansive doctrine in no uncertain terms.

The dominant purpose of the First Amendment was to prohibit the widespread practice of
governmental suppression

Page 403 U. S. 724

of embarrassing information. It is common knowledge that the First Amendment was adopted against
the widespread use of the common law of seditious libel to punish the dissemination of material that
is embarrassing to the powers-that-be.See T. Emerson, The System of Freedom of Expression, c. V
(1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). The present cases will, I think, go
down in history as the most dramatic illustration of that principle. A debate of large proportions goes
on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of
the present documents. The latter are highly relevant to the debate in progress.

Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open

debate and discussion of public issues are vital to our national health. On public questions, there
should be "uninhibited, robust, and wide-open" debate. New York Times Co. v. Sullivan, 376 U. S.
254, 376 U. S. 269-270.

I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay of the Court of
Appeals in the Timescase, and direct that it affirm the District Court.

The stays in these cases that have been in effect for more than a week constitute a flouting of the
principles of the First Amendment as interpreted in Near v. Minnesota.

[Footnote 2/1]

See Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 267 (dissenting opinion of MR. JUSTICE
BLACK), 284 (my dissenting opinion); Roth v. United States, 354 U. S. 476, 354 U. S. 508 (my
dissenting opinion which MR. JUSTICE BLACK joined); Yates v. United States, 354 U. S. 298, 354 U.
S. 339 (separate opinion of MR. JUSTICE BLACK which I joined); New York Times Co. v.
Sullivan, 376 U. S. 254, 376 U. S. 293 (concurring opinion of MR. JUSTICE BLACK which I
joined); Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 80 (my concurring opinion which MR.
JUSTICE BLACK joined).

[Footnote 2/2]

These documents contain data concerning the communications system of the United States, the
publication of which is made a crime. But the criminal sanction is not urged by the United States as
the basis of equity power.

[Footnote 2/3]

There are numerous sets of this material in existence, and they apparently are not under any
controlled custody. Moreover, the President has sent a set to the Congress. We start, then, with a
case where there already is rather wide distribution of the material that is destined for publicity, not
secrecy. I have gone over the material listed in the in camerabrief of the United States. It is all history,
not future events. None of it is more recent than 1968.

MR. JUSTICE BRENNAN, concurring.

I write separately in these cases only to emphasize what should be apparent: that our judgments in
the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays
and restraining

Page 403 U. S. 725

orders to block the publication of material sought to be suppressed by the Government. So far as I
can determine, never before has the United States sought to enjoin a newspaper from publishing
information in its possession. The relative novelty of the questions presented, the necessary haste
with which decisions were reached, the magnitude of the interests asserted, and the fact that all the
parties have concentrated their arguments upon the question whether permanent restraints were
proper may have justified at least some of the restraints heretofore imposed in these cases. Certainly
it is difficult to fault the several courts below for seeking to assure that the issues here involved were
preserved for ultimate review by this Court. But even if it be assumed that some of the interim
restraints were proper in the two cases before us, that assumption has no bearing upon the propriety
of similar judicial action in the future. To begin with, there has now been ample time for reflection and
judgment; whatever values there may be in the preservation of novel questions for appellate review
may not support any restraints in the future. More important, the First Amendment stands as an
absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these
cases.

II

The error that has pervaded these cases from the outset was the granting of any injunctive relief
whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these cases
has been that publication of the material sought to be enjoined "could," or "might," or "may" prejudice
the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial
restraints of the press predicated upon surmise or conjecture that untoward consequences
Page 403 U. S. 726

may result.* Our cases, it is true, have indicated that there is a single, extremely narrow class of
cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our cases
have thus far indicated that such cases may arise only when the Nation "is at war," Schenck v. United
States, 249 U. S. 47, 249 U. S. 52 (1919), during which times

"[n]o one would question but that a government might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of transports or the number and location of troops."

Near v. Minnesota, 283 U. S. 697, 283 U. S. 716 (1931). Even if the present world situation were
assumed to be tantamount to a time of war, or if the power of presently available armaments would
justify even in peacetime the suppression of information that would set in motion a nuclear holocaust,
in neither of these actions has the Government presented or even alleged that publication of items
from or based upon the material at issue would cause the happening of an event of that nature. "[T]he
chief purpose of [the First Amendment's] guaranty [is] to prevent previous restraints upon
publication."Near v. Minnesota, supra, at 283 U. S. 713. Thus, only governmental allegation and proof
that publication must inevitably, directly,

Page 403 U. S. 727

and immediately cause the occurrence of an event kindred to imperiling the safety of a transport
already at sea can support even the issuance of an interim restraining order. In no event may mere
conclusions be sufficient, for if the Executive Branch seeks judicial aid in preventing publication, it
must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And,
therefore, every restraint issued in this case, whatever its form, has violated the First Amendment --
and not less so because that restraint was justified as necessary to afford the courts an opportunity to
examine the claim more thoroughly. Unless and until the Government has clearly made out its case,
the First Amendment commands that no injunction may issue.

* Freedman v. Maryland, 380 U. S. 51 (1965), and similar cases regarding temporary restraints of
allegedly obscene materials are not in point. For those cases rest upon the proposition that "obscenity
is not protected by the freedoms of speech and press." Roth v. United States, 354 U. S. 476, 354 U.
S. 481 (1957). Here there is no question but that the material sought to be suppressed is within the
protection of the First Amendment; the only question is whether, notwithstanding that fact, its
publication may be enjoined for a time because of the presence of an overwhelming national interest.
Similarly, copyright cases have no pertinence here: the Government is not asserting an interest in the
particular form of words chosen in the documents, but is seeking to suppress the ideas expressed
therein. And the copyright laws, of course, protect only the form of expression, and not the ideas
expressed.

MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.

In the governmental structure created by our Constitution, the Executive is endowed with enormous
power in the two related areas of national defense and international relations. This power, largely
unchecked by the Legislative [Footnote 3/1] and Judicial [Footnote 3/2] branches, has been pressed
to the very hilt since the advent of the nuclear missile age. For better or for worse, the simple fact is
that a

Page 403 U. S. 728

President of the United States possesses vastly greater constitutional independence in these two vital
areas of power than does, say, a prime minister of a country with a parliamentary form of
government.

In the absence of the governmental checks and balances present in other areas of our national life,
the only effective restraint upon executive policy and power in the areas of national defense and
international affairs may lie in an enlightened citizenry -- in an informed and critical public opinion
which alone can here protect the values of democratic government. For this reason, it is perhaps here
that a press that is alert, aware, and free most vitally serves the basic purpose of the First
Amendment. For, without an informed and free press, there cannot be an enlightened people.

Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an
effective national defense require both confidentiality and secrecy. Other nations can hardly deal with
this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be
kept. And, within our own executive departments, the development of considered and intelligent
international policies would be impossible if those charged with their formulation could not
communicate with each other freely, frankly, and in confidence. In the area of basic national defense,
the frequent need for absolute secrecy is, of course, self-evident.

I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be
where the power is. [Footnote 3/3] If the Constitution gives the Executive

Page 403 U. S. 729

a large degree of unshared power in the conduct of foreign affairs and the maintenance of our
national defense, then, under the Constitution, the Executive must have the largely unshared duty to
determine and preserve the degree of internal security necessary to exercise that power successfully.
It is an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that
moral, political, and practical considerations would dictate that a very first principle of that wisdom
would be an insistence upon avoiding secrecy for its own sake. For when everything is classified,
then nothing is classified, and the system becomes one to be disregarded by the cynical or the
careless, and to be manipulated by those intent on self-protection or self-promotion. I should
suppose, in short, that the hallmark of a truly effective internal security system would be the maximum
possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly
maintained. But, be that as it may, it is clear to me that it is the constitutional duty of the Executive --
as a matter of sovereign prerogative, and not as a matter of law as the courts know law -- through the
promulgation and enforcement of executive regulations, to protect

Page 403 U. S. 730

the confidentiality necessary to carry out its responsibilities in the fields of international relations and
national defense.

This is not to say that Congress and the courts have no role to play. Undoubtedly, Congress has the
power to enact specific and appropriate criminal laws to protect government property and preserve
government secrets. Congress has passed such laws, and several of them are of very colorable
relevance to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it
will be the responsibility of the courts to decide the applicability of the criminal law under which the
charge is brought. Moreover, if Congress should pass a specific law authorizing civil proceedings in
this field, the courts would likewise have the duty to decide the constitutionality of such a law, as well
as its applicability to the facts proved.
But in the cases before us, we are asked neither to construe specific regulations nor to apply specific
laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the
Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that
the Executive Branch insists should not, in the national interest, be published. I am convinced that the
Executive is correct with respect to some of the documents involved. But I cannot say that disclosure
of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its
people. That being so, there can under the First Amendment be but one judicial resolution of the
issues before us. I join the judgments of the Court.

[Footnote 3/1]

The President's power to make treaties and to appoint ambassadors is, of course, limited by the
requirement of Art. II, § 2, of the Constitution that he obtain the advice and consent of the Senate.
Article I, § 8, empowers Congress to "raise and support Armies," and "provide and maintain a Navy."
And, of course, Congress alone can declare war. This power was last exercised almost 30 years ago
at the inception of World War II. Since the end of that war in 1945, the Armed Forces of the United
States have suffered approximately half a million casualties in various parts of the world.

[Footnote 3/2]

See Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U. S. 103; Hirabayashi v. United
States, 320 U. S. 81; United States v. Curtiss-Wright Corp., 299 U. S. 304; cf. Mora v.
McNamara, 128 U.S.App.D.C. 297, 387 F.2d 862, cert. denied, 389 U. S. 934.

[Footnote 3/3]

"It is quite apparent that, if, in the maintenance of our international relations, embarrassment --
perhaps serious embarrassment -- is to be avoided and success for our aims achieved, congressional
legislation which is to be made effective through negotiation and inquiry within the international field
must often accord to the President a degree of discretion and freedom from statutory restriction which
would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions which prevail in foreign countries, and especially is this
true in time of war. He has his confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be
highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly
is this true that the first President refused to accede to a request to lay before the House of
Representatives the instructions, correspondence and documents relating to the negotiation of the
Jay Treaty -- a refusal the wisdom of which was recognized by the House itself, and has never since
been doubted. . . ."

United States v. Curtiss-Wright Corp., 299 U. S. 304, 299 U. S. 320.

MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.

I concur in today's judgments, but only because of the concededly extraordinary protection against
prior restraints

Page 403 U. S. 731

enjoyed by the press under our constitutional system. I do not say that in no circumstances would the
First Amendment permit an injunction against publishing information about government plans or
operations. [Footnote 4/1] Nor, after examining the materials the Government characterizes as the
most sensitive and destructive, can I deny that revelation of these documents will do substantial
damage to public interests. Indeed, I am confident that their disclosure will have that result. But I
nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to
warrant an injunction against publication in these cases, at least in the absence of express and
appropriately limited congressional authorization for prior restraints in circumstances such as these.

Page 403 U. S. 732

The Government's position is simply stated: the responsibility of the Executive for the conduct of the
foreign affairs and for the security of the Nation is so basic that the President is entitled to an
injunction against publication of a newspaper story whenever he can convince a court that the
information to be revealed threatens "grave and irreparable" injury to the public interest; [Footnote
4/2] and the injunction should issue whether or not the material to be published is classified, whether
or not publication would be lawful under relevant criminal statutes enacted by Congress, and
regardless of the circumstances by which the newspaper came into possession of the information. At
least in the absence of legislation by Congress, based on its own investigations and findings, I am
quite unable to agree that the inherent powers of the Executive and the courts reach so far as to
authorize remedies having such sweeping potential for inhibiting publications by the press. Much of
the difficulty inheres in the "grave and irreparable danger" standard suggested by the United States. If
the United States were to have judgment under such a standard in these cases, our decision would
be of little guidance to other courts in other cases, for the material at issue here would not be
available from the Court's opinion or from public records, nor would it be published by the press.
Indeed, even today, where we hold that the United States has not met its burden, the material
remains sealed in court records and it is

Page 403 U. S. 733

properly not discussed in today's opinions. Moreover, because the material poses substantial dangers
to national interests, and because of the hazards of criminal sanctions, a responsible press may
choose never to publish the more sensitive materials. To sustain the Government in these cases
would start the courts down a long and hazardous road that I am not willing to travel, at least without
congressional guidance and direction.

It is not easy to reject the proposition urged by the United States, and to deny relief on its good faith
claims in these cases that publication will work serious damage to the country. But that discomfiture is
considerably dispelled by the infrequency of prior-restraint cases. Normally, publication will occur and
the damage be done before the Government has either opportunity or grounds for suppression. So
here, publication has already begun, and a substantial part of the threatened damage has already
occurred. The fact of a massive breakdown in security is known, access to the documents by many
unauthorized people is undeniable, and the efficacy of equitable relief against these or other
newspapers to avert anticipated damage is doubtful, at best.

What is more, terminating the ban on publication of the relatively few sensitive documents the
Government now seeks to suppress does not mean that the law either requires or invites newspapers
or others to publish them, or that they will be immune from criminal action if they do. Prior restraints
require an unusually heavy justification under the First Amendment, but failure by the Government to
justify prior restraints does not measure its constitutional entitlement to a conviction for criminal
publication. That the Government mistakenly chose to proceed by injunction does not mean that it
could not successfully proceed in another way.

When the Espionage Act was under consideration in

Page 403 U. S. 734

1917, Congress eliminated from the bill a provision that would have given the President broad powers
in time of war to proscribe, under threat of criminal penalty, the publication of various categories of
information related to the national defense. [Footnote 4/3] Congress at that time was unwilling to
clothe the President with such far-reaching powers to monitor the press, and those opposed to this
part of the legislation assumed that a necessary concomitant of such power was the power to "filter
out the news to the people through some man." 55 Cong.Rec. 2008 (remarks of Sen. Ashurst).
However, these same members of Congress appeared to have little doubt that newspapers would be
subject to criminal prosecution if they insisted on publishing information of the type Congress had
itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor
of such a newspaper

"should be punished if he did publish information as to the movements of the fleet, the troops, the
aircraft, the location of powder factories, the location of defense works, and all that sort of thing."

Id. at 2009. [Footnote 4/4]

Page 403 U. S. 735

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797
[Footnote 4/5] makes it a crime to publish certain photographs or drawings of military installations.
Section 798, [Footnote 4/6] also in precise language, proscribes knowing and willful publication of any
classified information concerning the cryptographic systems

Page 403 U. S. 736

or communication intelligence activities of the United States, as well as any information obtained from
communication intelligence operations. [Footnote 4/7] If any of the material here at issue is of this
nature, the newspapers are presumably now on full notice of the position of the United States, and
must face the consequences if they

Page 403 U. S. 737

publish. I would have no difficulty in sustaining convictions under these sections on facts that would
not justify the intervention of equity and the imposition of a prior restraint.

The same would be true under those sections of the Criminal Code casting a wider net to protect the
national defense. Section 793(e) [Footnote 4/8] makes it a criminal act for any unauthorized
possessor of a document "relating to the national defense" either (1) willfully to communicate or
cause to be communicated that document to any person not entitled to receive it or (2) willfully to
retain the document and fail to deliver it to an officer of the United States entitled to receive it. The
subsection was added in 1950 because preexisting law provided no

Page 403 U. S. 738

penalty for the unauthorized possessor unless demand for the documents was made. [Footnote 4/9]

"The dangers surrounding the unauthorized possession of such items are self-evident,

Page 403 U. S. 739

and it is deemed advisable to require their surrender in such a case, regardless of demand, especially
since their unauthorized possession may be unknown to the authorities who would otherwise make
the demand."

S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us, the
unpublished documents have been demanded by the United States, and their import has been made
known at least to counsel for the newspapers involved. In Gorin v. United States, 312 U. S. 19, 312
U. S. 28 (1941), the words "national defense" as used in a predecessor of § 793 were held by a
unanimous Court to have "a well understood connotation" -- a "generic concept of broad
connotations, referring to the military and naval establishments and the related activities of national
preparedness" -- and to be "sufficiently definite to apprise the public of prohibited activities"

Page 403 U. S. 740

and to be consonant with due process. 312 U.S. at 312 U. S. 28. Also, as construed by the Court
in Gorin, information "connected with the national defense" is obviously not limited to that threatening
"grave and irreparable" injury to the United States. [Footnote 4/10]

It is thus clear that Congress has addressed itself to the problems of protecting the security of the
country and the national defense from unauthorized disclosure of potentially damaging
information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S. 585-586
(1952); see also id. at 343 U. S. 593-628 (Frankfurter, J., concurring). It has not, however, authorized
the injunctive remedy against threatened publication. It has apparently been satisfied to rely on
criminal sanctions and their deterrent effect on the responsible, as well as the irresponsible, press. I
am not, of course, saying that either of these newspapers has yet committed a crime, or that either
would commit a crime if it published all the material now in its possession. That matter must await
resolution in the context of a criminal proceeding if one is instituted by the United States. In that
event, the issue of guilt or innocence would be determined by procedures and standards quite
different from those that have purported to govern these injunctive proceedings.

[Footnote 4/1]

The Congress has authorized a strain of prior restraints against private parties in certain instances.
The National Labor Relations Board routinely issues cease and desist orders against employers who
it finds have threatened or coerced employees in the exercise of protected rights. See 29 U.S.C. §
160(c). Similarly, the Federal Trade Commission is empowered to impose cease and desist orders
against unfair methods of competition. 15 U.S.C. § 45(b). Such orders can, and quite often do, restrict
what may be spoken or written under certain circumstances. See, e.g., NLRB v. Gissel Packing
Co., 395 U. S. 575, 395 U. S. 616-620 (1969). Article I, § 8, of the Constitution authorizes Congress
to secure the "exclusive right" of authors to their writings, and no one denies that a newspaper can
properly be enjoined from publishing the copyrighted works of another. See Westermann Co. v.
Dispatch Co., 249 U. S. 100 (1919). Newspapers do themselves rely from time to time on the
copyright as a means of protecting their accounts of important events. However, those enjoined under
the statutes relating to the National Labor Relations Board and the Federal Trade Commission are
private parties, not the press, and, when the press is enjoined under the copyright laws, the
complainant is a private copyright holder enforcing a private right. These situations are quite distinct
from the Government's request for an injunction against publishing information about the affairs of
government, a request admittedly not based on any statute.

[Footnote 4/2]
The "grave and irreparable danger" standard is that asserted by the Government in this Court. In
remanding to Judge Gurfein for further hearings in the Times litigation, five members of the Court of
Appeals for the Second Circuit directed him to determine whether disclosure of certain items specified
with particularity by the Government would "pose such grave and immediate danger to the security of
the United States as to warrant their publication being enjoined."

[Footnote 4/3]

"Whoever, in time of war, in violation of reasonable regulations to be prescribed by the President,

which he is hereby authorized to make and promulgate, shall publish any information with respect to
the movement, numbers, description, condition, or disposition of any of the armed forces, ships,
aircraft, or war materials of the United States, or with respect to the plans or conduct of any naval or
military operations, or with respect to any works or measures undertaken for or connected with, or
intended for the fortification or defense of any place, or any other information relating to the public
defense calculated to be useful to the enemy, shall be punished by a fine . . . or by imprisonment. . . ."

55 Cong.Rec. 2100.

[Footnote 4/4]

Senator Ashurst also urged that

"'freedom of the press' means freedom from the restraints of a censor, means the absolute liberty and
right to publish whatever you wish; but you take your chances of punishment in the courts of your
country for the violation of the laws of libel, slander, and treason."

55 Cong.Rec. 2005.

[Footnote 4/5]

Title 18 U.S.C. § 797 provides:

"On and after thirty days from the date upon which the President defines any vital military or naval
installation or equipment as being within the category contemplated under section 795 of this title,
whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing, map,
or graphical representation of the vital military or naval installations or equipment so defined, without
first obtaining permission of the commanding officer of the military or naval post, camp, or station
concerned, or higher authority, unless such photograph, sketch, picture, drawing, map, or graphical
representation has clearly indicated thereon that it has been censored by the proper military or naval
authority, shall be fined not more than $1,000 or imprisoned not more than one year, or both."

[Footnote 4/6]

In relevant part 18 U.S.C. § 798 provides:

"(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes
available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or
interest of the United States or for the benefit of any foreign government to the detriment of the United
States any classified information -- "
"(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the
United States or any foreign government; or"

"(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or
appliance used or prepared or planned for use by the United States or any foreign government for
cryptographic or communication intelligence purposes; or"

"(3) concerning the communication intelligence activities of the United States or any foreign
government; or"

"(4) obtained by the process of communication intelligence from the communications of any foreign
government, knowing the same to have been obtained by such processes -- "

"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

[Footnote 4/7]

The purport of 18 U.S.C. § 798 is clear. Both the House and Senate Reports on the bill, in identical
terms, speak of furthering the security of the United States by preventing disclosure of information
concerning the cryptographic systems and the communication intelligence systems of the United
States, and explaining that

"[t]his bill makes it a crime to reveal the methods, techniques, and materiel used in the transmission
by this Nation of enciphered or coded messages. . . . Further, it makes it a crime to reveal methods
used by this Nation in breaking the secret codes of a foreign nation. It also prohibits under certain
penalties the divulging of any information which may have come into this Government's hands as a
result of such a code-breaking."

H.R.Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was explained as
covering "only a small category of classified matter, a category which is both vital and vulnerable to
an almost unique degree." Id. at 2. Existing legislation was deemed inadequate.

"At present, two other acts protect this information, but only in a limited way. These are the Espionage
Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat. 122). Under the first, unauthorized
revelation of information of this kind can be penalized only if it can be proved that the person making
the revelation did so with an intent to injure the United States. Under the second, only diplomatic
codes and messages transmitted in diplomatic codes are protected. The present bill is designed to
protect against knowing and willful publication or any other revelation of all important information
affecting the United States communication intelligence operations and all direct information about all
United States codes and ciphers."

Ibid. Section 798 obviously was intended to cover publications by nonemployees of the Government,
and to ease the Government's burden in obtaining convictions. See H.R.Rep. No. 1895, supra, at 2-5.
The identical Senate Report, not cited in parallel in the text of this footnote, is S.Rep. No. 111, 81st
Cong., 1st Sess. (1949).

[Footnote 4/8]

Section 793(e) of 18 U.S.C. provides that:

"(e) Whoever having unauthorized possession of, access to, or control over any document, writing,
code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model,
instrument, appliance, or note relating to the national defense, or information relating to the national
defense which information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or
causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit
or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive
it, or willfully retains the same and fails to deliver it to the officer or employee of the United States
entitled to receive it;"

is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It should also be
noted that 18 U.S.C. § 793(g), added in 1950 (see 64 Stat. 1004; S.Rep. No. 239, pt. 1, 81st Cong.,
2d Sess., 9 (1950)), provides that,

"[i]f two or more persons conspire to violate any of the foregoing provisions of this section, and one or
more of such persons do any act to effect the object of the conspiracy, each of the parties to such
conspiracy shall be subject to the punishment provided for the offense which is the object of such
conspiracy."

[Footnote 4/9]

The amendment of § 793 that added subsection (e) was part of the Subversive Activities Control Act
of 1950, which was, in turn, Title I of the Internal Security Act of 1950. See 64 Stat. 987. The report of
the Senate Judiciary Committee best explains the purposes of the amendment:

"Section 18 of the bill amends section 793 of title 18 of the United States Code (espionage statute).
The several paragraphs of section 793 of title 18 are designated as subsections (a) through (g) for
purposes of convenient reference. The significant changes which would be made in section 793 of
title 18 are as follows: "

"(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the unlawful
dissemination of 'information relating to the national defense which information the possessor has
reason to believe could be used to the injury of the United States or to the advantage of any foreign
nation.' The phrase 'which information the possessor has reason to believe could be used to the
injury of the United States or to the advantage of any foreign nation' would modify only 'information
relating to the national defense,' and not the other items enumerated in the subsection. The fourth
paragraph of section 793 is also amended to provide that only those with lawful possession of the
items relating to national defense enumerated therein may retain them subject to demand therefor.
Those who have unauthorized possession of such items are treated in a separate subsection."

"(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessors of items
enumerated in paragraph 4 of section 793 must surrender possession thereof to the proper
authorities without demand. Existing law provides no penalty for the unauthorized possession of such
items unless a demand for them is made by the person entitled to receive them. The dangers
surrounding the unauthorized possession of such items are self-evident, and it is deemed advisable
to require their surrender in such a case, regardless of demand, especially since their unauthorized
possession may be unknown to the authorities who would otherwise make the demand. The only
difference between subsection (d) and subsection (e) of section 793 is that a demand by the person
entitled to receive the items would be a necessary element of an offense under subsection (d) where
the possession is lawful, whereas such a demand would not be a necessary element of an offense
under subsection (e) where the possession is unauthorized."
S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added).

It seems clear from the foregoing, contrary to the intimations of the District Court for the Southern
District of New York in this case, that, in prosecuting for communicating or withholding a "document,"
as contrasted with similar action with respect to "information," the Government need not prove an
intent to injure the United States or to benefit a foreign nation, but only willful and knowing conduct.
The District Court relied on Gorin v. United States, 312 U. S. 19 (1941). But that case arose under
other parts of the predecessor to § 793, see 312 U.S. at 312 U. S. 21-22 -- parts that imposed
different intent standards not repeated in § 793(d) or § 793(e). Cf. 18 U.S.C. §§ 793(a), (b), and (c).
Also, from the face of subsection (e) and from the context of the Act of which it was a part, it seems
undeniable that a newspaper, as well as others unconnected with the Government, are vulnerable to
prosecution under § 793(e) if they communicate or withhold the materials covered by that section.
The District Court ruled that "communication" did not reach publication by a newspaper of documents
relating to the national defense. I intimate no views on the correctness of that conclusion. But neither
communication nor publication is necessary to violate the subsection.

[Footnote 4/10]

Also relevant is 18 U.S.C. § 794. Subsection (b) thereof forbids in time of war the collection or
publication, with intent that it shall be communicated to the enemy, of any information with respect to
the movements of military forces,

"or with respect to the plans or conduct . . . of any naval or military operations . . . or any other
information relating to the public defense, which might be useful to the enemy. . . ."

MR. JUSTICE MARSHALL, concurring.

The Government contends that the only issue in these cases is whether, in a suit by the United
States, "the First Amendment bars a court from prohibiting a newspaper

Page 403 U. S. 741

from publishing material whose disclosure would pose a 'grave and immediate danger to the security
of the United States.' " Brief for the United States 7. With all due respect, I believe the ultimate issue
in these cases is even more basic than the one posed by the Solicitor General. The issue is whether
this Court or the Congress has the power to make law.

In these cases, there is no problem concerning the President's power to classify information as
"secret" or "top secret." Congress has specifically recognized Presidential authority, which has been
formally exercised in Exec.Order 10501 (1953), to classify documents and information. See, e.g., 18
U.S.C. § 798; 50 U.S.C. § 783. [Footnote 5/1] Nor is there any issue here regarding the President's
power as Chief Executive and Commander in Chief to protect national security by disciplining
employees who disclose information and by taking precautions to prevent leaks.

The problem here is whether, in these particular cases, the Executive Branch has authority to invoke
the equity jurisdiction of the courts to protect what it believes to be the national interest. See In re
Debs, 158 U. S. 564, 158 U. S. 584(1895). The Government argues that, in addition to the inherent
power of any government to protect itself, the President's power to conduct foreign affairs and his
position as Commander in Chief give him authority to impose censorship on the press to protect his
ability to deal effectively with foreign nations and to conduct the military affairs of the country. Of
course, it is beyond cavil that the President has broad powers by virtue of his primary responsibility
for the conduct of our foreign affairs and his position as Commander in Chief. Chicago & Southern Air
Lines v. Waterman S.S. Corp., 333 U. S. 103(1948); Hirabayashi v. United States, 320 U. S. 81, 320
U. S. 93 (1943); United States v. Curtiss

Page 403 U. S. 742

Wright Corp., 299 U. S. 304 (1936). [Footnote 5/2] And, in some situations, it may be that, under
whatever inherent powers the Government may have, as well as the implicit authority derived from
the President's mandate to conduct foreign affairs and to act as Commander in Chief, there is a basis
for the invocation of the equity jurisdiction of this Court as an aid to prevent the publication of material
damaging to "national security," however that term may be defined.

It would, however, be utterly inconsistent with the concept of separation of powers for this Court to
use its power of contempt to prevent behavior that Congress has specifically declined to prohibit.
There would be a similar damage to the basic concept of these co-equal branches of Government if,
when the Executive Branch has adequate authority granted by Congress to protect "national
security," it can choose, instead, to invoke the contempt power of a court to enjoin the threatened
conduct. The Constitution provides that Congress shall make laws, the President execute laws, and
courts interpret laws. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). It did not
provide for government by injunction in which the courts and the Executive Branch can "make law"
without regard to the action of Congress. It may be more convenient for the Executive Branch if it
need only convince a judge to prohibit conduct, rather than ask the Congress to pass a law, and it
may be more convenient to enforce a contempt order than to seek a criminal conviction in a jury trial.
Moreover, it may be considered politically wise to get a court to share the responsibility for arresting
those who the Executive Branch has probable cause to believe are violating the law. But convenience
and political considerations of the

Page 403 U. S. 743

moment do not justify a basic departure from the principles of our system of government.

In these cases, we are not faced with a situation where Congress has failed to provide the Executive
with broad power to protect the Nation from disclosure of damaging state secrets. Congress has, on
several occasions, given extensive consideration to the problem of protecting the military and
strategic secrets of the United States. This consideration has resulted in the enactment of statutes
making it a crime to receive, disclose, communicate, withhold, and publish certain documents,
photographs, instruments, appliances, and information. The bulk of these statutes is found in chapter
37 of U.S.C. Title 18, entitled Espionage and Censorship. [Footnote 5/3] In that chapter,

Page 403 U. S. 744

Congress has provided penalties ranging from a $10,000 fine to death for violating the various
statutes.

Thus, it would seem that in order for this Court to issue an injunction it would require a showing that
such an injunction would enhance the already exiting power of the Government to act. See Bennett v.
Laman, 277 N.Y. 368, 14 N.E.2d 439 (1938). It is a traditional axiom of equity that a court of equity
will not do a useless thing, just as it is a traditional axiom that equity will not enjoin the commission of
a crime. See Z. Chafee & E. Re, Equity 935-954 (5th ed.1967); 1 H. Joyce, Injunctions §§ 580a
(1909). Here, there has been no attempt to make such a showing. The Solicitor General does not
even mention in his brief whether the Government considers that there is probable cause to believe a
crime has been committed, or whether there is a conspiracy to commit future crimes.
If the Government had attempted to show that there was no effective remedy under traditional
criminal law, it would have had to show that there is no arguably applicable statute. Of course, at this
stage, this Court could not and cannot determine whether there has been a violation of a particular
statute or decide the constitutionality of any statute. Whether a good faith prosecution could have
been instituted under any statute could, however, be determined.

Page 403 U. S. 745

At least one of the many statutes in this area seems relevant to these cases. Congress has provided
in 18 U.S.C. § 793(e) that whoever,

"having unauthorized possession of, access to, or control over any document, writing, code book,
signal book . . . or note relating to the national defense, or information relating to the national defense
which information the possessor has reason to believe could be used to the injury of the United
States or to the advantage of any foreign nation, willfully communicates, delivers, transmits . . . the
same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the
officer or employee of the United States entitled to receive it . . . [s]hall be fined not more than
$10,000 or imprisoned not more than ten years, or both."

Congress has also made it a crime to conspire to commit any of the offenses listed in 18 U.S.C. §
793(e).

It is true that Judge Gurfein found that Congress had not made it a crime to publish the items and
material specified in § 793(e). He found that the words "communicates, delivers, transmits . . ." did
not refer to publication of newspaper stories. And that view has some support in the legislative
history, and conforms with the past practice of using the statute only to prosecute those charged with
ordinary espionage. But see 103 Cong.Rec. 10449 (remarks of Sen. Humphrey). Judge Gurfein's
view of the statute is not, however, the only plausible construction that could be given. See my
Brother WHITE's concurring opinion.

Even if it is determined that the Government could not in good faith bring criminal prosecutions
against the New York Times and the Washington Post, it is clear that Congress has specifically
rejected passing legislation that would have clearly given the President the power he seeks here and
made the current activity of the newspapers unlawful. When Congress specifically declines to make
conduct unlawful, it is not for this Court

Page 403 U. S. 746

to redecide those issues -- to overrule Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579 (1952).

On at least two occasions, Congress has refused to enact legislation that would have made the
conduct engaged in here unlawful and given the President the power that he seeks in this case. In
1917, during the debate over the original Espionage Act, still the basic provisions of § 793, Congress
rejected a proposal to give the President in time of war or threat of war authority to directly prohibit by
proclamation the publication of information relating to national defense that might be useful to the
enemy. The proposal provided that:

"During any national emergency resulting from a war to which the United States is a party, or from
threat of such a war, the President may, by proclamation, declare the existence of such emergency
and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or
communicate any information relating to the national defense which, in his judgment, is of such
character that it is or might be useful to the enemy. Whoever violates any such prohibition shall be
punished by a fine of not more than $10,000 or by imprisonment for not more than 10 years, or
both:Provided, That nothing in this section shall be construed to limit or restrict any discussion,
comment, or criticism of the acts or policies of the Government or its representatives or the
publication of the same."

55 Cong.Rec. 1763. Congress rejected this proposal after war against Germany had been declared,
even though many believed that there was a grave national emergency and that the threat of security
leaks and espionage was serious. The Executive Branch has not gone to Congress and requested
that the decision to provide such power be reconsidered. Instead,

Page 403 U. S. 747

the Executive Branch comes to this Court and asks that it be granted the power Congress refused to
give.

In 1957, the United States Commission on Government Security found that

"[a]irplane journals, scientific periodicals, and even the daily newspaper have featured articles
containing information and other data which should have been deleted in whole or in part for security
reasons."

In response to this problem, the Commission proposed that

"Congress enact legislation making it a crime for any person willfully to disclose without proper
authorization, for any purpose whatever, information classified 'secret' or 'top secret,' knowing, or
having reasonable grounds to believe, such information to have been so classified."

Report of Commission on Government Security 619-620 (1957). After substantial floor discussion on
the proposal, it was rejected. See 103 Cong.Rec. 10447-10450. If the proposal that Sen. Cotton
championed on the floor had been enacted, the publication of the documents involved here would
certainly have been a crime. Congress refused, however, to make it a crime. The Government is here
asking this Court to remake that decision. This Court has no such power.

Either the Government has the power under statutory grant to use traditional criminal law to protect
the country or, if there is no basis for arguing that Congress has made the activity a crime, it is plain
that Congress has specifically refused to grant the authority the Government seeks from this Court. In
either case, this Court does not have authority to grant the requested relief. It is not for this Court to
fling itself into every breach perceived by some Government official, nor is it for this Court to take on
itself the burden of enacting law, especially a law that Congress has refused to pass.

I believe that the judgment of the United States Court of Appeals for the District of Columbia Circuit
should

Page 403 U. S. 748

be affirmed and the judgment of the United States Court of Appeals for the Second Circuit should be
reversed insofar as it remands the case for further hearings.

[Footnote 5/1]
See n.3, infra.

[Footnote 5/2]

But see Kent v. Dulles, 357 U. S. 116 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579 (1952).

[Footnote 5/3]

There are several other statutory provisions prohibiting and punishing the dissemination of
information, the disclosure of which Congress thought sufficiently imperiled national security to
warrant that result. These include 42 U.S.C. §§ 2161 through 2166, relating to the authority of the
Atomic Energy Commission to classify and declassify "Restricted Data" ["Restricted Data" is a term of
art employed uniquely by the Atomic Energy Act]. Specifically, 42 U.S.C. § 2162 authorizes the
Atomic Energy Commission to classify certain information. Title 42 U.S.C. § 2274, subsection (a),
provides penalties for a person who

"communicates, transmits, or discloses [restricted data] . . . with intent to injure the United States or
with intent to secure an advantage to any foreign nation. . . ."

Subsection (b) of § 2274 provides lesser penalties for one who "communicates, transmits, or
discloses" such information "with reason to believe such data will be utilized to injure the United
States or to secure an advantage to any foreign nation. . . ." Other sections of Title 42 of the United
States Code dealing with atomic energy prohibit and punish acquisition, removal, concealment,
tampering with, alteration, mutilation, or destruction of documents incorporating "Restricted Data" and
provide penalties for employees and former employees of the Atomic Energy Commission, the armed
services, contractors and licensees of the Atomic Energy Commission. Title 42 U.S.C. §§ 2276, 2277.
Title 50 U.S.C.App. § 781, 56 Stat. 390, prohibits the making of any sketch or other representation of
military installations or any military equipment located on any military installation, as specified; and,
indeed, Congress, in the National Defense Act of 1940, 54 Stat. 676, as amended, 56 Stat. 179,
conferred jurisdiction on federal district courts over civil actions "to enjoin any violation" thereof. 50
U.S.C.App. § 1152(6). Title 50 U.S.C. § 783(b) makes it unlawful for any officers or employees of the
United States or any corporation which is owned by the United States to communicate material which
has been "classified" by the President to any person who that governmental employee knows or has
reason to believe is an agent or representative of any foreign government or any Communist
organization.

MR. CHIEF JUSTICE BURGER, dissenting.

So clear are the constitutional limitations on prior restraint against expression that, from the time
of Near v. Minnesota,283 U. S. 697 (1931), until recently in Organization for a Better Austin v.
Keefe, 402 U. S. 415 (1971), we have had little occasion to be concerned with cases involving prior
restraints against news reporting on matters of public interest. There is, therefore, little variation
among the members of the Court in terms of resistance to prior restraints against publication.
Adherence to this basic constitutional principle, however, does not make these cases simple. 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. 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.
These cases are not simple for another and more immediate reason. We do not know the facts of the
cases. No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member
of this Court knows all the facts.

Why are we in this posture, in which only those judges to whom the First Amendment is absolute and
permits of no restraint in any circumstances or for any reason, are really in a position to act?

I suggest we are in this posture because these cases have been conducted in unseemly haste. MR.
JUSTICE HARLAN covers the chronology of events demonstrating the hectic pressures under which
these cases have been processed, and I need not restate them. The prompt

Page 403 U. S. 749

setting of these cases reflects our universal abhorrence of prior restraint. But prompt judicial action
does not mean unjudicial haste.

Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded
from the date it obtained the purloined documents. It seems reasonably clear now that the haste
precluded reasonable and deliberate judicial treatment of these cases, and was not warranted. The
precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that
ought to attend the disposition of a great issue.

The newspapers make a derivative claim under the First Amendment; they denominate this right as
the public "right to know"; by implication, the Times asserts a sole trusteeship of that right by virtue of
its journalistic "scoop." The right is asserted as an absolute. Of course, the First Amendment right
itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the
right to shout "fire" in a crowded theater if there was no fire. There are other exceptions, some of
which Chief Justice Hughes mentioned by way of example in Near v. Minnesota. There are no doubt
other exceptions no one has had occasion to describe or discuss. Conceivably, such exceptions may
be lurking in these cases and, would have been flushed had they been properly considered in the trial
courts, free from unwarranted deadlines and frenetic pressures. An issue of this importance should
be tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially
when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice,
deferred publication. [Footnote 6/1]

Page 403 U. S. 750

It is not disputed that the Times has had unauthorized possession of the documents for three to four
months, during which it has had its expert analysts studying them, presumably digesting them and
preparing the material for publication. During all of this time, the Times, presumably in its capacity as
trustee of the public's "right to know," has held up publication for purposes it considered proper, and
thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7,000
pages of complex material drawn from a vastly greater volume of material would inevitably take time,
and the writing of good news stories takes time. But why should the United States Government, from
whom this information was illegally acquired by someone, along with all the counsel, trial judges, and
appellate judges be placed under needless pressure? After these months of deferral, the alleged
"right to know" has somehow and suddenly become a right that must be vindicated instanter.

Would it have been unreasonable, since the newspaper could anticipate the Government's objections
to release of secret material, to give the Government an opportunity to review the entire collection
and determine whether agreement could be reached on publication? Stolen or not, if security was not,
in fact, jeopardized, much of the material could no doubt have been declassified, since it spans a
period ending in 1968. With such an approach -- one that great newspapers have in the past
practiced and stated editorially to be the duty of an honorable press -- the newspapers and
Government might well have narrowed

Page 403 U. S. 751

the area of disagreement as to what was and was not publishable, leaving the remainder to be
resolved in orderly litigation, if necessary. To me, it is hardly believable that a newspaper long
regarded as a great institution in American life would fail to perform one of the basic and simple
duties of every citizen with respect to the discovery or possession of stolen property or secret
government documents. That duty, I had thought -- perhaps naively -- was to report forthwith, to
responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The
course followed by the Times, whether so calculated or not, removed any possibility of orderly
litigation of the issue. If the action of the judges up to now has been correct, that result is sheer
happenstance. [Footnote 6/2]

Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the
District Court before it had made a complete record pursuant to the mandate of the Court of Appeals
for the Second Circuit.

The consequence of all this melancholy series of events is that we literally do not know what we are
acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude
without an adequate record, and surely without time for adequate treatment either in the prior
proceedings or in this Court. It is interesting to note that counsel on both sides, in oral argument
before this Court, were frequently unable to respond to questions on factual points. Not surprisingly,
they pointed out that they had been working literally "around the clock," and simply were unable to
review the documents that give rise to these cases and

Page 403 U. S. 752

were not familiar with them. This Court is in no better posture. I agree generally with MR. JUSTICE
HARLAN and MR. JUSTICE BLACKMUN, but I am not prepared to reach the merits. [Footnote 6/3]

I would affirm the Court of Appeals for the Second Circuit and allow the District Court to complete the
trial aborted by our grant of certiorari, meanwhile preserving the status quo in the Post case. I would
direct that the District Court, on remand, give priority to the Times case to the exclusion of all other
business of that court, but I would not set arbitrary deadlines.

I should add that I am in general agreement with much of what MR. JUSTICE WHITE has expressed
with respect to penal sanctions concerning communication or retention of documents or information
relating to the national defense.

We all crave speedier judicial processes, but, when judges are pressured, as in these cases, the
result is a parody of the judicial function.

[Footnote 6/1]

As noted elsewhere, the Times conducted its analysis of the 47 volumes of Government documents
over a period of several months, and did so with a degree of security that a government might envy.
Such security was essential, of course, to protect the enterprise from others. Meanwhile, the Times
has copyrighted its material, and there were strong intimations in the oral argument that the Times
contemplated enjoining its use by any other publisher in violation of its copyright. Paradoxically, this
would afford it a protection, analogous to prior restraint, against all others -- a protection the Times
denies the Government of the United States.

[Footnote 6/2]

Interestingly, the Times explained its refusal to allow the Government to examine its own purloined
documents by saying in substance this might compromise its sources and informants! The Times thus
asserts a right to guard the secrecy of its sources while denying that the Government of the United
States has that power.

[Footnote 6/3]

With respect to the question of inherent power of the Executive to classify papers, records, and
documents as secret, or otherwise unavailable for public exposure, and to secure aid of the courts for
enforcement, there may be an analogy with respect to this Court. No statute gives this Court express
power to establish and enforce the utmost security measures for the secrecy of our deliberations and
records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its
internal operations by whatever judicial measures may be required.

MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join,
dissenting.

These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting in Northern
Securities Co. v. United States, 193 U. S. 197, 193 U. S. 400-401 (1904):

"Great cases, like hard cases, make bad law. For great cases are called great not by reason of their

Page 403 U. S. 753

real importance in shaping the law of the future, but because of some accident of immediate
overwhelming interest which appeals to the feelings and distorts the judgment. These immediate
interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful,
and before which even well settled principles of law will bend."

With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these
cases.

Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia
Circuit rendered judgment on June 23. The New York Times' petition for certiorari, its motion for
accelerated consideration thereof, and its application for interim relief were filed in this Court on June
24 at about 11 a.m. The application of the United States for interim relief in the Post case was also
filed here on June 24 at about 7:15 p.m. This Court's order setting a hearing before us on June 26 at
11 a.m., a course which I joined only to avoid the possibility of even more peremptory action by the
Court, was issued less than 24 hours before. The record in the Post case was filed with the Clerk
shortly before 1 p.m. on June 25; the record in the Times case did not arrive until 7 or 8 o'clock that
same night. The briefs of the parties were received less than two hours before argument on June 26.

This frenzied train of events took place in the name of the presumption against prior restraints created
by the First Amendment. Due regard for the extraordinarily important and difficult questions involved
in these litigations should have led the Court to shun such a precipitate timetable. In order to decide
the merits of these cases properly, some or all of the following questions should have been faced:
1. Whether the Attorney General is authorized to bring these suits in the name of the United
States. Compare

Page 403 U. S. 754

In re Debs, 158 U. S. 564 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579 (1952). This question involves as well the construction and validity of a singularly opaque statute
-- the Espionage Act, 18 U.S.C. § 793(e).

2. Whether the First Amendment permits the federal courts to enjoin publication of stories which
would present a serious threat to national security. See Near v. Minnesota, 283 U. S. 697, 283 U. S.
716 (1931) (dictum).

3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national
security to justify an injunction on the theory that, regardless of the contents of the documents, harm
enough results simply from the demonstration of such a breach of secrecy.

4. Whether the unauthorized disclosure of any of these particular documents would seriously impair
the national security.

5. What weight should be given to the opinion of high officers in the Executive Branch of the
Government with respect to questions 3 and 4.

6. Whether the newspapers are entitled to retain and use the documents notwithstanding the
seemingly uncontested facts that the documents, or the originals of which they are duplicates, were
purloined from the Government's possession, and that the newspapers received them with knowledge
that they had been feloniously acquired. Cf. Liberty Lobby, Inc. v. Pearson, 129 U.S.App.D.C. 74, 390
F.2d 489 (1967, amended 1968).

7. Whether the threatened harm to the national security or the Government's possessory interest in
the documents justifies the issuance of an injunction against publication in light of --

a. The strong First Amendment policy against prior restraints on publication;

Page 403 U. S. 755

b. The doctrine against enjoining conduct in violation of criminal statutes; and

c. The extent to which the materials at issue have apparently already been otherwise disseminated.

These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous
decision are enormous. The time which has been available to us, to the lower courts,* and to the
parties has been wholly inadequate for giving these cases the kind of consideration they deserve. It is
a reflection on the stability of the judicial process that these great issues -- as important as any that
have arisen during my time on the Court -- should have been decided under the pressures
engendered by the torrent of publicity that has attended these litigations from their inception.

Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the
Court. Within the severe limitations imposed by the time constraints under which I have been required
to operate, I can only state my reasons in telescoped form, even though, in different circumstances, I
would have felt constrained to deal with the cases in the fuller sweep indicated above.
It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in the Times litigation to
observe that its order must rest on the conclusion that, because of the time elements the Government
had not been given an adequate opportunity to present its case

Page 403 U. S. 756

to the District Court. At the least this conclusion was not an abuse of discretion.

In the Post litigation, the Government had more time to prepare; this was apparently the basis for the
refusal of the Court of Appeals for the District of Columbia Circuit on rehearing to conform its
judgment to that of the Second Circuit. But I think there is another and more fundamental reason why
this judgment cannot stand -- a reason which also furnishes an additional ground for not reinstating
the judgment of the District Court in the Times litigation, set aside by the Court of Appeals. It is plain
to me that the scope of the judicial function in passing upon the activities of the Executive Branch of
the Government in the field of foreign affairs is very narrowly restricted. This view is, I think, dictated
by the concept of separation of powers upon which our constitutional system rests.

In a speech on the floor of the House of Representatives, Chief Justice John Marshall, then a
member of that body, stated:

"The President is the sole organ of the nation in its external relations, and its sole representative with
foreign nations."

10 Annals of Cong. 613 (1800). From that time, shortly after the founding of the Nation, to this, there
has been no substantial challenge to this description of the scope of executive power. See United
States v. Curtiss-Wright Corp., 299 U. S. 304, 299 U. S. 319-321 (1936), collecting authorities.

From this constitutional primacy in the field of foreign affairs, it seems to me that certain conclusions
necessarily follow. Some of these were stated concisely by President Washington, declining the
request of the House of Representatives for the papers leading up to the negotiation of the Jay
Treaty:

"The nature of foreign negotiations requires caution, and their success must often depend on secrecy;

Page 403 U. S. 757

and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual
concessions which may have been proposed or contemplated would be extremely impolitic; for this
might have a pernicious influence on future negotiations, or produce immediate inconveniences,
perhaps danger and mischief, in relation to other powers."

1 J. Richardson, Messages and Papers of the Presidents 194-195 (1896).

The power to evaluate the "pernicious influence" of premature disclosure is not, however, lodged in
the Executive alone. I agree that, in performance of its duty to protect the values of the First
Amendment against political pressures, the judiciary must review the initial Executive determination to
the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of
the President's foreign relations power. Constitutional considerations forbid "a complete
abandonment of judicial control." Cf. United States v. Reynolds, 345 U. S. 1, 345 U. S. 8 (1953).
Moreover, the judiciary may properly insist that the determination that disclosure of the subject matter
would irreparably impair the national security be made by the head of the Executive Department
concerned -- here, the Secretary of State or the Secretary of Defense -- after actual personal
consideration by that officer. This safeguard is required in the analogous area of executive claims of
privilege for secrets of state. See id. at 345 U. S. 8 and n. 20; Duncan v. Cammell, Laird Co., [1942]
A.C. 624, 638 (House of Lords).

But, in my judgment, the judiciary may not properly go beyond these two inquiries and redetermine for
itself the probable impact of disclosure on the national security.

"[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions

Page 403 U. S. 758

are wholly confided by our Constitution to the political departments of the government, Executive and
Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should
be undertaken only by those directly responsible to the people whose welfare they advance or
imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor
responsibility, and which has long been held to belong in the domain of political power not subject to
judicial intrusion or inquiry."

Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U. S. 103, 333 U. S. 111 (1948)
(Jackson, J.).

Even if there is some room for the judiciary to override the executive determination, it is plain that the
scope of review must be exceedingly narrow. I can see no indication in the opinions of either the
District Court or the Court of Appeals in the Post litigation that the conclusions of the Executive were
given even the deference owing to an administrative agency, much less that owing to a co-equal
branch of the Government operating within the field of its constitutional prerogative.

Accordingly, I would vacate the judgment of the Court of Appeals for the District of Columbia Circuit
on this ground, and remand the case for further proceedings in the District Court. Before the
commencement of such further proceedings, due opportunity should be afforded the Government for
procuring from the Secretary of State or the Secretary of Defense or both an expression of their views
on the issue of national security. The ensuing review by the District Court should be in accordance
with the views expressed in this opinion. And, for the reasons stated above, I would affirm the
judgment of the Court of Appeals for the Second Circuit.

Pending further hearings in each case conducted under the appropriate ground rules, I would
continue the

Page 403 U. S. 759

restraints on publication. I cannot believe that the doctrine prohibiting prior restraints reaches to the
point of preventing courts from maintaining the status quo long enough to act responsibly in matters
of such national importance as those involved here.

* The hearing in the Post case before Judge Gesell began at 8 a.m. on June 21, and his decision was
rendered, under the hammer of a deadline imposed by the Court of Appeals, shortly before 5 p.m. on
the same day. The hearing in the Timescase before Judge Gurfein was held on June 18, and his
decision was rendered on June 19. The Government's appeals in the two cases were heard by the
Courts of Appeals for the District of Columbia and Second Circuits, each court sitting en banc, on
June 22. Each court rendered its decision on the following afternoon.

MR. JUSTICE BLACKMUN, dissenting.

I join MR. JUSTICE HARLAN in his dissent. I also am in substantial accord with much that MR.
JUSTICE WHITE says, by way of admonition, in the latter part of his opinion.

At this point, the focus is on only the comparatively few documents specified by the Government as
critical. So far as the other material -- vast in amount -- is concerned, let it be published and published
forthwith if the newspapers, once the strain is gone and the sensationalism is eased, still feel the urge
so to do.

But we are concerned here with the few documents specified from the 47 volumes. Almost 70 years
ago, Mr. Justice Holmes, dissenting in a celebrated case, observed:

"Great cases, like hard cases, make bad law. For great cases are called great not by reason of their
real importance in shaping the law of the future, but because of some accident of immediate
overwhelming interest which appeals to the feelings and distorts the judgment. These immediate
interests exercise a kind of hydraulic pressure. . . ."

Northen Securities Co. v. United States, 193 U. S. 197, 193 U. S. 400-401 (1904). The present cases,
if not great, are at least unusual in their posture and implications, and the Holmes observation
certainly has pertinent application.

The New York Times clandestinely devoted a period of three months to examining the 47 volumes
that came into its unauthorized possession. Once it had begun publication

Page 403 U. S. 760

of material from those volumes, the New York case now before us emerged. It immediately assumed,
and ever since has maintained, a frenetic pace and character. Seemingly, once publication started,
the material could not be made public fast enough. Seemingly, from then on, every deferral or delay,
by restraint or otherwise, was abhorrent, and was to be deemed violative of the First Amendment and
of the public's "right immediately to know." Yet that newspaper stood before us at oral argument and
professed criticism of the Government for not lodging its protest earlier than by a Monday telegram
following the initial Sunday publication.

The District of Columbia case is much the same.

Two federal district courts, two United States courts of appeals, and this Court -- within a period of
less than three weeks from inception until today -- have been pressed into hurried decision of
profound constitutional issues on inadequately developed and largely assumed facts without the
careful deliberation that, one would hope, should characterize the American judicial process. There
has been much writing about the law and little knowledge and less digestion of the facts. In the New
York case, the judges, both trial and appellate, had not yet examined the basic material when the
case was brought here. In the District of Columbia case, little more was done, and what was
accomplished in this respect was only on required remand, with the Washington Post, on the excuse
that it was trying to protect its source of information, initially refusing to reveal what material it actually
possessed, and with the District Court forced to make assumptions as to that possession.

With such respect as may be due to the contrary view, this, in my opinion, is not the way to try a
lawsuit of this magnitude and asserted importance. It is not the way for federal courts to adjudicate,
and to be required to adjudicate, issues that allegedly concern the Nation's

Page 403 U. S. 761

vital welfare. The country would be none the worse off were the cases tried quickly, to be sure, but in
the customary and properly deliberative manner. The most recent of the material, it is said, dates no
later than 1968, already about three years ago, and the Times itself took three months to formulate its
plan of procedure and, thus, deprived its public for that period.

The First Amendment, after all, is only one part of an entire Constitution. Article II of the great
document vests in the Executive Branch primary power over the conduct of foreign affairs, and places
in that branch the responsibility for the Nation's safety. Each provision of the Constitution is important,
and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of
downgrading other provisions. First Amendment absolutism has never commanded a majority of this
Court. See, for example, Near v. Minnesota, 283 U. S. 697, 283 U. S. 708 (1931), and Schenck v.
United States, 249 U. S. 47, 249 U. S. 52 (1919). What is needed here is a weighing, upon properly
developed standards, of the broad right of the press to print and of the very narrow right of the
Government to prevent. Such standards are not yet developed. The parties here are in disagreement
as to what those standards should be. But even the newspapers concede that there are situations
where restraint is in order and is constitutional. Mr. Justice Holmes gave us a suggestion when he
said in Schenck,

"It is a question of proximity and degree. When a nation is at war, many things that might be said in
time of peace are such a hindrance to its effort that their utterance will not be endured so long as men
fight and that no Court could regard them as protected by any constitutional right."

249 U.S. at 249 U. S. 52.

I therefore would remand these cases to be developed expeditiously, of course, but on a schedule
permitting the

Page 403 U. S. 762

orderly presentation of evidence from both sides, with the use of discovery, if necessary, as
authorized by the rules, and with the preparation of briefs, oral argument, and court opinions of a
quality better than has been seen to this point. In making this last statement, I criticize no lawyer or
judge. I know from past personal experience the agony of time pressure in the preparation of
litigation. But these cases and the issues involved and the courts, including this one, deserve better
than has been produced thus far.

It may well be that, if these cases were allowed to develop as they should be developed, and to be
tried as lawyers should try them and as courts should hear them, free of pressure and panic and
sensationalism, other light would be shed on the situation, and contrary considerations, for me, might
prevail. But that is not the present posture of the litigation.

The Court, however, decides the cases today the other way. I therefore add one final comment.

I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate
responsibilities to the United States of America. Judge Wilkey, dissenting in the District of Columbia
case, after a review of only the affidavits before his court (the basic papers had not then been made
available by either party), concluded that there were a number of examples of documents that, if in
the possession of the Post and if published, "could clearly result in great harm to the nation," and he
defined "harm" to mean

"the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with
our enemies, the inability of our diplomats to negotiate. . . ."
I, for one, have now been able to give at least some cursory study not only to the affidavits, but to the
material itself. I regret to say that, from this examination, I fear that Judge Wilkey's statements have
possible foundation. I therefore share

Page 403 U. S. 763

his concern. I hope that damage has not already been done. If, however, damage has been done,
and if, with the Court's action today, these newspapers proceed to publish the critical documents and
there results therefrom

"the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with
our enemies, the inability of our diplomats to negotiate,"

to which list I might add the factors of prolongation of the war and of further delay in the freeing of
United States prisoners, then the Nation's people will know where the responsibility for these sad
consequences rests.
U.S. Supreme Court

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

Chaplinsky v. New Hampshire

No. 255

Argued February 5, 1942

Decided March 9, 1942

315 U.S. 568

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE

Syllabus

1. That part of c. 378, § 2, of the Public Law of New Hampshire which forbids under penalty that any
person shall address "any offensive, derisive or annoying word to any other person who is lawfully in
any street or other public place," or "call him by any offensive or derisive name," was construed by
the Supreme Court of the State, in this case and before this case arose, as limited to the use in a
public place of words directly tending to cause a breach of the peace by provoking the person
addressed to acts of violence.

Held:

(1) That, so construed, it is sufficiently definite and specific to comply with requirements of due
process of law. P. 315 U. S. 573.

(2) That, as applied to a person who, on a public street, addressed another as a "damned Fascist"
and a "damned racketeer," it does not substantially or unreasonably impinge upon freedom of
speech. P. 315 U. S. 574.

(3) The refusal of the state court to admit evidence offered by the defendant tending to prove
provocation and evidence bearing on the truth or falsity of the utterances charged is open to no
constitutional objection. P. 315 U. S. 574.

2. The Court notices judicially that the appellations "damned racketeer" and "damned Fascist" are
epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.
P. 315 U. S. 574

91 N.H. 310, 18 A.2d 754, affirmed.

APPEAL from a judgment affirming a conviction under a state law denouncing the use of offensive
words when addressed by one person to another in a public place.

Page 315 U. S. 569

MR. JUSTICE MURPHY delivered the opinion of the Court.

Appellant, a member of the sect known as Jehovah's Witnesses, was convicted in the municipal court
of Rochester, New Hampshire, for violation of Chapter 378, § 2, of the Public Laws of New
Hampshire:

"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."

The complaint charged that appellant,

"with force and arms, in a certain public place in said city of Rochester, to-wit, on the public sidewalk
on the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat
the words following, addressed to the complainant, that is to say, 'You are a God damned racketeer'
and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,'
the same being offensive, derisive and annoying words and names."

Upon appeal, there was a trial de novo of appellant before a jury in the Superior Court. He was found
guilty, and the judgment of conviction was affirmed by the Supreme Court of the State. 91 N.H. 310,
18 A.2d 754.

By motions and exceptions, appellant raised the questions that the statute was invalid under the
Fourteenth Amendment of the Constitution of the United States in that it placed an unreasonable
restraint on freedom of speech, freedom of the press, and freedom of worship, and because it was
vague and indefinite. These contentions were overruled, and the case comes here on appeal.

There is no substantial dispute over the facts. Chaplinsky was distributing the literature of his sect on
the streets

Page 315 U. S. 570

of Rochester on a busy Saturday afternoon. Members of the local citizenry complained to the City
Marshal, Bowering, that Chaplinsky was denouncing all religion as a "racket." Bowering told them that
Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting restless.
Some time later, a disturbance occurred and the traffic officer on duty at the busy intersection started
with Chaplinsky for the police station, but did not inform him that he was under arrest or that he was
going to be arrested. On the way, they encountered Marshal Bowering, who had been advised that a
riot was under way and was therefore hurrying to the scene. Bowering repeated his earlier warning to
Chaplinsky, who then addressed to Bowering the words set forth in the complaint.

Chaplinsky's version of the affair was slightly different. He testified that, 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. Appellant admitted that he said the words charged in the complaint, with the
exception of the name of the Deity.

Over appellant's objection, the trial court excluded, as immaterial, testimony relating to appellant's
mission "to preach the true facts of the Bible," his treatment at the hands of the crowd, and the
alleged neglect of duty on the part of the police. This action was approved by the court below, which
held that neither provocation nor the truth of the utterance would constitute a defense to the charge.

It is now clear that

"Freedom of speech and freedom of the press, which are protected by the First Amendment from
infringement by Congress, are among the fundamental personal rights and liberties which are
protected by the Fourteenth Amendment from invasion by state

Page 315 U. S. 571

action."

Lovell v. Griffin, 303 U. S. 444, 303 U. S. 450. [Footnote 1] Freedom of worship is similarly
sheltered. Cantwell v. Connecticut,310 U. S. 296, 310 U. S. 303.

Appellant assails the statute as a violation of all three freedoms, speech, press and worship, but only
an attack on the basis of free speech is warranted. The spoken, not the written, word is involved. And
we cannot conceive that cursing a public officer is the exercise of religion in any sense of the term.
But even if the activities of the appellant which preceded the incident could be viewed as religious in
character, and therefore entitled to the protection of the Fourteenth Amendment, they would not cloak
him with immunity from the legal consequences for concomitant acts committed in violation of a valid
criminal statute. We turn, therefore, to an examination of the statute itself.

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not absolute at all times and under all circumstances.
[Footnote 2] There are certain well defined and narrowly limited classes of speech, the prevention

Page 315 U. S. 572

and punishment of which have never been thought to raise any Constitutional problem. [Footnote 3]
These include 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.
[Footnote 4] It has been well observed that such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality. [Footnote 5]

"Resort to epithets or personal abuse is not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question
under that instrument."

Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 309-310.

The state statute here challenged comes to us authoritatively construed by the highest court of New
Hampshire. It has two provisions -- the first relates to words or names addressed to another in a
public place; the second refers to noises and exclamations. The court said:

"The two provisions are distinct. One may stand separately from the other. Assuming, without holding,
that the second were unconstitutional, the first could stand if constitutional."

We accept that construction of severability and limit our consideration to the first provision of the
statute. [Footnote 6]

Page 315 U. S. 573

On the authority of its earlier decisions, the state court declared that the statute's purpose was to
preserve the public peace, no words being "forbidden except such as have a direct tendency to cause
acts of violence by the persons to whom, individually, the remark is addressed." [Footnote 7] It was
further said:

"The word 'offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test
is what men of common intelligence would understand would be words likely to cause an average
addressee to fight. . . . The English language has a number of words and expressions which, by
general consent, are 'fighting words' when said without a disarming smile. . . . [S]uch words, as
ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings.
Derisive and annoying words can be taken as coming within the purview of the statute as heretofore
interpreted only when they have this characteristic of plainly tending to excite the addressee to a
breach of the peace. . . . The statute, as construed, 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."

We are unable to say that the limited scope of the statute as thus construed contravenes 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. Cf. Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 311; Thornhill v.
Alabama,

Page 315 U. S. 574

310 U. S. 88, 310 U. S. 105. This conclusion necessarily disposes of appellant's contention that the
statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A
statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not
too vague for a criminal law. Cf. Fox v. Washington 236 U.S. 273, 236 U. S. 277. [Footnote 8]

Nor can we say that the application of the statute to the facts disclosed by the record substantially or
unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate
that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the
average person to retaliation, and thereby cause a breach of the peace.

The refusal of the state court to admit evidence of provocation and evidence bearing on the truth or
falsity of the utterances is open to no Constitutional objection. Whether the facts sought to be proved
by such evidence constitute a defense to the charge, or may be shown in mitigation, are questions for
the state court to determine. Our function is fulfilled by a determination that the challenged statute, on
its face and as applied, doe not contravene the Fourteenth Amendment.

Affirmed.
UNITED STATES v. ALVAREZ
certiorari to the united states court of appeals for the ninth circuit

No. 11–210. Argued February 22, 2012—Decided June 28, 2012

The Stolen Valor Act makes it a crime to falsely claim receipt of military decorations or
medals and provides an enhanced penalty if the Congressional Medal of Honor is
involved. 18 U. S. C. §§704 (b), (c). Respondent pleaded guilty to a charge of falsely
claiming that he had received the Medal of Honor, but reserved his right to appeal his
claim that the Act is unconstitutional. The Ninth Circuit reversed, finding the Act invalid
under the First Amendment.
Held: The judgment is affirmed. Pp. 3−18.
617 F. 3d 1198, affirmed.
Justice Kennedy, joined by The Chief Justice, Justice Ginsburg, and Justice
Sotomayor, concluded that the Act infringes upon speech protected by the First
Amendment. Pp. 3–18.
(a) The Constitution “demands that content-based restrictions on speech be presumed
invalid . . . and that the Government bear the burden of showing their
constitutionality.” Ashcroft v. American Civil Liberties Union, 542 U. S. 656.
Content-based restrictions on speech have been permitted only for a few historic
categories of speech, including incitement, obscenity, defamation, speech integral to
criminal conduct, so-called “fighting words,” child pornography, fraud, true threats, and
speech presenting some grave and imminent threat the Government has the power to
prevent.
Absent from these few categories is any general exception for false statements. The
Government argues that cases such as Hustler Magazine, Inc., v. Falwell, 485 U. S. 46,
support its claim that false statements have no value and hence no First
Amendment protection. But all the Government’s quotations derive from cases
discussing defamation, fraud, or some other legally cognizable harm associated with a
false statement. In those decisions the falsity of the speech at issue was not irrelevant
to the Court’s analysis, but neither was it determinative. These prior decisions have not
confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.
Even when considering some instances of defamation or fraud, the Court has instructed
that falsity alone may not suffice to bring the speech outside the First Amendment; the
statement must be a knowing and reckless falsehood. See New York
Times v. Sullivan, 376 U. S. 254. Here, the Government seeks to convert a rule that
limits liability even in defamation cases where the law permits recovery for tortious
wrongs into a rule that expands liability in a different, far greater realm of discourse and
expression.
The Government’s three examples of false-speech regulation that courts generally have
found permissible do not establish a principle that all proscriptions of false statements
are exempt from rigorous First Amendment scrutiny. The criminal prohibition of a false
statement made to Government officials in communications concerning official
matters, 18 U. S. C. §1001, does not lead to the broader proposition that false
statements are unprotected when made to any person, at any time, in any context. As
for perjury statutes, perjured statements lack First Amendment protection not simply
because they are false, but because perjury undermines the function and province of the
law and threatens the integrity of judgments. Finally, there are statutes that prohibit
falsely representing that one is speaking on behalf of the Government, or prohibit
impersonating a Government officer. These examples, to the extent that they implicate
fraud or speech integral to criminal conduct, are inapplicable here.
While there may exist “some categories of speech that have been historically
unprotected,” but that the Court has not yet specifically identified or discussed, United
States v. Stevens, 559 U. S. ___, ___, the Government has not demonstrated that false
statements should constitute a new category. Pp. 3−10.
(b) The Act seeks to control and suppress all false statements on this one subject in
almost limitless times and settings without regard to whether the lie was made for the
purpose of material gain. Permitting the Government to decree this speech to be a
criminal offense would endorse government authority to compile a list of subjects about
which false statements are punishable. That governmental power has no clear limiting
principle. Pp. 10−11.
(c) The Court applies the “most exacting scrutiny” in assessing content-based
restrictions on protected speech. Turner Broadcasting System Inc. v. FCC, 512 U. S.
622. The Act does not satisfy that scrutiny. While the Government’s interest in
protecting the integrity of the Medal of Honor is beyond question, the First
Amendment requires that there be a direct causal link between the restriction imposed
and the injury to be prevented. Here, that link has not been shown. The Government
points to no evidence supporting its claim that the public’s general perception of military
awards is diluted by false claims such as those made by respondent. And it has not
shown, and cannot show, why counterspeech, such as the ridicule respondent received
online and in the press, would not suffice to achieve its interest.
In addition, when the Government seeks to regulate protected speech, the restriction
must be the “least restrictive means among available, effective
alternatives.” Ashcroft, 542 U. S., at 666. Here, the Government could likely protect the
integrity of the military awards system by creating a database of Medal winners
accessible and searchable on the Internet, as some private individuals have already
done. Pp. 12−18.
Justice Breyer, joined by Justice Kagan, concluded that because the Stolen Valor Act, as
presently drafted, works disproportionate constitutional harm, it fails intermediate
scrutiny, and thus violates the First Amendment. Pp. 1−10.
(a) In determining whether a statute violates the First Amendment, the Court has often
found it appropriate to examine the fit between statutory ends and means, taking into
account the seriousness of the speech-related harm the provision will likely cause, the
nature and importance of the provision’s countervailing objectives, the extent to which
the statute will tend to achieve those objectives, and whether there are other, less
restrictive alternatives. “Intermediate scrutiny” describes this approach. Since false
factual statements are less likely than true factual statements to make a valuable
contribution to the marketplace of ideas, and the government often has good reason to
prohibit such false speech, but its regulation can threaten speech-related harm, such an
approach is applied here. Pp. 1−3.
(b) The Act should be read as criminalizing only false factual statements made with
knowledge of their falsity and with intent that they be taken as true. Although the Court
has frequently said or implied that false factual statements enjoy little First
Amendment protection, see, e.g., Gertz v. Robert Welch, Inc., 418 U. S. 323, those
statements cannot be read to mean “no protection at all.” False factual statements serve
useful human objectives in many contexts. Moreover, the threat of criminal prosecution
for making a false statement can inhibit the speaker from making true statements,
thereby “chilling” a kind of speech that lies at the First Amendment’s heart. See id., at
340−341. And the pervasiveness of false factual statements provides a weapon to a
government broadly empowered to prosecute falsity without more. Those who are
unpopular may fear that the government will use that weapon selectively against them.
Although there are many statutes and common-law doctrines making the utterance of
certain kinds of false statements unlawful, they tend to be narrower than the Act, in that
they limit the scope of their application in various ways, for example, by requiring proof
of specific harm to identifiable victims. The Act lacks any such limiting features.
Although it prohibits only knowing and intentional falsehoods about readily verifiable
facts within the personal knowledge of the speaker, it otherwise ranges broadly, and
that breadth means that it creates a significant risk of First Amendment harm. Pp. 3−8.
(c) The Act nonetheless has substantial justification. It seeks to protect the interests of
those who have sacrificed their health and life for their country by seeking to preserve
intact the country’s recognition of that sacrifice in the form of military honors. P. 8.
(d) It may, however, be possible substantially to achieve the Government’s objective in
less burdensome ways. The First Amendment risks flowing from the Act’s breadth of
coverage could be diminished or eliminated by a more finely tailored statute, for
example, a statute that requires a showing that the false statement caused specific
harm or is focused on lies more likely to be harmful or on contexts where such lies are
likely to cause harm. Pp. 8−10.
Kennedy, J., announced the judgment of the Court and delivered an opinion, in
which Roberts, C. J., and Ginsburg and Sotomayor, JJ., joined. Breyer, J., filed an
opinion concurring in the judgment, in which Kagan, J., joined. Alito, J., filed a
dissenting opinion, in which Scalia and Thomas, JJ., joined.

TOP

Opinion
NOTICE: This opinion is subject to formal revision before publication in the preliminary
print of the United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any
typographical or other formal errors, in order that corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–210
_________________
UNITED STATES, PETITIONER v. XAVIER ALVAREZ
on writ of certiorari to the united states court ofappeals for the ninth
circuit

[June 28, 2012]

Justice Kennedy announced the judgment of the Court and delivered an opinion, in
which The Chief Justice, Justice Ginsburg, and Justice Sotomayor join.
Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he
played hockey for the Detroit Red Wings and that he once married a starlet from Mexico.
But when he lied in announcing he held the Con-gressional Medal of Honor, respondent
ventured onto new ground; for that lie violates a federal criminal statute, the Stolen
Valor Act of 2005. 18 U. S. C. §704.
In 2007, respondent attended his first public meeting as a board member of the Three
Valley Water District Board. The board is a governmental entity with headquarters in
Claremont, California. He introduced himself as follows: “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. I got wounded many times by the same guy.” 617 F. 3d 1198, 1201–1202
(CA9 2010). None of this was true. For all the record shows, respondent’s statements
were but a pathetic attempt to gain respect that eluded him. The statements do not
seem to have been made to secure employment or financial benefits or admission to
privileges reserved for those who had earned the Medal.
Respondent was indicted under the Stolen Valor Actfor lying about the Congressional
Medal of Honor at the meeting. The United States District Court for the Central District
of California rejected his claim that the statute is invalid under the First Amendment.
Respondent pleaded guilty to one count, reserving the right to appeal on his First
Amendment claim. The United States Court of Appeals for the Ninth Circuit, in a decision
by a divided panel, found the Act invalid under the First Amendment and reversed the
conviction. Id., at 1218. With further opinions on the issue, and over a dissent by seven
judges, rehearing en banc was denied. 638 F. 3d 666 (2011). This Court granted
certiorari. 565 U. S. ___ (2011).
After certiorari was granted, and in an unrelated case, the United States Court of
Appeals for the Tenth Circuit, also in a decision by a divided panel, found the Act
constitutional. United States v. Strandlof, 667 F. 3d 1146 (2012). So there is now a
conflict in the Courts of Appeals on the question of the Act’s validity.
This is the second case in two Terms requiring the Court to consider speech that can
disparage, or attempt to steal, honor that belongs to those who fought for this Nation in
battle. See Snyder v. Phelps, 562 U. S. ___ (2011) (hateful protests directed at the
funeral of a serviceman who died in Iraq). Here the statement that the speaker held the
Medal was an intended, undoubted lie.
It is right and proper that Congress, over a century ago, established an award so the
Nation can hold in its high-est respect and esteem those who, in the course of carrying
out the “supreme and noble duty of contributing to the defense of the rights and honor
of the nation,” Selective Draft Law Cases, 245 U. S. 366, 390 (1918) , have acted with
extraordinary honor. And it should be uncontested that this is a legitimate Government
objective, indeed a most valued national aspiration and purpose. This does not end the
inquiry, however. Fundamental constitutional principles require that laws enacted to
honor the brave must be consistent with the precepts of the Constitution for which they
fought.
The Government contends the criminal prohibition isa proper means to further its
purpose in creating and awarding the Medal. When content-based speech regulation is in
question, however, exacting scrutiny is required. Statutes suppressing or restricting
speech must be judged by the sometimes inconvenient principles of the First
Amendment. By this measure, the statutory provisions under which respondent was
convicted must be held invalid, and his conviction must be set aside.
I
Respondent’s claim to hold the Congressional Medal of Honor was false. There is no
room to argue about in-terpretation or shades of meaning. On this premise, respondent
violated §704(b); and, because the lie concerned the Congressional Medal of Honor, he
was subject to an enhanced penalty under subsection (c). Those statutory provisions are
as follows:
“(b) False Claims About Receipt of Military Decorations or Medals.––Whoever falsely
represents himself or herself, verbally or in writing, to have been awarded any
decoration or medal authorized by Congress for the Armed Forces of the United States
. . . shall be fined under this title, imprisoned not more than six months, or both.
“(c) Enhanced Penalty for Offenses Involving Congressional Medal of Honor.––
“(1) In General.––If a decoration or medal involved in an offense under subsection (a)
or (b) is a Congressional Medal of Honor, in lieu of the punishment provided in that
subsection, the offender shall be fined under this title, imprisoned not more than 1 year,
or both.”
Respondent challenges the statute as a content-based suppression of pure speech,
speech not falling within any of the few categories of expression where content-based
regulation is permissible. The Government defends the statute as necessary to preserve
the integrity and purpose of the Medal, an integrity and purpose it contends are
compromised and frustrated by the false statements the statute prohibits. It argues that
false statements “haveno First Amendment value in themselves,” and thus “are
protected only to the extent needed to avoid chilling fully protected speech.” Brief for
United States 18, 20. Al-though the statute covers respondent’s speech, the
Government argues that it leaves breathing room for pro-tected speech, for example
speech which might criticize the idea of the Medal or the importance of the military. The
Government’s arguments cannot suffice to save the statute.
II
“[A]s a general matter, the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject matter, or its
content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal
quotation marks omitted). As a result, the Constitution “demands that content-based
restrictions on speech be presumed invalid . . . and that the Government bear the
burden of showing their constitutionality.” Ashcroft v. American Civil Liberties Union, 542
U. S. 656, 660 (2004) .
In light of the substantial and expansive threats to free expression posed by content-
based restrictions, this Court has rejected as “startling and dangerous” a “free-floating
test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social
costs and benefits.” United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 7).
Instead, content-based restrictions on speech have been permitted, as a general matter,
only when confined to the few “ ‘historic and traditional categories [of expression] long
familiar to the bar,’ ” Id., at ___ (slip op., at 5) (quoting Simon & Schuster,
Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy,
J., concurring in judgment)). Among these categories are advocacy intended, and likely,
to incite imminent lawless action, see Brandenburg v. Ohio, 395 U. S. 444(1969) (per
curiam); obscenity, see, e.g., Miller v. California, 413 U. S. 15 (1973) ; defamation,
see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (providing substantial
protection for speech about public figures); Gertz v. Robert Welch, Inc., 418 U. S.
323 (1974) (imposing some limits on liability for defaming a private figure); speech
integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S.
490 (1949) ; so-called “fighting words,” see Chaplinsky v. New Hampshire, 315 U. S.
568 (1942) ; child pornography, see New York v. Ferber, 458 U. S. 747 (1982) ; fraud,
see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S.
748, 771 (1976) ; true threats, see Watts v. United States, 394 U. S. 705 (1969) (per
curiam); and speech presenting some grave and imminent threat the government has
the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931) ,
although a restriction under the last category is most difficult to sustain, see New York
Times Co. v. United States, 403 U. S. 713 (1971)(per curiam). These categories have a
historical foundation in the Court’s free speech tradition. The vast realm of free speech
and thought always protected in our tradition can still thrive, and even be furthered, by
adherence to those categories and rules.
Absent from those few categories where the law allows content-based regulation of
speech is any general exception to theFirst Amendment for false statements. This
comports with the common understanding that some false statements are inevitable if
there is to be an open and vigorous expression of views in public and private con-
versation, expression the First Amendment seeks to guarantee. See Sullivan, supra, at
271 (“Th[e] erroneous statement is inevitable in free debate”).
The Government disagrees with this proposition. It cites language from some of this
Court’s precedents to support its contention that false statements have no value and
hence no First Amendment protection. See also Brief for Eugene Volokh et al. as Amici
Curiae 2–11. These isolated statements in some earlier decisions do not support the
Government’s submission that false statements, as a general rule, are beyond
constitutional protection. That conclusion would take the quoted language far from its
proper context. For instance, the Court has stated “[f]alse statements of fact are
particularly valueless [because] they interfere with the truth-seeking function of the
marketplace of ideas,” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 52 (1988) , and
that false statements “are not protected by the First Amendment in the same manner as
truthful statements,” Brown v. Hartlage, 456 U. S. 45–61 (1982). See also, e.g., Virginia
Bd. of Pharmacy, supra, at 771 (“Untruthful speech, commercial or otherwise, has never
been protected for its own sake”); Herbert v. Lando, 441 U. S. 153, 171 (1979)
(“Spreading false information in and of itself carries no First
Amendment credentials”); Gertz, supra, at 340 (“[T]here is no constitutional value in
false statements of fact”); Garrison v. Louisiana, 379 U. S. 64, 75 (1964) (“[T]he
knowingly false statement and the false statement made with reckless disregard of the
truth, do not enjoy constitutional protection”).
These quotations all derive from cases discussing def-amation, fraud, or some other
legally cognizable harm associated with a false statement, such as an invasion of privacy
or the costs of vexatious litigation. See Brief for United States 18–19. In those decisions
the falsity ofthe speech at issue was not irrelevant to our analysis, but neither was it
determinative. The Court has never endorsed the categorical rule the Government
advances: that false statements receive no First Amendmentprotection. Our prior
decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity
and nothing more.
Even when considering some instances of defamation and fraud, moreover, the Court
has been careful to instruct that falsity alone may not suffice to bring the speech outside
the First Amendment. The statement must be a knowing or reckless falsehood.
See Sullivan, supra, at 280 (prohibiting recovery of damages for a defamatory falsehood
made about a public official unless the statement was made “with knowledge that it was
false or with reckless disregard of whether it was false or not”); seealso Garrison, supra,
at 73 (“[E]ven when the utterance is false, the great principles of the Constitution which
secure freedom of expression . . . preclude attaching adverse consequences to any
except the knowing or reckless falsehood”); Illinois ex rel. Madigan v. Telemarketing
Associates, Inc., 538 U. S. 600, 620 (2003) (“False statement alone does not subject a
fundraiser to fraud liability”).
The Government thus seeks to use this principle for a new purpose. It seeks to convert a
rule that limits liability even in defamation cases where the law permits recovery for
tortious wrongs into a rule that expands liability in a different, far greater realm of
discourse and expression. That inverts the rationale for the exception. The requirements
of a knowing falsehood or reckless disregard for the truth as the condition for recovery
in certain defamation cases exists to allow more speech, not less. A rule designed to
tolerate certain speech ought not blossom to become a rationale for a rule restricting it.
The Government then gives three examples of regulations on false speech that courts
generally have found per-missible: first, the criminal prohibition of a false statement
made to a Government official, 18 U. S. C. §1001; second, laws punishing perjury; and
third, prohibi-tions on the false representation that one is speaking as a Government
official or on behalf of the Government, see, e.g., §912; §709. These restrictions,
however, do not establish a principle that all proscriptions of false statements are
exempt from exacting First Amendment scrutiny.
The federal statute prohibiting false statements to Government officials punishes
“whoever, in any matter within the jurisdiction of the executive, legislative, or judicial
branch of the Government . . . makes any mate-rially false, fictitious, or fraudulent
statement or repre-sentation.” §1001. Section 1001’s prohibition on false statements
made to Government officials, in communications concerning official matters, does not
lead to the broader proposition that false statements are unprotected when made to any
person, at any time, in any context.
The same point can be made about what the Court has confirmed is the “unquestioned
constitutionality of perjury statutes,” both the federal statute, §1623, and its state-law
equivalents. United States v. Grayson, 438 U. S. 41, 54 (1978) . See
also Konigsberg v. State Bar of Cal., 366 U. S. 36, n. 10 (1961). It is not simply because
perjured statements are false that they lack First Amendment protection. Perjured
testimony “is at war with justice” because it can cause a court to render a “judgment not
resting on truth.” In re Michael, 326 U. S. 224, 227 (1945) . Perjury undermines the
function and province of the law and threatens the integrity of judgments that are the
basis of the legal system. See United States v. Dunnigan, 507 U. S. 87, 97 (1993) (“To
uphold the integrity of our trial system . . . the constitutionality of perjury statutes is
unquestioned”). Unlike speech in other contexts, testi-mony under oath has the
formality and gravity necessary to remind the witness that his or her statements will be
the basis for official governmental action, action that often affects the rights and
liberties of others. Sworn testimony is quite distinct from lies not spoken under oath and
sim-ply intended to puff up oneself.
Statutes that prohibit falsely representing that one is speaking on behalf of the
Government, or that prohibit im-personating a Government officer, also protect the
integrity of Government processes, quite apart from merely restricting false speech.
Title 18 U. S. C. §912, for ex-ample, prohibits impersonating an officer or employee of
the United States. Even if that statute may not require proving an “actual financial or
property loss” resulting from the deception, the statute is itself confined to
“maintain[ing] the general good repute and dignity of . . . government . . . service
itself.” United States v. Lepowitch, 318 U. S. 702, 704 (1943) (internal quotation marks
omitted). The same can be said for prohibitions on the unauthorized use of the names of
federal agencies such as the Federal Bureau of Investigation in a manner calculated to
convey that the communication is approved, see §709, or using words such as “Federal”
or “United States” in the collection of private debts in order to convey that the
communication has official authorization, see §712. These examples, to the extent that
they implicate fraud or speech integral to criminal conduct, are inapplicable here.
As our law and tradition show, then, there are instances in which the falsity of speech
bears upon whether it is protected. Some false speech may be prohibited even if
analogous true speech could not be. This opinion does not imply that any of these
targeted prohibitions are somehow vulnerable. But it also rejects the notion that false
speech should be in a general category that is presumptively unprotected.
Although the First Amendment stands against any “freewheeling authority to declare
new categories of speech outside the scope of the First Amendment,” Stevens, 559
U. S., at ___ (slip op., at 9), the Court has acknowledged that perhaps there exist
“some categories of speech that have been historically unprotected . . . but have not yet
been specifically identified or discussed . . . in our case law.” Ibid. Before exempting a
category of speech from the normal prohibition on content-based re-strictions, however,
the Court must be presented with “per-suasive evidence that a novel restriction on
content is part of a long (if heretofore unrecognized) tradition of
proscription,” Brown v. Entertainment Merchants Assn., 564 U. S. ___, ___ (2011) (slip
op., at 4). The Government has not demonstrated that false statements generally should
constitute a new category of unprotected speech on this basis.
III
The probable, and adverse, effect of the Act on free-dom of expression illustrates, in a
fundamental way, the reasons for the Law’s distrust of content-based speech
prohibitions.
The Act by its plain terms applies to a false statement made at any time, in any place, to
any person. It can be assumed that it would not apply to, say, a theatrical performance.
See Milkovich v. Lorain Journal Co., 497 U. S. 1, 20 (1990) (recognizing that some
statements nominally purporting to contain false facts in reality “cannot reasonably be
interpreted as stating actual facts about an individual” (internal quotation marks and
brackets omitted)). Still, the sweeping, quite unprecedented reach of the statute puts it
in conflict with the First Amendment. Here the lie was made in a public meeting, but the
statute would apply with equal force to personal, whispered conversations within a
home. The statute seeks to control and suppress all false statements on this one subject
in almost limitless times and settings. And it does so en-tirely without regard to whether
the lie was made for the purpose of material gain. See San Francisco Arts & Athletics,
Inc. v. United States Olympic Comm., 483 U. S. 522–540 (1987) (prohibiting a nonprofit
corporation from exploiting the “commercial magnetism” of the word “Olym-pic” when
organizing an athletic competition (internal quotation marks omitted)).
Permitting the government to decree this speech to bea criminal offense, whether
shouted from the rooftops or made in a barely audible whisper, would endorse
government authority to compile a list of subjects about which false statements are
punishable. That governmental power has no clear limiting principle. Our constitutional
tradition stands against the idea that we need Oceania’s Ministry of Truth. See G.
Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be
sustained, there could be an endless list of subjects the National Government or the
States could single out. Where false claims are made to effect a fraud or secure
moneysor other valuable considerations, say offers of employment, it is well established
that the Government may restrict speech without affronting the First Amendment.
See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech
generally falls outside the protections of the First Amendment). But the Stolen Valor Act
is not so limited in its reach. Were the Court to hold that the interest in truthful
discourse alone is sufficient to sustain a ban on speech, absent any evidence that the
speech was used to gain a material advantage, it would give government a broad
censorial power unprecedented in this Court’s cases or in our constitutional tradition.
The mere potential for the exercise of that power casts a chill, a chill the First
Amendment cannot permit if free speech, thought, and discourse are to remain a
foundation of our freedom.
IV
The previous discussion suffices to show that the Act conflicts with free speech
principles. But even when examined within its own narrow sphere of operation, the Act
cannot survive. In assessing content-based restrictionson protected speech, the Court
has not adopted a free-wheeling approach, see Stevens, 559 U. S., at ___ (slip op., at
7) (“The First Amendment’s guarantee of free speech does not extend only to categories
of speech that survive an ad hoc balancing of relative social costs and benefits”), but
rather has applied the “most exacting scrutiny.” Turner Broadcasting System,
Inc. v. FCC, 512 U. S. 622, 642 (1994) . Although the objectives the Government seeks
to further by the statute are not without significance, the Court must, and now does,
find the Act does not satisfy exacting scrutiny.
The Government is correct when it states military medals “serve the important public
function of recognizing and expressing gratitude for acts of heroism and sacrifice in
military service,” and also “ ‘foste[r] morale, mission accomplishment and esprit de
corps’ among service members.” Brief for United States 37, 38. General George
Washington observed that an award for valor would “cherish a virtuous ambition in . . .
soldiers, as well as foster and encourage every species of military merit.” General Orders
of George Washington Issued at Newburgh on the Hudson, 1782–1783 (Aug. 7, 1782),
p. 30 (E. Boynton ed. 1883). Time has not diminished this idea. In periods of war and
peace alike public recognition of valor and noble sacrifice by men and women in uniform
reinforces the pride and national resolve that the military relies upon to fulfill its mission.
These interests are related to the integrity of the military honors system in general, and
the Congressional Medal of Honor in particular. Although millions have served with brave
resolve, the Medal, which is the highest military award for valor against an enemy force,
has been given just 3,476 times. Established in 1861, the Medalis reserved for those
who have distinguished themselves “conspicuously by gallantry and intrepidity at the
risk of his life above and beyond the call of duty.” 10 U. S. C. §§3741 (Army), 6241
(Navy and Marine Corps), 8741 (Air Force), 14 U. S. C. §491 (Coast Guard). The stories
of those who earned the Medal inspire and fascinate, from Dakota Meyer who in 2009
drove five times into the midst of a Taliban ambush to save 36 lives, see Curtis,
President Obama Awards Medal of Honor to Dakota Meyer, The White House Blog (Sept.
15, 2011) (all Internet materials as visited June 25, 2012, and available in Clerk of
Court’s case file); to Desmond Doss who served as an army medic on Okinawa and on
June 5, 1945, rescued 75 fellow soldiers, and who, after being wounded, gave up his
own place on a stretcher so others could be taken to safety, see America’s Heroes 88–90
(J. Willbanks ed. 2011); to William Carney who sustained multiple gunshot wounds to
the head, chest, legs, and arm, and yet carried the flagto ensure it did not touch the
ground during the Union army’s assault on Fort Wagner in July 1863, id., at 44–45. The
rare acts of courage the Medal celebrates led President Truman to say he would “rather
have that medal round my neck than . . . be president of the United States.” Truman
Gives No. 1 Army Medal to 15 Heroes, Washington Post, Oct. 13, 1945, p. 5. The
Government’s interest in protecting the integrity of the Medal of Honor is beyond
question.
But to recite the Government’s compelling interests is not to end the matter. The First
Amendment requires that the Government’s chosen restriction on the speechat issue be
“actually necessary” to achieve its interest. En-tertainment Merchants Assn., 564 U. S.,
at ___ (slip op., at 12). There must be a direct causal link between the restriction
imposed and the injury to be prevented. See ibid. The link between the Government’s
interest in protecting the integrity of the military honors system and the Act’s restriction
on the false claims of liars like respondent has not been shown. Although appearing to
concede that “an isolated misrepresentation by itself would not tarnish the meaning of
military honors,” the Government asserts it is “common sense that false representations
have the tendency to dilute the value and meaning of military awards,” Brief for United
States 49, 54. It must be acknowledged that when a pretender claims the Medal to be
his own, the lie might harm the Government by demeaning the high purpose of the
award, diminishing the honor it confirms, and creating the appearance that the Medal is
awarded more often than is true. Furthermore, the lie may offend the true holders of the
Medal. From one perspective it in-sults their bravery and high principles when falsehood
puts them in the unworthy company of a pretender.
Yet these interests do not satisfy the Government’s heavy burden when it seeks to
regulate protected speech. See United States v. Playboy Entertainment Group, Inc., 529
U. S. 803, 818 (2000) . The Government points to no evidence to support its claim that
the public’s general perception of military awards is diluted by false claims such as those
made by Alvarez. Cf. Entertainment Merchants Assn., supra, at ___–___ (slip op., at
12–13) (analyzing and rejecting the findings of research psychologists demonstrating
the causal link between violent video games and harmful effects on children). As one of
the Government’s amici notes “there is nothing that charlatans such as Xavier Alvarez
can do to stain [the Medal winners’] honor.” Brief for Veterans of Foreign Wars of the
United States et al. as Amici Curiae 1. This general proposition is sound, even if true
holders of the Medal might experience anger and frustration.
The lack of a causal link between the Government’s stated interest and the Act is not the
only way in which the Act is not actually necessary to achieve the Government’s stated
interest. The Government has not shown, and cannot show, why counterspeech would
not suffice to achieve its interest. The facts of this case indicate that the dynamics of
free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a
public meeting. Even before the FBI began investigating him for his false statements
“Alvarez was perceived as a phony,” 617 F. 3d, at 1211. Once the lie was made public,
he was ridiculed online, see Brief for Respondent 3, his actions were reported in the
press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin
(Sept. 27, 2007), and a fellow board member called for his resignation,
see, e.g., Bigham, Water District Rep Requests Alvarez Resign in Wake of False Medal
Claim, San Bernardino Cty., CA, The Sun (May 21, 2008). There is good reason to
believe that a similar fate would befall other false claimants. See Brief for Reporters
Committee for Freedom of the Press et al. as Amici Curiae 30–33 (listing numerous
examples of public exposure of false claimants). Indeed, the outrage and contempt
expressed for respondent’s lies can serve to reawaken and reinforce the public’s respect
for the Medal, its recipients, and its high purpose. The acclaim that recipients of the
Congressional Medal of Honor receive also casts doubt on the proposition that the public
will be misled by the claims of charlatans or become cynical of those whose heroic deeds
earned them the Medal by right. See, e.g., Well Done, Washington Post, Feb. 5, 1943,
p. 8 (reporting on Pres-ident Roosevelt’s awarding the Congressional Medal of Honor to
Maj. Gen. Alexander Vandegrift); Devroy, Medal of Honor Given to 2 Killed in Somalia,
Washington Post, May 24, 1994, p. A6 (reporting on President Clinton’s awarding the
Congressional Medal of Honor to two special forces soldiers killed during operations in
Somalia).
The remedy for speech that is false is speech that is true. This is the ordinary course in a
free society. The response to the unreasoned is the rational; to the uninformed, the
enlightened; to the straight-out lie, the simple truth. See Whitney v. California, 274
U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through
discussion the falsehood and fallacies, to avertthe evil by the processes of education, the
remedy to be ap-plied is more speech, not enforced silence”). The theory of our
Constitution is “that the best test of truth is the power of the thought to get itself
accepted in the competition of the market,” Abrams v. United States, 250 U. S.
616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right
to respond to speech we do not like, and for good reason. Freedom of speech and
thought flows not from the beneficence of the state but from the inalienable rights of the
person. And suppression of speech by the government can make exposure of falsity
more difficult, not less so. Society has the right and civic duty to engage in open,
dynamic, rational discourse. These ends are not well served when the government seeks
to orchestrate public discussion through content-based mandates.
Expressing its concern that counterspeech is insuf-ficient, the Government responds that
because “some military records have been lost . . . some claims [are] un-verifiable,”
Brief for United States 50. This proves little, however; for without verifiable records,
successful criminal prosecution under the Act would be more difficult in any event. So, in
cases where public refutation will not serve the Government’s interest, the Act will not
either. In addition, the Government claims that “many [false claims] will remain
unchallenged.” Id., at 55. The Government provides no support for the contention. And
in any event, in order to show that public refutation is not an adequate alternative, the
Government must demonstrate that unchallenged claims undermine the public’s
perception of the military and the integrity of its awards system. This showing has not
been made.
It is a fair assumption that any true holders of the Medal who had heard of Alvarez’s
false claims would have been fully vindicated by the community’s expression of outrage,
showing as it did the Nation’s high regard for the Medal. The same can be said for the
Government’s interest. The American people do not need the assistance of a
government prosecution to express their high regard for the special place that military
heroes hold in our tradi-tion. Only a weak society needs government protection or
intervention before it pursues its resolve to preserve the truth. Truth needs neither
handcuffs nor a badge for its vindication.
In addition, when the Government seeks to regulate protected speech, the restriction
must be the “least restrictive means among available, effective alternatives.” Ashcroft,
542 U. S., at 666. There is, however, at least one less speech-restrictive means by
which the Government could likely protect the integrity of the military awards system. A
Government-created database could list Congressional Medal of Honor winners. Were a
database accessible through the Internet, it would be easy to verify and expose false
claims. It appears some private individuals have already created databases similar to
this, see Brief for Respondent 25, and at least one data-base of past winners is online
and fully searchable, see Congressional Medal of Honor Society, Full Archive,
http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that
although Congress and the Department of Defense investigated the feasibility of
establishing a database in 2008, the Government “concluded that such a database would
be impracticable and insuf-ficiently comprehensive.” Brief for United States 55. Without
more explanation, it is difficult to assess the Gov-ernment’s claim, especially when at
least one database of Congressional Medal of Honor winners already exists.
The Government may have responses to some of these criticisms, but there has been no
clear showing of the necessity of the statute, the necessity required by exacting
scrutiny.
* * *
The Nation well knows that one of the costs of the First Amendment is that it protects
the speech we detest as well as the speech we embrace. Though few might find
respondent’s statements anything but contemptible, his right to make those statements
is protected by the Constitution’s guarantee of freedom of speech and expression. The
Stolen Valor Act infringes upon speech protected by the First Amendment.
The judgment of the Court of Appeals is affirmed.
It is so ordered.

TOP

Concurrence
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–210
_________________
UNITED STATES, PETITIONER v. XAVIER ALVAREZ
on writ of certiorari to the united states court ofappeals for the ninth
circuit

[June 28, 2012]

Justice Breyer, with whom Justice Kagan joins, con-curring in the judgment.
I agree with the plurality that the Stolen Valor Act of 2005 violates the First
Amendment. But I do not rest my conclusion upon a strict categorical analysis. Ante, at
4–10. Rather, I base that conclusion upon the fact that the statute works First
Amendment harm, while the Government can achieve its legitimate objectives in less
restrictive ways.
I
In determining whether a statute violates the First Amendment, this Court has often
found it appropriate to examine the fit between statutory ends and means. In doing so,
it has examined speech-related harms, justifications, and potential alternatives. In
particular, it has taken account of the seriousness of the speech-related harm the
provision will likely cause, the nature and importance of the provision’s countervailing
objectives, the extent to which the provision will tend to achieve those objectives, and
whether there are other, less restrictive ways of doing so. Ultimately the Court has had
to determine whether the statute works speech-related harm that is out of proportion to
its justifications.
Sometimes the Court has referred to this approach as “intermediate scrutiny,”
sometimes as “proportionality” review, sometimes as an examination of “fit,” and
sometimes it has avoided the application of any label at all. See, e.g., Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622–652 (1994) (intermediate
scrutiny); Randall v. Sorrell, 548 U. S. 230, 249(2006) (plurality opinion)
(proportionality); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S.
469, 480 (1989) (requiring a “fit” be-tween means and ends that is “ ‘in proportion to
the in-terest served’ ”); In re R. M. J., 455 U. S. 191,203 (1982) (“[I]nterference with
speech must be in proportion to the [substantial governmental] interest
served”); Pickeringv. Board of Ed. of Township High School Dist. 205, Will Cty., 391
U. S. 563, 568 (1968) .
Regardless of the label, some such approach is necessary if the First Amendment is to
offer proper protection inthe many instances in which a statute adversely affects
constitutionally protected interests but warrants neither near-automatic condemnation
(as “strict scrutiny” implies) nor near-automatic approval (as is implicit in “rational
basis” review). See, e.g.,Turner Broadcasting System, Inc., supra, at 641–652 (“must-
carry” cable regulations); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of
N. Y., 447 U. S. 557, 566 (1980) (nonmisleading commercial
speech); Burdick v. Takushi, 504 U. S. 428–434 (1992) (election
regulation); Pickering, supra, at 568 (government employee speech); United
States v. O’Brien,391 U. S. 367, 377 (1968) (application of generally appli-cable laws to
expressive conduct). I have used the term “proportionality” to describe this
approach. Thompson v. Western States Medical Center, 535 U. S. 357, 388 (2002)
(dissenting opinion); see also Bartnicki v. Vopper, 532 U. S. 514, 536 (2001)
(concurring opinion); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377–403
(2000) (concurring opinion). But in this case, the Court’s term “intermediate scrutiny”
describes what I think we should do.
As the dissent points out, “there are broad areas in which any attempt by the state to
penalize purportedly false speech would present a grave and unacceptable dan-ger of
suppressing truthful speech.” Post, at 14. Laws restricting false statements about
philosophy, religion, history, the social sciences, the arts, and the like raise such
concerns, and in many contexts have called for strict scrutiny. But this case does not
involve such a law. The dangers of suppressing valuable ideas are lower where, as here,
the regulations concern false statements about easily verifiable facts that do not concern
such subject matter. Such false factual statements are less likely than are true factual
statements to make a valuable contribution to the marketplace of ideas. And the
government often hasgood reasons to prohibit such false speech. See infra, at5–7
(listing examples of statutes and doctrines regulating false factual speech). But its
regulation can nonetheless threaten speech-related harms. Those circumstances lead me
to apply what the Court has termed “intermediate scrutiny” here.
II
A
The Stolen Valor Act makes it a crime “falsely” to “represen[t]” oneself “to have been
awarded any decoration or medal authorized by Congress for the Armed Forces ofthe
United States.” 18 U. S. C. §704(b). I would read the statute favorably to the
Government as criminalizing only false factual statements made with knowledge of their
fal-sity and with the intent that they be taken as true. See Staples v. United States, 511
U. S. 600, 605 (1994) (courts construe statutes “in light of the background rules of the
common law, . . . in which the requirement of some mens rea for a crime is firmly
embedded”); cf. New York Times Co. v. Sullivan, 376 U. S. 254–280 (1964) ( First
Amendment allows a public official to recover for defamation only upon a showing of
“ ‘actual malice’ ”). As so interpreted the statute covers only lies. But although this
interpretation diminishes the extent to which the statute endangers First
Amendment values, it does not eliminate the threat.
I must concede, as the Government points out, that this Court has frequently said or
implied that false factual statements enjoy little First Amendment protection.
See, e.g., BE&K Constr. Co. v. NLRB, 536 U. S. 516, 531 (2002) (“[F]alse statements
may be unprotected for their own sake”); Hustler Magazine, Inc. v. Falwell, 485 U. S.
46, 52 (1988) (“False statements of fact are particularly valueless”); Gertz v. Robert
Welch, Inc., 418 U. S. 323, 340 (1974) (“[T]he erroneous statement of fact is not
worthy of constitutional protection”).
But these judicial statements cannot be read to mean “no protection at all.” False factual
statements can serve useful human objectives, for example: in social contexts, where
they may prevent embarrassment, protect privacy, shield a person from prejudice,
provide the sick with comfort, or preserve a child’s innocence; in public contexts, where
they may stop a panic or otherwise preserve calm in the face of danger; and even in
technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest)
examination of a false statement (even if made deliberately to mislead) can promote a
form of thought that ultimately helps realize the truth. See, e.g., 638 F. 3d666, 673–675
(CA9 2011) (Kozinski, J., concurring in denial of rehearing en banc) (providing numerous
examples); S. Bok, Lying: Moral Choice in Public and Private Life (1999) (same); New
York Times Co., supra, at 279, n. 19 (“Even a false statement may be deemed to make
a valuable contribution to public debate, since it brings about ‘the clearer perception and
livelier impression of truth, produced byits collision with error’ ” (quoting J. Mill, On
Liberty 15 (Blackwell ed. 1947))).
Moreover, as the Court has often said, the threat of criminal prosecution for making a
false statement can inhibit the speaker from making true statements, thereby “chilling”
a kind of speech that lies at the First Amendment’s heart. See, e.g., Gertz, supra, at
340–341. Hence, the Court emphasizes mens rea requirements that provide “breathing
room” for more valuable speech by reducing an honest speaker’s fear that he may
accidentally incur liability for speaking.
Further, the pervasiveness of false statements, madefor better or for worse motives,
made thoughtlessly or de-liberately, made with or without accompanying harm, provides
a weapon to a government broadly empowered to prosecute falsity without more. And
those who are unpopular may fear that the government will use thatweapon selectively,
say by prosecuting a pacifist who sup-ports his cause by (falsely) claiming to have been
a war hero, while ignoring members of other political groups who might make similar
false claims.
I also must concede that many statutes and common-law doctrines make the utterance
of certain kinds of false statements unlawful. Those prohibitions, however, tend to be
narrower than the statute before us, in that they limit the scope of their application,
sometimes by requiring proof of specific harm to identifiable victims; sometimes by
specifying that the lies be made in contexts in which a tangible harm to others is
especially likely to occur; and sometimes by limiting the prohibited lies to those that are
particularly likely to produce harm.
Fraud statutes, for example, typically require proof of a misrepresentation that is
material, upon which the victim relied, and which caused actual injury. See Restatement
(Second) of Torts §525 (1976). Defamation statutes focus upon statements of a kind
that harm the reputation of another or deter third parties from association or dealing
with the victim. See id., §§558, 559. Torts involving the intentional infliction of
emotional distress (like torts involving placing a victim in a false light) concern
falsehoods that tend to cause harm to a specific victim of an emotional-, dignitary-, or
privacy-related kind. See id., §652E.
Perjury statutes prohibit a particular set of false statements—those made under oath—
while requiring a showing of materiality. See, e.g., 18 U. S. C. §1621. Statutes
forbidding lying to a government official (not under oath) are typically limited to
circumstances where a lie is likely to work particular and specific harm by interfering
with the functioning of a government department, and those statutes also require a
showing of materiality. See, e.g., §1001.
Statutes prohibiting false claims of terrorist attacks, or other lies about the commission
of crimes or catastrophes, require proof that substantial public harm be directly
foreseeable, or, if not, involve false statements that are very likely to bring about that
harm. See, e.g., 47 CFR §73.1217 (2011) (requiring showing of foreseeability and actual
substantial harm); 18 U. S. C. §1038(a)(1) (prohibiting knowing false statements
claiming that terrorist attacks have taken, are taking, or will take, place).
Statutes forbidding impersonation of a public official typically focus on acts of
impersonation, not mere speech, and may require a showing that, for example,
someone was deceived into following a “course [of action] he would not have pursued
but for the deceitful conduct.” United States v. Lepowitch, 318 U. S. 702, 704 (1943) ;
see, e.g., §912 (liability attaches to “[w]hoever falsely assumes or pretends to be an
officer or employee acting under the authority of the United States . . . and acts as
such” (emphasis added)).
Statutes prohibiting trademark infringement present, perhaps, the closest analogy to the
present statute. Trademarks identify the source of a good; and infringement causes
harm by causing confusion among potential customers (about the source) and thereby
diluting the value of the mark to its owner, to consumers, and to the econ-omy.
Similarly, a false claim of possession of a medalor other honor creates confusion about
who is entitled to wear it, thus diluting its value to those who have earned it, to their
families, and to their country. But trademark statutes are focused upon commercial and
promotional activities that are likely to dilute the value of a mark. Indeed, they typically
require a showing of likely confusion, a showing that tends to assure that the feared
harm will in fact take place. See 15 U. S. C. §1114(1)(a); KP Permanent Make-Up,
Inc.v. Lasting Impression I, Inc., 543 U. S. 111, 117 (2004) ; see also San Francisco
Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522–540, 548 (1987)
(upholding statute giving the United States Olympic Committee the right to prohibit
certain commercial and promotional uses of the word “Olympic”).
While this list is not exhaustive, it is sufficient to show that few statutes, if any, simply
prohibit without limitation the telling of a lie, even a lie about one particular matter.
Instead, in virtually all these instances limitations of context, requirements of proof of
injury, and the like, narrow the statute to a subset of lies where specific harm is more
likely to occur. The limitations help to make certain that the statute does not allow its
threat of liability or criminal punishment to roam at large, discouraging or forbidding the
telling of the lie in contexts where harm is unlikely or the need for the prohibition is
small.
The statute before us lacks any such limiting features. It may be construed to prohibit
only knowing and intentional acts of deception about readily verifiable facts within the
personal knowledge of the speaker, thus reducing the risk that valuable speech is
chilled. Supra, at 3–4. But it still ranges very broadly. And that breadth means that it
creates a significant risk ofFirst Amendmentharm. As written, it applies in family, social,
or other private contexts, where lies will often cause little harm. It also applies in
political contexts, where although such lies are more likely to cause harm, the risk of
censorious se-lectivity by prosecutors is also high. Further, given the potential haziness
of individual memory along with the large number of military awards covered (ranging
from medals for rifle marksmanship to the Congressional Medal of Honor), there remains
a risk of chilling that is not completely eliminated by mens rea requirements; a speaker
might still be worried about being prosecuted for a careless false statement, even if he
does not have the intent required to render him liable. And so the prohibition may be
applied where it should not be applied, for example, to bar stool braggadocio or, in the
political arena, subtly but selectively to speakers that the Government does not like.
These considerations lead me to believe that the statute as written risks significant First
Amendment harm.
B
Like both the plurality and the dissent, I believe the statute nonetheless has substantial
justification. It seeks to protect the interests of those who have sacrificed their health
and life for their country. The statute serves this interest by seeking to preserve intact
the country’s recognition of that sacrifice in the form of military honors. To permit those
who have not earned those honors to claim otherwise dilutes the value of the awards.
Indeed, the Nation cannot fully honor those who have sacrificed so much for their
country’s honor unless those who claim to have received its military awards tell the
truth. Thus, the statute risks harming protected interests but only in order to achieve a
substantial countervailing objective.
C
We must therefore ask whether it is possible substantially to achieve the Government’s
objective in less burdensome ways. In my view, the answer to this question is “yes.”
Some potential First Amendment threats can be alleviated by interpreting the statute to
require knowledge of falsity, etc. Supra, at 3–4. But other First Amendment risks,
primarily risks flowing from breadth of coverage, remain. Supra, at 4–5, 7–8. As is
indicated by the limitations on the scope of the many other kinds of statutes regulating
false factual speech, supra, at 5–7, it shouldbe possible significantly to diminish or
eliminate these re-maining risks by enacting a similar but more finely tailored statute.
For example, not all military awards are alike. Congress might determine that some
warrant greater protection than others. And a more finely tailored statute might, as
other kinds of statutes prohibiting false factual statements have done, insist upon a
showing that the false statement caused specific harm or at least was material, or focus
its coverage on lies most likely to be harmful or on contexts where such lies are most
likely to cause harm.
I recognize that in some contexts, particularly political contexts, such a narrowing will
not always be easy to achieve. In the political arena a false statement is more likely to
make a behavioral difference (say, by leading the listeners to vote for the speaker) but
at the same time criminal prosecution is particularly dangerous (say, by radically
changing a potential election result) and consequently can more easily result in
censorship of speakers and their ideas. Thus, the statute may have to be significantly
narrowed in its applications. Some lower courts have upheld the constitutionality of
roughly comparable but narrowly tailored statutes in political contexts. See, e.g., United
We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F. 3d 86, 93
(CA2 1997) (upholding against First Amendment challenge application of Lanham Act to
a political organization); Treasure of the Committee to Elect Gerald D. Lostracco v. Fox,
150 Mich. App. 617, 389 N. W. 2d 446 (1986) (upholding under First
Amendment statute prohibiting campaign material falsely claiming that one is an
incumbent). Without expressing any view on the validity of those cases, I would also
note, like the plurality, that in this area more accurate information will normally
counteract the lie. And an accurate, publicly available register of military awards, easily
obtainable by political opponents, may well adequately protect the integrity of an award
against those who would falsely claim to have earned it. See ante, at 17–18. And so it is
likely that a more narrowly tailored statute combined with such information-
disseminating devices will effectively serve Congress’ end.
The Government has provided no convincing explanation as to why a more finely
tailored statute would not work. In my own view, such a statute could significantly
reduce the threat of First Amendment harm while permitting the statute to achieve its
important protective objective. That being so, I find the statute as presently drafted
works disproportionate constitutional harm. It consequently fails intermediate scrutiny,
and so violates the First Amendment.
For these reasons, I concur in the Court’s judgment
 EN BANC

SOUTHERN HEMISPHERE G.R. No. 178552

ENGAGEMENT NETWORK, INC.,
on behalf of the South-South Present:
Network (SSN) for Non-State
Armed Group Engagement, and CORONA, C.J.,
ATTY. SOLIMAN M. SANTOS, JR., CARPIO,
Petitioners, CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
ANTI-TERRORISM COUNCIL, THE BERSAMIN,
EXECUTIVE SECRETARY, THE DEL CASTILLO,
SECRETARY OF JUSTICE, THE ABAD,
SECRETARY OF FOREIGN VILLARAMA, JR.,
AFFAIRS, THE SECRETARY OF PEREZ,
NATIONAL DEFENSE, THE MENDOZA, and
SECRETARY OF THE INTERIOR SERENO, JJ.
AND LOCAL GOVERNMENT, THE
SECRETARY OF FINANCE, THE
NATIONAL SECURITY ADVISER,
THE CHIEF OF STAFF OF THE
ARMED FORCES OF THE
PHILIPPINES, AND THE CHIEF OF
THE PHILIPPINE NATIONAL
POLICE,
Respondents.

x ------------------------------- x Promulgated:

KILUSANG MAYO UNO (KMU), October 5, 2010

represented by its Chairperson
Elmer Labog, NATIONAL
FEDERATION OF LABOR G.R. No. 178554
UNIONS-KILUSANG MAYO UNO
(NAFLU-KMU), represented by
its National President Joselito V.
Ustarez and Secretary General
Antonio C. Pascual, and CENTER
FOR TRADE UNION AND
HUMAN RIGHTS, represented
by its Executive Director Daisy
Arago,
Petitioners,

- versus -

HON. EDUARDO ERMITA, in his

capacity as Executive Secretary,
NORBERTO GONZALES, in his
capacity as Acting Secretary of
National Defense, HON. RAUL
GONZALES, in his capacity as
Secretary of Justice, HON.
RONALDO PUNO, in his capacity
as Secretary of the Interior and
Local Government, GEN.
HERMOGENES ESPERON, in his
capacity as AFP Chief of Staff,
and DIRECTOR GENERAL OSCAR
CALDERON, in his capacity as
PNP Chief of Staff,
Respondents.

x ------------------------------------ x

BAGONG ALYANSANG
MAKABAYAN (BAYAN),
GENERAL ALLIANCE BINDING
WOMEN FOR REFORMS,
INTEGRITY, EQUALITY,
LEADERSHIP AND ACTION
(GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS
(KMP), MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL G.R. No. 178581
LIBERTIES (MCCCL),
CONFEDERATION FOR UNITY,
RECOGNITION AND
ADVANCEMENT OF
GOVERNMENT EMPLOYEES
(COURAGE), KALIPUNAN NG
DAMAYANG MAHIHIRAP
(KADAMAY), SOLIDARITY OF
CAVITE WORKERS, LEAGUE OF
FILIPINO STUDENTS (LFS),
ANAKBAYAN, PAMBANSANG
LAKAS NG KILUSANG
MAMAMALAKAYA
(PAMALAKAYA), ALLIANCE OF
CONCERNED TEACHERS (ACT),
MIGRANTE, HEALTH ALLIANCE
FOR DEMOCRACY (HEAD),
AGHAM, TEOFISTO GUINGONA,
JR., DR. BIENVENIDO LUMBERA,
RENATO CONSTANTINO, JR.,
SISTER MARY JOHN MANANSAN
OSB, DEAN CONSUELO PAZ,
ATTY. JOSEFINA LICHAUCO,
COL. GERRY CUNANAN (ret.),
CARLITOS SIGUION-REYNA, DR.
CAROLINA PAGADUAN-
ARAULLO, RENATO REYES,
DANILO RAMOS, EMERENCIANA
DE LESUS, RITA BAUA, REY
CLARO CASAMBRE,
Petitioners,

- versus -

GLORIA MACAPAGAL-ARROYO,
in her capacity as President and
Commander-in-Chief,
EXECUTIVE SECRETARY
EDUARDO ERMITA,
DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALES,
DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERTO
ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING
SECRETARY NORBERTO
GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT SECRETARY
RONALDO PUNO. DEPARTMENT
OF FINANCE SECRETARY
MARGARITO TEVES, NATIONAL
SECURITY ADVISER NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE COORDINATING
AGENCY (NICA), THE NATIONAL
BUREAU OF INVESTIGATION
(NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF
CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE
ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER
ON TRANSNATIONAL CRIME,
THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including
its intelligence and investigative
elements, AFP CHIEF GEN.
HERMOGENES ESPERON,
Respondents.
x ------------------------------------ x
KARAPATAN, ALLIANCE FOR
THE ADVANCEMENT OF
PEOPLES RIGHTS, represented
herein by Dr. Edelina de la Paz,
and representing the following
organizations: HUSTISYA,
represented by Evangeline
Hernandez and also on her own
behalf; DESAPARECIDOS,
represented by Mary Guy
Portajada and also on her own
behalf, SAMAHAN NG MGA EX-
DETAINEES LABAN SA
DETENSYON AT PARA SA
AMNESTIYA (SELDA),
represented by Donato
Continente and also on his own
behalf, ECUMENICAL
MOVEMENT FOR JUSTICE AND
PEACE (EMJP), represented by
Bishop Elmer M. Bolocon, UCCP,
and PROMOTION OF CHURCH
PEOPLES RESPONSE,
represented by Fr. Gilbert
Sabado, OCARM,
Petitioners,

- versus -

GLORIA MACAPAGAL-ARROYO, G.R. No. 178890

in her capacity as President and
Commander-in-Chief,
EXECUTIVE SECRETARTY
EDUARDO ERMITA,
DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERTO
ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING
SECRETARY NORBERTO
GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT SECRETARY
RONALDO PUNO, DEPARTMENT
OF FINANCE SECRETARY
MARGARITO TEVES, NATIONAL
SECURITY ADVISER NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE COORDINATING
AGENCY (NICA), THE NATIONAL
BUREAU OF INVESTIGATION
(NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF
CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE
ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER
ON TRANSNATIONAL CRIME,
THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including
its intelligence and investigative
elements, AFP CHIEF GEN.
HERMOGENES ESPERON,
Respondents.

x------------------------------------ x

THE INTEGRATED BAR OF THE

PHILIPPINES (IBP), represented
by Atty. Feliciano M. Bautista,
COUNSELS FOR THE DEFENSE
OF LIBERTY(CODAL), SEN. MA.
ANA CONSUELO A.S. MADRIGAL
and FORMER SENATORS SERGIO
OSMEA III and WIGBERTO E.
TAADA,
Petitioners,

- versus -

EXECUTIVE SECRETARY
EDUARDO ERMITA AND THE
MEMBERS OF THE ANTI-
TERRORISM COUNCIL (ATC),
Respondents.
x------------------------------------- x

BAGONG ALYANSANG
MAKABAYAN-SOUTHERN
TAGALOG (BAYAN-ST),
GABRIELA-ST, KATIPUNAN NG
MGA SAMAHYANG
MAGSASAKA-TIMOG
KATAGALUGAN (KASAMA-TK),
MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES
(MCCCL), PEOPLES MARTYRS,
ANAKBAYAN-ST,
PAMALAKAYA-ST,
CONFEDERATION FOR UNITY,
RECOGNITION AND
ADVANCEMENT OF
GOVERNMENT EMPLOYEES
(COURAGE-ST), PAGKAKAISAT
UGNAYAN NG MGA
MAGBUBUKID SA LAGUNA
(PUMALAG), SAMAHAN NG
MGA MAMAMAYAN SA TABING
RILES (SMTR-ST), LEAGUE OF
FILIPINO STUDENTS (LFS), G.R. No. 179157
BAYAN MUNA-ST, KONGRESO
NG MGA MAGBUBUKID PARA
SA REPORMANG AGRARYO
KOMPRA, BIGKIS AT LAKAS NG
MGA KATUTUBO SA TIMOG
KATAGALUGAN (BALATIK),
SAMAHAN AT UGNAYAN NG
MGA MAGSASAKANG
KABABAIHAN SA TIMOG
KATAGALUGAN (SUMAMAKA-
TK), STARTER, LOSOS RURAL
POOR ORGANIZATION FOR
PROGRESS & EQUALITY,
CHRISTIAN NIO LAJARA,
TEODORO REYES, FRANCESCA B.
TOLENTINO, JANNETTE E.
BARRIENTOS, OSCAR T. LAPIDA,
JR., DELFIN DE CLARO, SALLY P.
ASTRERA, ARNEL SEGUNE
BELTRAN,
Petitioners,

- versus -

G.R. No. 179461

GLORIA MACAPAGAL-ARROYO,
in her capacity as President and
Commander-in-Chief,
EXECUTIVE SECRETARY
EDUARDO ERMITA,
DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERTO
ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING
SECRETARY NORBERTO
GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMEN T SECRETARY
RONALDO PUNO, DEPARTMENT
OF FINCANCE SECRETARY
MARGARITO TEVES, NATIONAL
SECURITY ADVISER NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE COORDINATING
AGENCY (NICA), THE NATIONAL
BUREAU OF INVESTIGATION
(NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF
CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE
ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER
ON TRANSNATIONAL CRIME,
THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including
its intelligence and investigative
elements, AFP CHIEF GEN.
HERMOGENES ESPERON,
Respondents.
x--------------------------------------------------------------------------x

DECISION

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA
9372), An Act to Secure the State and Protect our People from Terrorism, otherwise known as
the Human Security Act of 2007,[1] signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern Hemisphere
Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a
concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16,
2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU),
National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade
Union and Human Rights (CTUHR), represented by their respective officers [3] who are also
bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition
docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General
Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA),
Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties
(MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees
(COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang
Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health
Alliance for Democracy (HEAD), and Agham, represented by their respective officers, [4] and
joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera,
Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina
Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo,
Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a
petition for certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos,
Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical
Movement for Justice and Peace (EMJP), and Promotion of Church Peoples Response (PCPR),
which were represented by their respective officers[5] who are also bringing action on their own
behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense
of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto
E. Taada filed a petition for certiorari and prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and

organizations mostly based in the Southern Tagalog Region,[7] and individuals[8] followed suit by
filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No.
179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council[9] 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.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-
Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence
Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil
Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on
Transnational Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-
judicial functions. Section 1, Rule 65 of the Rules of Court is clear:

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. (Emphasis and underscoring supplied)

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.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

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.[10]

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.

Petitioners lack locus standi

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.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the rule on locus
standi, thus:

Locus standi or legal standing has been defined as a personal and substantial interest
in a case such that the party has sustained or will sustain direct injury as a result of the
 governmental act that is being challenged. The gist of the question on standing is
whether a party alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct and personal
interest. It must show not only that the law or any governmental act is invalid, but also
that it sustained or is in immediate danger of sustaining some direct injury as a result
of its enforcement, and not merely that it suffers thereby in some indefinite way. It
must show that it has been or is about to be denied some right or privilege to which it
is lawfully entitled or that it is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.

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 injury as 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.
(emphasis and underscoring supplied.)

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.

While Chavez v. PCGG[13] holds that transcendental public importance dispenses with the
requirement that petitioner has experienced or is in actual danger of suffering direct and
personal injury, cases involving the constitutionality of penal legislation belong to an altogether
different genus of constitutional litigation. Compelling State and societal interests in the
proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny
of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of
them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, 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 [S]tate.[14]
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.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA,
ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the
Court to take judicial notice of respondents 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.[15] The petition of BAYAN-ST, et
al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged tagging of petitioners.

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.

Things of common knowledge, of which courts take judicial matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or they
may be matters which are generally accepted by mankind as true and are capable of
ready and unquestioned demonstration. Thus, facts which are universally known, and
which may be found in encyclopedias, dictionaries or other publications, are judicially
noticed, provided, they are of such universal notoriety and so generally understood
that they may be regarded as forming part of the common knowledge of every
person. As the common knowledge of man ranges far and wide, a wide variety of
particular facts have been judicially noticed as being matters of common
knowledge. But a court cannot take judicial notice of any fact which, in part, is
dependent on the existence or non-existence of a fact of which the court has no
constructive knowledge.[16] (emphasis and underscoring supplied.)

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 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.

While in our jurisdiction there is still no judicially declared terrorist organization, the United
States of America[17] (US) and the European Union[18](EU) have both classified the CPP, NPA
and Abu Sayyaf Group as foreign terrorist organizations. 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.[19] 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. Again, RA 9372 has been in effect for three years now. 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.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives

Saturnino Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan, [20] urged the
government to resume peace negotiations with the NDF by removing the impediments thereto,
one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign
terrorist organizations. Considering the policy statement of the Aquino Administration[21] of
resuming peace talks with the NDF, the government is not imminently disposed to ask for the
judicial proscription of the CPP-NPA consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific
interests in the questions being raised.[22] Of recent development is the filing of the first case for
proscription under Section 17[23] of RA 9372 by the Department of Justice before the Basilan
Regional Trial Court against the Abu Sayyaf Group.[24] Petitioner-organizations do not in the
least allege any link to the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA
9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed in 2006 against
then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of
GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named
in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-
Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being
front organizations for the Communist movement were petitioner-organizations KMU, BAYAN,
GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.[26]

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those
charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For
another, rebellion is defined and punished under the Revised Penal Code. Prosecution for
rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment
thereof make it easier to charge a person with rebellion, its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to prospective
charges under RA 9372. It cannot be overemphasized that three years after the enactment of
RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn
duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render
assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe
the IBP or any of its members with standing.[27] The IBP failed to sufficiently demonstrate how
its mandate under the assailed statute revolts against its constitutional rights and
duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention
effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of political
surveillance, also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the
claim of political surveillance, the Court finds that she has not shown even the slightest threat
of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto
Taada and Senator Sergio Osmea III, who cite their being respectively a human rights advocate
and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete
injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R.
No. 178552 also conveniently state that the issues they raise are of transcendental importance,
which must be settled early and are of far-reaching implications, without mention of any specific
provision of RA 9372 under which they have been charged, or may be charged. Mere invocation
of human rights advocacy has nowhere been held sufficient to clothe litigants with locus
standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a
result of the laws enforcement.To rule otherwise would be to corrupt the settled doctrine
of locus standi, as every worthy cause is an interest shared by the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A
taxpayer suit is proper only when there is an exercise of the spending or taxing power of
Congress,[28] whereas citizen standing must rest on direct and personal interest in the
proceeding.[29]

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.

Petitioners fail to present an actual case or

controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.[30] (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,[31] the Court ruled that the power of judicial review
is limited to actual cases or controversies to be exercised after full opportunity of argument by
the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities.
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.[32]

Information Technology Foundation of the Philippines v. COMELEC [33] cannot be more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy

scholarly interest, however intellectually challenging. The controversy must be
justiciabledefinite and concrete, touching on the legal relations of parties having
adverse legal interests. In other words, the pleadings must show an active
 antagonistic assertion of a legal right, on the one hand, and a denial thereof on
the other hand; that is, it must concern a real and not merely a theoretical
question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical
state of facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a
Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent
events.[34] Similarly, a petition that fails to allege that an application for a license to operate a
radio or television station has been denied or granted by the authorities does not present a
justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.[35]

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections [36] for
failure to cite any specific affirmative action of the Commission on Elections to implement the
assailed resolution. It refused, in Abbas v. Commission on Elections,[37] to rule on the religious
freedom claim of the therein petitioners based merely on a perceived potential conflict between
the provisions of the Muslim Code and those of the national law, there being no actual
controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes
on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to
any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by
the requirement that there must be sufficient facts to enable the Court to intelligently
adjudicate the issues.[38]
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,[39] allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs
faced a credible threat of prosecution and should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief.[40] The plaintiffs therein filed an action
before a federal court to assail the constitutionality of the material support statute, 18 U.S.C.
2339B (a) (1),[41] proscribing the provision of material support to organizations declared by the
Secretary of State as foreign terrorist organizations. They claimed that they intended to provide
support for the humanitarian and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory
petition clearly shows that the challenged prohibition forbids the conduct or activity that a
petitioner seeks to do, as there would then be a justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the
challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they
seek to do. No demonstrable threat has been established, much less a real and existing one.

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.[43]

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.[44]

The possibility of abuse in the implementation of RA 9372 does not avail to take the present
petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to
RA 9372 since the exercise of any power granted by law may be abused.[45] Allegations of abuse
must be anchored on real events before courts may step in to settle actual
controversies involving rights which are legally demandable and enforceable.

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[46] 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.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only to free
speech cases; and that RA 9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the
schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally
applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the
application of the two doctrines to free speech cases. They particularly cite Romualdez v. Hon.
Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word intervene in Section 5[49] of the
Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court
stated that the overbreadth and the vagueness doctrines have special application only to free-
speech cases, and are not appropriate for testing the validity of penal statutes. [50] It added that,
at any rate, the challenged provision, under which the therein petitioner was charged, is not
vague.[51]

While in the subsequent case of Romualdez v. Commission on Elections,[52] the Court stated that
a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct
a vagueness analysis, and concluded that the therein subject election offense[53] under the
Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in
precise language.[54]

The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice Vicente V. Mendoza
in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear
and free from ambiguity respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of
a facial invalidation as opposed to an as-applied challenge. He basically postulated that
allegations that a penal statute is vague and overbroad do not justify a facial review of its
validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted
at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes
regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes
with no requirement that the person making the attack demonstrate that his own conduct could not
be regulated by a statute drawn with narrow specificity." The possible harm to society in
permitting some unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
 This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed for this
reason alone, the State may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court
put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine
outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled
that "claims of facial overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at
all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied
to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is
the most difficult challenge to mount successfully, since the challenger must establish that no set
of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is
said that a litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain
of the vagueness of the law as applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they are called
in American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that "one to
whom application of a statute is constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional." As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are invalidated
[only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's
claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected. It constitutes a departure from the case and controversy requirement of
the Constitution and permits decisions to be made without concrete factual settings and in sterile
abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and

requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-
line analysis of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly
strong medicine," to be employed "sparingly and only as a last resort," and is generally
disfavored. In determining the constitutionality of a statute, therefore, its provisions which are
alleged to have been violated in a case must be examined in the light of the conduct with which
the defendant is charged.[56] (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of
the overbreadth and vagueness doctrines as grounds for a facial or as-appliedchallenge against
a penal statute (under a claim of violation of due process of law) or a speech regulation (under
a claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the
same plane.

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.[57] 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.[58]

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.[59]

A facial challenge is likewise different from an as-applied challenge.

Distinguished from an as-applied challenge which considers only extant facts

affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its
flaws and defects, not only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not before the court to refrain
from constitutionally protected speech or activities. [60]

Justice Mendoza accurately phrased the subtitle[61] 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.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the chilling
effect on protected speech, the exercise of which should not at all times be abridged.[62] As
reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an in
terrorem effect in deterring socially harmful conduct. In fact, the legislature may even forbid
and penalize acts formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected rights. [63]

The Court reiterated that there are critical limitations by which a criminal statute may be
challenged and underscored that an on-its-face invalidation of penal statutes x x x may not be
allowed.[64]

[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If
a facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would effectively
go against the grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised. A facial challenge
against a penal statute is, at best, amorphous and speculative. It would, essentially,
force the court to consider third parties who are not before it. As I have said in my
opposition to the allowance of a facial challenge to attack penal statutes, such a test
will impair the States ability to deal with crime.If warranted, there would be nothing
that can hinder an accused from defeating the States power to prosecute on a mere
showing that, as applied to third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him. [65] (Emphasis and underscoring
supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a
facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only
to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before
the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise
stated, a statute cannot be properly analyzed for being substantially overbroad if the court
confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts
carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to
 raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third parties;
and the court invalidates the entire statute "on its face," not merely "as applied for" so
that the overbroad law becomes unenforceable until a properly authorized court construes
it more narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an overbroad laws
"very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.[66](Emphasis in the original omitted;
underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases,[67] observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment, [68] and that claims of facial overbreadth
have been entertained in cases involving statutes which, by their terms, seek to regulate
only spoken words.[69] In Virginia v. Hicks,[70] it was held that rarely, if ever, will an overbreadth
challenge succeed against a law or regulation that is not specifically addressed
to speech or speech-related conduct. Attacks on overly broad statutes are justified by the
transcendent value to all society of constitutionally protected expression. [71]

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

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the
vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however,
that there was no basis to review the law on its face and in its entirety. [72] It stressed
that statutes found vague as a matter of due process typically are invalidated only 'as applied'
to a particular defendant.[73]

American jurisprudence[74] instructs that vagueness challenges that do not involve the First
Amendment must be examined in light of the specific factsof the case at hand and not with
regard to the statute's facial validity.

For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal
statutes are unconstitutionally vague, developing a doctrine hailed as among the most
important guarantees of liberty under law.[75]
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has
been utilized in examining the constitutionality of criminal statutes. In at least three
cases,[76] the Court brought the doctrine into play in analyzing an ordinance penalizing the non-
payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article
132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal
Code. Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed penal
statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates

speech so as to permit a facial analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the
following elements may be culled: (1) the offender commits an act punishable under any of the
cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws;
(2) the commission of the predicate crime sows and creates a condition of widespread and
extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire
to coerce the government to give in to an unlawful demand.

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[77] must necessarily
be transmitted through some form of expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

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. An analogy in one U.S. case[78] illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to take down a sign reading
White Applicants Only hardly means that the law should be analyzed as one regulating speech
rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter
neither the intent of the law to punish socially harmful conduct nor the essence of the whole
act as conduct and not speech. This holds true a fortiori in the present case where the
expression figures only as an inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances
brought about through speaking or writing. But it has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal merely
because the conduct was, in part, initiated, evidenced, or carried out by means of
language, either spoken, written, or printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would make it practically impossible ever
to enforce laws against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society.[79] (italics and underscoring
supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely
evidence a prohibited conduct.[80] Since speech is not involved here, the Court cannot heed the
call for a facial analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein
subject penal statute as applied to the therein petitioners inasmuch as they were actually
charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases,
however, found no basis to review the assailed penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a
criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a credible
threat of prosecution and should not be required to await and undergo a criminal prosecution
as the sole means of seeking relief.

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 future effect on hypothetical scenarios nor
allows the courts to be used as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.

SO ORDERED.
U.S. Supreme Court

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

New York Times Co. v. Sullivan

No. 39

Argued January 6, 1964

Decided March 9, 1964*

376 U.S. 254

CERTIORARI TO THE SUPREME COURT OF ALABAMA

Syllabus

Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he
had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared
over the names of the four individual petitioners and many others. The advertisement included
statements, some of which were false, about police action allegedly directed against students who
participated in a civil rights demonstration and against a leader of the civil rights movement;
respondent claimed the statements referred to him because his duties included supervision of the
police department. The trial judge instructed the jury that such statements were "libelous per se,"
legal injury being implied without proof of actual damages, and that, for the purpose of compensatory
damages, malice was presumed, so that such damages could be awarded against petitioners if the
statements were found to have been published by them and to have related to respondent. As to
punitive damages, the judge instructed that mere negligence was not evidence of actual malice, and
would not justify an award of punitive damages; he refused to instruct that actual intent to harm or
recklessness had to be found before punitive damages could be awarded, or that a verdict for
respondent should differentiate between compensatory and punitive damages. The jury found for
respondent, and the State Supreme Court affirmed.

Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public
official for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that
the statement was made with knowledge of its falsity or with reckless disregard of whether it was true
or false. Pp. 376 U. S. 265-292.

(a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil
action, is "state action" under the Fourteenth Amendment. P. 376 U. S. 265.

(b) Expression does not lose constitutional protection to which it would otherwise be entitled because
it appears in the form of a paid advertisement. Pp. 376 U. S. 265-266.

Page 376 U. S. 255

(c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award
of damages for false statements unless "actual malice" -- knowledge that statements are false or in
reckless disregard of the truth -- is alleged and proved. Pp. 376 U. S. 279-283.
(d) State court judgment entered upon a general verdict which does not differentiate between punitive
damages, as to which, under state law, actual malice must be proved, and general damages, as to
which it is "presumed," precludes any determination as to the basis of the verdict, and requires
reversal, where presumption of malice is inconsistent with federal constitutional requirements. P. 376
U. S. 284.

(e) The evidence was constitutionally insufficient to support the judgment for respondent, since it
failed to support a finding that the statements were made with actual malice or that they related to
respondent. Pp. 376 U. S. 285-292.

273 Ala. 656, 144 So.2d 25, reversed and remanded.

Page 376 U. S. 256

MR. JUSTICE BRENNAN delivered the opinion of the Court.

We are required in this case to determine for the first time the extent to which the constitutional
protections for speech and press limit a State's power to award damages in a libel action brought by a
public official against critics of his official conduct.

Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery,
Alabama. He testified that he was

"Commissioner of Public Affairs, and the duties are supervision of the Police Department, Fire
Department, Department of Cemetery and Department of Scales."

He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama
clergymen, and against petitioner the New York Times Company, a New York corporation which
publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County
awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the
Supreme Court of Alabama affirmed. 273 Ala. 656, 144 So.2d 25.

Respondent's complaint alleged that he had been libeled by statements in a full-page advertisement
that was carried in the New York Times on March 29, 1960. [Footnote 1] Entitled "Heed Their Rising
Voices," the advertisement began by stating that,

"As the whole world knows by now, thousands of Southern Negro students are engaged in
widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as
guaranteed by the U.S. Constitution and the Bill of Rights."

It went on to charge that,

"in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror
by those who would deny and negate that document which the whole world looks upon as setting the
pattern for modern freedom. . . ."

Succeeding

Page 376 U. S. 257

paragraphs purported to illustrate the "wave of terror" by describing certain alleged events. The text
concluded with an appeal for funds for three purposes: support of the student movement, "the
struggle for the right to vote," and the legal defense of Dr. Martin Luther King, Jr., leader of the
movement, against a perjury indictment then pending in Montgomery.

The text appeared over the names of 64 persons, many widely known for their activities in public
affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading
"We in the south who are struggling daily for dignity and freedom warmly endorse this appeal,"
appeared the names of the four individual petitioners and of 16 other persons, all but two of whom
were identified as clergymen in various Southern cities. The advertisement was signed at the bottom
of the page by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the
South," and the officers of the Committee were listed.

Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of
respondent's claim of libel. They read as follows:

Third paragraph:

"In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps,
their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas
ringed the Alabama State College Campus. When the entire student body protested to state
authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into
submission."

Sixth paragraph:

"Again and again, the Southern violators have answered Dr. King's peaceful protests with intimidation
and violence. They have bombed his home, almost killing his wife and child. They have

Page 376 U. S. 258

assaulted his person. They have arrested him seven times -- for 'speeding,' 'loitering' and similar
'offenses.' And now they have charged him with 'perjury' -- a felony under which they could imprison
him for ten years. . . ."

Although neither of these statements mentions respondent by name, he contended that the word
"police" in the third paragraph referred to him as the Montgomery Commissioner who supervised the
Police Department, so that he was being accused of "ringing" the campus with police. He further
claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking
of the dining hall in order to starve the students into submission. [Footnote 2] As to the sixth
paragraph, he contended that, since arrests are ordinarily made by the police, the statement "They
have arrested [Dr. King] seven times" would be read as referring to him; he further contended that the
"They" who did the arresting would be equated with the "They" who committed the other described
acts and with the "Southern violators." Thus, he argued, the paragraph would be read as accusing the
Montgomery police, and hence him, of answering Dr. King's protests with "intimidation and violence,"
bombing his home, assaulting his person, and charging him with perjury. Respondent and six other
Montgomery residents testified that they read some or all of the statements as referring to him in his
capacity as Commissioner.

It is uncontroverted that some of the statements contained in the two paragraphs were not accurate
descriptions of events which occurred in Montgomery. Although Negro students staged a
demonstration on the State Capitol steps, they sang the National Anthem and not "My
Page 376 U. S. 259

Country, 'Tis of Thee." Although nine students were expelled by the State Board of Education, this
was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in
the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had
protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually
all the students did register for the ensuing semester. The campus dining hall was not padlocked on
any occasion, and the only students who may have been barred from eating there were the few who
had neither signed a preregistration application nor requested temporary meal tickets. Although the
police were deployed near the campus in large numbers on three occasions, they did not at any time
"ring" the campus, and they were not called to the campus in connection with the demonstration on
the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times,
but only four, and although he claimed to have been assaulted some years earlier in connection with
his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there
was such an assault.

On the premise that the charges in the sixth paragraph could be read as referring to him, respondent
was allowed to prove that he had not participated in the events described. Although Dr. King's home
had, in fact, been bombed twice when his wife and child were there, both of these occasions
antedated respondent's tenure as Commissioner, and the police were not only not implicated in the
bombings, but had made every effort to apprehend those who were. Three of Dr. King's four arrests
took place before respondent became Commissioner. Although Dr. King had, in fact, been indicted
(he was subsequently acquitted) on two counts of perjury, each of which carried a possible five-year
sentence, respondent had nothing to do with procuring the indictment.

Page 376 U. S. 260

Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged
libel. [Footnote 3] One of his witnesses, a former employer, testified that, if he had believed the
statements, he doubted whether he "would want to be associated with anybody who would be a party
to such things that are stated in that ad," and that he would not reemploy respondent if he believed
"that he allowed the Police Department to do the things that the paper say he did." But neither this
witness nor any of the others testified that he had actually believed the statements in their supposed
reference to respondent. The cost of the advertisement was approximately $4800, and it was
published by the Times upon an order from a New York advertising agency acting for the signatory
Committee. The agency submitted the advertisement with a letter from A. Philip Randolph, Chairman
of the Committee, certifying that the persons whose names appeared on the advertisement had given
their permission. Mr. Randolph was known to the Times' Advertising Acceptability Department as a
responsible person, and, in accepting the letter as sufficient proof of authorization, it followed its
established practice. There was testimony that the copy of the advertisement which accompanied the
letter listed only the 64 names appearing under the text, and that the statement, "We in the south . . .
warmly endorse this appeal," and the list of names thereunder, which included those of the individual
petitioners, were subsequently added when the first proof of the advertisement was received. Each of
the individual petitioners testified that he had not authorized the use of his name, and that he had
been unaware of its use until receipt of respondent's demand for a retraction. The manager of the
Advertising Acceptability

Page 376 U. S. 261

Department testified that he had approved the advertisement for publication because he knew
nothing to cause him to believe that anything in it was false, and because it bore the endorsement of
"a number of people who are well known and whose reputation" he "had no reason to question."
Neither he nor anyone else at the Times made an effort to confirm the accuracy of the advertisement,
either by checking it against recent Times news stories relating to some of the described events or by
any other means.

Alabama law denies a public officer recovery of punitive damages in a libel action brought on account
of a publication concerning his official conduct unless he first makes a written demand for a public
retraction and the defendant fails or refuses to comply. Alabama Code, Tit. 7, § 914. Respondent
served such a demand upon each of the petitioners. None of the individual petitioners responded to
the demand, primarily because each took the position that he had not authorized the use of his name
on the advertisement, and therefore had not published the statements that respondent alleged had
libeled him. The Times did not publish a retraction in response to the demand, but wrote respondent a
letter stating, among other things, that "we . . . are somewhat puzzled as to how you think the
statements in any way reflect on you," and "you might, if you desire, let us know in what respect you
claim that the statements in the advertisement reflect on you." Respondent filed this suit a few days
later without answering the letter. The Times did, however, subsequently publish a retraction of the
advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the
publication charged him with

"grave misconduct and . . . improper actions and omissions as Governor of Alabama and Ex-Officio
Chairman of the State Board of Education of Alabama."

When asked to explain why there had been a retraction for the Governor but not for respondent, the

Page 376 U. S. 262

Secretary of the Times testified:

"We did that because we didn't want anything that was published by The Times to be a reflection on
the State of Alabama, and the Governor was, as far as we could see, the embodiment of the State of
Alabama and the proper representative of the State, and, furthermore, we had by that time learned
more of the actual facts which the and purported to recite and, finally, the ad did refer to the action of
the State authorities and the Board of Education, presumably of which the Governor is the ex-officio
chairman. . . ."

On the other hand, he testified that he did not think that "any of the language in there referred to Mr.
Sullivan."

The trial judge submitted the case to the jury under instructions that the statements in the
advertisement were "libelous per se," and were not privileged, so that petitioners might be held liable
if the jury found that they had published the advertisement and that the statements were made "of
and concerning" respondent. The jury was instructed that, because the statements were libelous per
se, "the law . . . implies legal injury from the bare fact of publication itself," "falsity and malice are
presumed," "general damages need not be alleged or proved, but are presumed," and "punitive
damages may be awarded by the jury even though the amount of actual damages is neither found
nor shown." An award of punitive damages -- as distinguished from "general" damages, which are
compensatory in nature -- apparently requires proof of actual malice under Alabama law, and the
judge charged that

"mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not
justify an award of exemplary or punitive damages."
He refused to charge, however, that the jury must be "convinced" of malice, in the sense of "actual
intent" to harm or "gross negligence and recklessness," to make such an award, and he also refused
to require that a verdict for respondent differentiate between compensatory and punitive damages.
The judge rejected petitioners' contention

Page 376 U. S. 263

that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and
Fourteenth Amendments.

In affirming the judgment, the Supreme Court of Alabama sustained the trial judge's rulings and
instructions in all respects. 273 Ala. 656, 144 So.2d 25. It held that,

"where the words published tend to injure a person libeled by them in his reputation, profession, trade
or business, or charge him with an indictable offense, or tend to bring the individual into public
contempt,"

they are "libelous per se"; that "the matter complained of is, under the above doctrine, libelous per
se, if it was published of and concerning the plaintiff", and that it was actionable without "proof of
pecuniary injury . . . . such injury being implied." Id. at 673, 676, 144 So.2d at 37, 41. It approved the
trial court's ruling that the jury could find the statements to have been made "of and concerning"
respondent, stating:

"We think it common knowledge that the average person knows that municipal agents, such as police
and firemen, and others, are under the control and direction of the city governing body, and, more
particularly, under the direction and control of a single commissioner. In measuring the performance
or deficiencies of such groups, praise or criticism is usually attached to the official in complete control
of the body."

Id. at 674-675, 144 So.2d at 39. In sustaining the trial court's determination that the verdict was not
excessive, the court said that malice could be inferred from the Times' "irresponsibility" in printing the
advertisement while

"the Times, in its own files, had articles already published which would have demonstrated the falsity
of the allegations in the advertisement;"

from the Times' failure to retract for respondent while retracting for the Governor, whereas the falsity
of some of the allegations was then known to the Times and "the matter contained in the
advertisement was equally false as to both parties", and from the testimony of the Times' Secretary
that,

Page 376 U. S. 264

apart from the statement that the dining hall was padlocked, he thought the two paragraphs were
"substantially correct."Id. at 686-687, 144 So.2d at 50-51. The court reaffirmed a statement in an
earlier opinion that "There is no legal measure of damages in cases of this character." Id. at 686, 144
So.2d at 50. It rejected petitioners' constitutional contentions with the brief statements that "The First
Amendment of the U.S. Constitution does not protect libelous publications," and "The Fourteenth
Amendment is directed against State action, and not private action." Id. at 676, 144 So.2d at 40.

Because of the importance of the constitutional issues involved, we granted the separate petitions for
certiorari of the individual petitioners and of the Times. 371 U.S. 946. We reverse the judgment. We
hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to
provide the safeguards for freedom of speech and of the press that are required by the First and
Fourteenth Amendments in a libel action brought by a public official against critics of his official
conduct. [Footnote 4] We

Page 376 U. S. 265

further hold that, under the proper safeguards, the evidence presented in this case is constitutionally
insufficient to support the judgment for respondent.

We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama
courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court --
that "The Fourteenth Amendment is directed against State action, and not private action." That
proposition has no application to this case. Although this is a civil lawsuit between private parties, the
Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions
on their constitutional freedoms of speech and press. It matters not that that law has been applied in
a civil action and that it is common law only, though supplemented by statute. See, e.g., Alabama
Code, Tit. 7, §§ 908-917. The test is not the form in which state power has been applied but,
whatever the form, whether such power has, in fact, been exercised. See Ex parte Virginia, 100 U. S.
339, 100 U. S. 346-347; American Federation of Labor v. Swing. 312 U. S. 321.

The second contention is that the constitutional guarantees of freedom of speech and of the press are
inapplicable here, at least so far as the Times is concerned, because the allegedly libelous
statements were published as part of a paid, "commercial" advertisement. The argument relies
on Valentine v. Chrestensen, 316 U. S. 52, where the Court held that a city ordinance forbidding
street distribution of commercial and business advertising matter did not abridge the First Amendment
freedoms, even as applied to a handbill having a commercial message on one side but a protest
against certain official action, on the other. The reliance is wholly misplaced. The Court
in Chrestensen reaffirmed the constitutional protection for "the freedom of communicating

Page 376 U. S. 266

information and disseminating opinion"; its holding was based upon the factual conclusions that the
handbill was "purely commercial advertising" and that the protest against official action had been
added only to evade the ordinance.

The publication here was not a "commercial" advertisement in the sense in which the word was used
in Chrestensen. It communicated information, expressed opinion, recited grievances, protested
claimed abuses, and sought financial support on behalf of a movement whose existence and
objectives are matters of the highest public interest and concern.See NAACP v. Button, 371 U. S.
415, 371 U. S. 435. That the Times was paid for publishing the advertisement is as immaterial in this
connection as is the fact that newspapers and books are sold. Smith v. California, 361 U. S. 147, 361
U. S. 150; cf. Bantam Books, Inc., v. Sullivan, 372 U. S. 58, 372 U. S. 64, n. 6. Any other conclusion
would discourage newspapers from carrying "editorial advertisements" of this type, and so might shut
off an important outlet for the promulgation of information and ideas by persons who do not
themselves have access to publishing facilities -- who wish to exercise their freedom of speech even
though they are not members of the press. Cf. Lovell v. Griffin, 303 U. S. 444, 303 U. S.
452; Schneider v. State, 308 U. S. 147, 308 U. S. 164. The effect would be to shackle the First
Amendment in its attempt to secure "the widest possible dissemination of information from diverse
and antagonistic sources." Associated Press v. United States,326 U. S. 1, 326 U. S. 20. To avoid
placing such a handicap upon the freedoms of expression, we hold that, if the allegedly libelous
statements would otherwise be constitutionally protected from the present judgment, they do not
forfeit that protection because they were published in the form of a paid advertisement. [Footnote 5]

Page 376 U. S. 267

II

Under Alabama law, as applied in this case, 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 trial court stated that
the standard was met if the words are such as to "injure him in his public office, or impute misconduct
to him in his office, or want of official integrity, or want of fidelity to a public trust. . . ." The jury must
find that the words were published "of and concerning" the plaintiff, but, where the plaintiff is a public
official, his place in the governmental hierarchy is sufficient evidence to support a finding that his
reputation has been affected by statements that reflect upon the agency of which he is in charge.
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. Alabama Ride Co. v. Vance, 235 Ala.
263, 178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124 So.2d 441,
457-458 (1960). His privilege of "fair comment" for expressions of opinion depends on the truth of the
facts upon which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61
So. 345, 350 (1913). Unless he can discharge the burden of proving truth, general damages are
presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is
apparently a prerequisite to recovery of punitive damages, and the defendant may, in any event,
forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief
in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if
the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495,
124 So.2d at 458.

Page 376 U. S. 268

The question before us is whether this rule of liability, as applied to an action brought by a public
official against critics of his official conduct, abridges the freedom of speech and of the press that is
guaranteed by the First and Fourteenth Amendments.

Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that
the Constitution does not protect libelous publications. [Footnote 6] Those statements do not
foreclose our inquiry here. None of the cases sustained the use of libel laws to impose sanctions
upon expression critical of the official conduct of public officials. The dictum in Pennekamp v.
Florida, 328 U. S. 331, 328 U. S. 348-349, that "when the statements amount to defamation, a judge
has such remedy in damages for libel as do other public servants," implied no view as to what remedy
might constitutionally be afforded to public officials. In Beauharnais v. Illinois, 343 U. S. 250, the Court
sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a
racial group and "liable to cause violence and disorder." But the Court was careful to note that it
"retains and exercises authority to nullify action which encroaches on freedom of utterance under the
guise of punishing libel"; for "public men are, as it were, public property," and "discussion cannot be
denied, and the right, as well as the duty, of criticism must not be stifled." Id. at 343 U. S. 263-264,
and n. 18. In the only previous case that did present the question of constitutional limitations upon the
power to award damages for libel of a public official, the Court was equally divided and the question
was not decided. Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642.

Page 376 U. S. 269

In deciding the question now, we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of state law. NAACP v. Button, 371 U.
S. 415, 371 U. S. 429. Like insurrection, [Footnote 7] contempt, [Footnote 8] advocacy of unlawful
acts, [Footnote 9] breach of the peace, [Footnote 10] obscenity, [Footnote 11] solicitation of legal
business, [Footnote 12] and the various other formulae for the repression of expression that have
been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It
must be measured by standards that satisfy the First Amendment.

The general proposition that freedom of expression upon public questions is secured by the First
Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was
fashioned to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people." Roth v. United States, 354 U. S. 476, 354 U. S. 484.

"The maintenance of the opportunity for free political discussion to the end that government may be
responsive to the will of the people and that changes may be obtained by lawful means, an
opportunity essential to the security of the Republic, is a fundamental principle of our constitutional
system."

Stromberg v. California, 283 U. S. 359, 283 U. S. 369. "[I]t is a prized American privilege to speak
one's mind, although not always with perfect good taste, on all public institutions," Bridges v.
California, 314 U. S. 252, 314 U. S. 270, and this opportunity is to be afforded for "vigorous
advocacy" no less than "abstract discussion." NAACP v. Button, 371 U. S. 415,371 U. S. 429.

Page 376 U. S. 270

The First Amendment, said Judge Learned Hand,

"presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than
through any kind of authoritative selection. To many, this is, and always will be, folly, but we have
staked upon it our all."

United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in
his concurring opinion in Whitney v. California, 274 U. S. 357, 274 U. S. 375-376, gave the principle
its classic formulation:

"Those who won our independence believed . . . that public discussion is a political duty, and that this
should be a fundamental principle of the American government. They recognized the risks to which all
human institutions are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that
fear breeds repression; that repression breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies,
and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by law -- the argument of force in its worst
form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so
that free speech and assembly should be guaranteed."
Thus, we consider this case against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials. See Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4; De Jonge v. Oregon, 299 U. S. 353,

Page 376 U. S. 271

299 U. S. 365. The present advertisement, as an expression of grievance and protest on one of the
major public issues of our time, would seem clearly to qualify for the constitutional protection. The
question is whether it forfeits that protection by the falsity of some of its factual statements and by its
alleged defamation of respondent.

Authoritative interpretations of the First Amendment guarantees have consistently refused to

recognize an exception for any test of truth -- whether administered by judges, juries, or
administrative officials -- and especially one that puts the burden of proving truth on the speaker. Cf.
Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526. The constitutional protection does not turn
upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." NAACP v.
Button, 371 U. S. 415, 371 U. S. 445. As Madison said, "Some degree of abuse is inseparable from
the proper use of every thing, and in no instance is this more true than in that of the press." 4 Elliot's
Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U. S. 296, 310 U.
S. 310, the Court declared:

"In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been,
or are, prominent in church or state, and even to false statement. But the people of this nation have
ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a
democracy."

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of
expression

Page 376 U. S. 272

are to have the "breathing space" that they "need . . . to survive," NAACP v. Button, 371 U. S.
415, 371 U. S. 433, was also recognized by the Court of Appeals for the District of Columbia Circuit
in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S.
678. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman's
libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial
appointment. He said:

"Cases which impose liability for erroneous reports of the political conduct of officials reflect the
obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public
here outweighs the interest of appellant or any other individual. The protection of the public requires
not merely discussion, but information. Political conduct and views which some respectable people
approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in
regard to a man's mental states and processes, are inevitable. . . . Whatever is added to the field of
libel is taken from the field of free debate. [Footnote 13]"
Injury to official reputation affords no more warrant for repressing speech that would otherwise be free
than does factual error. Where judicial officers are involved, this Court has held that concern for the
dignity and

Page 376 U. S. 273

reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge
or his decision.Bridges v. California, 314 U. S. 252. This is true even though the utterance contains
"half-truths" and "misinformation."Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 342, 328 U. S. 343,
n. 5, 328 U. S. 345. Such repression can be justified, if at all, only by a clear and present danger of
the obstruction of justice. See also Craig v. Harney, 331 U. S. 367; Wood v. Georgia,370 U. S. 375. If
judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney,
supra, 331 U.S. at 331 U. S. 376, surely the same must be true of other government officials, such as
elected city commissioners. [Footnote 14] Criticism of their official conduct does not lose its
constitutional protection merely because it is effective criticism, and hence diminishes their official
reputations.

If neither factual error nor defamatory content suffices to remove the constitutional shield from
criticism of official conduct, the combination of the two elements is no less inadequate. This is the
lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first
crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy
of Suppression (1960), at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431,
and passim. That statute made it a crime, punishable by a $5,000 fine and five years in prison,

"if any person shall write, print, utter or publish . . . any false, scandalous and malicious

Page 376 U. S. 274

writing or writings against the government of the United States, or either house of the Congress . . . or
the President . . . with intent to defame . . . or to bring them, or either of them, into contempt or
disrepute; or to excite against them, or either or any of them, the hatred of the good people of the
United States."

The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both
of the law and the facts. Despite these qualifications, the Act was vigorously condemned as
unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of
1798, the General Assembly of Virginia resolved that it

"doth particularly protest against the palpable and alarming infractions of the Constitution in the two
late cases of the 'Alien and Sedition Acts,' passed at the last session of Congress. . . . [The Sedition
Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and
positively forbidden by one of the amendments thereto -- a power which, more than any other, ought
to produce universal alarm because it is leveled against the right of freely examining public characters
and measures, and of free communication among the people thereon, which has ever been justly
deemed the only effectual guardian of every other right."

4 Elliot's Debates, supra, pp. 553-554. Madison prepared the Report in support of the protest. His
premise was that the Constitution created a form of government under which "The people, not the
government, possess the absolute sovereignty." The structure of the government dispersed power in
reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of
government was "altogether different" from the British form, under which the Crown was sovereign
and the people were subjects. "Is
Page 376 U. S. 275

it not natural and necessary, under such different circumstances," he asked, "that a different degree
of freedom in the use of the press should be contemplated?" Id., pp. 569-570. Earlier, in a debate in
the House of Representatives, Madison had said:

"If we advert to the nature of Republican Government, we shall find that the censorial power is in the
people over the Government, and not in the Government over the people."

4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said:

"In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and
measures of public men, of every description, which has not been confined to the strict limits of the
common law. On this footing, the freedom of the press has stood; on this foundation it yet stands. . . ."

4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public
officials was thus, in Madison's view, a fundamental principle of the American form of government.
[Footnote 15]

Page 376 U. S. 276

Although the Sedition Act was never tested in this Court, [Footnote 16] the attack upon its validity has
carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress
on the ground that it was unconstitutional. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802,
accompanied by H.R.Rep. No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on
February 4, 1836, assumed that its invalidity was a matter "which no one now doubts." Report with
Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had
been convicted and sentenced under the Act and remitted their fines, stating:

"I discharged every person under punishment or prosecution under the sedition law because I
considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress
had ordered us to fall down and worship a golden image."

Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The
invalidity of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and
joined by Brandeis, J., in Abrams v. United States, 250 U. S. 616, 250 U. S. 630; Jackson, J.,
dissenting in Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 288-289; Douglas, The Right of the
People (1958), p. 47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-
900; Chafee, Free Speech in the United States (1942), pp. 27-28. These views reflect a broad
consensus that the Act, because of the restraint it imposed upon criticism of government and public
officials, was inconsistent with the First Amendment.

There is no force in respondent's argument that the constitutional limitations implicit in the history of
the Sedition Act apply only to Congress, and not to the States. It is true that the First Amendment was
originally addressed only to action by the Federal Government, and

Page 376 U. S. 277

that Jefferson, for one, while denying the power of Congress "to controul the freedom of the press,"
recognized such a power in the States. See the 1804 Letter to Abigail Adams quoted in Dennis v.
United States, 341 U. S. 494, 341 U. S. 522, n. 4 (concurring opinion). But this distinction was
eliminated with the adoption of the Fourteenth Amendment and the application to the States of the
First Amendment's restrictions. See, e.g., Gitlow v. New York, 268 U. S. 652, 268 U. S.
666; Schneider v. State, 308 U. S. 147, 308 U. S. 160; Bridges v. California, 314 U. S. 252, 314 U. S.
268; Edwards v. South Carolina,372 U. S. 229, 372 U. S. 235.

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond
the reach of its civil law of libel. [Footnote 17] The fear of damage awards under a rule such as that
invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution
under a criminal statute. See City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923).
Alabama, for example, has a criminal libel law which subjects to prosecution "any person who
speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing
the commission by such person of a felony, or any other indictable offense involving moral turpitude,"
and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of
six months. Alabama Code, Tit. 14, § 350. Presumably, a person charged with violation of this statute
enjoys ordinary criminal law safeguards such as the requirements of an indictment and of proof
beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The
judgment awarded in this case -- without the need for any proof of actual pecuniary loss -- was one
thousand times greater than the maximum fine provided by the Alabama criminal statute, and one
hundred times greater than that provided by the Sedition Act.

Page 376 U. S. 278

And since there is no double jeopardy limitation applicable to civil lawsuits, this is not the only
judgment that may be awarded against petitioners for the same publication. [Footnote 18] Whether or
not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed
upon those who would give voice to public criticism is an atmosphere in which the First Amendment
freedoms cannot survive. Plainly the Alabama law of civil libel is

"a form of regulation that creates hazards to protected freedoms markedly greater than those that
attend reliance upon the criminal law."

Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70.

The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous
statements honestly made is no less essential here than was the requirement of proof of guilty
knowledge which, in Smith v. California, 361 U. S. 147, we held indispensable to a valid conviction of
a bookseller for possessing obscene writings for sale. We said:

"For, if the bookseller is criminally liable without knowledge of the contents, . . . He will tend to restrict
the books he sells to those he has inspected, and thus the State will have imposed a restriction upon
the distribution of constitutionally protected, as well as obscene, literature. . . . And the bookseller's
burden would become the public's burden, for, by restricting him, the public's access to reading
matter would be restricted. . . . [H]is timidity in the face of his absolute criminal liability thus would
tend to restrict the public's access to forms of the printed word which the State could not
constitutionally

Page 376 U. S. 279

suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship
affecting the whole public, hardly less virulent for being privately administered. Through it, the
distribution of all books, both obscene and not obscene, would be impeded."
( 361 U. S. 361 U.S. 147, 361 U. S. 153-154.) A rule compelling the critic of official conduct to
guarantee the truth of all his factual assertions -- and to do so on pain of libel judgments virtually
unlimited in amount -- leads to a comparable "self-censorship." Allowance of the defense of truth, with
the burden of proving it on the defendant, does not mean that only false speech will be deterred.
[Footnote 19] Even courts accepting this defense as an adequate safeguard have recognized the
difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See,
e.g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of
Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule, would-be critics of
official conduct may be deterred from voicing their criticism, even though it is believed to be true and
even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the
expense of having to do so. They tend to make only statements which "steer far wider of the unlawful
zone."Speiser v. Randall, supra, 357 U.S. at 357 U. S. 526. The rule thus dampens the vigor and
limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The
constitutional guarantees require, we think, 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

Page 376 U. S. 280

with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it
was false or not. An oft-cited statement of a like rule, which has been adopted by a number of state
courts, [Footnote 20] is found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281
(1908). The State Attorney General, a candidate for reelection and a member of the commission
charged with the management and control of the state school fund, sued a newspaper publisher for
alleged libel in an article purporting to state facts relating to his official conduct in connection with a
school-fund transaction. The defendant pleaded privilege and the trial judge, over the plaintiff's
objection, instructed the jury that

"where an article is published and circulated among voters for the sole purpose of giving what the
defendant

Page 376 U. S. 281

believes to be truthful information concerning a candidate for public office and for the purpose of
enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith
and without malice, the article is privileged, although the principal matters contained in the article may
be untrue, in fact, and derogatory to the character of the plaintiff, and in such a case the burden is on
the plaintiff to show actual malice in the publication of the article."

In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a
general verdict was returned for the defendant. On appeal, the Supreme Court of Kansas, in an
opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P. at 286):

"It is of the utmost consequence that the people should discuss the character and qualifications of
candidates for their suffrages. The importance to the state and to society of such discussions is so
vast, and the advantages derived are so great, that they more than counterbalance the inconvenience
of private persons whose conduct may be involved, and occasional injury to the reputations of
individuals must yield to the public welfare, although at times such injury may be great. The public
benefit from publicity is so great, and the chance of injury to private character so small, that such
discussion must be privileged."

The court thus sustained the trial court's instruction as a correct statement of the law, saying:
"In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be
defamed by the communication must show actual malice or go remediless. This privilege extends to a
great variety of subjects, and includes matters of

Page 376 U. S. 282

public concern, public men, and candidates for office."

78 Kan. at 723, 98 P. at 285.

Such a privilege for criticism of official conduct [Footnote 21] is appropriately analogous to the
protection accorded a public official when he is sued for libel by a private citizen. In Barr v.
Matteo, 360 U. S. 564, 360 U. S. 575, this Court held the utterance of a federal official to be
absolutely privileged if made "within the outer perimeter" of his duties. The States accord the same
immunity to statements of their highest officers, although some differentiate their lesser officials and
qualify the privilege they enjoy. [Footnote 22] But all hold that all officials are protected unless actual
malice can be proved. The reason for the official privilege is said to be that the threat of damage suits
would otherwise "inhibit the fearless, vigorous, and effective administration of policies of government"
and "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching
discharge of their duties." Barr v. Matteo, supra, 360 U.S. at 360 U. S. 571. Analogous considerations
support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the
official's duty to administer. See Whitney v. California, 274 U. S. 357, 274 U. S. 375 (concurring
opinion of Mr. Justice Brandeis), quoted supra, p. 376 U. S. 270. As Madison said, see supra p. 376
U. S. 275, "the censorial power is in the people over the Government, and not in the Government
over the people." It would give public servants an unjustified preference over the public they serve, if
critics of official conduct

Page 376 U. S. 283

did not have a fair equivalent of the immunity granted to the officials themselves.

We conclude that such a privilege is required by the First and Fourteenth Amendments.

III

We hold today 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. Since this is such an action,
[Footnote 23] the rule requiring proof of actual malice is applicable. While Alabama law apparently
requires proof of actual malice for an award of punitive damages, [Footnote 24] where general
damages are concerned malice is "presumed." Such a presumption is inconsistent

Page 376 U. S. 284

with the federal rule. "The power to create presumptions is not a means of escape from constitutional
restrictions," Bailey v. Alabama, 219 U. S. 219, 219 U. S. 239, "the showing of malice required for the
forfeiture of the privilege is not presumed but is a matter for proof by the plaintiff. . . ." Lawrence v.
Fox, 357 Mich. 134, 146, 97 N.W.2d 719, 725 (1959). [Footnote 25] Since the trial judge did not
instruct the jury to differentiate between general and punitive damages, it may be that the verdict was
wholly an award of one or the other. But it is impossible to know, in view of the general verdict
returned. Because of this uncertainty, the judgment must be reversed and the case
remanded. Stromberg v. California, 283 U. S. 359,283 U. S. 367-368; Williams v. North Carolina, 317
U. S. 287, 317 U. S. 291-292; see Yates v. United States, 354 U. S. 298, 354 U. S. 311-312; Cramer
v. United States, 325 U. S. 1, 325 U. S. 36, n. 45.

Since respondent may seek a new trial, we deem that considerations of effective judicial
administration require us to review the evidence in the present record to determine

Page 376 U. S. 285

whether it could constitutionally support a judgment for respondent. This Court's duty is not limited to
the elaboration of constitutional principles; we must also in proper cases review the evidence to make
certain that those principles have been constitutionally applied. This is such a case, particularly since
the question is one of alleged trespass across "the line between speech unconditionally guaranteed
and speech which may legitimately be regulated." Speiser v. Randall, 357 U. S. 513, 357 U. S. 525.
In cases where that line must be drawn, the rule is that we

"examine for ourselves the statements in issue and the circumstances under which they were made
to see . . . whether they are of a character which the principles of the First Amendment, as adopted
by the Due Process Clause of the Fourteenth Amendment, protect."

Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335; see also One, Inc., v. Olesen, 355 U. S.
371; Sunshine Book Co. v. Summerfield, 355 U. S. 372. We must "make an independent examination
of the whole record," Edwards v. South Carolina,372 U. S. 229, 372 U. S. 235, so as to assure
ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.
[Footnote 26]

Applying these standards, we consider that the proof presented to show actual malice lacks the
convincing

Page 376 U. S. 286

clarity which the constitutional standard demands, and hence that it would not constitutionally sustain
the judgment for respondent under the proper rule of law. The case of the individual petitioners
requires little discussion. Even assuming that they could constitutionally be found to have authorized
the use of their names on the advertisement, there was no evidence whatever that they were aware
of any erroneous statements or were in any way reckless in that regard. The judgment against them
is thus without constitutional support.

As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The
statement by the Times' Secretary that, apart from the padlocking allegation, he thought the
advertisement was "substantially correct," affords no constitutional warrant for the Alabama Supreme
Court's conclusion that it was a

"cavalier ignoring of the falsity of the advertisement [from which] the jury could not have but been
impressed with the bad faith of The Times, and its maliciousness inferable therefrom."

The statement does not indicate malice at the time of the publication; even if the advertisement was
not "substantially correct" -- although respondent's own proofs tend to show that it was -- that opinion
was at least a reasonable one, and there was no evidence to impeach the witness' good faith in
holding it. The Times' failure to retract upon respondent's demand, although it later retracted upon the
demand of Governor Patterson, is likewise not adequate evidence of malice for constitutional
purposes. Whether or not a failure to retract may ever constitute such evidence, there are two
reasons why it does not here. First, the letter written by the Times reflected a reasonable doubt on its
part as to whether the advertisement could reasonably be taken to refer to respondent at all. Second,
it was not a final refusal, since it asked for an explanation on this point -- a request that respondent
chose to ignore. Nor does the retraction upon the demand of the Governor supply the

Page 376 U. S. 287

necessary proof. It may be doubted that a failure to retract, which is not itself evidence of malice, can
retroactively become such by virtue of a retraction subsequently made to another party. But, in any
event, that did not happen here, since the explanation given by the Times' Secretary for the
distinction drawn between respondent and the Governor was a reasonable one, the good faith of
which was not impeached.

Finally, there is evidence that the Times published the advertisement without checking its accuracy
against the news stories in the Times' own files. The mere presence of the stories in the files does
not, of course, establish that the Times "knew" the advertisement was false, since the state of mind
required for actual malice would have to be brought home to the persons in the Times' organization
having responsibility for the publication of the advertisement. With respect to the failure of those
persons to make the check, the record shows that they relied upon their knowledge of the good
reputation of many of those whose names were listed as sponsors of the advertisement, and upon
the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of
the names was authorized. There was testimony that the persons handling the advertisement saw
nothing in it that would render it unacceptable under the Times' policy of rejecting advertisements
containing "attacks of a personal character"; [Footnote 27] their failure to reject it on this ground was
not unreasonable. We think

Page 376 U. S. 288

the evidence against the Times supports, at most, a finding of negligence in failing to discover the
misstatements, and is constitutionally insufficient to show the recklessness that is required for a
finding of actual malice. Cf. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 618, 116
A.2d 440, 446 (1955); Phoenix Newspapers, Inc., v. Choisser, 82 Ariz. 271, 277-278, 312 P.2d 150,
154-155 (1957).

We also think 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"
respondent. Respondent relies on the words of the advertisement and the testimony of six witnesses
to establish a connection between it and himself. Thus, in his brief to this Court, he states:

"The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard
the testimony of a newspaper editor . . . ; a real estate and insurance man . . . ; the sales manager of
a men's clothing store . . . ; a food equipment man . . . ; a service station operator . . . , and the
operator of a truck line for whom respondent had formerly worked. . . . Each of these witnesses stated
that he associated the statements with respondent. . . ."

(Citations to record omitted.) There was no reference to respondent in the advertisement, either by
name or official position. A number of the allegedly libelous statements -- the charges that the dining
hall was padlocked and that Dr. King's home was bombed, his person assaulted, and a perjury
prosecution instituted against him -- did not even concern the police; despite the ingenuity of the
arguments which would attach this significance to the word "They," it is plain that these statements
could not reasonably be read as accusing respondent of personal involvement in the acts

Page 376 U. S. 289

in question. The statements upon which respondent principally relies as referring to him are the two
allegations that did concern the police or police functions: that "truckloads of police . . . ringed the
Alabama State College Campus" after the demonstration on the State Capitol steps, and that Dr. King
had been "arrested . . . seven times." These statements were false only in that the police had been
"deployed near" the campus, but had not actually "ringed" it, and had not gone there in connection
with the State Capitol demonstration, and in that Dr. King had been arrested only four times. The
ruling that these discrepancies between what was true and what was asserted were sufficient to
injure respondent's reputation may itself raise constitutional problems, but we need not consider them
here. Although the statements may be taken as referring to the police, they did not, on their face,
make even an oblique reference to respondent as an individual. Support for the asserted reference
must, therefore, be sought in the testimony of respondent's witnesses. But none of them suggested
any basis for the belief that respondent himself was attacked in the advertisement beyond the bare
fact that he was in overall charge of the Police Department and thus bore official responsibility for
police conduct; to the extent that some of the witnesses thought respondent to have been charged
with ordering or approving the conduct or otherwise being personally involved in it, they based this
notion not on any statements in the advertisement, and not on any evidence that he had, in fact, been
so involved, but solely on the unsupported assumption that, because of his official position, he must
have been. [Footnote 28] This reliance on the bare

Page 376 U. S. 290

fact of respondent's official position [Footnote 29] was made explicit by the Supreme Court of
Alabama. That court, in holding that the trial court "did not err in overruling the demurrer [of the
Times] in the aspect that the libelous

Page 376 U. S. 291

matter was not of and concerning the [plaintiff,]" based its ruling on the proposition that:

"We think it common knowledge that the average person knows that municipal agents, such as police
and firemen, and others, are under the control and direction of the city governing body, and more
particularly under the direction and control of a single commissioner. In measuring the performance or
deficiencies of such groups, praise or criticism is usually attached to the official in complete control of
the body."

273 Ala., at 674-675, 144 So.2d at 39.

This proposition has disquieting implications for criticism of governmental conduct. For good reason,

"no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on
government have any place in the American system of jurisprudence."

City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E.

Page 376 U. S. 292

86, 88 (1923). The present proposition would sidestep this obstacle by transmuting criticism of
government, however impersonal it may seem on its face, into personal criticism, and hence potential
libel, of the officials of whom the government is composed. There is no legal alchemy by which a
State may thus create the cause of action that would otherwise be denied for a publication which, as
respondent himself said of the advertisement, "reflects not only on me but on the other
Commissioners and the community." Raising as it does the possibility that a good faith critic of
government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes
at the very center of the constitutionally protected area of free expression. [Footnote 30] We hold that
such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack
on governmental operations was a libel of an official responsible for those operations. Since it was
relied on exclusively here, and there was no other evidence to connect the statements with
respondent, the evidence was constitutionally insufficient to support a finding that the statements
referred to respondent.

The judgment of the Supreme Court of Alabama is reversed, and the case is remanded to that court
for further proceedings not inconsistent with this opinion.

Reversed and remanded.

U.S. Supreme Court

Rosenbloom v. Metromedia, 403 U.S. 29 (1971)

Rosenbloom v. Metromedia

No. 66

Argued December 7, 1970

Decided June 7, 1971

403 U.S. 29

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Respondent's radio station, which broadcast news reports every half hour, broadcast news stories of
petitioner's arrest for possession of obscene literature and the police seizure of "obscene books," and
stories concerning petitioner's lawsuit against certain officials alleging that the magazines he
distributed were not obscene and seeking injunctive relief from police interference with his business.
These latter stories did not mention petitioner's name, but used the terms "smut literature racket" and
"girlie-book peddlers." Following petitioner's acquittal of criminal obscenity charges, he filed this
diversity action in District Court seeking damages under Pennsylvania's libel law. The jury found for
petitioner and awarded $25,000 in general damages; and $725,000 in punitive damages, which was
reduced by the court on remittitur to $250,000. The Court of Appeals reversed, holding that the New
York Times Co. v. Sullivan, 376 U. S. 254, standard applied, and "the fact that plaintiff was not a
public figure cannot be accorded decisive significance."

Held: The judgment is affirmed. Pp. 403 U. S. 40-62.

415 F.2d 892, affirmed.

MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN,
concluded that the New York Timesstandard of knowing or reckless falsity applies in a state civil libel
action brought by a private individual for a defamatory falsehood uttered in a radio news broadcast
about the individual's involvement in an event of public or general interest. Pp. 403 U. S. 40-57.

MR. JUSTICE BLACK concluded that the First Amendment protects the news media from libel
judgments even when statements are made with knowledge that they are false. P. 403 U. S. 57.

MR. JUSTICE WHITE concluded that, in the absence of actual malice as defined in New York Times,
supra, the First Amendment gives the news media a privilege to report and comment upon the official
actions of public servants in full detail, without sparing from public view the reputation or privacy of an
individual involved in or affected by any official action. Pp. 403 U. S. 59-62.

Page 403 U. S. 30
BRENNAN, J., announced the Court's judgment and delivered an opinion in which BURGER, C.J.,
and BLACKMUN, J., joined. BLACK, J., post, p. 403 U. S. 57, and WHITE, J., post, p. 403 U. S. 57,
filed opinions concurring in the judgment. HARLAN, J., filed a dissenting opinion, post, p. 403 U. S.
62. MARSHALL, J., filed a dissenting opinion in which STEWART, J., joined, post,p. 403 U. S. 78.
DOUGLAS, J., took no part in the consideration or decision of this case.

MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF
JUSTICE and MR. JUSTICE BLACKMUN join.

In a series of cases beginning with New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court
has considered the limitations upon state libel laws imposed by the constitutional guarantees of
freedom of speech and of the press. New York Times held that in a civil libel action by a public official
against a newspaper those guarantees required clear and convincing proof that a defamatory
falsehood alleged as libel was uttered with "knowledge that it was false or with reckless disregard of
whether it was false or not." Id. at 376 U. S. 280. The same requirement was later held to apply to
"public figures" who sued in libel on the basis of alleged defamatory falsehoods. The several cases
considered since New York Times involved actions of "public officials" or "public figures," usually, but
not always, against newspapers or magazines. [Footnote 1] Common to all the cases was a

Page 403 U. S. 31

defamatory falsehood in the report of an event of "public or general interest." [Footnote 2] The instant
case presents the question whether the New York Times' "knowing or reckless falsity standard"
applies in a state civil libel action brought not by a "public official" or a "public figure," but by a private
individual for a defamatory falsehood uttered in a news broadcast by a radio station about the
individual's involvement in an event of public or general

Page 403 U. S. 32

interest. [Footnote 3] The District Court for the Eastern District of Pennsylvania held that the New
York Times standard did not apply. and that Pennsylvania law determined respondent's liability in this
diversity case, 289 F.Supp. 737 (1968). The Court of Appeals for the Third Circuit held that the New
York Times standard did apply, and reversed the judgment for damages awarded to petitioner by the
jury. 415 F.2d 892 (1969). We granted certiorari, 397 U.S. 904 (1970). We agree with the Court of
Appeals, and affirm that court's judgment.

In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. During
the fall of that year, in response to citizen complaints, the Special Investigations Squad of the
Philadelphia Police Department initiated a series of enforcement actions under the city's obscenity
laws. The police, under the command of Captain Ferguson, purchased various magazines from more
than 20 newsstands throughout the city. Based upon Captain Ferguson's determination that the
magazines were obscene, [Footnote 4] police, on October 1, 1963, arrested most of the newsstand
operators [Footnote 5] on charges of selling obscene material. While the police were making an arrest
at one newsstand, petitioner arrived to deliver some of his nudist magazines, and was immediately
arrested

Page 403 U. S. 33
along with the newsboy. [Footnote 6] Three days later, on October 4, the police obtained a warrant to
search petitioner's home and the rented barn he used as a warehouse, and seized the inventory of
magazines and books found at these locations. Upon learning of the seizures, petitioner, who had
been released on bail after his first arrest, surrendered to the police and was arrested for a second
time.

Following the second arrest, Captain Ferguson telephoned respondent's radio station WIP and
another local radio station, a wire service, and a local newspaper to inform them of the raid on
petitioner's home and of his arrest. WIP broadcast news reports every half hour to the Philadelphia
metropolitan area. These news programs ran either five or ten minutes, and generally contained from
six to twenty different items that averaged about thirty seconds each. WIP's 6 p.m. broadcast on
October 4, 1963, included the following item:

"City Cracks Down on Smut Merchants"

"The Special Investigations Squad raided the home of George Rosenbloom in the 1800 block of
Vesta Street this afternoon. Police confiscated 1,000 allegedly obscene books at Rosenbloom's home
and arrested him on charges of possession of obscene literature. The Special Investigations Squad
also raided a barn in the 20 Hundred block of Welsh Road near Bustleton Avenue and confiscated
3,000 obscene books. Capt. Ferguson says he believes they have hit the supply of a main distributor
of obscene material in Philadelphia. "

Page 403 U. S. 34

This report was rebroadcast in substantially the same form at 6:30 p.m., but at 8 p.m., when the item
was broadcast for the third time, WIP corrected the third sentence to read "reportedly obscene."
News of petitioner's arrest was broadcast five more times in the following twelve hours, but each
report described the seized books as "allegedly" or "reportedly" obscene. From October 5 to October
21, WIP broadcast no further reports relating to petitioner.

On October 16, petitioner brought an action in Federal District Court against various city and police
officials and against several local news media. [Footnote 7] The suit alleged that the magazines
petitioner distributed were not obscene, and sought injunctive relief prohibiting further police
interference with his business, as well as further publicity of the earlier arrests. The second series of
allegedly defamatory broadcasts related to WIP's news reports of the lawsuit. There were ten
broadcasts on October 21, two on October 25, and one on November 1. None mentioned petitioner
by name. The first, at 6:30 a.m. on October 21, was pretty much like those that followed:

"Federal District Judge Lord, will hear arguments today from two publishers and a distributor all
seeking an injunction against Philadelphia Police Commissioner Howard Leary . . . District Attorney
James C. Crumlish . . . a local television station and a newspaper . . . ordering them to lay off the
smut literature racket."

"The girlie-book peddlers say the police crackdown

Page 403 U. S. 35

and continued reference to their borderline literature as smut or filth is hurting their business. Judge
Lord refused to issue a temporary injunction when he was first approached. Today he'll decide the
issue. It will set a precedent . . . and if the injunction is not granted . . . it could signal an even more
intense effort to rid the city of pornography."
On October 27, petitioner went to WIP's studios after hearing from a friend that the station had
broadcast news about his lawsuit. Using a lobby telephone to talk with a part-time newscaster,
petitioner inquired what stories WIP had broadcast about him. The newscaster asked him to be more
specific about dates and times. Petitioner then asked for the noon news broadcast on October 21,
1963, which the newscaster read to him over the phone; it was similar to the above 6:30 a.m.
broadcast. According to petitioner, the ensuing interchange was brief. Petitioner told the newscaster
that his magazines were "found to be completely legal and legitimate by the United States Supreme
Court." When the newscaster replied the district attorney had said the magazines were obscene,
petitioner countered that he had a public statement of the district attorney declaring the magazines
legal. At that point, petitioner testified, "the telephone conversation was terminated. . . . He just hung
up." Petitioner apparently made no request for a retraction or correction, and none was forthcoming.
WIP's final report on petitioner's lawsuit -- the only one after petitioner's unsatisfactory conversation at
the station -- occurred on November 1 after the station had checked the story with the judge involved.
[Footnote 8]

Page 403 U. S. 36

II

In May, 1964 a jury acquitted petitioner in state court of the criminal obscenity charges under
instructions of the trial judge that, as a matter of law, the nudist magazines distributed by petitioner
were not obscene. Following his acquittal, petitioner filed this diversity action in District Court seeking
damages under Pennsylvania's libel law. Petitioner alleged that WIP's unqualified characterization of
the books seized as "obscene" in the 6 and 6:30 p.m. broadcasts of October 4, describing his arrest,
constituted libel per se and was proved false by petitioner's subsequent acquittal. In addition, he
alleged that the broadcasts in the second series describing his court suit for injunctive relief were also
false and defamatory in that WIP characterized petitioner and his business associates as "smut
distributors" and "girlie-book peddlers" and, further, falsely characterized the suit as an attempt to
force the defendants "to lay off the smut literature racket."

At the trial, WIP's defenses were truth and privilege. WIP's news director testified that his eight-man
staff of reporters prepared their own newscasts and broadcast their material themselves, and that
material for the news programs usually came either from the wire services or from telephone tips.
None of the writers or broadcasters involved in preparing the broadcasts in this case testified. The
news director's recollection was that the primary source of information for the first series of
broadcasts

Page 403 U. S. 37

about petitioner's arrest was Captain Ferguson, but that, to the director's knowledge, the station did
not have any further verification. Captain Ferguson testified that he had informed WIP and other
media of the police action, and that WIP had accurately broadcast what he told the station. The
evidence regarding WIP's investigation of petitioner's lawsuit in the second series of broadcasts was
even more sparse. The news director testified that he was "sure we would check with the District
Attorney's office also and with the Police Department," but "it would be difficult for me to specifically
state what additional corroboration we had." In general, he testified that WIP's half-hour deadlines
required it to rely on wire service copy and oral reports from previously reliable sources, subject to the
general policy that "we will contact as many sources as we possibly can on any kind of a story."

III
Pennsylvania's libel law tracks almost precisely the Restatement (First) of Torts provisions on the
subject. Pennsylvania holds actionable any unprivileged "malicious" [Footnote 9] publication of matter
which tends to harm a person's reputation and expose him to public hatred, contempt, or
ridicule. Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954); Restatement of Torts §§ 558, 559
(1938). Pennsylvania law recognizes truth as a complete defense to a libel action.Schonek v. WJAC,
Inc., 436 Pa. 78, 84, 258 A.2d 504, 507 (1969); Restatement of Torts § 582. It recognizes an absolute
immunity for defamatory statements made by high state officials, even if published with an improper
motive, actual malice, or knowing falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100
(1958); Restatement of Torts § 591,

Page 403 U. S. 38

and it recognizes a conditional privilege for news media to report judicial, administrative, or legislative
proceedings if the account is fair and accurate, and not published solely for the purpose of causing
harm to the person defamed, even though the official information is false or inaccurate. Sciandra v.
Lynett, 409 Pa. 595, 600-601, 187 A.2d 586, 588-589 (1963); Restatement of Torts § 611. The
conditional privilege of the news media may be defeated, however, by

"'want of reasonable care and diligence to ascertain the truth, before giving currency to an untrue
communication.' The failure to employ such 'reasonable care and diligence' can destroy a privilege
which otherwise would protect the utterer of the communication."

Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 179, 191 A.2d 662, 668 (1963).
Pennsylvania has also enacted verbatim the Restatement's provisions on burden of proof, which
place the burden of proof for the affirmative defenses of truth and privilege upon the defendant.
[Footnote 10]

Page 403 U. S. 39

At the close of the evidence, the District Court denied respondent's motion for a directed verdict and
charged the jury, in conformity with Pennsylvania law, that four findings were necessary to return a
verdict for petitioner: (1) that one or more of the broadcasts were defamatory; (2) that a reasonable
listener would conclude that the defamatory statement referred to petitioner; (3) that WIP had forfeited
its privilege to report official proceedings fairly and accurately, either because it intended to injure the
plaintiff personally or because it exercised the privilege unreasonably and without reasonable care;
and (4) that the reporting was false. The jury was instructed that petitioner had the burden of proof on
the first three issues, but that respondent had the burden of proving that the reporting was true. The
jury was further instructed that, "as a matter of law," petitioner was not entitled to actual damages
claimed for loss of business "not because it wouldn't ordinarily be, but because there has been
evidence that this same subject matter was the subject" of broadcasts over other television and radio
stations and of newspaper reports, "so if there was any business lost . . . we have no proof . . . that [it]
resulted directly from the broadcasts by WIP. . . ." App. 331a. On the question of punitive damages,
the judge gave the following instruction:

"[I]f you find that this publication arose from a bad motive or malice toward the plaintiff, or if you find
that it was published with reckless indifference to the truth, if you find that it was not true, you would
be entitled to award punitive damages, and punitive damages are awarded as a deterrent from future
conduct of the same sort."

"They really are awarded only for outrageous conduct, as I have said, with a bad motive or with
reckless disregard of the interests of others, and before
Page 403 U. S. 40

you would award punitive damages, you must find that these broadcasts were published with a bad
motive or with reckless disregard of the rights of others, or reckless indifference to the rights of
others. . . ."

The jury returned a verdict for petitioner and awarded $25,000 in general damages, and $725,000 in
punitive damages. The District Court reduced the punitive damages award to $250,000 on remittitur,
but denied respondent's motion for judgment n.o.v. In reversing, the Court of Appeals emphasized
that the broadcasts concerned matters of public interest, and that they involved "hot news" prepared
under deadline pressure. The Court of Appeals concluded that

"the fact that plaintiff was not a public figure cannot be accorded decisive importance if the
recognized important guarantees of the First Amendment are to be adequately implemented."

415 F.2d at 896. For that reason, the court held that the New York Times standard applied and,
further, directed that judgment be entered for respondent, holding that, as a matter of law, petitioner's
evidence did not meet that standard.

IV

Petitioner concedes that the police campaign to enforce the obscenity laws was an issue of public
interest, and, therefore, that the constitutional guarantees for freedom of speech and press imposed
limits upon Pennsylvania's power to apply its libel laws to compel respondent to compensate him in
damages for the alleged defamatory falsehoods broadcast about his involvement. As noted, the
narrow question he raises is whether, because he is not a "public official" or a "public figure," but a
private individual, those limits required that he prove that the falsehoods resulted from a failure of
respondent to exercise reasonable care, or required that he prove that

Page 403 U. S. 41

the falsehoods were broadcast with knowledge of their falsity or with reckless disregard of whether
they were false or not. That question must be answered against the background of the functions of
the constitutional guarantees for freedom of expression. Rosenblatt v. Baer, 383 U. S. 75, at 383 U.
S. 84-85, n. 10 (1966).

Self-governance in the United States presupposes far more than knowledge and debate about the
strictly official activities of various levels of government. The commitment of the country to the
institution of private property, protected by the Due Process and Just Compensation Clauses in the
Constitution, places in private hands vast areas of economic and social power that vitally affect the
nature and quality of life in the Nation. Our efforts to live and work together in a free society not
completely dominated by governmental regulation necessarily encompass far more than politics in a
narrow sense. "The guarantees for speech and press are not the preserve of political expression or
comment upon public affairs." Time, Inc. v. Hill, 385 U. S. 374, 385 U. S. 388 (1967).

"Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues
about which information is needed or appropriate to enable the members of society to cope with the
exigencies of their period."

Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 102 (1940). Although the limitations upon civil libel
actions, first held in New York Times to be required by the First Amendment, were applied in that
case in the context of defamatory falsehoods about the official conduct of a public official, later
decisions have disclosed the artificiality, in terms of the public's interest, of a simple distinction
between "public" and "private" individuals or institutions:

"Increasingly in this country, the distinctions between governmental and private sectors are blurred. . .
. In many situations, policy determinations

Page 403 U. S. 42

which traditionally were channeled through formal political institutions are now originated and
implemented through a complex array of boards, committees, commissions, corporations, and
associations, some only loosely connected with the Government. This blending of positions and
power has also occurred in the case of individuals so that many who do not hold public office at the
moment are nevertheless intimately involved in the resolution of important public questions. . . ."

". . . Our citizenry has a legitimate and substantial interest in the conduct of such persons, and
freedom of the press to engage in uninhibited debate about their involvement in public issues and
events is as crucial as it is in the case of 'public officials.'"

Curtis Publishing Co. v. Butts, 388 U. S. 130, 388 U. S. 163-164 (1967) (Warren, C.J., concurring in
result).

Moreover, the constitutional protection was not intended to be limited to matters bearing broadly on
issues of responsible government.

"[T]he Founders . . . felt that a free press would advance 'truth, science, morality, and arts in general,'
as well as responsible government."

Id. at 388 U. S. 147 (opinion of HARLAN, J.). Comments in other cases reiterate this judgment that
the First Amendment extends to myriad matters of public interest. In Time, Inc. v. Hill, supra, we had
"no doubt that the . . . opening of a new play linked to an actual incident, is a matter of public
interest," 385 U.S. at 385 U. S. 388, which was entitled to constitutional protection. Butts held that an
alleged "fix" of a college football game was a public issue. Associated Press v. Walker, 388 U. S.
130 (1967), a companion case to Butts, established that the public had a similar interest in the events
and personalities involved in federal efforts to enforce a court decree ordering the enrollment of a
Negro student in the University of Mississippi. Thus, these cases underscore the vitality, as

Page 403 U. S. 43

well as the scope, of the "profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S.
at 376 U. S. 270-271 (emphasis added).

If a matter is a subject of public or general interest, it cannot suddenly become less so merely
because a private individual is involved, or because, in some sense, the individual did not "voluntarily"
choose to become involved. The public's primary interest is in the event; the public focus is on the
conduct of the participant and the content, effect, and significance of the conduct, not the participant's
prior anonymity or notoriety. [Footnote 11] The present case illustrates the point. The community has
a vital interest in the proper enforcement of its criminal laws, particularly in an area such as obscenity,
where a number of highly important values are potentially in conflict: the public has an interest both in
seeing that the criminal law is adequately enforced and in assuring that the law is not used
unconstitutionally to suppress free expression. Whether the person involved is a famous large-scale
magazine distributor or a "private" businessman running a corner newsstand has no relevance in
ascertaining whether the public has an interest in the issue. We honor the commitment to robust
debate on public issues, which is embodied in the First Amendment,

Page 403 U. S. 44

by extending constitutional protection to all discussion and communication involving matters of public
or general concern, without regard to whether the persons involved are famous or anonymous.
[Footnote 12]

Our Brother WHITE agrees that the protection afforded by the First Amendment depends upon
whether the issue involved in the publication is an issue of public or general concern. He would,
however, confine our holding to the situation raised by the facts in this case, that is, limit it to issues
involving "official actions of public servants." In our view, that might be misleading. It is clear that
there has emerged from our cases decided since New York Times the concept that the First
Amendment's impact upon state libel laws derives not so much from whether the plaintiff is a "public
official," "public figure," or "private individual," as it derives from the question whether the allegedly
defamatory publication concerns a matter of public or general interest. See T. Emerson, The System
of Freedom of Expression 531-532, 540 (1970). In that circumstance, we think the time has come
forthrightly to announce that the determinant whether the First Amendment applies to state libel
actions is whether the utterance involved concerns an issue of public or general concern, albeit
leaving the

Page 403 U. S. 45

delineation of the reach of that term to future cases. As our Brother WHITE observes, that is not a
problem in this case, since police arrest of a person for distributing allegedly obscene magazines
clearly constitutes an issue of public or general interest. [Footnote 13]

We turn then to the question to be decided. Petitioner's argument that the Constitution should be held
to require that the private individual prove only that the publisher failed to exercise "reasonable care"
in publishing defamatory falsehoods proceeds along two lines. First, he argues that the private
individual, unlike the public figure, does not have access to the media to counter the defamatory
material, and that the private individual, unlike the public figure, has not assumed the risk of
defamation by thrusting himself into the public arena. Second, petitioner focuses on the important
values served by the law of defamation in preventing and redressing attacks upon reputation.

We have recognized the force of petitioner's arguments, Time, Inc. v. Hill, supra, at 385 U. S. 391,
and we adhere to the caution expressed in that case against "blind application" of the New York
Times standard. Id. at 385 U. S. 390. Analysis of the particular factors involved, however, convinces
us that petitioner's arguments cannot be reconciled with the purposes of the First Amendment, with
our cases, and with the traditional doctrines of libel law itself. Drawing a distinction between "public"

Page 403 U. S. 46

and "private" figures makes no sense in terms of the First Amendment guarantees. [Footnote 14]
The New York Timesstandard was applied to libel of a public official or public figure to give effect to
the Amendment's function to encourage ventilation of public issues, not because the public official
has any less interest in protecting his reputation than an individual in private life. While the argument
that public figures need less protection because they can command media attention to counter
criticism may be true for some very prominent people, even then, it is the rare case where the denial
overtakes the original charge. Denials, retractions, and corrections are not "hot" news, and rarely
receive the prominence of the original story. When the public official or public figure is a minor
functionary, or has left the position that put him in the public eye, see Rosenblatt v. Baer, supra, the
argument loses all of its force. In the vast majority of libels involving public officials or public figures,
the ability to respond through the media will depend on the same complex factor on which the ability
of a private individual depends: the unpredictable event of the media's continuing interest in the story.
Thus, the unproved, and highly improbable, generalization that an as-yet undefined class of "public
figures" involved in matters of public concern will be better able to respond

Page 403 U. S. 47

through the media than private individuals also involved in such matters seems too insubstantial a
reed on which to rest a constitutional distinction. Furthermore, in First Amendment terms, the cure
seems far worse than the disease. If the States fear that private citizens will not be able to respond
adequately to publicity involving them, the solution lies in the direction of ensuring their ability to
respond, rather than in stifling public discussion of matters of public concern. [Footnote 15]

Further reflection over the years since New York Times was decided persuades us that the view of
the "public official" or "public figure" as assuming the risk of defamation by voluntarily thrusting
himself into the public eye bears little relationship either to the values protected by the First
Amendment or to the nature of our society. We have recognized that "[e]xposure of the self to others
in varying degrees is a concomitant of life in a civilized community." Time, Inc. v. Hill,

Page 403 U. S. 48

supra at 385 U. S. 388. Voluntarily or not, we are all "public" men to some degree. Conversely, some
aspects of the lives of even the most public men fall outside the area of matters of public or general
concern. See n 12, supra; Griswold v. Connecticut, 381 U. S. 479 (1965). [Footnote 16] Thus, the
idea that certain "public" figures have voluntarily exposed their entire lives to public inspection, while
private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In
any event, such a distinction could easily produce the paradoxical result of dampening discussion of
issues of public or general concern because they happen to involve private citizens while extending
constitutional encouragement to discussion of aspects of the lives of "public figures" that are not in
the area of public or general concern.

General references to the values protected by the law of libel conceal important distinctions.
Traditional arguments suggest that libel law protects two separate interests of the individual: first, his
desire to preserve a certain privacy around his personality from unwarranted intrusion, and, second, a
desire to preserve his public good name and reputation. See Rosenblatt v. Baer, 383 U.S. at 383 U.
S. 92 (STEWART, J., concurring). The individual's interest in privacy -- in preventing unwarranted
intrusion upon the private aspects of his life -- is not involved in this case, or even in the class of
cases under consideration, since, by hypothesis, the individual is involved in matters of public or
general concern. [Footnote 17] In

Page 403 U. S. 49

the present case, however, petitioner's business reputation is involved, and thus the relevant interests
protected by state libel law are petitioner's public reputation and good name.
These are important interests. Consonant with the libel laws of most of the States, however,
Pennsylvania's libel law subordinates these interests of the individual in a number of circumstances.
Thus, high government officials are immune from liability -- absolutely privileged -- even if they
publish defamatory material from an improper motive, with actual malice, and with knowledge of its
falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958). This absolute privilege
attaches to judges, attorneys at law in connection with a judicial proceeding, parties and witnesses to
judicial proceedings, Congressmen and state legislators, and high national and state executive
officials. Restatement of Torts §§ 585-592. Moreover, a conditional privilege allows newspapers to
report the false defamatory material originally published under the absolute privileges listed above, if
done accurately. Sciandra v. Linett, 409 Pa. 595, 187 A.2d 586 (1963).

Even without the presence of a specific constitutional command, therefore, Pennsylvania libel law
recognizes that society's interest in protecting individual reputation

Page 403 U. S. 50

often yields to other important social goals. In this case, the vital needs of freedom of the press and
freedom of speech persuade us that allowing private citizens to obtain damage judgments on the
basis of a jury determination that a publisher probably failed to use reasonable care would not provide
adequate "breathing space" for these great freedoms. Reasonable care is an "elusive standard" that

"would place on the press the intolerable burden of guessing how a jury might assess the
reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or
portrait."

Time, Inc. v. Hill, 385 U.S. at 385 U. S. 389. Fear of guessing wrong must inevitably cause self-
censorship, and thus create the danger that the legitimate utterance will be deterred. Cf. Speer v.
Randall, 357 U. S. 513, 357 U. S. 526 (1958).

Moreover, we ordinarily decide civil litigation by the preponderance of the evidence. Indeed, the judge
instructed the jury to decide the present case by that standard. In the normal civil suit where this
standard is employed,

"we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor
than for there to be an erroneous verdict in the plaintiff's favor."

In re Winship, 397 U. S. 358, 397 U. S. 371 (1970) (HARLAN, J., concurring). In libel cases, however,
we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for
an innocent misstatement -- the three-quarter million dollar jury verdict in this case could rest on such
an error -- but the possibility of such error, even beyond the vagueness of the negligence standard
itself, would create a strong impetus toward self-censorship, which the First Amendment cannot
tolerate. These dangers for freedom of speech and press led us to reject the "reasonable man"
standard of liability as "simply inconsistent" with our national commitment under the First Amendment
when sought to be applied to the

Page 403 U. S. 51

conduct of a political campaign. Monitor Patriot Co. v. Roy, 401 U. S. 265, 401 U. S. 276 (1971). The
same considerations lead us to reject that standard here.

We are aware that the press has, on occasion, grossly abused the freedom it is given by the
Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would
match the freedom and public trust given it. But from the earliest days of our history, this free society,
dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. In 1799,
James Madison made the point in quoting (and adopting) John Marshall's answer to Talleyrand's
complaints about American newspapers, American State Papers, 2 Foreign Relations 196 (U.S.
Cong. 1832):

"'Among those principles deemed sacred in America, among those sacred rights considered as
forming the bulwark of their liberty, which the Government contemplates with awful reverence and
would approach only with the most cautious circumspection, there is no one of which the importance
is more deeply impressed on the public mind than the liberty of the press. That this liberty is often
carried to excess, that it has sometimes degenerated into licentiousness, is seen and lamented, but
the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it
is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the
plant from which it is torn. However desirable those measures might be which might correct without
enslaving the press, they have never yet been devised in America.'"

6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed.1906) (emphasis in original).

This Court has recognized this imperative:

"[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the
First Amendment

Page 403 U. S. 52

protect some erroneous publications as well as true ones."

St. Amant v. Thompson, 390 U. S. 727, 390 U. S. 732 (1968). We thus hold that a libel action, as
here, by a private individual against a licensed radio station for a defamatory falsehood in a newscast
relating to his involvement in an event of public or general concern may be sustained only upon clear
and convincing proof that the defamatory falsehood was published with knowledge that it was false or
with reckless disregard of whether it was false or not. [Footnote 18] Calculated falsehood, of course,
falls outside "the fruitful exercise of the right of free speech." Garrison v. Louisiana, 379 U. S. 64, 379
U. S. 75 (1964).

Our Brothers HARLAN and MARSHALL reject the "knowing or reckless falsehood standard" in favor
of a test that would require, at least, that the person defamed establish that the publisher negligently
failed to ascertain the truth of his story; they would also limit any recovery to "actual" damages. For
the reasons we have stated, the negligence standard gives insufficient breathing space to First
Amendment values. Limiting recovery to actual damages has the same defects. In the first instance,
that standard, too, leaves the First Amendment insufficient elbow room within which to function. It is
not simply the possibility of a judgment for damages that results in self-censorship. The very
possibility of having to engage in litigation, an expensive and protracted process,

Page 403 U. S. 53

is threat enough to cause discussion and debate to "steer far wider of the unlawful zone," thereby
keeping protected discussion from public cognizance. Speiser v. Randall, 357 U.S. at 357 U. S.
526. Cf. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 402 U.
S. 334-339 (1971). Too, a small newspaper suffers equally from a substantial damage award,
whether the label of the award be "actual" or "punitive." The real thrust of Brothers HARLAN's and
MARSHALL's position, however, is their assertion that their proposal will not "constitutionalize" the
factfinding process. But this clearly is not the way their test would work in practice. Their approach
means only that factfinding will shift from an inquiry into whether the defamatory statements were
knowingly or recklessly uttered to the inquiry whether they were negligently uttered, and if so, to an
inquiry whether plaintiff suffered "actual" damages. This latter inquiry will involve judges even more
deeply in factfinding. Would the mere announcement by a state legislature that embarrassment and
pain and suffering are measurable actual losses mean that such damages may be awarded in libel
actions? No matter how the problem is approached, this Court would ultimately have to fashion
constitutional definitions of "negligence" and of "actual damages."

Aside from these particularized considerations, we have repeatedly recognized that courts may not
avoid an excursion into factfinding in this area simply because it is time-consuming or difficult. We
stated in Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335 (1946), that:

"The Constitution has imposed upon this Court final authority to determine the meaning and
application of those words of that instrument which require interpretation to resolve judicial issues.
With that responsibility, we are compelled to examine for ourselves the statements in issue and the
circumstances

Page 403 U. S. 54

under which they were made to see whether or not they . . . are of a character which the principles of
the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect."

(Footnote omitted.) Clearly, then, this Court has an "obligation to test challenged judgments against
the guarantees of the First and Fourteenth Amendments," and, in doing so, "this Court cannot avoid
making an independent constitutional judgment on the facts of the case." Jacobellis v. Ohio, 378 U. S.
184, 378 U. S. 190 (1964). The simple fact is that First Amendment questions of "constitutional fact"
compel this Court's de novo review. See Edwards v. South Carolina, 372 U. S. 229, 372 U. S.
235 (1963); Blackburn v. Alabama, 361 U. S. 199, 361 U. S. 205 n. 5 (1960).

VI

Petitioner argues that the instructions on punitive damages either cured or rendered harmless the
instructions permitting an award of general damages based on a finding of failure of WIP to exercise
reasonable care. We have doubts of the merits of the premise, [Footnote 19] but even

Page 403 U. S. 55

assuming that instructions were given satisfying the standard of knowing or reckless falsity, the
evidence was insufficient to sustain an award for that petitioner under that standard. In these cases,
our

"duty is not limited to the elaboration of constitutional principles; we must also, in proper cases,
review the evidence to make certain that those principles have been constitutionally applied."

New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 285. Our independent analysis of the record
leads us to agree with the Court of Appeals that none of the proofs, considered either singly or
cumulatively, satisfies the constitutional standard with the convincing clarity necessary to raise a jury
question whether the defamatory falsehoods were broadcast with knowledge that they were false or
with reckless disregard of whether they were false or not.
The evidence most strongly supporting petitioner is that concerning his visit to WIP's studio where a
part-time newscaster hung up the telephone when petitioner disputed the newscaster's statement that
the District Attorney had characterized petitioner's magazines as obscene. This contact occurred,
however, after all but one of the second series of broadcasts had been aired. The incident has no
probative value insofar as it bears on petitioner's case as to the first series of broadcasts. That portion
of petitioner's case was based upon the omission from the first two broadcasts at 6 and 6:30 p.m. on
October 4 of the word "alleged" preceding a characterization of the magazines distributed by
petitioner. But that omission was corrected with the 8 p.m. broadcast, and was not repeated in the
five broadcasts that followed. And we agree with the analysis of the Court of Appeals that led that
court, and leads us, to conclude that the episode failed to provide evidence satisfying the New York
Times standard insofar as it bore on petitioner's

Page 403 U. S. 56

case based upon the broadcasts on and after October 21 concerning petitioner's lawsuit:

"Only one broadcast took place after this conversation. It is attacked on the ground that it contains an
inaccurate statement concerning plaintiff's injunction action in that it Stated that the district attorney
considered plaintiff's publications to be smut and immoral literature. The transcript of the testimony
shows that plaintiff's own attorney, when questioning defendant' representative concerning the
allegedly defamatory portion of the last broadcast, said that he was not questioning its 'accuracy.'
Furthermore, his examination of the same witness brought out that defendant's representative
confirmed the story with the judge involved before the broadcast was made. We think that the
episode described failed to provide evidence of actual malice with the requisite convincing clarity to
create a jury issue under federal standards."

415 F.2d at 897.

Petitioner argues finally that WIP's failure to communicate with him to learn his side of the case and to
obtain a copy of the magazine for examination, sufficed to support a verdict under the New York
Times standard. But our

"cases are clear that reckless conduct is not measured by whether a reasonably prudent man would
have published, or would have investigated before publishing. There must be sufficient evidence to
permit the conclusion that the defendant in fact, entertained serious doubts as to the truth of his
publication."

St. Amant v. Thompson, 390 U.S. at 390 U. S. 731. Respondent here relied on information supplied
by police officials. Following petitioner's complaint about the accuracy of the broadcasts, WIP
checked its last report with the judge who presided in the case. While we may assume that the
District Court correctly held to be defamatory

Page 403 U. S. 57

respondent's characterizations of petitioner's business as "the smut literature racket," and of those
engaged in it as "girlie-book peddlers," there is no evidence in the record to support a conclusion that
respondent "in fact entertained serious doubts as to the truth" of its reports.

Affirmed.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

ERWIN TULFO, G.R. No. 161032

Petitioner,
Present:
- versus - QUISUMBING, J., Chairperson,
CARPIO MORALES,
VELASCO, JR.,
PEOPLE OF THE PHILIPPINES NACHURA, and
and ATTY. CARLOS T. SO, BRION, JJ.
Respondents.
x-------------------------------------------x

SUSAN CAMBRI, REY SALAO, G.R. No. 161176

JOCELYN BARLIZO, and
PHILIP PICHAY,
Petitioners,

- versus -
COURT OF APPEALS, PEOPLE
OF THE PHILIPPINES, and Promulgated:
CARLOS SO,
Respondents. September 16, 2008
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The freedom of the press is one of the cherished hallmarks of our democracy; but even as we
strive to protect and respect the fourth estate, the freedom it enjoys must be balanced with
responsibility. There is a fine line between freedom of expression and libel, and it falls on the
courts to determine whether or not that line has been crossed.

The Facts

On the complaint of Atty. Carlos Ding So of the Bureau of Customs, four (4) separate
informations were filed on September 8, 1999 with the Regional Trial Court in
(RTC) Pasay City. These were assigned to Branch 112 and docketed as Criminal Case Nos. 99-
1597 to 99-1600, and charged petitioners Erwin Tulfo, as author/writer, Susan Cambri, as
managing editor, Rey Salao, as national editor, Jocelyn Barlizo, as city editor, and Philip Pichay,
as president of the Carlo Publishing House, Inc., of the daily tabloid Remate, with the crime of
libel in connection with the publication of the articles in the column Direct Hit in the issues of
May 11, 1999; May 12, 1999; May 19, 1999; and June 25, 1999.[1] The four informations read as
follows:

Criminal Case No. 99-1598

That on or about the 11th day of May, 1999 in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping one another, being
then the columnist, publisher and managing editor, respectively of REMATE, a tabloid
published daily and of general circulation in the Philippines, did then and there
willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor
complainant, ATTY. CARLOS DING SO, and with the malicious intent of injuring and
exposing said complainant to public hatred, contempt and ridicule, write and publish in
the regular issue of said publication on May 11, 1999, its daily column DIRECT HIT,
quoted hereunder, to wit:

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.

WHEREIN said complainant was indicated as an extortionist, a corrupt public

official, smuggler and having illegally acquired wealth, all as already stated, with the
object of destroying his reputation, discrediting and ridiculing him before the bar of
public opinion.[2]

Criminal Case No. 99-1599

 That on or about the 12th day of May, 1999 in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping one another, being
then the columnist, publisher and managing editor, respectively of REMATE, a tabloid
published daily and of general circulation in the Philippines, did then and there
willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor
complainant, ATTY. CARLOS DING SO, and with the malicious intent of injuring and
exposing said complainant to public hatred, contempt and ridicule, write and publish in
the regular issue of said publication on May 12, 1999, in daily column DIRECT HIT,
quoted hereunder, to wit:

SI ATTY. SO NG BOC

LINTEK din sa pangungurakot itong Ding So ng Bureau of

Customs Intelligence Unit sa South Harbor.

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!!

WHEREIN said complainant was indicated as an extortionist, a corrupt public

official, smuggler and having illegally acquired wealth, all as already stated, with the
object of destroying his reputation, discrediting and ridiculing him before the bar of
public opinion.[3]

Criminal Case No. 99-1600

That on or about19th day of May, 1999 in Pasay City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, being then the
columnist, publisher and managing editor, respectively of REMATE, a tabloid
published daily and of general circulation in the Philippines, did then and there
willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor
complainant, ATTY. CARLOS DING SO, and with the malicious intent of injuring and
exposing said complainant to public hatred, contempt and ridicule, write and publish in
the regular issue of said publication on May 19, 1999, in daily column DIRECT HIT,
quoted hereunder, to wit:

xxxx

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.

WHEREIN said complainant was indicated as an extortionist, a corrupt public official,

smuggler and having illegally acquired wealth, all as already stated, with the object of
destroying his reputation, discrediting and ridiculing him before the bar of public
opinion.[4]

Criminal Case No. 99-1597

That on or about25th day of June, 1999 in Pasay City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, being then the
columnist, publisher and managing editor, respectively of REMATE, a tabloid
published daily and of general circulation in the Philippines, did then and there
willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor
complainant, ATTY. CARLOS DING T. SO, and with the malicious intent of injuring
and exposing said complainant to public hatred, contempt and ridicule, write and
publish in the regular issue of said publication on June 25, 1999, its daily column
DIRECT HIT, quoted hereunder, to wit:

xxxx

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.

WHEREIN said complainant was indicated as an extortionist, a corrupt public

official, smuggler and having illegally acquired wealth, all as already stated, with the
 object of destroying his reputation, discrediting and ridiculing him before the bar of
public opinion.[5]

On November 3, 1999, Tulfo, Salao, and Cambri were arraigned, while Barlizo and Pichay
were arraigned on December 15, 1999. They all pleaded not guilty to the offenses charged.

At pre-trial, the following were admitted by petitioners: (1) that during the four dates of
the publication of the questioned articles, the complaining witness was not assigned at South
Harbor; (2) that the accused and complaining witness did not know each other during all the time
material to the four dates of publication; (3) that Remate is a newspaper/tabloid of general
circulation in the Philippines; (4) the existence and genuineness of the Remate newspaper; (5) the
column therein and its authorship and the alleged libelous statement as well as the editorial post
containing the designated positions of the other accused; and (6) the prosecutions qualified
admission that it is the duty of media persons to expose corruption.[6]

The prosecution presented four witnesses, namely: Oscar M. Ablan, Atty. James Fortes,
Jr., Gladys Fontanilla, and complainant Atty. So. The prosecution presented documentary
evidence as well.

Ablan testified that he had read the four columns written by Tulfo, and that the articles
were untrue because he had known Atty. So since 1992 and had worked with him in the Customs
Intelligence and Investigation Service Division of the Bureau of Customs. He further testified
that upon reading the articles written by Tulfo, he concluded that they referred to Atty. So because
the subject articles identified Atty. Carlos as Atty. Ding So of the Customs Intelligence and
Investigation Service Division, Bureau of Customs and there was only one Atty. Carlos Ding So
of the Bureau of Customs.[7]

Fontanilla, Records Officer I of the Bureau of Customs, testified that she issued a
certification in connection with these cases upon the request of Atty. So.[8] This certification
stated that as per records available in her office, there was only one employee by the name of
Atty. Carlos T. So who was also known as Atty. Ding So in the Intelligence Division of the
Customs Intelligence and Investigation Service or in the entire Bureau of Customs. [9]

Atty. Fortes testified that he knew Atty. So as a fellow member of the Iglesia Ni Kristo and
as a lawyer, and that having read the articles of Tulfo, he believed that these were untrue, as he
knew Atty. Carlos Ding So.[10]

Atty. So testified that he was the private complainant in these consolidated cases. He
further testified that he is also known as Atty. Ding So, that he had been connected with the
Bureau of Customs since October 1981, and that he was assigned as Officer-in-Charge (OIC) of
the Customs Intelligence and Investigation Service Division at the Manila International Container
Port since December 27, 1999. He executed two complaint-affidavits, one dated June 4, 1999 and
the other dated July 5, 1999, for Criminal Case Nos. 99-1598 to 99-1600. Prior to this, he also
filed 14 cases of libel against Raffy Tulfo, brother of petitioner Erwin Tulfo. He testified that
petitioner Tulfos act of imputing upon him criminality, assailing his honesty and integrity, caused
him dishonor, discredit, and contempt among his co-members in the legal profession, co-officers
of the Armed Forces of the Philippines, co-members and peers in the Iglesia ni Kristo, his co-
officers and employees and superior officers in the Bureau of Customs, and among ordinary
persons who had read said articles. He said it also caused him and his family sleepless nights,
mental anguish, wounded feelings, intrigues, and embarrassment. He further testified that he
included in his complaint for libel the officers of Remate such as the publisher, managing editor,
city editor, and national editor because under Article 360 of the Revised Penal Code (RPC), they
are equally responsible and liable to the same extent as if they were the author of the articles. He
also testified that Ding is his nickname and that he is the only person in the entire Bureau of
Customs who goes by the name of Atty. Carlos T. So or Atty. Carlos Ding So. [11]

In his defense, petitioner Tulfo testified that he did not write the subject articles with
malice, that he neither knew Atty. So nor met him before the publication of the articles. He
testified that his criticism of a certain Atty. So of the South Harbor was not directed against the
complainant, but against a person by the name of Atty. Ding So at the South Harbor. Tulfo
claimed that it was the practice of certain people to use other peoples names to advance their
corrupt practices. He also claimed that his articles had neither discredited nor dishonored the
complainant because as per his source in the Bureau of Customs, Atty. So had been promoted. He
further testified that he did not do any research on Atty. So before the subject articles, because as
a columnist, he had to rely on his source, and that he had several sources in the Bureau of
Customs, particularly in the South Harbor.[12]
Petitioner Salao testified that he came to know Atty. Carlos Ding So when the latter filed
a case against them. He testified that he is an employee of Carlo Publishing House, Inc.; that he
was designated as the national editor of the newspaper Remate since December 1999; that the
duties of the position are to edit, evaluate, encode, and supervise layout of the news from the
provinces; and that Tulfo was under the supervision of Rey Briones, Vice President for Editorial
and Head of the Editorial Division. Salao further testified that he had no participation in the
subject articles of Tulfo, nor had he anything to do with the latters column.[13]

Petitioner Cambri, managing editor of Remate, testified that she classifies the news articles
written by the reporters, and that in the Editorial Division, the officers are herself; Briones, her
supervisor; Lydia Bueno, as news and city editor; and Salao as national editor. She testified that
petitioner Barlizo is her subordinate, whose duties and responsibilities are the typesetting, editing,
and layout of the page assigned to her, the Metro page. She further testified that she had no
participation in the writing, editing, or publication of the column of Tulfo because the column
was not edited.She claimed that none among her co-accused from the Remate newspaper edited
the columns of Tulfo, that the publication and editing of the subject articles were the responsibility
of Tulfo, and that he was given blanket authority to write what he wanted to write. She also
testified that the page wherein Tulfos column appeared was supervised by Bueno as news
editor.[14]

Petitioner Pichay testified that he had been the president of Carlo Publishing House, Inc.
since December 1998. He testified that the company practice was to have the columnists report
directly to the vice-president of editorials, that the columnists were given autonomy on their
columns, and that the vice-president for editorials is the one who would decide what articles are
to be published and what are not. He further testified that Tulfo was already a regular
contributor.[15]

The Ruling of the RTC

In a Decision dated November 17, 2000, the RTC found petitioners guilty of the crime of
Libel. The dispositive portion reads as follows:

WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY
SALAO, JOCELYN BARLIZO and PHILIP PICHAY guilty beyond reasonable doubt
of four (4) counts of the crime of LIBEL, as defined in Article 353 of the Revised Penal
Code, and penalized by prision correccional in its minimum and medium periods, or a
fine ranging from P200.00 Pesos to P6,000.00 Pesos or both, under Article 355 of the
same Code.

Applying the Indeterminate Sentence Law, the Court hereby sentences EACH of the
accused to suffer imprisonment of SIX (6) MONTHS of arresto mayor, as minimum, to
FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as maximum, for
EACH count with accessory penalties provided by law.

Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo
and Philip Pichay wrote and published the four (4) defamatory articles with reckless
disregard, being, in the mind of the Court, of whether it was false or not, the said articles
libelous per se, they are hereby ordered to pay, jointly and severally, the sum of EIGHT
HUNDRED THOUSAND (P800,000.00) PESOS, as actual damages, the sum of ONE
MILLION PESOS (P1,000,000.00), as moral damages, and an additional amount of
FIVE HUNDRED THOUSAND PESOS (P500,000.00), by way of exemplary
damages, all with subsidiary imprisonment, in case of insolvency, and to pay the costs.

SO ORDERED.[16]
 The Ruling of the Court of Appeals

Before the Court of Appeals (CA), Tulfo assigned the following errors:

1. THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED

TESTIMONY OF THE APPELLANT THAT HE DID NOT CRITICIZE THE
PRIVATE COMPLAINANT WORKING AT THE NAIA. HE CRITICIZED
ANOTHER PERSON WORKING AT THE SOUTH HARBOR. HENCE, THE
ELEMENT OF IDENTITY IS LACKING.
2. THE LOWER COURT ERRED IN IGNORING THE LACK OF THE
ESSENTIAL ELEMENT OF DISCREDIT OR DISHONOR, AS DEFINED BY
JURISPRUDENCE.
3. THERE WAS NO MALICE AGAINST THE PRIVATE COMPLAINANT ATTY.
CARLOS DING SO.[17]
His co-accused assigned the following errors:

The trial court seriously erred in holding accused Susan Cambri, Rey Salao, Jocelyn
Barlizo and Philip Pichay liable for the defamations contained in the questioned articles
despite the fact that the trial court did not have any finding as to their participation in
the writing, editing and/or publication of the questioned articles.

The trial court seriously erred in concluding that libel was committed by all of the
accused on the basis of its finding that the elements of libel have been satisfactorily
established by evidence on record.

The trial court seriously erred in considering complainant to be the one referred to by
Erwin Tulfo in his articles in question.[18]

In a Decision[19] dated June 17, 2003, the Eighth Division of the CA dismissed the appeal and
affirmed the judgment of the trial court. A motion for reconsideration dated June 30, 2003 was
filed by Tulfo, while the rest of his co-accused filed a motion for reconsideration dated July 2,
2003. In a Resolution dated December 11, 2003, both motions were denied for lack of merit.[20]

Petitions for Review on Certiorari under Rule 45

Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse the Decision of the
CA in CA-G.R. CR No. 25318 which affirmed the decision of the RTC. Petitioners Cambri,
Salao, Barlizo, and Pichay brought a similar petition docketed as G.R. No. 161176, seeking the
nullification of the same CA decision.

In a Resolution dated March 15, 2004, the two cases were consolidated since both cases arise
from the same set of facts, involve the same parties, assail the same decision of the CA, and seek
identical reliefs.[21]

Assignment of Errors

Petitioner Tulfo submitted the following assignment of errors:

Assuming that the Prosecution presented credible and relevant evidence, the Honorable
CA erred in not declaring the assailed articles as privileged; the CA erred in concluding
that malice in law exists by the courts having incorrectly reasoned out that malice was
presumed in the instant case.

II

Even assuming arguendo that the articles complained of are not privileged, the lower
court, nonetheless, committed gross error as defined by the provisions of Section 6 of
Rule 45 by its misappreciation of the evidence presented on matters substantial and
material to the guilt or innocence of the petitioner.[22]

Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own assignment of errors,
as follows:

A - The Court of Appeals Seriously Erred In Its Application of Article 360 Of The
Revised Penal Code By Holding Cambri, Salao And Barlizo Liable For The Defamatory
Articles In The May 11, 12, 19 And June 25, 1999 Issues Of Remate Simply Because
They Were Managing Editor, National Editor And City Editor Respectively Of Remate
And By Holding Pichay Also Liable For Libel Merely Because He Was The President
Of Carlo Publishing House, Inc. Without Taking Into Account The Unrebutted
Evidence That Petitioners Had No Participation In The Editing Or Publication Of The
Defamatory Articles In Question.
 B - The Court Of Appeals Committed Grave Abuse Of Discretion In Manifestly
Disregarding The Unrebutted Evidence That Petitioners Had No Participation In The
Editing Or Publication Of The Defamatory Articles In Question.

C - The Court Of Appeals Seriously Misappreciated The Evidence In Holding That The
Person Referred To In The Published Articles Was Private Complainant Atty. Carlos
So.[23]

Our Ruling
The petitions must be dismissed.

The assignment of errors of petitioner Tulfo shall be discussed first.

In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v. Court of
Appeals.[24] In essence, he argues that the subject articles fall under qualifiedly privileged
communication under Borjal and that the presumption of malice in Art. 354 of the RPC does not
apply. He argues that it is the burden of the prosecution to prove malice in fact.

This case must be distinguished from Borjal on several points, the first being
that Borjal stemmed from a civil action for damages based on libel, and was not a criminal
case. Second, the ruling in Borjal was that there was no sufficient identification of the
complainant, which shall be differentiated from the present case in discussing the second
assignment of error of Tulfo. Third, the subject in Borjal was a private citizen, whereas in the
present case, the subject is a public official. Finally, it was held in Borjal that the articles written
by Art Borjal were fair commentaries on matters of public interest. [25] It shall be discussed and
has yet to be determined whether or not the articles fall under the category of fair commentaries.

In passing, it must be noted that the defense of Tulfos articles being qualifiedly privileged
communication is raised for the first time in the present petition, and this particular issue was
never brought before either the RTC or the CA. Thus, neither the RTC nor the CA had a chance
to properly consider and evaluate this defense. Tulfo now draws parallels between his case and
that of Art Borjal, and argues that the prosecution should have proved malice in fact, and it was
error on the part of the trial and appellate courts to use the presumption of malice in law in Art.
354 of the RPC. This lays an unusual burden on the part of the prosecution, the RTC, and the CA
to refute a defense that Tulfo had never raised before them. Whether or not the subject articles
are privileged communications must first be established by the defense, which it failed to do at
the level of the RTC and the CA.Even so, it shall be dealt with now, considering that an appeal
in a criminal proceeding throws the whole case open for review.
There is no question of the status of Atty. So as a public official, who served as the OIC of the
Bureau of Customs Intelligence and Investigation Service at the Ninoy Aquino International
Airport (NAIA) at the time of the printing of the allegedly libelous articles. Likewise, it cannot
be refuted that the goings-on at the Bureau of Customs, a government agency, are matters of
public interest. It is now a matter of establishing whether the articles of Tulfo are protected as
qualified privileged communication or are defamatory and written with malice, for which he
would be liable.

Freedom of the Press v. Responsibility of the Press

The Court has long respected the freedom of the press, and upheld the same when it came to
commentaries made on public figures and matters of public interest. Even in cases wherein the
freedom of the press was given greater weight over the rights of individuals, the Court, however,
has stressed that such 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.

The Journalists Code of Ethics adopted by the National Union of Journalists of

the Philippines shows that the press recognizes that it has standards to follow in the exercise of
press freedom; that this freedom carries duties and responsibilities. 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.

In the present case, it cannot be said that Tulfo followed the Journalists Code of Ethics and
exercised his journalistic freedom responsibly.

In his series of articles, he targeted one Atty. Ding So of the Bureau of Customs as being involved
in criminal activities, and was using his public position for personal gain. He went even further
than that, and called Atty. So an embarrassment to his religion, saying ikaw na yata ang
pinakagago at magnanakaw sa miyembro nito.[26] He accused Atty. So of stealing from the
government with his alleged corrupt activities.[27] And when Atty. So filed a libel suit against him,
Tulfo wrote another article, challenging Atty. So, saying, Nagalit itong tarantadong si Atty.
So dahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs].[28]
In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met
nor known him prior to the publication of the subject articles. He also admitted that he did not
conduct a more in-depth research of his allegations before he published them, and relied only on
his source at the Bureau of Customs.

In his defense before the trial court, Tulfo claimed knowledge of people using the names of others
for personal gain, and even stated that he had been the victim of such a practice. He argued then
that it may have been someone else using the name of Atty. So for corrupt practices at
the South Harbor, and this person was the target of his articles. This argument weakens his case
further, for even with the knowledge that he may be in error, even knowing of the possibility that
someone else may have used Atty. Sos 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.

The trial court found Tulfos accusations against Atty. So to be false, but Tulfo argues that the
falsity of contents of articles does not affect their privileged character. It may be that the falsity
of the articles does not prove malice. Neither did Borjal give journalists carte blanche with
regard to their publications. It cannot be said that a false article accusing a public figure would
always be covered by the mantle of qualified privileged communication. The portion
of Borjal cited by Tulfo must be scrutinized further:

Even assuming that the contents of the articles are false, mere error, inaccuracy
or even falsity alone does not prove actual malice. Errors or misstatements are
inevitable in any scheme of truly free expression and debate. Consistent with good
faith and reasonable care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of language. There must
be some room for misstatement of fact as well as for misjudgment. Only by giving them
much leeway and tolerance can they courageously and effectively function as critical
agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held

A newspaper especially one national in reach and coverage, should be

free to report on events and developments in which the public has a
legitimate interest with minimum fear of being hauled to court by one
group or another on criminal or civil charges for libel, so long as the
newspaper respects and keeps within the standards of morality and civility
prevailing within the general community.

To avoid the self-censorship that would necessarily accompany strict liability for
erroneous statements, rules governing liability for injury to reputation are required to
allow an adequate margin of error by protecting some inaccuracies. It is for the same
reason that the New York Times doctrine requires that liability for defamation of a
public official or public figure may not be imposed in the absence of proof of actual
malice on the part of the person making the libelous statement.[29] (Emphasis supplied.)
Reading more deeply into the case, 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.

Borjal may have expanded the protection of qualified privileged communication beyond the
instances given in Art. 354 of the RPC, but this expansion does not cover Tulfo. The addition to
the instances of qualified privileged communications is reproduced as follows:
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.[30] (Emphasis supplied.)

The expansion speaks of fair commentaries on matters of public interest. While Borjal places fair
commentaries within the scope of qualified privileged communication, the mere fact that the
subject of the article is a public figure or a matter of public interest does not automatically exclude
the author from liability. Borjal allows that for a discreditable imputation to a public official to
be actionable, it must be a false allegation of fact or a comment based on a false supposition. As
previously mentioned, the trial court found that the allegations against Atty. So were false and
that Tulfo did not exert effort to verify the information before publishing his articles.

Tulfo offered no proof for his accusations. He claimed to have a source in the Bureau of Customs
and relied only on this source for his columns, but did no further research on his story. The records
of the case are bereft of any showing that Atty. So was indeed the villain Tulfo pictured him to
be. Tulfos articles related no specific details or acts committed to prove Atty. So was indeed a
corrupt public official. These columns were unsubstantiated attacks on Atty. So, and cannot be
countenanced as being privileged simply because the target was a public official. Although wider
latitude is given to defamatory utterances against public officials in connection with or relevant
to their performance of official duties, or against public officials in relation to matters of public
interest involving them, such defamatory utterances do not automatically fall within the ambit of
constitutionally protected speech.[31] Journalists still bear the burden of writing responsibly when
practicing their profession, even when writing about public figures or matters of public
interest. As held in In Re: Emil P. Jurado:

Surely it cannot be postulated that the law protects a journalist who deliberately prints
lies or distorts the truth; or that a newsman may ecape liability who publishes
derogatory or defamatory allegations against a person or entity, but recognizes no
obligation bona fide to establish beforehand the factual basis of such imputations and
refuses to submit proof thereof when challenged to do so. It outrages all notions of fair
play and due process, and reduces to uselessness all the injunctions of the Journalists
Code of Ethics to allow a newsman, with all the potential of his profession to influence
popular belief and shape public opinion, to make shameful and offensive charges
destructive of personal or institutional honor and repute, and when called upon to justify
the same, cavalierly beg off by claiming that to do so would compromise his sources
and demanding acceptance of his word for the reliability of those sources.[32]

The prosecution showed that Tulfo could present no proof of his allegations against Atty. So,
only citing his one unnamed source. It is not demanded of him that he name his source. 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. The rumors and gossips spread by unnamed sources are not truth. 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.

Jurado also established that the journalist should exercise some degree of care even when writing
about public officials. The case stated:
Clearly, the public interest involved in freedom of speech and the individual interest of
judges (and for that matter, all other public officials) in the maintenance of private honor
and reputation need to be accommodated one to the other. And the point of adjustment
or accommodation between these two legitimate interests is precisely found in the norm
which requires those who, invoking freedom of speech, publish statements which are
clearly defamatory to identifiable judges or other public officials to exercise bona
fide care in ascertaining the truth of the statements they publish. The norm
does not require that a journalist guarantee the truth of what he says or publishes. But
the norm does prohibit the reckless disregard of private reputation by publishing or
circulating defamatory statements without any bona fide effort to ascertain the truth
thereof. That this norm represents the generally accepted point of balance or adjustment
between the two interests involved is clear from a consideration of both the pertinent
 civil law norms and the Code of Ethics adopted by the journalism profession in
the Philippines.[33]

Tulfo has clearly failed in this regard. His articles cannot even be considered as qualified
privileged communication under the second paragraph of Art. 354 of the RPC which exempts
from the presumption of malice a fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative, or other official proceedings which are not of confidential
nature, or any statement, report, or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions. This particular provision has
several elements which must be present in order for the report to be exempt from the presumption
of malice. The provision can be dissected as follows:

In order that the publication of a report of an official proceeding may be

considered privileged, the following conditions must exist:

(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, reportor speech delivered in said 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; and
(c) That it is without any comments or remarks.[34]
The articles clearly are not the fair and true reports contemplated by the provision. They
provide no details of the acts committed by the subject, Atty. So. They are plain and simple
baseless accusations, backed up by the word of one unnamed source. Good faith is lacking, as
Tulfo failed to substantiate or even attempt to verify his story before publication. Tulfo goes even
further to attack the character of the subject, Atty. So, even calling him a disgrace to his religion
and the legal profession. As none of the elements of the second paragraph of Art. 354 of the RPC
is present in Tulfos articles, it cannot thus be argued that they are qualified privileged
communications under the RPC.

Breaking down the provision further, looking at the terms fair and true, Tulfos articles do
not meet the standard. Fair is defined as having the qualities of impartiality and honesty.[35] True
is defined as conformable to fact; correct; exact; actual; genuine; honest. [36] 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.

Even assuming arguendo that the subject articles are covered by the shield of qualified
privileged communication, this would still not protect Tulfo.
 In claiming that his articles were covered by qualified privileged communication, Tulfo
argues that the presumption of malice in law under Art. 354 of the RPC is no longer present,
placing upon the prosecution the burden of proving malice in fact. He then argues that for him to
be liable, there should have been evidence that he was motivated by ill will or spite in writing the
subject articles.

The test to be followed is that laid down in New York Times Co. v. Sullivan,[37] and
reiterated in Flor v. People, which should be to determine whether the defamatory 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.[38]

The trial court found that Tulfo had in fact written and published the subject articles with
reckless disregard of whether the same were false or not, as proven by the prosecution. There was
the finding that Tulfo failed to verify the information on which he based his writings, and that the
defense presented no evidence to show that the accusations against Atty. So were true. Tulfo
cannot argue that because he did not know the subject, Atty. So, personally, there was no malice
attendant in his articles. The test laid down is the reckless disregard test, and Tulfo has failed to
meet that test.

The fact that Tulfo published another article lambasting respondent Atty. So can be
considered as further evidence of malice, as held in U.S. vs. Montalvo,[39] wherein publication
after the commencement of an action was taken as further evidence of a malicious design to injure
the victim. Tulfo did not relent nor did he pause to consider his actions, but went on to continue
defaming respondent Atty. So. This is a clear indication of his intent to malign Atty. So, no matter
the cost, and is proof of malice.
Leaving the discussion of qualified privileged communication, Tulfo also argues that the
lower court misappreciated the evidence presented as to the identity of the complainant: that Tulfo
wrote about Atty. Ding So, an official of the Bureau of Customs who worked at the South Harbor,
whereas the complainant was Atty. Carlos So who worked at the NAIA. He claims that there has
arisen a cloud of doubt as to the identity of the real party referred to in the articles.
This argument is patently without merit.

The prosecution was able to present the testimonies of two other witnesses who identified
Atty. So from Tulfos articles. There is the certification that there is only one Atty. So in the
Bureau of Customs. And most damning to Tulfos case is the last column he wrote on the matter,
referring to the libel suit against him by Atty. So of the Bureau of Customs. In this article, Tulfo
launched further attacks against Atty. So, stating that the libel case was due to the exposs Tulfo
had written on the corrupt acts committed by Atty. So in the Bureau of Customs. This last article
is an admission on the part of Tulfo that Atty. So was in fact the target of his attacks. He cannot
now point to a putative Atty. Ding So at South Harbor, or someone else using the name of Atty.
So as the real subject of his attacks, when he did not investigate the existence or non-existence of
an Atty. So at South Harbor, nor investigate the alleged corrupt acts of Atty. So of the Bureau of
Customs. Tulfo cannot say that there is doubt as to the identity of the Atty. So referred to in his
articles, when all the evidence points to one Atty. So, the complainant in the present case.

Having discussed the issue of qualified privileged communication and the matter of the
identity of the person referred to in the subject articles, there remains the petition of the editors
and president of Remate, the paper on which the subject articles appeared.

In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no
participation in the editing or writing of the subject articles, and are thus not liable.

The argument must fail.

The language of Art. 360 of the RPC is plain. It lists the persons responsible for libel:
Art. 360. Persons responsible.Any person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or by similar means, shall be
responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily
newspaper, magazine or serial publication, shall be responsible for the defamations
contained therein to the same extent as if he were the author thereof.

The claim that they had no participation does not shield them from liability. The provision
in the RPC does not provide absence of participation as a defense, but rather plainly and
specifically states the responsibility of those involved in publishing newspapers and other
periodicals. It is not a matter of whether or not they conspired in preparing and publishing the
subject articles, because the law simply so states that they are liable as they were the author.

Neither the publisher nor the editors can disclaim liability for libelous articles that appear
on their paper by simply saying they had no participation in the preparation of the same. They
cannot say that Tulfo was all alone in the publication of Remate, on which the subject articles
appeared, when they themselves clearly hold positions of authority in the newspaper, or in the
case of Pichay, as the president in the publishing company.

As Tulfo cannot simply say that he is not liable because he did not fulfill his responsibility
as a journalist, the other petitioners cannot simply say that they are not liable because they did
not fulfill their responsibilities as editors and publishers. An editor or manager of a newspaper,
who has active charge and control of its management, conduct, and policy, generally is held to be
equally liable with the owner for the publication therein of a libelous article. [40] On the theory that
it is the duty of the editor or manager to know and control the contents of the paper, [41] it is held
that said person cannot evade responsibility by abandoning the duties to employees,[42] so that it
is immaterial whether or not the editor or manager knew the contents of the
publication.[43] In Fermin v. People of the Philippines,[44] the Court held that the publisher could
not escape liability by claiming lack of participation in the preparation and publication of a
libelous article. The Court cited U.S. v. Ocampo, stating the rationale for holding the persons
enumerated in Art. 360 of the RPC criminally liable, and it is worth reiterating:

According to the legal doctrines and jurisprudence of the United States, the
printer of a publication containing libelous matter is liable for the same by reason of his
direct connection therewith and his cognizance of the contents thereof. With regard to
a publication in which a libel is printed, not only is the publisher but also all other
persons who in any way participate in or have any connection with its publication are
liable as publishers.

xxxx

In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep.,
629), the question of the responsibility of the manager or proprietor of a newspaper was
discussed. The court said, among other things (pp. 782, 783):

The question then recurs as to whether the manager or proprietor of a newspaper

can escape criminal responsibility solely on the ground that the libelous article was
published without his knowledge or consent. When a libel is published in a newspaper,
such fact alone is sufficient evidence prima facie to charge the manager or proprietor
with the guilt of its publication.

The manager and proprietor of a newspaper, we think ought to be held prima

facie criminally for whatever appears in his paper; and it should be no defense that the
publication was made without his knowledge or consent, x x x.

One who furnishes the means for carrying on the publication of a newspaper and
entrusts its management to servants or employees whom he selects and controls may be
said to cause to be published what actually appears, and should be held responsible
therefore, whether he was individually concerned in the publication or not, x x
x. Criminal responsibility for the acts of an agent or servant in the course of his
employment necessarily implies some degree of guilt or delinquency on the part of the
publisher; x x x.

We think, therefore, the mere fact that the libelous article was published in the
newspaper without the knowledge or consent of its proprietor or manager is no defense
to a criminal prosecution against such proprietor or manager.
 In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question
was considered and the court held that in the criminal prosecution of a publisher of a
newspaper in which a libel appears, he is prima facie presumed to have published the
libel, and that the exclusion of an offer by the defendant to prove that he never saw the
libel and was not aware of its publication until it was pointed out to him and that an
apology and retraction were afterwards published in the same paper, gave him no
ground for exception. In this same case, Mr. Justice Colt, speaking for the court, said:

It is the duty of the proprietor of a public paper, which may be used for the
publication of improper communications, to use reasonable caution in the conduct of
his business that no libels be published. (Whartons Criminal Law, secs. 1627, 1649; 1
Bishops Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth
vs. Damon, 136 Mass., 441.)

The above doctrine is also the doctrine established by the English courts. In the
case of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that he was clearly of the opinion
that the proprietor of a newspaper was answerable criminally as well as civilly for the
acts of his servants or agents for misconduct in the management of the paper.

This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice
Foster.

Lofft, an English author, in his work on Libel and Slander, said:

An information for libel will lie against the publisher of a papers, although he
did not know of its being put into the paper and stopped the sale as soon as he discovered
it.

In the case of People vs. Clay (86 Ill., 147) the court held that

A person who makes a defamatory statement to the agent of a newspaper for

publication, is liable both civilly and criminally, and his liability is shared by the agent
and all others who aid in publishing it.[45]

Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been found
guilty of libel, so too must Cambri, Salao, Barlizo, and Pichay.

Though we find petitioners guilty of the crime charged, the punishment must still be
tempered with justice. Petitioners are to be punished for libel for the first time. They did not apply
for probation to avoid service of sentence possibly in the belief that they have not committed any
crime. In Buatis, Jr. v. People,[46] the Court, in a criminal case for libel, removed the penalty of
imprisonment and instead imposed a fine as penalty. In Sazon v. Court of Appeals,[47] the accused
was merely fined in lieu of the original penalty of imprisonment and fine. Freedom of expression
as well as freedom of the press may not be unrestrained, but neither must it be reined in too
harshly. In light of this, considering the necessity of a free press balanced with the necessity of a
responsible press, the penalty of a fine of PhP 6,000 for each count of libel, with subsidiary
imprisonment in case of insolvency, should suffice.[48] Lastly, the responsibilities of the members
of the press notwithstanding, the difficulties and hazards they encounter in their line of work must
also be taken into consideration.

The award of damages by the lower court must be modified. Art. 2199 of the Civil Code
provides, Except as provided by law or by stipulation, one is entitled to an adequate compensation
only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred
to as actual or compensatory damages. There was no showing of any pecuniary loss suffered by
the complainant Atty. So. Without proof of actual loss that can be measured, the award of actual
damages cannot stand.

In Del Mundo v. Court of Appeals, it was held, as regards actual and moral damages:

A party is entitled to an adequate compensation for such pecuniary loss actually

suffered by him as he has duly proved. Such damages, to be recoverable, must not only
be capable of proof, but must actually be proved with a reasonable degree of
certainty. We have emphasized that these damages cannot be presumed, and courts, in
making an award must point out specific facts which could afford a basis for measuring
whatever compensatory or actual damages are borne.

Moral damages, upon the other hand, may be awarded to compensate one for
manifold injuries such as physical suffering, mental anguish, serious anxiety,
besmirched reputation, wounded feelings and social humiliation. These damages must
be understood to be in the concept of grants, not punitive or corrective in nature,
calculated to compensate the claimant for the injury suffered. Although incapable of
exactness and no proof of pecuniary loss is necessary in order that moral damages may
be awarded, the amount of indemnity being left to the sound discretion of the court, it
is imperative, nevertheless, that (1) injury must have been suffered by the claimant, and
(2) such injury must have sprung from any of the cases expressed in Article 2219 and
Article 2220 of the Civil Code. A causal relation, in fine, must exist between the act or
omission referred to in the Code which underlies, or gives rise to, the case or proceeding
on the one hand, and the resulting injury, on the other hand; i.e. the first must be the
proximate cause and the latter the direct consequence thereof.[49]

It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So deserves the
award of moral damages. Justification for the award of moral damages is found in Art. 2219(7)
of the Civil Code, which states that moral damages may be recovered in cases of libel, slander,
or any other form of defamation. As the cases involved are criminal cases of libel, they fall
squarely within the ambit of Art. 2219(7).
 Moral damages can be awarded even in the absence of actual or compensatory
damages. The fact that no actual or compensatory damage was proven before the trial court does
not adversely affect the offended partys right to recover moral damages. [50]

And while on the subject of moral damages, it may not be amiss to state at this juncture
that Tulfos libelous articles are abhorrent not only because of its vilifying and demeaning effect
on Atty. So himself, but also because of their impact on members of his family, especially on the
children and possibly even the childrens children.

The Court can perhaps take judicial notice that the sense of kinship runs deeply in a typical
Filipino family, such that the whole family usually suffers or rejoices at the misfortune or good
fortune, as the case may be, of any of its member. Accordingly, any attempt to dishonor or
besmirch the name and reputation of the head of the family, as here, invariably puts the other
members in a state of disrepute, distress, or anxiety. This reality adds an imperative dimension to
the award of moral damages to the defamed party.

The award of exemplary damages, however, cannot be justified. Under Art. 2230 of the
Civil Code, In criminal offenses, exemplary damages as a part of the civil liability may be
imposed when the crime was committed with one or more aggravating circumstances. Such
damages are separate and distinct from fines and shall be paid to the offended party. No
aggravating circumstances accompanied the commission of the libelous acts; thus, no exemplary
damages can be awarded.

Conclusion

The press wields enormous power. Through its widespread reach and the information it
imparts, it can mold and shape thoughts and opinions of the people. It can turn the tide of public
opinion for or against someone, it can build up heroes or create villains.

It is in the interest of society to have a free press, to have liberal discussion and
dissemination of ideas, and to encourage people to engage in healthy debate. It is through this
that society can progress and develop.

Those who would publish under the aegis of freedom of the press must also acknowledge
the corollary duty to publish responsibly. To show that they have exercised their freedom
responsibly, they must go beyond merely relying on unfounded rumors or shadowy anonymous
sources. There must be further investigation conducted, some shred of proof found to support
allegations of misconduct or even criminal activity. It is in fact too easy for journalists to destroy
the reputation and honor of public officials, if they are not required to make the slightest effort to
verify their accusations.Journalists are supposed to be reporters of facts, not fiction, and must be
able to back up their stories with solid research. The power of the press and the corresponding
duty to exercise that power judiciously cannot be understated.

But even with the need for a free press, the necessity that it be free does not mean that it be
totally unfettered. It is still acknowledged that the freedom can be abused, and for the abuse of
the freedom, there must be a corresponding sanction. It falls on the press to wield such enormous
power responsibly. It may be a clich 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.

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 belaboring. The
balm of clear conscience is sometimes not enough.
Perhaps lost in the traditional press freedom versus government impasse is the fact that a
maliciously false imputation of corruption and dishonesty against a public official, as here, leaves
a stigmatizing mark not only on the person but also the office to which he belongs. In the ultimate
analysis, public service also unduly suffers.
WHEREFORE, in view of the foregoing, the petitions in G.R. Nos. 161032 and 161176
are DISMISSED. The CA Decision dated June 17, 2003 in CA-G.R. CR No. 25318 is
hereby AFFIRMED with the MODIFICATIONS that in lieu of imprisonment, the penalty to
be imposed upon petitioners shall be a fine of six thousand pesos (PhP 6,000) for each count of
libel, with subsidiary imprisonment in case of insolvency, while the award of actual damages and
exemplary damages is DELETED. The Decision dated November 17, 2000 of the RTC, Branch
112 in Pasay City in Criminal Case Nos. 99-1597 to 99-1600 is modified to read as follows:

WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN

CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY guilty beyond
reasonable doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of
the Revised Penal Code, and sentences EACH of the accused to pay a fine of SIX
 THOUSAND PESOS (PhP 6,000) per count of libel with subsidiary imprisonment,
in case of insolvency.

Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn
Barlizo, and Philip Pichay wrote and published the four (4) defamatory articles with
reckless disregard whether it was false or not, the said articles being libelous per
se, they are hereby ordered to pay complainant Atty. Carlos T. So, jointly and
severally, the sum of ONE MILLION PESOS (PhP 1,000,000) as moral
damages. The claim of actual and exemplary damages is denied for lack of merit.

Costs against petitioners.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 82380 April 29, 1988

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner,

vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati,
Branch 134 and JUAN PONCE ENRILE, respondents.

FELICIANO, J.:

Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned,
sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los
Santos Avenue). Petitioners discussed this Project with local movie producer Lope V. Juban who suggested th they consult with the appropriate government
agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and
Classification Board as wel as the other government agencies consulted. General Fidel Ramos also signified his
approval of the intended film production.

In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about
the projected motion picture enclosing a synopsis of it, the full text of which is set out below:

The Four Day Revolution is a six hour mini-series about People Power—a unique event in modern
history that-made possible the Peaceful revolution in the Philippines in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history
Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious characters to trace the
revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the
country.

These character stories have been woven through the real events to help our huge international
audience understand this ordinary period inFilipino history.

First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects
the average American attitude to the Phihppinence —once a colony, now the home of crucially
important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for
him, there appears to be no alternative to Marcos except the Communists.

Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in
the events as it becomes dear that the time has come for a change. Through Angle and her
relationship with one of the Reform Army Movement Colonels (a fictitious character), we follow the
developing discontent in the armed forces. Their dislike for General Ver, their strong loyalty to
Defense Minister Enrile, and ultimately their defection from Marcos.
 The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who
despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters,
Cehea left wing lawyer who is a secret member of the New People's Army, and Eva--a -P.R. girl,
politically moderate and very much in love with Tony. Ultimately, she must choose between her love
and the revolution.

Through the interviews and experiences of these central characters, we show the complex nature of
Filipino society, and thintertwining series of events and characters that triggered these remarkable
changes. Through them also, we meet all of the principal characters and experience directly
dramatic recreation of the revolution. The story incorporates actual documentary footage filmed
during the period which we hope will capture the unique atmosphere and forces that combined to
overthrow President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful plays to his
credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living
Dangerously,' Gallipoli,' 'Phar Lap').

Professor McCoy (University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for some 18
months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts
the complex issues and events that occurred during th period .

The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the
Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom

The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA
revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style,
creating four (4) fictional characters interwoven with real events, and utilizing actual documentary footage as
background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of 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" and further advised
petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference
whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less
to any matter purely personal to them.

It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the
movie script, and petitioners proceeded to film the projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and
Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof,
seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that
petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an
obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary
Restraining Order and set for hearing the application for preliminary injunction.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction
contending that the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and
that a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer
Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been
completed.

In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners,
the dispositive portion of which reads thus:
 WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons
and entities employed or under contract with them, including actors, actresses and members of the
production staff and crew as well as all persons and entities acting on defendants' behalf, to cease
and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from
making any reference whatsoever to plaintiff or his family and from creating any fictitious character in
lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance or
similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or
photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P
2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if
the Court should finally decide that plaintiff was not entitled thereto.

xxx xxx xxx

(Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988
with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-
82380.

A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer
for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a
consolidated Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially
enjoining the implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary
Injunction issued therein, and allowing the petitioners to resume producing and filming those portions of the
projected mini-series which do not make any reference to private respondent or his family or to any fictitious
character based on or respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy.

The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in
producing and "The Four Day Revolution," they are exercising their freedom of speech and of expression protected
under our Constitution. Private respondent, upon 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.

Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that
this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in
theaters or to diffuse them through television. In our day and age, motion pictures are a univesally utilized vehicle of
communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a
principal medium of mass communication for information, education and entertainment. In Gonzales v.
Katigbak, 3former Chief Justice Fernando, speaking for the Court, explained:

1. Motion pictures are important both as a medium for the communication of Ideas and the
expression of the artistic impulse. Their effect on the perception by our people of issues and public
officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out
in Burstyn v. Wilson(343 US 495 [19421) is the Importance of motion pictures as an organ of public
opinion lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501).
There is no clear dividing line between what involves knowledge and what affords pleasure. If such a
distinction were sustained, there is a diminution of the basic right to free expression. ... 4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies.
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. In our community as in
many other countries, media facilities are owned either by the government or the private sector but the private
sector-owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue
producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and
hence to exclude commercially owned and operated media from the exerciseof constitutionally protected om of
speech and of expression can only result in the drastic contraction of such constitutional liberties in our country.

The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then
Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law,
however, to mark out the precise scope and content of this right in differing types of particular situations. The right of
privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. A limited intrusion into
a person's privacy has long been regarded as permissible where that person is a public figure and the information
sought to be elicited from him or to be published about him constitute of apublic character. 7 Succinctly put, the right
of privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The interest sought
to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing
of the private affairs and activities of an individual which are outside the realm of legitimate public concern. 9

Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a
context which included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture
producer as licensee and the widow and family of the late Moises Padilla as licensors. This agreement gave the
licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the
Nacionalista Party for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for
whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and
convicted. 11 In the judgment of the lower court enforcing the licensing agreement against the licensee who had
produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice
Melencio-Herrera, said:

Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of,
or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the
book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and
authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of
his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31
LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to
protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to
preventa violation of their own rights in the character and memory of the deceased.'

Petitioners averment that private respondent did not have any property right over the life of Moises
Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does
not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to a fictional or novelized representation of a person,
no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU
549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life
Story Of Moises Padilla, petitioner admits that he included a little romance in the film because
without it, it would be a drab story of torture and brutality. 12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of
speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech
and expression, a right to produce a motion picture biography at least partly "fictionalized" of Moises Padilla without
the consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's
claim, the Court said:

Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on
the constitutional right of freedom of speech and of the press, in that, as a citizen and as a
newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla
without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the
"hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming
Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:
 xxx xxx xxx

The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion
for permissible limitation on freedom of speech and the press, which includes such vehicles of the
mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice
Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take
conscious and detailed consideration of the interplay of interests observable in given situation or
type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by respondent and the
right of freedom of expression invoked by petitioner. taking into account the interplay of those
interests, we hold that under the particular circumstances presented, and considering the obligations
assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will
have to be upheld particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern." 13

Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant
Petitions, the Court believes that a different conclusion must here be reached: The production and filming by
petitioners of the projected motion picture "The Four Day Revolution" does not, in the circumstances of this case,
constitute an unlawful intrusion upon private respondent's "right of privacy."

1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part
of the respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has
restrained petitioners from filming and producing the entire proposed motion picture. It is important to note that in
Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed and
exhibited the film biography of Moises Padilla. Because of the speech and of expression, a weighty presumption of
invalidity vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent liability
may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge
should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a
complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected
motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the
respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear
and present danger" of any violation of any right to privacy that private respondent could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place
at Epifanio de los Santos Avenue in February 1986, and the trian of events which led up to that denouement.
Clearly, such subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international
interest. The subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded
as having passed into the public domain and as an appropriate subject for speech and expression and coverage by
any form of mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted
above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile.
Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate
family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile.
"The Four Day Revolution" 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 Juan Ponce Enrile in the precipitating and the
constituent events of the change of government in February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the
production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that
intrusion, as this Court understands the synopsis of the proposed film, may be generally described as such intrusion
as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that
petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that
of any member of his family.

4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to
film were taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:"
 A public figure has been defined as a person who, by his accomplishments, fame, or mode of living,
or by adopting a profession or calling which gives the public a legitimate interest in his doings, his
affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity.
Obviously to be included in this category are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or
any other entertainment. The list is, however, broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at
a position where public attention is focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their tight to privacy. Three
reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and
consented to it, and so could not complaint when they received it; that their personalities and their
affairs has already public, and could no longer be regarded as their own private business; and that
the press had a privilege, under the Constitution, to inform the public about those who have become
legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was
held that there was no liability when they were given additional publicity, as to matters legitimately
within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to arise out of
the desire and the right of the public to know what is going on in the world, and the freedom of the
press and other agencies of information to tell it. "News" includes all events and items of information
which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of
information which arouses public attention.' To a very great extent the press, with its experience or
instinct as to what its readers will want, has succeeded in making its own definination of news, as a
glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes,
arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered years ago, and undoubtedly many other
similar matters of genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited, to the dissemination of news in the
scene of current events. It extended 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 newsreels 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. 15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the
culminating events of the change of government in February 1986. Because his participation therein was major in
character, a film reenactment of the peaceful revolution that fails to make reference to the role played by private
respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of
an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues
to be a "public figure." After a successful political campaign during which his participation in the EDSA Revolution
was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the
Philippines.

5. 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. 16 There
must, further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of
intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what Mme. Justice
Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The
Four Day Revolution" 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.

II

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining
Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147,
in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions,
Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production company from
further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors
and paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-
151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the
Court the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan
was substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in
Civil Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently
associated, deliberately engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private
respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a
component of the cause of action is understandable considering that court pleadings are public records; that private
respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although they
arose from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and
that, the cited cases on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-
413 are not identical.

For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or
not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to
dispose to the complaint filed by former Colonel Honasan who, having refused to subject himself to the legal
processes of the Republic and having become once again in fugitive from justice, must be deemed to have forfeited
any right the might have had to protect his privacy through court processes.

WHEREFORE,

a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial
court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order
granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of
respondent Judge's Order of 16 March 1988 and made PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for
Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and
supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147,
forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary
Restraining Order dated 25 March 1988 and any Preliminary Injunction that may have been issued by him.

No pronouncement as to costs.

SO ORDERED.
BARTNICKI ET AL. v. VOPPER, AKA WILLIAMS, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 99-1687. Argued December 5, 2000-Decided May 21, 2001*

During contentious collective-bargaining negotiations between a union representing teachers at a

Pennsylvania high school and the local school board, an unidentified person intercepted and
recorded a cell phone conversation between the chief union negotiator and the union president
(hereinafter petitioners). After the parties accepted a nonbinding arbitration proposal generally
favorable to the teachers, respondent Vopper, a radio commentator, played a tape of the intercepted
conversation on his public affairs talk show in connection with news reports about the settlement.
Petitioners filed this damages suit under both federal and state wiretapping laws, alleging, among
other things, that their conversation had been surreptitiously intercepted by an unknown person; that
respondent Yocum, the head of a local organization opposed to the union's demands, had obtained
the tape and intentionally disclosed it to, inter alios, media representatives; and that they had
repeatedly published the conversation even though they knew or had reason to know that it had been
illegally intercepted. In ruling on cross-motions for summary judgment, the District Court concluded
that, under the statutory language, an individual violates the federal Act by intentionally disclosing the
contents of an electronic communication when he or she knows or has reason to know that the
information was obtained through an illegal interception, even if the individual was not involved in that
interception; found that the question whether the interception was intentional raised a genuine issue
of material fact; and rejected respondents' defense that they were protected by the First Amendment
even if the disclosures violated the statutes, finding that the statutes were content-neutral laws of
general applicability containing no indicia of prior restraint or the chilling of free speech. The Third
Circuit accepted an interlocutory appeal, and the United States, also a petitioner, intervened to
defend the federal Act's constitutionality. Applying intermediate scrutiny, the court found the statutes
invalid because they deterred significantly more speech than necessary to protect the private

*Together with No. 99-1728, United States v. Vopper, aka Williams, et al., also on certiorari to the
same court.

515

interests at stake, and remanded the case with instructions to enter summary judgment for
respondents.

Held: The First Amendment protects the disclosures made by respondents in this suit. Pp. 522-535.

(a) Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, generally
prohibits the interception of wire, electronic, and oral communications. Title 18 U. S. C. § 2511(I)(a)
applies to the person who willfully intercepts such communications and subsection (c) to any person
who, knowing or having reason to know that the communication was obtained through an illegal
interception, willfully discloses its contents. Pp. 522-524.

(b) Because of this suit's procedural posture, the Court accepts that the interception was unlawful and
that respondents had reason to know that. Accordingly, the disclosures violated the statutes. In
answering the remaining question whether the statutes' application in such circumstances violates the
First Amendment, the Court accepts respondents' submissions that they played no part in the illegal
interception, that their access to the information was obtained lawfully, and that the conversations
dealt with a matter of public concern. Pp. 524-525.

(c) Section 2511(I)(c) is a content-neutral law of general applicability.

The statute's purpose is to protect the privacy of wire, electronic, and oral communications, and it
singles out such communications by virtue of the fact that they were illegally intercepted-by virtue of
the source rather than the subject matter. Cf. Ward v. Rock Against Racism, 491 U. S. 781, 791. On
the other hand, the prohibition against disclosures is fairly characterized as a regulation of speech.
Pp. 526-527.

(d) In New York Times Co. v. United States, 403 U. S. 713, this Court upheld the press' right to
publish information of great public concern obtained from documents stolen by a third party. In so
doing, this Court focused on the stolen documents' character and the consequences of public
disclosure, not on the fact that the documents were stolen. Ibid. It also left open the question whether,
in cases where information has been acquired unlawfully by a newspaper or by a source, government
may punish not only the unlawful acquisition, but also the ensuing publication. Florida Star v. B. J.
F., 491 U. S. 524, 535, n. 8. The issue here is a narrower version of that question: Where the
publisher has lawfully obtained information from a source who obtained it unlawfully, may the
government punish the ensuing publication based on the defect in a chain? The Court's refusal to
construe the issue more broadly is consistent with its repeated refusal to answer categorically
whether the publication of truthful information may ever be punished consistent with the First
Amendment. Accordingly, the Court considers whether,

516

Syllabus

given the facts here, the interests served by § 2511(1)(c) justify its restrictions on speech. Pp. 527-
529.

(e) The first interest identified by the Government-removing an incentive for parties to intercept
private conversations-does not justify applying § 2511(1)(c) to an otherwise innocent disclosure of
public information. The normal method of deterring unlawful conduct is to punish the person engaging
in it. It would be remarkable to hold that speech by a law-abiding possessor of information can be
suppressed in order to deter conduct by a non-law-abiding third party. In virtually all § 2511(1)(a), (c),
or (d) violations, the interceptor's identity has been known. There is no evidence that Congress
thought that the prohibition against disclosures would deter illegal interceptions, and no evidence to
support the assumption that the prohibition reduces the number of such interceptions. pp. 529-532.

(f) The Government's second interest-minimizing the harm to persons whose conversations have
been illegally intercepted-is considerably stronger. Privacy of communication is an important interest.
However, in this suit, privacy concerns give way when balanced against the interest in publishing
matters of public importance. One of the costs associated with participation in public affairs is an
attendant loss of privacy. The profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide open supported this Court's holding in New York
Times Co. v. Sullivan, 376 U. S. 254, that neither factual error nor defamatory content, nor a
combination of the two, sufficed to remove the First Amendment shield from criticism of official
conduct. Parallel reasoning requires the conclusion that a stranger's illegal conduct does not suffice
to remove the First Amendment shield from speech about a matter of public concern. Pp. 532-535.

200 F.3d 109, affirmed.

STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER,
GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, in which O'CONNOR,
J., joined, post, p. 535. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA and
THOMAS, JJ., joined, post, p. 541.

Jeremiah A. Collins argued the cause for petitioners in No. 99-1687. With him on the briefs
were Raymond P. Wendolowski and Scott C. Gartley.

Solicitor General Waxman argued the cause for the United States in No. 99-1728. With him on the
briefs were

517

Assistant Attorney General Ogden, Deputy Solicitor General Dreeben, Jeffrey A. Lamken, and
Douglas N. Letter.

Lee Levine argued the cause for respondents Vopper et al.

With him on the brief was Jay Ward Brown. Thomas C. Goldstein argued the cause for respondent
Yokum. With him on the brief were Erik S. Jaffe and Frank J. Aritz. *

JUSTICE STEVENS delivered the opinion of the Court. These cases raise an important question
concerning what degree of protection, if any, the First Amendment provides to speech that discloses
the contents of an illegally intercepted communication. That question is both novel and narrow.
Despite the fact that federal law has prohibited such disclosures since 1934,1 this is the first time that
we have confronted such an issue.

The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular
telephone conversation about a public issue. The persons who made the disclosures did not
participate in the interception, but they did know-or at least had reason to know-that the inter-

*Briefs of amici curiae urging reversal were filed for the Cellular Telecommunications Industry
Association by Howard J. Symons and Michael F. Altschul; and for Representative John A. Boehner
by Michael A. Carvin and David H. Thompson.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by
Steven Shapiro; for Dow Jones & Co., Inc., by Theodore B. Olson, Theodore J. Boutrous, Jr., and
Jack M. Weiss; for the Liberty Project by Nory Miller and Julia M. Carpenter; for Media Entities and
Organizations by Floyd Abrams, George Freeman, Adam Liptak, Richard A. Bernstein, Jerry S.
Birenz, Henry S. Hoberman, David A. Schulz, Eve Burton, Susanna M. Lowy, Harold W Fuson, Jr.,
Barbara W Wall, Anne Noble, Kenneth Vittor, Rene P. Milam, Lucy Dalglish, Bruce W Sanford, and
Eric Lieberman; for WFAA-TV et al. by Laurence H. Tribe, Jonathan S. Massey, William D. Sims, Jr.,
Thomas S. Leatherbury, and Marie R. Yeates; and for Representative James A. McDermott by Frank
Cicero, Jr., Christopher Landau, and Daryl Joseffer.

1 See 48 Stat. 1069, 1103.

518

ception was unlawful. Accordingly, these cases present a conflict between interests of the highest
order-on the one hand, the interest in the full and free dissemination of information concerning public
issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering
private speech. The Framers of the First Amendment surely did not foresee the advances in science
that produced the conversation, the interception, or the conflict that gave rise to this action. It is
therefore not surprising that Circuit judges, as well as the Members of this Court, have come to
differing conclusions about the First Amendment's application to this issue. Nevertheless, having
considered the interests at stake, we are firmly convinced that the disclosures made by respondents
in this suit are protected by the First Amendment.

During 1992 and most of 1993, the Pennsylvania State Education Association, a union representing
the teachers at the Wyoming Valley West High School, engaged in collectivebargaining negotiations
with the school board. Petitioner Kane, then the president of the local union, testified that the
negotiations were" 'contentious'" and received "a lot of media attention." App. 79, 92. In May 1993,
petitioner Bartnicki, who was acting as the union's "chief negotiator," used the cellular phone in her
car to call Kane and engage in a lengthy conversation about the status of the negotiations. An
unidentified person intercepted and recorded that call.

In their conversation, Kane and Bartnicki discussed the timing of a proposed strike, id., at 41-45,
difficulties created by public comment on the negotiations, id., at 46, and the need for a dramatic
response to the board's intransigence. At one point, Kane said: "'If they're not gonna move for three
percent, we're gonna have to go to their, their

519

homes .... To blow off their front porches, we'll have to do some work on some of those guys.
(PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news.
(UNDECIPHERABLE).'" Ibid.

In the early fall of 1993, the parties accepted a nonbinding arbitration proposal that was generally
favorable to the teachers. In connection with news reports about the settlement, respondent Vopper,
a radio commentator who had been critical of the union in the past, played a tape of the intercepted
conversation on his public affairs talk show. Another station also broadcast the tape, and local
newspapers published its contents. After filing suit against Vopper and other representatives of the
media, Bartnicki and Kane (hereinafter petitioners) learned through discovery that Vopper had
obtained the tape from respondent Jack Yocum, the head of a local taxpayers' organization that had
opposed the union's demands throughout the negotiations. Yocum, who was added as a defendant,
testified that he had found the tape in his mailbox shortly after the interception and recognized the
voices of Bartnicki and Kane. Yocum played the tape for some members of the school board, and
later delivered the tape itself to Vopper.

II

In their amended complaint, petitioners alleged that their telephone conversation had been
surreptitiously intercepted by an unknown person using an electronic device, that Yocum had
obtained a tape of that conversation, and that he intentionally disclosed it to Vopper, as well as other
individuals and media representatives. Thereafter, Vopper and other members of the media
repeatedly published the contents of that conversation. The amended complaint alleged that each of
the defendants "knew or had reason to know" that the recording of the private telephone conversation
had been obtained by means of an illegal interception. Id.,

520

at 27. Relying on both federal and Pennsylvania statutory provisions, petitioners sought actual
damages, statutory damages, punitive damages, and attorney's fees and costs.2

After the parties completed their discovery, they filed cross-motions for summary judgment.
Respondents contended that they had not violated the statute because (a) they had nothing to do
with the interception, and (b) in any event, their actions were not unlawful since the conversation
might have been intercepted inadvertently. Moreover, even if they had violated the statute by
disclosing the intercepted conversation, respondents argued, those disclosures were protected by the
First Amendment. The District Court rejected the first statutory argument because, under the plain
statutory language, an individual violates the federal Act by intentionally disclosing the contents of an
electronic communication when he or she "know[s] or ha[s] reason to know that the information was
obtained" through an illegal interception.3 App. to Pet. for Cert. in No. 991687, pp. 53a-54a
(emphasis deleted). Accordingly, actual involvement in the illegal interception is not necessary in
order to establish a violation of that statute. With respect to the second statutory argument, the
District Court agreed that petitioners had to prove that the interception in ques-

2 Either actual damages or "statutory damages of whichever is the greater of $100 a day for each day
of violation or $10,000" may be recovered under 18 U. S. C. § 2520(c)(2); under the Pennsylvania
Act, the amount is the greater of $100 a day or $1,000, but the plaintiff may also recover punitive
damages and reasonable attorney's fees. 18 Pa. Cons. Stat. § 5725(a) (2000).

3 Title 18 U. S. C. § 2511(I)(c) provides that any person who "intentionally discloses, or endeavors to
disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the interception of a wire, oral, or
electronic communication in violation of this subsection; ... shall be punished .... " The Pennsylvania
Act contains a similar provision.

521
tion was intentionaI,4 but concluded that the text of the interception raised a genuine issue of material
fact with respect to intent. That issue of fact was also the basis for the District Court's denial of
petitioners' motion. Finally, the District Court rejected respondents' First Amendment defense
because the statutes were content-neutral laws of general applicability that contained "no indicia of
prior restraint or the chilling of free speech." Id., at 55a-56a.

Thereafter, the District Court granted a motion for an interlocutory appeal, pursuant to 28 U. S. C. §
1292(b). It certified as controlling questions of law: "(1) whether the imposition of liability on the media
Defendants under the [wiretapping statutes] solely for broadcasting the newsworthy tape on the
Defendant [Vopper's] radio news/public affairs program, when the tape was illegally intercepted and
recorded by unknown persons who were not agents of [the] Defendants, violates the First
Amendment; and (2) whether imposition of liability under the aforesaid [wiretapping] statutes on
Defendant Jack Yocum solely for providing the anonymously intercepted and recorded tape to the
media Defendants violates the First Amendment." App. to Pet. for Cert. in No. 99-1728, p. 76a. The
Court of Appeals accepted the appeal, and the United States, also a petitioner, intervened pursuant
to 28 U. S. C. § 2403 in order to defend the constitutionality of the federal statute.

All three members of the panel agreed with petitioners and the Government that the federal and
Pennsylvania wiretapping statutes are "content-neutral" and therefore subject to "intermediate
scrutiny." 200 F.3d 109, 121 (CA3 1999). Applying that standard, the majority concluded that the

4 Title 18 U. S. C. § 2511(I)(a) provides: "(1) Except as otherwise specifically provided in this chapter
[§§2510-2520 (1994 ed. and Supp. V)] any person who-

"(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or
endeavor to intercept, any wire, oral, or electronic communication; ... shall be punished .... "

522

statutes were invalid because they deterred significantly more speech than necessary to protect the
privacy interests at stake. The court remanded the case with instructions to enter summary judgment
for respondents. In dissent, Senior Judge Pollak expressed the view that the prohibition against
disclosures was necessary in order to remove the incentive for illegal interceptions and to preclude
compounding the harm caused by such interceptions through wider dissemination. In so doing, he
agreed with the majority opinion in a similar case decided by the Court of Appeals for the District of
Columbia, Boehner v. McDermott, 191 F.3d 463 (1999). See also Peavy v. WFAA-T-v, Inc., 221
F.3d 158 (CA5 2000).5 We granted certiorari to resolve the conflict. 530 U. S. 1260 (2000).

III

As we pointed out in Berger v. New York, 388 U. S. 41, 45-49 (1967), sophisticated (and not so
sophisticated) methods of eavesdropping on oral conversations and intercepting telephone calls have
been practiced for decades, primarily by law enforcement authorities.6 In Berger, we held that New

5 In the Boehner case, as in this suit, a conversation over a car cell phone was intercepted, but in that
case the defendant knew both who was responsible for intercepting the conversation and how they
had done it. 191 F. 3d, at 465. In the opinion of the majority, the defendant acted unlawfully in
accepting the tape in order to provide it to the media. Id., at 476. Apparently because the couple
responsible for the interception did not eavesdrop "for purposes of direct or indirect commercial
advantage or private financial gain," they were fined only $500. See Department of Justice Press
Release, Apr. 23, 1997. In another similar case involving a claim for damages under
§2511(1)(c), Peavy v. WFAA-TV, Inc., 221 F.3d 158 (CA5 2000), the media defendant in fact
participated in the interceptions at issue.

6 In particular, calls placed on cellular and cordless telephones can be intercepted more easily than
those placed on traditional phones. See Shubert v. Metrophone, Inc., 898 F.2d 401, 404-
405 (CA3 1990). Although calls placed on cell and cordless phones can be easily intercepted, it is not
clear how often intentional interceptions take place. From 1992 through

523

York's broadly written statute authorizing the police to conduct wiretaps violated the Fourth
Amendment. Largely in response to that decision, and to our holding in Katz v. United States, 389 U.
S. 347 (1967), that the attachment of a listening and recording device to the outside of a telephone
booth constituted a search, "Congress undertook to draft comprehensive legislation both authorizing
the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use
otherwise. S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968)." Gelbard v. United States, 408 U. S.
41, 78 (1972) (REHNQUIST, J., dissenting). The ultimate result of those efforts was Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, entitled Wiretapping and
Electronic Surveillance.

One of the stated purposes of that title was "to protect effectively the privacy of wire and oral
communications." Ibid. In addition to authorizing and regulating electronic surveillance for law
enforcement purposes, Title III also regulated private conduct. One part of those regulations, §
2511(1), defined five offenses punishable by a fine of not more than $10,000, by imprisonment for not
more than five years, or by both. Subsection (a) applied to any person who "willfully intercepts ... any
wire or oral communication." Subsection (b) applied to the intentional use of devices designed to
intercept oral conversations; subsection (d) applied to the use of the contents of illegally intercepted
wire or

1997, less than 100 cases were prosecuted charging violations of 18 U. S. C. §2511. See Statement
of James K. Kallstrom, Assistant Director in Charge of the New York Division of the FBI on February
5, 1997 before the Subcommittee on Telecommunications, Trade, and Consumer Protection,
Committee on Commerce, U. S. House of Representatives Regarding Cellular Privacy. However,
information concerning techniques and devices for intercepting cell and cordless phone calls can be
found in a number of publications, trade magazines, and sites on the Internet, see id., at 6, and at one
set of congressional hearings in 1997, a scanner, purchased off the shelf and minimally modified, was
used to intercept phone calls of Members of Congress.

524

oral communications; and subsection (e) prohibited the unauthorized disclosure of the contents of
interceptions that were authorized for law enforcement purposes. Subsection (c), the original version
of the provision most directly at issue in this suit, applied to any person who "willfully discloses, or
endeavors to disclose, to any other person the contents of any wire or oral communication, knowing
or having reason to know that the information was obtained through the interception of a wire or oral
communication in violation of this subsection." The oral communications protected by the Act were
only those "uttered by a person exhibiting an expectation that such communication is not subject to
interception under circumstances justifying such expectation." § 2510(2).

As enacted in 1968, Title III did not apply to the monitoring of radio transmissions. In the Electronic
Communications Privacy Act of 1986, 100 Stat. 1848, however, Congress enlarged the coverage of
Title III to prohibit the interception of "electronic" as well as oral and wire communications. By reason
of that amendment, as well as a 1994 amendment which applied to cordless telephone
communications, 108 Stat. 4279, Title III now applies to the interception of conversations over both
cellular and cordless phones.7 Although a lesser criminal penalty may apply to the interception of
such transmissions, the same civil remedies are available whether the communication was "oral,"
"wire," or "electronic," as defined by 18 U. S. C. § 2510 (1994 ed. and Supp. V).

IV

The constitutional question before us concerns the validity of the statutes as applied to the specific
facts of these cases. Because of the procedural posture of these cases, it is appropriate to make
certain important assumptions about those

7See, e. g., Nix v. O'Malley, 160 F.3d 343, 346 (CA6 1998); McKamey v.

Roach, 55 F.3d 1236, 1240 (CA6 1995).

525

facts. We accept petitioners' submission that the interception was intentional, and therefore unlawful,
and that, at a minimum, respondents "had reason to know" that it was unlawful. Accordingly, the
disclosure of the contents of the intercepted conversation by Yocum to school board members and to
representatives of the media, as well as the subsequent disclosures by the media defendants to the
public, violated the federal and state statutes. Under the provisions of the federal statute, as well as
its Pennsylvania analogue, petitioners are thus entitled to recover damages from each of the
respondents. The only question is whether the application of these statutes in such circumstances
violates the First Amendment.8

In answering that question, we accept respondents' submission on three factual matters that serve to
distinguish most of the cases that have arisen under § 2511. First, respondents played no part in the
illegal interception. Rather, they found out about the interception only after it occurred, and in fact
never learned the identity of the person or persons who made the interception. Second, their access
to the information on the tapes was obtained lawfully, even though the information itself was
intercepted unlawfully by someone else. Cf. Florida Star v. B. J. F., 491 U. S. 524, 536 (1989) ("Even
assuming the Constitution permitted a State to proscribe receipt of information, Florida has not taken
this step"). Third, the subject matter of the conversation was a matter of public concern. If the
statements about the labor negotiations had been made in a public arena-during a bargaining
session, for example-they would have been newsworthy. This would also be true if a third party had
inadvertently overheard Bartnicki making the same statements to Kane when the two thought they
were alone.

8 In answering this question, we draw no distinction between the media respondents and Yocum.
See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254, 265-266 (1964); First Nat. Bank of
Boston v. Bellotti, 435 U. S. 765, 777 (1978).

526

We agree with petitioners that § 2511(1)(c), as well as its Pennsylvania analog, is in fact a content-
neutral law of general applicability. "Deciding whether a particular regulation is content based or
content neutral is not always a simple task. ... As a general rule, laws that by their terms distinguish
favored speech from disfavored speech on the basis of the ideas or views expressed are content
based." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642-643 (1994). In determining
whether a regulation is content based or content neutral, we look to the purpose behind the
regulation; typically, "[g]overnment regulation of expressive activity is content neutral so long as it
is 'justified without reference to the content of the regulated speech.'" Ward v. Rock Against
Racism, 491 U. S. 781, 791 (1989).9

In this suit, the basic purpose of the statute at issue is to "protec[t] the privacy of wire[, electronic,]
and oral communications." S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). The statute does not
distinguish based on the content of the intercepted conversations, nor is it justified by reference to the
content of those conversations. Rather, the communications at issue are singled out by virtue of the
fact that they were illegally intercepted-by virtue of the source, rather than the subject matter.

On the other hand, the naked prohibition against disclosures is fairly characterized as a regulation of
pure speech. Unlike the prohibition against the "use" of the contents of

9 "But while a content-based purpose may be sufficient in certain circumstances to show that a
regulation is content based, it is not necessary to such a showing in all cases .... Nor will the mere
assertion of a contentneutral purpose be enough to save a law which, on its face, discriminates based
on content." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642-643 (1994).

527

an illegal interception in § 2511(1)(d), 10 subsection (c) is not a regulation of conduct. It is true that
the delivery of a tape recording might be regarded as conduct, but given that the purpose of such a
delivery is to provide the recipient with the text of recorded statements, it is like the delivery of a
handbill or a pamphlet, and as such, it is the kind of "speech" that the First Amendment protects.ll As
the majority below put it, "[i]f the acts of 'disclosing' and 'publishing' information do not constitute
speech, it is hard to imagine what does fall within that category, as distinct from the category of
expressive conduct." 200 F. 3d, at 120.
 VI

As a general matter, "state action to punish the publication of truthful information seldom can satisfy
constitutional standards." Smith v. Daily Mail Publishing Co., 443 U. S. 97, 102 (1979). More
specifically, this Court has repeatedly

10 The Solicitor General has cataloged some of the cases that fall under subsection (d): "[I]t is
unlawful for a company to use an illegally intercepted communication about a business rival in order
to create a competing product; it is unlawful for an investor to use illegally intercepted
communications in trading in securities; it is unlawful for a union to use an illegally intercepted
communication about management (or vice versa) to prepare strategy for contract negotiations; it is
unlawful for a supervisor to use information in an illegally recorded conversation to discipline a
subordinate; and it is unlawful for a blackmailer to use an illegally intercepted communication for
purposes of extortion. See, e. g., 1968 Senate Report 67 (corporate and labor-management
uses); Fultz v. Gilliam, 942 F.2d 396, 400 n. 4 (6th Cir. 1991) (extortion); Dorris V. Absher, 959 F.
Supp. 813, 815-817 (M. D. Tenn. 1997) (workplace discipline), aff'd in part, rev'd in part, 179 F.3d
420 (6th Cir. 1999). The statute has also been held to bar the use of illegally intercepted
communications for important and socially valuable purposes. See In re Grand Jury, 111 F.3d 1066,
1077-1079 (3d Cir. 1997)." Brief for United States 24.

11 Put another way, what gave rise to statutory liability in this suit was the information communicated
on the tapes. See Boehner V. McDermott, 191 F.3d 463, 484 (CADC 1999) (Sentelle, J., dissenting)
("What ... is being punished ... here is not conduct dependent upon the nature or origin of the tapes; it
is speech dependent upon the nature of the contents").

528

held that "if a newspaper lawfully obtains truthful information about a matter of public significance
then state officials may not constitutionally punish publication of the information, absent a need ... of
the highest order." Id., at 103; see also Florida Star v. B. J. F., 491 U. S. 524 (1989); Landmark
Communications, Inc. v. Virginia, 435 U. S. 829 (1978).

Accordingly, in New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam), the Court
upheld the right of the press to publish information of great public concern obtained from documents
stolen by a third party. In so doing, that decision resolved a conflict between the basic rule against
prior restraints on publication and the interest in preserving the secrecy of information that, if
disclosed, might seriously impair the security of the Nation. In resolving that conflict, the attention of
every Member of this Court was focused on the character of the stolen documents' contents and the
consequences of public disclosure. Although the undisputed fact that the newspaper intended to
publish information obtained from stolen documents was noted in Justice Harlan's dissent, id., at 754,
neither the majority nor the dissenters placed any weight on that fact.

However, New York Times v. United States raised, but did not resolve, the question "whether, in
cases where information has been acquired unlawfully by a newspaper or by a source, government
may ever punish not only the unlawful acquisition, but the ensuing publication as well." 12 Florida
Star, 491 U. S., at 535, n. 8. The question here, however, is a narrower version of that still-open
question. Simply put, the issue here is this: "Where the punished publisher of information has
obtained the information in question in a manner lawful in itself but from a source who has obtained it
unlawfully, may the government punish the ensuing publication of that information based on the
defect in a chain?" Boehner, 191 F. 3d, at 484-485 (Sentelle, J., dissenting).

12 That question was subsequently reserved in Landmark Communications, Inc. v. Virginia, 435 U. S.
829, 837 (1978).

529

Our refusal to construe the issue presented more broadly is consistent with this Court's repeated
refusal to answer categorically whether truthful publication may ever be punished consistent with the
First Amendment. Rather,

"[o]ur cases have carefully eschewed reaching this ultimate question, mindful that the future may
bring scenarios which prudence counsels our not resolving anticipatorily .... We continue to believe
that the sensitivity and significance of the interests presented in clashes between [the] First
Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than
the appropriate context of the instant case." Florida Star, 491 U. S., at 532-533.

See also Landmark Communications, 435 U. S., at 838. Accordingly, we consider whether, given the
facts of these cases, the interests served by § 2511(1)(c) can justify its restrictions on speech.

The Government identifies two interests served by the statute-first, the interest in removing an
incentive for parties to intercept private conversations, and second, the interest in minimizing the
harm to persons whose conversations have been illegally intercepted. We assume that those
interests adequately justify the prohibition in § 2511(1)(d) against the interceptor's own use of
information that he or she acquired by violating § 2511(1)(a), but it by no means follows that
punishing disclosures of lawfully obtained information of public interest by one not involved in the
initial illegality is an acceptable means of serving those ends.

The normal method of deterring unlawful conduct is to impose an appropriate punishment on the
person who engages in it. If the sanctions that presently attach to a violation of § 2511(1)(a) do not
provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be
quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in
order to deter

530

conduct by a non-law-abiding third party. Although there are some rare occasions in which a law
suppressing one party's speech may be justified by an interest in deterring criminal conduct by
another, see, e. g., New York v. Ferber, 458 U. S. 747 (1982),13 this is not such a case.

With only a handful of exceptions, the violations of § 2511(1)(a) that have been described in litigated
cases have been motivated by either financial gain or domestic disputes.14 In virtually all of those
cases, the identity of the person or persons intercepting the communication has been known.15
Moreover, petitioners cite no evidence that Congress viewed the prohibition against disclosures as a
response to the difficulty of identifying persons making improper use of scanners and other
surveillance devices and accordingly of deterring such conduct,16 and there is no

13 In cases relying on such a rationale, moreover, the speech at issue is considered of minimal
value. Osborne v. Ohio, 495 U. S. 103 (1990); New York v. Ferber, 458 U. S., at 762 ("The value of
permitting live performances and photographic reproductions of children engaged in lewd sexual
conduct is exceedingly modest, if not de minimis").

The Government also points to two other areas of the law-namely, mail theft and stolen property-in
which a ban on the receipt or possession of an item is used to deter some primary illegality. Brief for
United States 14; see also post, at 550-551 (REHNQUIST, C. J., dissenting). Neither of those
examples, though, involve prohibitions on speech. As such, they are not relevant to a First
Amendment analysis.

14 The media respondents have included a list of 143 cases under § 2511(1)(a) and 63 cases under
§§ 2511(1)(c) and (d)-which must also involve violations of subsection (a)-in an appendix to their
brief. The Reply Brief filed by the United States contains an appendix describing each of the cases in
the latter group.

15 In only 5 of the 206 cases listed in the appendixes, see n. 14, supra,

16 The legislative history of the 1968 Act indicates that Congress' concern focused on private
surveillance "in domestic relations and industrial espionage situations." S. Rep. No. 1097, 90th Cong.,
2d Sess., 225 (1968). Similarly, in connection with the enactment of the 1986 amendment, one
Senator referred to the interest in protecting private communications

531

empirical evidence to support the assumption that the prohibition against disclosures reduces the
number of illegal interceptions.17

Although this suit demonstrates that there may be an occasional situation in which an anonymous
scanner will risk criminal prosecution by passing on information without any expectation of financial
reward or public praise, surely this is the exceptional case. Moreover, there is no basis for assuming
that imposing sanctions upon respondents will deter the unidentified scanner from continuing to
engage in surreptitious interceptions. Unusual cases fall far short of a

from "a corporate spy, a police officer without probable cause, or just a plain snoop." 131 Congo Rec.
24366 (1985) (statement of Sen. Leahy).

17The dissent argues that we have not given proper respect to "congressional findings" or to
'''Congress' factual predictions.' " Post, at 550. But the relevant factual foundation is not to be found in
the legislative record. Moreover, the dissent does not argue that Congress did provide empirical
evidence in support of its assumptions, nor, for that matter, does it take real issue with the fact that in
the vast majority of cases involving illegal interceptions, the identity of the person or persons
responsible for the interceptions is known. Instead, the dissent advances a minor disagreement with
our numbers, stating that nine cases "involved an unknown or unproved eavesdropper." Post, at 552,
n. 9 (emphasis added). The dissent includes in that number cases in which the identity of the
interceptor, though suspected, was not "proved" because the identity of the interceptor was not at
issue or the evidence was insufficient. In any event, whether there are 5 cases or 9 involving
anonymous interceptors out of the 206 cases under § 2511, in most of the cases involving illegal
interceptions, the identity of the interceptor is no mystery. If, as the proponents of the dry-up-the-
market theory would have it, it is difficult to identify the persons responsible for illegal interceptions
(and thus necessary to prohibit disclosure by third parties with no connection to, or responsibility for,
the initial illegality), one would expect to see far more cases in which the identity of the interceptor
was unknown (and, concomitantly, far fewer in which the interceptor remained anonymous). Thus, not
only is there a dearth of evidence in the legislative record to support the dry-up-the-market theory, but
what postenactment evidence is available cuts against it.

532

showing that there is a "need ... of the highest order" for a rule supplementing the traditional means of
deterring antisocial conduct. The justification for any such novel burden on expression must be "far
stronger than mere speculation about serious harms." United States v. Treasury Employees, 513 U.
S. 454, 475 (1995).18 Accordingly, the Government's first suggested justification for applying §
2511(1)(c) to an otherwise innocent disclosure of public information is plainly insufficient. 19

The Government's second argument, however, is considerably stronger. Privacy of communication is

an important interest, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 559
(1985),20 and Title Ill's restrictions are intended to protect that interest, thereby "encouraging the
uninhibited exchange of ideas and information among private parties .. " Brief for United States 27.
More-

18 Indeed, even the burden of justifying restrictions on commercial speech requires more than "'mere
speculation or conjecture.''' Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S.
173, 188 (1999).

19 Our holding, of course, does not apply to punishing parties for obtaining the relevant information
unlawfully. "It would be frivolous to assert-and no one does in these cases-that the First Amendment,
in the interest of securing news or otherwise, confers a license on either the reporter or his news
sources to violate valid criminal laws. Although stealing documents or private wiretapping could
provide newsworthy information, neither reporter nor source is immune from conviction for such
conduct, whatever the impact on the flow of news." Branzburg v. Hayes, 408 U. S. 665, 691 (1972).

20" 'The essential thrust of the First Amendment is to prohibit improper restraints on
the voluntary public expression of ideas; it shields the man who wants to speak or publish when
others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant
freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its
affirmative aspect.''' Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S., at 559
(quoting Estate of Hemingway v. Random House, Inc., 23 N. Y. 2d 341, 348, 244 N. E. 2d 250, 255
(1968)).

533
over, the fear of public disclosure of private conversations might well have a chilling effect on private
speech.

"In a democratic society privacy of communication is essential if citizens are to think and act
creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger,
even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to
voice critical and constructive ideas." President's Commission on Law Enforcement and
Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).

Accordingly, it seems to us that there are important interests to be considered on both sides of the
constitutional calculus. In considering that balance, we acknowledge that some intrusions on privacy
are more offensive than others, and that the disclosure of the contents of a private conversation can
be an even greater intrusion on privacy than the interception itself. As a result, there is a valid
independent justification for prohibiting such disclosures by persons who lawfully obtained access to
the contents of an illegally intercepted message, even if that prohibition does not play a significant
role in preventing such interceptions from occurring in the first place.

We need not decide whether that interest is strong enough to justify the application of § 2511(c) to
disclosures of trade secrets or domestic gossip or other information of purely private concern.
Cf. Time, Inc. v. Hill, 385 U. S. 374, 387-388 (1967) (reserving the question whether truthful
publication of private matters unrelated to public affairs can be constitutionally proscribed). In other
words, the outcome of these cases does not turn on whether § 2511(1)(c) may be enforced with
respect to most violations of the statute without offending the First Amendment. The enforcement of
that provision in these cases, however, implicates the core purposes

534

of the First Amendment because it imposes sanctions on the publication of truthful information of
public concern.

In these cases, privacy concerns give way when balanced against the interest in publishing matters of
public importance. As Warren and Brandeis stated in their classic law review article: "The right of
privacy does not prohibit any publication of matter which is of public or general interest." The Right to
Privacy, 4 Harv. L. Rev. 193, 214 (1890). One of the costs associated with participation in public
affairs is an attendant loss of privacy.

"Exposure of the self to others in varying degrees is a concomitant of life in a civilized community.
The risk of this exposure is an essential incident of life in a society which places a primary value on
freedom of speech and of press. 'Freedom of discussion, if it would fulfill its historic function in this
nation, must embrace all issues about which information is needed or appropriate to enable the
members of society to cope with the exigencies of their period.'" Time, Inc. v. Hill, 385 U. S., at 388
(quoting Thornhill v. Alabama, 310 U. S. 88, 102 (1940)).21

Our opinion in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), reviewed many of the decisions
that settled the "general proposition that freedom of expression upon public questions is secured by
the First Amendment." Id., at 269; see Roth v. United States, 354 U. S. 476, 484
(1957); Bridges v. California, 314 U. S. 252, 270 (1941); Stromberg v. California, 283 U. S. 359, 369
(1931). Those cases all relied on our "profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open," New York Times, 376 U. S., at 270;
see Terminiello v. Chicago, 337 U. S. 1, 4 (1949); De Jonge v. Oregon,

21 Moreover, "our decisions establish that absent exceptional circumstances, reputational interests
alone cannot justify the proscription of truthful speech." Butterworth v. Smith, 494 U. S. 624, 634
(1990).

535

299 U. S. 353, 365 (1937); Whitney v. California, 274 U. S. 357, 375-376 (1927) (Brandeis, J.,
concurring); see also Roth, 354 U. S., at 484; Stromberg, 283 U. S., at 369; Bridges, 314 U. S., at
270. It was the overriding importance of that commitment that supported our holding that neither
factual error nor defamatory content, nor a combination of the two, sufficed to remove the First
Amendment shield from criticism of official conduct. Id., at 273; see also NAACP v. Button, 371 U. S.
415, 445 (1963); Wood v. Georgia, 370 U. S. 375 (1962); Craig v. Harney, 331 U. S.
367 (1947); Pennekamp v. Florida, 328 U. S. 331, 342, 343, n. 5, 345 (1946); Bridges, 314 U. S., at
270.

We think it clear that parallel reasoning requires the conclusion that a stranger's illegal conduct does
not suffice to remove the First Amendment shield from speech about a matter of public concern.22
The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley
West High School were unquestionably a matter of public concern, and respondents were clearly
engaged in debate about that concern. That debate may be more mundane than the Communist
rhetoric that inspired Justice Brandeis' classic opinion in Whitney v. California, 274 U. S., at 372, but it
is no less worthy of constitutional protection.

The judgment is affirmed.

It is so ordered.
Miller v. California, 413 U.S. 15 (1973)

Miller v. California

No. 70-73

Argued January 18-19, 1972

Reargued November 7, 1972

Decided June 21, 1973

413 U.S. 15

APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT

OF CALIFORNIA, COUNTY OF ORANGE

Syllabus

Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California
statute that approximately incorporated the obscenity test formulated in Memoirs v.
Massachusetts, 383 U. S. 413, 383 U. S. 418(plurality opinion). The trial court instructed the jury to
evaluate the materials by the contemporary community standards of California. Appellant's conviction
was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirsplurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476,
reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to
the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined
by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or
scientific value. Pp. 413 U. S. 23-24.

2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying
contemporary community standards" would find that the work, taken as a whole, appeals to the
prurient interest, Roth, supra, at 354 U. S. 489, (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. If a
state obscenity law is thus limited, First Amendment values are adequately protected by ultimate
independent appellate review of constitutional claims when necessary. Pp. 413 U. S. 24-25.

3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a
constitutional standard. Pp. 413 U. S. 24-25.

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by
the standard that prevails in the forum community, and need not employ a "national standard."
Pp. 413 U. S. 30-34.

Vacated and remanded.

Page 413 U. S. 16
BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 37. BRENNAN,
J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 47.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a

reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the
intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 704 (1968)
(concurring and dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books,
euphemistically called "adult" material. After a jury trial, he was convicted of violating California Penal
Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter, [Footnote 1]

Page 413 U. S. 17

and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed
the judgment without opinion. Appellant's conviction was specifically

Page 413 U. S. 18

based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in
an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by
the manager of the restaurant and his mother. They had not requested the brochures; they
complained to the police.

The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated,"
and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the
brochures contain some descriptive printed material, primarily they consist of pictures and drawings
very explicitly depicting men and women in groups of two or more engaging in a variety of sexual
activities, with genitals often prominently displayed.

This case involves the application of a State's criminal obscenity statute to a situation in which
sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who
had in no way indicated any desire to receive such materials. This Court has recognized that the
States have a legitimate interest in prohibiting dissemination or exhibition of obscene material
[Footnote 2]

Page 413 U. S. 19

when the mode of dissemination carries with it a significant danger of offending the sensibilities of
unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U. S. 557, 394 U. S.
567 (1969); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-643 (1968); Interstate Circuit, Inc. v.
Dallas, supra, at 390 U. S. 690; Redrup v. New York, 386 U. S. 767, 386 U. S. 769 (1967); Jacobellis
v. Ohio, 378 U. S. 184, 378 U. S. 195 (1964). See Rabe v. Washington, 405 U. S. 313, 405 U. S.
317 (1972) (BURGER, C.J., concurring); United States v. Reidel, 402 U. S. 351, 402 U. S. 360-362
(1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S.
502 (1952); Breard v. Alexandria, 341 U. S. 622, 341 U. S. 644 645 (1951); Kovacs v. Cooper,336 U.
S. 77, 336 U. S. 88-89 (1949); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 169-170 (1944). Cf.
Butler v. Michigan,352 U. S. 380, 352 U. S. 382-383 (1957); Public Utilities Comm'n v. Pollak, 343 U.
S. 451, 343 U. S. 464-465 (1952) It is in this context that we are called

Page 413 U. S. 20

on to define the standards which must be used to identify obscene material that a State may regulate
without infringing on the First Amendment as applicable to the States through the Fourteenth
Amendment.

The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since
the Court now undertakes to formulate standards more concrete than those in the past, it is useful for
us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity
decisions. In Roth v. United States, 354 U. S. 476(1957), the Court sustained a conviction under a
federal statute punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to
that holding was the Court's rejection of the claim that obscene materials were protected by the First
Amendment. Five Justices joined in the opinion stating:

"All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial
ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the [First
Amendment] guaranties, unless excludable because they encroach upon the limited area of more
important interests. But implicit in the history of the First Amendment is the rejection of obscenity as
utterly without redeeming social importance. . . . This is the same judgment expressed by this Court
in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572: "

". . . There are certain well defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These include the
lewd and obscene. . . . It has been well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social

Page 413 U. S. 21

value as a step to truth that any benefit that may be derived from them is clearly outweighed by the
social interest in order and morality. . . ."

[Emphasis by Court in Roth opinion.]

"We hold that obscenity is not within the area of constitutionally protected speech or press."

354 U.S. at 354 U. S. 48 85 (footnotes omitted).

Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away
from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of
obscenity. The plurality held that, under the Roth definition,

"as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the
dominant theme of the material, taken as a whole, appeals to a prurient interest in sex; (b) the
material is patently offensive because it affronts contemporary community standards relating to the
description or representation of sexual matters; and (c) the material is utterly without redeeming
social value."
Id. at 383 U. S. 418. The sharpness of the break with Roth, represented by the third element of
the Memoirs test and emphasized by MR. JUSTICE WHITE's dissent, id. at 383 U. S. 460-462, was
further underscored when the Memoirs plurality went on to state:

"The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before
it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterly without
redeeming social value."

Id. at 383 U. S. 419 (emphasis in original).

While Roth presumed "obscenity" to be "utterly without redeeming social

importance," Memoirs required

Page 413 U. S. 22

that to prove obscenity it must be affirmatively established that the material is "utterly without
redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality
produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the
material was "utterly without redeeming social value" -- a burden virtually impossible to discharge
under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the
"utterly without redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts,
id. at 383 U. S. 459(Harlan, J., dissenting). See also id. at 383 U. S. 461 (WHITE, J.,
dissenting); United States v. Groner, 479 F.2d 577, 579581 (CA5 1973).

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been
able to agree on a standard to determine what constitutes obscene, pornographic material subject to
regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S. at 386 U. S. 770-
771. We have seen "a variety of views among the members of the Court unmatched in any other
course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 704-705
(Harlan, J., concurring and dissenting) (footnote omitted). [Footnote 3] This is not remarkable, for in
the area

Page 413 U. S. 23

of freedom of speech and press the courts must always remain sensitive to any infringement on
genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are
few eternal verities.

The case we now review was tried on the theory that the California Penal Code § 311 approximately
incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as
unworkable by its author, [Footnote 4] and no Member of the Court today supports
the Memoirs formulation.

II

This much has been categorically settled by the Court, that obscene material is unprotected by the
First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United States v. Reidel, 402 U.S. at 402
U. S. 354; Roth v. United States, supra, at 354 U. S. 485. [Footnote 5] "The First and Fourteenth
Amendments have never been treated as absolutes [footnote omitted]."Breard v. Alexandria, 341
U.S. at 341 U. S. 642, and cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 47-
50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502. We acknowledge, however, the
inherent dangers of undertaking to regulate any form of expression. State statutes designed to
regulate obscene materials must be

Page 413 U. S. 24

carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682-685. As a result, we
now confine the permissible scope of such regulation to works which depict or describe sexual
conduct. That conduct must be specifically defined by the applicable state law, as written or
authoritatively construed. [Footnote 6] A state offense must also be limited to works which, taken as a
whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way,
and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying
contemporary community standards" would find that the work, taken as a whole, appeals to the
prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230, quoting Roth v. United States,
supra, at 354 U. S. 489; (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. We do not adopt as a constitutional standard
the "utterly without redeeming social value" test of Memoirs v. Massachusetts,

Page 413 U. S. 25

383 U.S. at 383 U. S. 419; that concept has never commanded the adherence of more than three
Justices at one time. [Footnote 7] See supra at 413 U. S. 21. If a state law that regulates obscene
material is thus limited, as written or construed, the First Amendment values applicable to the States
through the Fourteenth Amendment are adequately protected by the ultimate power of appellate
courts to conduct an independent review of constitutional claims when necessary. See Kois v.
Wisconsin, supra, at 408 U. S. 232; Memoirs v. Massachusetts, supra, at 383 U. S. 459-460 (Harlan,
J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan, J., dissenting); New York Times Co. v.
Sullivan, 376 U. S. 254, 376 U. S. 284-285 (1964); Roth v. United States, supra, at 354 U. S. 497-498
(Harlan, J., concurring and dissenting).

We emphasize that it is not our function to propose regulatory schemes for the States. That must
await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a
state statute could define for regulation under part (b) of the standard announced in this
opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted,
actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of
public accommodation any more than live sex and nudity can

Page 413 U. S. 26

be exhibited or sold without limit in such public places. [Footnote 8] At a minimum, prurient, patently
offensive depiction or description of sexual conduct must have serious literary, artistic, political, or
scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 408 U. S. 230-
232; Roth v. United States, supra, at 354 U. S. 487; Thornhill v. Alabama, 310 U. S. 88, 310 U. S.
101-102 (1940). For example, medical books for the education of physicians and related personnel
necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably
sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the
safeguards that judges, rules of evidence, presumption of innocence, and other protective features
provide, as we do with rape, murder, and a host of other offenses against society and its individual
members. [Footnote 9]

MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v.
United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United

Page 413 U. S. 27

States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs v.
Massachusetts, supra, has abandoned his former position and now maintains that no formulation of
this Court, the Congress, or the States can adequately distinguish obscene material unprotected by
the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p. 413 U. S.
73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of
unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this
case, and to juveniles, although he gives no indication of how the division between protected and
nonprotected materials may be drawn with greater precision for these purposes than for regulation of
commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he
finds the authority to distinguish between a willing "adult" one month past the state law age of majority
and a willing "juvenile" one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of
obscene materials unless these materials depict or describe patently offensive "hard core" sexual
conduct specifically defined by the regulating state law, as written or construed. We are satisfied that
these specific prerequisites will provide fair notice to a dealer in such materials that his public and
commercial activities may bring prosecution. See Roth v. United States, supra, at354 U. S. 491-
492. Cf. Ginsberg v. New York, 390 U.S. at 390 U. S. 643. [Footnote 10] If

Page 413 U. S. 28

the inability to define regulated materials with ultimate, god-like precision altogether removes the
power of the States or the Congress to regulate, then "hard core" pornography may be exposed
without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE
DOUGLAS contends. As to MR. JUSTICE DOUGLAS' position, see United States v. Thirty-seven
Photographs, 402 U. S. 363, 402 U. S. 379-380 (1971) (Black, J., joined by DOUGLAS, J.,
dissenting); Ginzburg v. United States, supra, at 383 U. S. 476, 383 U. S. 491-492 (Black, J., and
DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 196 (Black, J., joined by
DOUGLAS, J., concurring); Roth, supra, at 354 U. S. 508-514 (DOUGLAS, J., dissenting). In this
belief, however, MR. JUSTICE DOUGLAS now stands alone.

MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view.
Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the burden that
has been placed upon this Court," he quite rightly remarks that the examination of contested
materials "is hardly a source of edification to the members of this Court." Paris Adult

Page 413 U. S. 29

Theatre I v. Slaton, post, at 413 U. S. 92, 413 U. S. 93. He also notes, and we agree, that "uncertainty
of the standards creates a continuing source of tension between state and federal courts. . . ."
"The problem is . . . that one cannot say with certainty that material is obscene until at least five
members of this Court, applying inevitably obscure standards, have pronounced it so."

Id. at 413 U. S. 93, 413 U. S. 92.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper
standards for testing obscenity has placed a strain on both state and federal courts. But today, for the
first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines
to isolate "hard core" pornography from expression protected by the First Amendment. Now we may
abandon the casual practice of Redrup v. New York, 386 U. S. 767 (1967), and attempt to provide
positive guidance to federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt
a convenient "institutional" rationale -- an absolutist, "anything goes" view of the First Amendment --
because it will lighten our burdens. [Footnote 11] "Such an abnegation of judicial supervision in this
field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio,
supra, at 378 U. S. 187-188 (opinion of BRENNAN, J.). Nor should we remedy "tension between state
and federal courts" by arbitrarily depriving the States of a power reserved to them under the
Constitution, a power which they have enjoyed and exercised continuously from before the adoption
of the First Amendment to this day. See Roth v. United States, supra, at 354 U. S. 482-485.

"Our duty admits of no 'substitute for facing up

Page 413 U. S. 30

to the tough individual problems of constitutional judgment involved in every obscenity case.' [Roth v.
United States, supra,at 354 U. S. 498]; see Manual Enterprises, Inc. v. Day, 370 U. S. 478, 370 U. S.
488 (opinion of Harlan, J.) [footnote omitted]."

Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.).

III

Under a National Constitution, fundamental First Amendment limitations on the powers of the States
do not vary from community to community, but 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 our Nation is simply too big and too diverse for
this Court to reasonably expect that such standards could be articulated for all 50 States in a single
formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide
whether "the average person, applying contemporary community standards" would consider certain
materials "prurient," it would be unrealistic to require that the answer be based on some abstract
formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal
prosecutions, has historically permitted triers of fact to draw on the standards of their community,
guided always by limiting instructions on the law. To require a State to structure obscenity
proceedings around evidence of a national "community standard" would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to
incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection
enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state
prosecution under the controlling case
Page 413 U. S. 31

law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of
the material as a whole . . . appeals to the prurient interest," and, in determining whether the material
"goes substantially beyond customary limits of candor and affronts contemporary community
standards of decency," it was to apply "contemporary community standards of the State of California."

During the trial, both the prosecution and the defense assumed that the relevant "community
standards" in making the factual determination of obscenity were those of the State of California, not
some hypothetical standard of the entire United States of America. Defense counsel at trial never
objected to the testimony of the State's expert on community standards [Footnote 12] or to the
instructions of the trial judge on "state-wide" standards. On appeal to the Appellate Department,
Superior Court of California, County of Orange, appellant for the first time contended that application
of state, rather than national, standards violated the First and Fourteenth Amendments.

We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the
trial court's charge that the jury consider state community standards, were constitutional errors.
Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable
"national standards" when attempting to determine whether certain materials are obscene as a matter

Page 413 U. S. 32

of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio,
supra, at 378 U. S. 200:

"It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to
'community standards,' it meant community standards -- not a national standard, as is sometimes
argued. I believe that there is no provable 'national standard.' . . . At all events, this Court has not
been able to enunciate one, and it would be unreasonable to expect local courts to divine one."

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the
people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or
New York City. [Footnote 13]

Page 413 U. S. 33

See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398
U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at 434-435 (Harlan, J., dissenting); Cain v.
Kentucky, 397 U. S. 319 (1970) (BURGER, C.J., dissenting); id. at 397 U. S. 319-320 (Harlan, J.,
dissenting); United States v. Groner, 479 F.2d at 581-583; O'Meara & Shaffer, Obscenity in The
Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs
v. Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 378
U. S. 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 354 U. S. 505-506 (Harlan, J.,
concurring and dissenting). People in different States vary in their tastes and attitudes, and this
diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear
in Mishkin v. New York, 383 U.S. at 383 U. S. 508-509, the primary concern with requiring a jury to
apply the standard of "the average person, applying contemporary community standards" is to be
certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an
average person, rather than a particularly susceptible or sensitive person -- or indeed a totally
insensitive one. See Roth v. United States, supra, at 354 U. S. 489. Cf. the now discredited test
in Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate the
materials with reference to "contemporary
Page 413 U. S. 34

standards of the State of California" serves this protective purpose and is constitutionally adequate.
[Footnote 14]

IV

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust
exchange of ideas and political debate with commercial exploitation of obscene material demeans the
grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It
is a "misuse of the great guarantees of free speech and free press. . . ." Breard v. Alexandria, 341
U.S. at 341 U. S. 645. The First Amendment protects works which, taken as a whole, have serious
literary, artistic, political, or scientific value, regardless of whether the government or a majority of the
people approve of the ideas these works represent.

"The protection given speech and press was fashioned to assure unfettered interchange of ideas for
the bringing about of

Page 413 U. S. 35

political and social changes desired by the people,"

Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v. Wisconsin, 408 U.S.
at 408 U. S. 230-232; Thornhill v. Alabama, 310 U.S. at 310 U. S. 101-102. But the public portrayal of
hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.
[Footnote 15]

There is no evidence, empirical or historical, that the stern 19th century American censorship of
public distribution and display of material relating to sex, see Roth v. United States, supra, at 354 U.
S. 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific
ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore
Roosevelt was an "extraordinarily vigorous period" not just in economics and politics, but in belles
lettres and in "the outlying fields of social and political philosophies." [Footnote 16] We do not see the
harsh hand

Page 413 U. S. 36

of censorship of ideas -- good or bad, sound or unsound -- and "repression" of political liberty lurking
in every state regulation of commercial exploitation of human interest in sex.

MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our minds can
ever be forestalled."Paris Adult Theatre I v. Slaton, post, at 413 U. S. 110 (BRENNAN, J., dissenting).
These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by
the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of
hard-core pornography so as to make it unavailable to nonadults, a regulation which MR. JUSTICE
BRENNAN finds constitutionally permissible, has all the elements of "censorship" for adults; indeed
even more rigid enforcement techniques may be called for with such dichotomy of regulation. See
Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 690. [Footnote 17] One can concede that the
"sexual revolution" of recent years may have had useful byproducts in striking layers of prudery from
a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of
patently offensive "hard core" materials is needed or permissible; civilized people do not allow
unregulated access to heroin because it is a derivative of medicinal morphlne.

In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First
Amendment; (b) hold that such material can be regulated by the States, subject to the specific
safeguards enunciated

Page 413 U. S. 37

above, without a showing that the material is "utterly without redeeming social value"; and (c) hold
that obscenity is to be determined by applying "contemporary community standards," see Kois v.
Wisconsin, supra, at 408 U. S. 230, and Roth v. United States, supra, at 354 U. S. 489, not "national
standards." The judgment of the Appellate Department of the Superior Court, Orange County,
California, is vacated and the case remanded to that court for further proceedings not inconsistent
with the First Amendment standards established by this opinion. See United States v. 12 200-ft.
Reels of Film, post at 413 U. S. 130 n. 7.

Vacated and remanded.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.

William C. Arceno for petitioner.

Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of
Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive
relief. He invokes, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as
well as its prohibition against deprivation of property without due process of law. There is no controversy as to the
facts. We quote:

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.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of
preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western
Police District of the City of Manila, seeking to enjoin and/or restrain said defendants and their
agents from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation
thereof claiming that the magazine is a decent, artistic and educational magazine which is not per
se obscene, and that the publication is protected by the Constitutional guarantees of freedom of
speech and of the press.

By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction
on December 14,1983 and ordered the defendants to show cause not later than December 13, 1983
why the writ prayed for should not be granted.

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order.
against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines,
pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing's
pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining
order on December 14, 1983.
 In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the
confiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed
that the said materials were voluntarily surrendered by the vendors to the police authorities, and that
the said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by
P.D. No. 969, which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs
application for a writ of preliminary injunction, defendant pointed out that in that anti- smut campaign
conducted on December 1 and 3, 1983, the materials confiscated belonged to the magazine stand
owners and peddlers who voluntarily surrendered their reading materials, and that the plaintiffs
establishment was not raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of
preliminary injunction, raising the issue as to "whether or not the defendants and/or their agents can
without a court order confiscate or seize plaintiffs magazine before any judicial finding is made on
whether said magazine is obscene or not".

The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff
filed an urgent motion for issuance of another restraining order, which was opposed by defendant on
the ground that issuance of a second restraining order would violate the Resolution of the Supreme
Court dated January 11, 1983, providing for the Interim Rules Relative to the Implementation of
Batas Pambansa Blg. 129, which provides that a temporary restraining order shall be effective only
for twenty days from date of its issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his
opposition to the issuance of a writ of preliminary injunction.

On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16,
1984 "for the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy
Magazine alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or
not".

On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to
file a reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for
the defendants, who may file a rejoinder within the same period from receipt, after which the issue of
Preliminary Injunction shall be resolved".

Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment
on plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "Reply-
Memorandum" to defendants' Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a
writ of preliminary injunction, and dismissing the case for lack of merit. 2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene
publications or materials deserves close scrutiny because of the constitutional guarantee protecting
the right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution
against unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however,
that freedom of the press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive to public morals, as indeed we have laws punishing the
author, publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as
amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against
unreasonable searches and seizures recognizes certain exceptions, as when there is consent to the
search or seizure, (People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest, (People
vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable
structure (See Papa vs. Magno, 22 SCRA 857).3
The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the
police officers could without any court warrant or order seize and confiscate petitioner's magazines
on the basis simply of their determination that they are obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the
trial court could dismiss the case on its merits without any hearing thereon when what was submitted
to it for resolution was merely the application of petitioner for the writ of preliminary injunction. 4

The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or
what makes for an obscene or pornographic literature. Early on, in People vs. Kottinger,5 the Court laid down the
test, in determining the existence of obscenity, 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." 6 "Another test," so Kottinger further declares, "is that which
shocks the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say, however, that
"[w]hether a picture is obscene or indecent must depend upon the circumstances of the case, 8 and that ultimately,
the question is to be decided by the "judgment of the aggregate sense of the community reached by it." 9

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has
grown increasingly complex over the years. Precisely, the question is: When does a publication have a corrupting
tendency, or when can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to
say that a piece of literature has a corrupting influence because it is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a
hypothetical "community standard" — whatever that is — and that the question must supposedly be judged from
case to case.

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the
Revised Penal Code. Go Pin, was also even hazier:

...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in
art exhibit and art galleries for the cause of art, to be viewed and appreciated by people interested in
art, there would be no offense committed. However, the pictures here in question were used not
exactly for art's sake but rather for commercial purposes. In other words, the supposed artistic
qualities of said pictures were being commercialized so that the cause of art was of secondary or
minor importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see those
pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and
for love for excitement, including the youth who because of their immaturity are not in a position to
resist and shield themselves from the ill and perverting effects of these pictures. 11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It
is easier said than done to say, indeed, that if "the pictures here in question were used not exactly for art's sake but
rather for commercial purposes," 12 the pictures are not entitled to any constitutional protection.

It was People v. Padan y Alova ,13 however, that introduced to Philippine jurisprudence the "redeeming" element that
should accompany the work, to save it from a valid prosecution. We quote:

...We have had occasion to consider offenses like the exhibition of still or moving pictures of women
in the nude, which we have condemned for obscenity and as offensive to morals. In those cases,
one might yet claim that there was involved the element of art; that connoisseurs of the same, and
painters and sculptors might find inspiration in the showing of pictures in the nude, or the human
 body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the
sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no
room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an
offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and
exerting a corrupting influence specially on the youth of the land. ... 14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was
attended by "artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and
improve their artistic tastes,"15 could the same legitimately lay claim to "art"? For another, suppose that the exhibition
was so presented that "connoisseurs of [art], and painters and sculptors might find inspiration," 16 in it, would it cease
to be a case of obscenity?

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of
Ideas and "two-cents worths" among judges as to what is obscene and what is art.

In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following trends in the United States, adopted the
test: "Whether to the average person, applying contemporary standards, the dominant theme of the material taken
as a whole appeals to prurient interest."18 Kalaw-Katigbak represented a marked departure from Kottinger in the
sense that it measured obscenity in terms of the "dominant theme" of the work, rather than isolated passages, which
were central to Kottinger (although both cases are agreed that "contemporary community standards" are the final
arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity
essentially a judicial question and as a consequence, to temper the wide discretion Kottinger had given unto law
enforcers.

It is significant that in the United States, constitutional law on obscenity continues to journey from development to
development, which, states one authoritative commentator (with ample sarcasm), has been as "unstable as it is
unintelligible."19

Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one "utterly without any redeeming
social value,"21 marked yet another development.

The latest word, however, is Miller v. California,22 which expressly abandoned Massachusettes, and established
"basic guidelines,"23 to wit: "(a) whether 'the average person, applying contemporary standards' would find 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."24

(A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins
v. Georgia, 26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion
picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, although the film highlighted
contemporary American sexuality.)

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the
reluctance of the courts to recognize the constitutional dimension of the problem . 27 Apparently, the courts have
assumed that "obscenity" is not included in the guaranty of free speech, an assumption that, as we averred, has
allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable
to society. And "[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that it will
ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject — as in all
speech — to regulation in the interests of [society as a whole] — but not in the interest of a uniform vision of how
human sexuality should be regarded and portrayed."28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to
suppress smut provided it is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So
is it equally evident that 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. James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered
important literature today.29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the
world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is the
divergent perceptions of men and women that have probably compounded the problem rather than resolved it.

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. We share Tribe's disappointment over the discouraging trend in
American decisional law on obscenity as well as his pessimism on whether or not an "acceptable" solution is in
sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of
"obscenity", if that is possible, as evolving standards for proper police conduct faced with the problem, which, after
all, is the plaint specifically raised in the petition.

However, this much we have to say.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its protection. In
free expression cases, this Court has consistently been on the side of the exercise of the right, barring a "clear and
present danger" that would warrant State interference and action.30 But, so we asserted in Reyes v.
Bagatsing,31"the burden to show the existence of grave and imminent danger that would justify adverse action ... lies
on the. . . authorit[ies]."32

"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and
present danger."33 "It is essential for the validity of ... previous restraint or censorship that the ... authority does not
rely solely on his own appraisal of what the public welfare, peace or safety may require."34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present
danger test."35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at
one-but rather as a serious attempt to put the question in its proper perspective, that is, as a genuine constitutional
issue.

It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal
search and seizure.

As we so strongly stressed in 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. Meanwhile, the
Government must allow it (the speech). It has no choice. However, if it acts notwithstanding that (absence of
evidence of a clear and present danger), it must come to terms with, and be held accountable for, due process.

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.

The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right
to protect society from pornographic literature that is offensive to public morals." 36 Neither do we. But it brings us
back to square one: were the "literature" so confiscated "pornographic"? That we have laws punishing the author,
publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960
and P.D. No. 969),"37 is also fine, but the question, again, is: Has the petitioner been found guilty under the statute?

The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize property in
disregard of due process. In Philippine Service Exporters, Inc. v. Drilon,38 We defined police power as "state
authority to enact legislation that may interfere with personal liberty or property in order to promote the general
welfare ."39 Presidential Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by
themselves, authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of
the twin presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the right to due process
of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves
lay down procedures for implementation. We quote:

Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature, films, prints,
engravings, sculptures, paintings, or other materials involved in the violation referred to in Section 1
hereof (Art. 201), RPC as amended) shall be governed by the following rules:

(a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.

(b) Where the criminal case against any violator of this decree results in an acquittal, the
obscene/immoral literature, films, prints, engravings, sculptures, paintings or other materials and
articles involved in the violation referred to in Section 1 (referring to Art. 201) hereof shall
nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings
conducted by the Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15)
days after his receipt of a copy of the decision, appeal the matter to the Secretary of National
Defense for review. The decision of the Secretary of National Defense shall be final and
unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.)

Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations of Section I
hereof, the penalty as provided herein shall be imposed in the maximum period and, in addition, the
accessory penalties provided for in the Revised Penal Code, as amended, shall likewise be imposed
.40

Under the Constitution, on the other hand:

SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
by the judge, or such other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized.

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, 43 We 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".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing),
provide:

SEC. 12. Search without warrant of personarrested. — A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense.44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be
on account of a crime committed. Here, no party has been charged, nor are such charges being readied against any
party, under Article 201, as amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of
all criminal responsibility because there had been no warrant," 45 and that "violation of penal law [must] be
punished." 46 For starters, there is no "accused" here to speak of, who ought to be "punished". Second, to say that
the respondent Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful
search warrant because, in his opinion, "violation of penal laws" has been committed, is to make the respondent
Mayor judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an
obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are "obscene", and
pose a clear and present danger of an evil substantive enough to warrant State interference and
action;

3. The judge must determine whether or not the same are indeed "obscene:" the question is to be
resolved on a case-to-case basis and on His Honor's sound discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties
seized are indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse
of official power under the Civil Code" 47 or the Revised Penal code .48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It
appearing, however, that the magazines subject of the search and seizure ave been destroyed, the Court declines
to grant affirmative relief. To that extent, the case is moot and academic.

SO ORDERED.
 THIRD DIVISION

[G.R. No. 155282. January 17, 2005]

MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD

(MTRCB), petitioner, vs. ABS-CBN BROADCASTING CORPORATION and
LOREN LEGARDA, respondents.

DECISION
SANDOVAL-GUTIERREZ, J.:

For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules
of Court, as amended, filed by petitioner Movie and Television Review and Classification
Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN) and former
Senator Loren Legarda, respondents, assailing the (a) Decision dated November 18,
1997,[1] and (b) Order dated August 26, 2002[2] of the Regional Trial Court, Branch 77,
Quezon City, in Civil Case No. Q-93-16052.
The facts are undisputed.
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 Storyproduced 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[3] 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[4] of Presidential Decree (P.D.) No. 1986[5] and Section
3,[6] Chapter III and Section 7,[7] Chapter IV of the MTRCB Rules and Regulations.[8]
In their answer,[9] 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.
 On February 5, 1993, after hearing and submission of the parties memoranda, the
MTRCB Investigating Committee rendered a Decision, the decretal portion of which reads:

WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum
of TWENTY THOUSAND PESOS (P20,000.00) for non-submission of the program, subject of
this case for review and approval of the MTRCB.

Heretofore, all subsequent programs of the The Inside Story and all other programs of the ABS-
CBN Channel 2 of the same category shall be submitted to the Board of Review and Approval
before showing; otherwise the Board will act accordingly.[10]

On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a
Decision dated March 12, 1993 affirming the above ruling of its Investigating
Committee.[11] Respondents filed a motion for reconsideration but was denied in a
Resolution dated April 14, 1993.[12]
Respondents then filed a special civil action for certiorari with the Regional Trial Court
(RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional Sections
3(b),[13] 3(c),[14] 3(d),[15] 4,[16] 7,[17] and 11[18] of P. D. No. 1986 and Sections 3,[19] 7,[20] and
28[21] (a) of the MTRCB Rules and Regulations;[22] (2) (in the alternative) exclude the The
Inside Story from the coverage of the above cited provisions; and (3) annul and set aside
the MTRCB Decision dated March 12, 1993 and Resolution dated April 14, 1993.
Respondents averred that the above-cited provisions constitute prior restraint on
respondents exercise of freedom of expression and of the press, and, therefore,
unconstitutional. Furthermore, the above cited provisions do not apply to the The Inside
Story because it falls under the category of public affairs program, news documentary, or
socio-political editorials governed by standards similar to those governing newspapers.
On November 18, 1997, the RTC rendered a Decision[23] in favor of respondents, the
dispositive portion of which reads:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:

1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated
March 12, 1993;

2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No.
1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program The Inside
Story and other similar programs, they being public affairs programs which can be equated to
newspapers; and

3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their
behalf.

SO ORDERED.

Petitioner filed a motion for reconsideration but was denied.[24]

 Hence, this petition for review on certiorari.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television
programs, including public affairs programs, news documentaries, or socio-political
editorials, are subject to petitioners power of review under Section 3 (b) of P.D. No. 1986
and pursuant to this Courts ruling in Iglesia ni Cristo vs. Court of Appeals;[25] second,
television programs are more accessible to the public than newspapers, thus, the liberal
regulation of the latter cannot apply to the former; third, petitioners power to review
television programs under Section 3(b) of P. D. No. 1986 does not amount to prior restraint;
and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents constitutional
freedom of expression and of the press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or authority to review
the The Inside Story prior to its exhibition or broadcast by television.
The petition is impressed with merit.
The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986,
partly reproduced as follows:

SEC. 3. Powers and Functions. The BOARD shall have the following functions, powers and
duties:

xxxxxx

b) To screen, review and examine all motion pictures as herein defined, television programs,
including publicity materials such as advertisements, trailers and stills, whether such motion
pictures and publicity materials be for theatrical or non-theatrical distribution, for television
broadcast or for general viewing, imported or produced in the Philippines, and in the latter case,
whether they be for local viewing or for export.

c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease exhibition and/or television broadcast of
the motion pictures, television programs and publicity materials subject of the preceding paragraph,
which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard,
are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage
the commission of violence or of a wrong or crime, such as but not limited to:

xxx

d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation,
production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end and that no such pictures, programs
and materials as are determined by the BOARD to be objectionable in accordance with paragraph
(c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased,
exhibited and/or broadcast by television;
 x x x x x x.

Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the
power to review the television program The Inside Story. The task is not Herculean because
it merely resurrects this Court En Bancs ruling in Iglesia ni Cristo vs. Court of
Appeals.[26] There, the Iglesia ni Cristo sought exception from petitioners review power
contending that the term television programs under Sec. 3 (b) does not include religious
programs which are protected under Section 5, Article III of the Constitution.[27] This Court,
through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives petitioner the
power to screen, review and examine all television programs, emphasizing the phrase all
television programs, thus:

The law gives the Board the power to screen, review and examine all television programs. By
the clear terms of the law, the Board has the power to approve, delete x x x and/or prohibit the x x x
exhibition and/or television broadcast of x x x television programs x x x. The law also directs the
Board to apply contemporary Filipino cultural values as standard to determine those which are
objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous tendency to
encourage the commission of violence or of a wrong or crime.

Settled is the rule in statutory construction that where the law does not make any
exception, courts may not except something therefrom, unless there is compelling reason
apparent in the law to justify it.[28] Ubi lex non distinguit nec distinguere debemos. Thus,
when the law says all television programs, the word all covers all television programs,
whether religious, public affairs, news documentary, etc.[29] The principle assumes that the
legislative body made no qualification in the use of general word or expression.[30]
It then follows that since The Inside Story is a television program, it is within the
jurisdiction of the MTRCB over which it has power of review.
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,[31] Article III of the
Constitution. Albeit, respondents basis is not freedom of religion, as in Iglesia ni
Cristo,[32] 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, this 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 Cristos religious program from petitioners 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. Thus:

SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or entity to
exhibit or cause to be exhibited in any moviehouse, theatre, or public place or by television within
the Philippines any motion picture, television program or publicity material, including trailers, and
stills for lobby displays in connection with motion pictures, not duly authorized by the owner or his
assignee and passed by the BOARD; or to print or cause to be printed on any motion picture to be
exhibited in any theater or public place or by television a label or notice showing the same to have
been officially passed by the BOARD when the same has not been previously authorized, except
motion pictures, television programs or publicity material imprinted or exhibited by the
Philippine Government and/or its departments and agencies, and newsreels.

Still in a desperate attempt to be exempted, respondents contend that the The Inside
Story falls under the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define newsreels. Websters dictionary defines newsreels as
short motion picture films portraying or dealing with current events.[33]A glance at actual
samples of newsreels shows that they are mostly reenactments of events that had already
happened. Some concrete examples are those of Dziga Vertovs Russian Kino-
Pravda newsreel series (Kino-Pravda means literally film-truth, a term that was later
translated literally into the French cinema verite) and Frank Capras Why We Fight
series.[34] Apparently, newsreels are straight presentation of events. They are
depiction of actualities. Correspondingly, the MTRCB Rules and
Regulations implementing P. D. No. 1986 define newsreels as straight news reporting,
[35]

as distinguished from news analyses, commentaries and opinions. Talk shows on a

given issue are not considered newsreels.[36] Clearly, the The Inside Story cannot be
considered a newsreel. It is more of a public affairs program which is described as a variety
of news treatment; a cross between pure television news and news-related commentaries,
analysis and/or exchange of opinions.[37] Certainly, such kind of program is within
petitioners review power.
It bears stressing that the sole issue here is whether petitioner MTRCB has authority to
review The Inside Story. Clearly, we are not called upon to determine whether petitioner
violated Section 4, Article III (Bill of Rights) of the Constitution providing that no law shall be
passed abridging the freedom of speech, of oppression or the press. Petitioner did not
disapprove or ban the showing of the program. Neither did it cancel respondents permit.
Respondents were merely penalized for their failure to submit to petitioner The Inside
Story for its review and approval. Therefore, we need not resolve whether certain provisions
of P. D. No. 1986 and the MTRCB Rules and Regulations specified by respondents
contravene the Constitution.
Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7 and 11 of
P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are
unconstitutional. It is settled that no question involving the constitutionality or validity of a
law or governmental act may be heard and decided by the court unless there is compliance
with the legal requisites for judicial inquiry, namely: (1) that the question must be raised by
the proper party; (2) that there must be an actual case or controversy; (3) that the question
must be raised at the earliest possible opportunity; and, (4) that the decision on the
constitutional or legal question must be necessary to the determination of the case
itself.[38]
WHEREFORE, the instant petition is GRANTED. The assailed RTC Decision dated
November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The
Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against
respondents.
SO ORDERED.
RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN CIVIL LIBERTIES
UNION ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA

No. 96-511. Argued March 19, 1997-Decided June 26, 1997

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors
from harmful material on the Internet, an international network of interconnected computers that
enables millions of people to communicate with one another in "cyberspace" and to access vast
amounts of information from around the world. Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II)
criminalizes the "knowing" transmission of "obscene or indecent" messages to any recipient under 18
years of age. Section 223(d) prohibits 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." Mfirmative defenses
are provided for those who take "good faith, ... effective ... actions" to restrict access by minors to the
prohibited communications, § 223(e)(5)(A), and those who restrict such access by requiring certain
designated forms of age proof, such as a verified credit card or an adult identification number,
§223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of §§ 223(a)(I) and
223(d). After making extensive findings of fact, a three-judge District Court convened pursuant to the
Act entered a preliminary injunction against enforcement of both challenged provisions. The court's
judgment enjoins the Government from enforcing § 223(a)(I)(B)'s prohibitions insofar as they relate to
"indecent" communications, but expressly preserves the Government's right to investigate and
prosecute the obscenity or child pornography activities prohibited therein. The injunction against
enforcement of § 223(d) is unqualified because that section contains no separate reference to
obscenity or child pornography. The Government appealed to this Court under the Act's special
review provisions, arguing that the District Court erred in holding that the CDA violated both the First
Amendment because it is overbroad and the Fifth Amendment because it is vague.

Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the
freedom of speech" protected by the First Amendment. Pp. 864-885.

845

(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the
judgment should be affirmed without reaching the Fifth Amendment issue. P. 864.

(b) A close look at the precedents relied on by the GovernmentGinsberg v. New York, 390 U. S.
629; FCC v. Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime Theatres, Inc., 475 U. S. 41-
raises, rather than relieves, doubts about the CDA's constitutionality. The CDA differs from the
various laws and orders upheld in those cases in many ways, including that it does not allow parents
to consent to their children's use of restricted materials; is not limited to commercial transactions; fails
to provide any definition of "indecent" and omits any requirement that "patently offensive" material
lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor
bases them on an evaluation by an agency familiar with the medium's unique characteristics; is
punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot
be properly analyzed as a form of time, place, and manner regulation because it is a content-based
blanket restriction on speech. These precedents, then, do not require the Court to uphold the CDA
and are fully consistent with the application of the most stringent review of its provisions. Pp. 864-868.

(c) The special factors recognized in some of the Court's cases as justifying regulation of the
broadcast media-the history of extensive Government regulation of broadcasting, see, e. g., Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367, 399-400; the scarcity of available frequencies at its
inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638; and its
"invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128-are not present
in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment
scrutiny that should be applied to the Internet. Pp.868-870.

(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many
ambiguities concerning the scope of its coverage render it problematic for First Amendment
purposes. For instance, its use of the undefined terms "indecent" and "patently offensive" will provoke
uncertainty among speakers about how the two standards relate to each other and just what they
mean. The vagueness of such a content-based regulation, see, e. g., Gentile v. State Bar of
Nev., 501 U. S. 1030, coupled with its increased deterrent effect as a criminal statute, see, e. g.,
Dombrowski v. Pfister, 380 U. S. 479, raise special First Amendment concerns because of its obvious
chilling effect on free speech. Contrary to the Government's argument, the CDA is not saved from
vagueness by the fact that its "patently offensive" stand-

846

ard repeats the second part of the three-prong obscenity test set forth in Miller v. California, 413 U. S.
15,24. The second Miller prong reduces the inherent vagueness of its own "patently offensive" term
by requiring that the proscribed material be "specifically defined by the applicable state law." In
addition, the Miller definition applies only to "sexual conduct," whereas the CDA prohibition extends
also to "excretory activities" and "organs" of both a sexual and excretory nature. Each of Miller's other
two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a
definition including three limitations is not vague, it does not follow that one of those limitations,
standing alone, is not vague. The CDA's vagueness undermines the likelihood that it has been
carefully tailored to the congressional goal of protecting minors from potentially harmful materials.
Pp.870-874.

(e) The CDA lacks the precision that the First Amendment requires when a statute regulates the
content of speech. Although the Government has an interest in protecting children from potentially
harmful materials, see, e. g., Ginsberg, 390 U. S., at 639, the CDA pursues that interest by
suppressing a large amount of speech that adults have a constitutional right to send and receive,
see, e. g., Sable, 492 U. S., at 126. Its breadth is wholly unprecedented. The CDA's burden on adult
speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the
Act's legitimate purposes. See, e. g., id., at 126. The Government has not proved otherwise. On the
other hand, the District Court found that currently available user-based software suggests that a
reasonably effective method by which parents can prevent their children from accessing material
which the parents believe is inappropriate will soon be widely available. Moreover, the arguments in
this Court referred to possible alternatives such as requiring that indecent material be "tagged" to
facilitate parental control, making exceptions for messages with artistic or educational value,
providing some tolerance for parental choice, and regulating some portions of the Internet differently
from others. Particularly in the light of the absence of any detailed congressional findings, or even
hearings addressing the CDA's special problems, the Court is persuaded that the CDA is not narrowly
tailored. Pp.874-879.

(f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are
rejected. First, the contention that the Act is constitutional because it leaves open ample "alternative
channels" of communication is unpersuasive because the CDA regulates speech on the basis of its
content, so that a "time, place, and manner" analysis is inapplicable. See, e. g., Consolidated Edison
Co. of N. Y. v.

847

Public Servo Comm'n of N. Y., 447 U. S. 530, 536. Second, the assertion that the CDA's "knowledge"
and "specific person" requirements significantly restrict its permissible application to communications
to persons the sender knows to be under 18 is untenable, given that most Internet forums are open to
all comers and that even the strongest reading of the "specific person" requirement would confer
broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech.
Finally, there is no textual support for the submission that material having scientific, educational, or
other redeeming social value will necessarily fall outside the CDA's prohibitions. Pp. 879-881.

(g) The § 223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA.
The Government's argument that transmitters may take protective "good faith actio[n]" by "tagging"
their indecent communications in a way that would indicate their contents, thus permitting recipients
to block their reception with appropriate software, is illusory, given the requirement that such action
be "effective": The proposed screening software does not currently exist, but, even if it did, there
would be no way of knowing whether a potential recipient would actually block the encoded material.
The Government also failed to prove that § 223(b)(5)'s verification defense would significantly reduce
the CDA's heavy burden on adult speech. Although such verification is actually being used by some
commercial providers of sexually explicit material, the District Court's findings indicate that it is not
economically feasible for most noncommercial speakers. Pp.881-882.

(h) The Government's argument that this Court should preserve the CDA's constitutionality by
honoring its severability clause, § 608, and by construing nonseverable terms narrowly, is acceptable
in only one respect. Because obscene speech may be banned totally, see Miller, 413 U. S., at 18,
and § 223(a)'s restriction of "obscene" material enjoys a textual manifestation separate from that for
"indecent" material, the Court can sever the term "or indecent" from the statute, leaving the rest of §
223(a) standing. Pp. 882-885.

(i) The Government's argument that its "significant" interest in fostering the Internet's growth provides
an independent basis for upholding the CDA's constitutionality is singularly unpersuasive. The
dramatic expansion of this new forum contradicts the factual basis underlying this contention: that the
unregulated availability of "indecent" and "patently offensive" material is driving people away from the
Internet. P. 885.

929 F. Supp. 824, affirmed.

848

STEVENS, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, SOUTER, THOMAS,
GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment in
part and dissenting in part, in which REHNQUIST, C. J., joined, post, p. 886.

Deputy Solicitor General Waxman argued the cause for appellants. On the briefs were Acting Solicitor
General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Irving L.
Gornstein, Barbara

Bruce J. Ennis, Jr., argued the cause for appellees. With him on the brief for appellees American
Library Association et al. were Ann M. Kappler, Paul M. Smith, Donald B. Verrilli, Jr., John B. Morris,
Jr., Jill Lesser, Richard M. Schmidt, Jr., Bruce Rich, James Wheaton, Jerry Berman, Elliot M.
Mincberg, Lawrence S. Ottinger, Andrew J. Schwartzman, Ronald L. Plesser, James J. Halpert,
Michael Traynor, Robert P. Taylor, Rene Milam, Marc Jacobson, Bruce W Sanford, and Henry S.
Hoberman. Christopher A. Hansen, Steven R. Shapiro, Marjorie Heins, Catherine Weiss, Stefan
Presser, David L. Sobel, Marc Rotenberg, and Roger Evans filed a brief for appellees American Civil
Liberties Union Foundation et al. *

*Briefs of amici curiae urging reversal were filed for Member of Congress Dan Coats et al. by Bruce
A. Taylor and Cathleen A. Cleaver; for Enough is Enough et al. by Ronald D. Maines; for the Family
Life Project of the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson,
Sr., Colby M. May, Keith A. Fournier, John G. Stepanovich, and Thomas P. Monaghan; for Morality in
Media, Inc., by Paul J. McGeady and Robert W Peters; and for James J. Clancy by Mr. Clancy, pro
se, and Carol A. Clancy.

Briefs of amici curiae urging affirmance were filed for the American Association of University
Professors et al. by James D. Crawford, Carl A. Solano, Theresa E. Loscalzo, Jennifer DuFault
James, and Joseph T. Lukens; for Apollomedia Corporation et al. by William Bennett Turner; for the
Association of National Advertisers, Inc., by P. Cameron DeVore, John J. Walsh, Steven G. Brody,
Mary Elizabeth Taylor, Gilbert H. Weil, and Sol Schildhause; for the Chamber of Commerce of the
United States by Clifford M. Sloan, Bert W Rein, Robert J. Butler, Stephen A. Bokat, and

849

JUSTICE STEVENS delivered the opinion of the Court.

At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent"
and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and
importance of the congressional goal of protecting children from harmful materials, we agree with the
three-judge District Court that the statute abridges "the freedom of speech" protected by the First
Amendment.1

The District Court made extensive findings of fact, most of which were based on a detailed stipulation
prepared by the parties. See 929 F. Supp. 824, 830-849 (ED Pa. 1996).2 The findings describe the
character and the dimensions of the Internet, the availability of sexually explicit material in that
medium, and the problems confronting age verification for recipients of Internet communications.
Because those findings provide the underpinnings for the legal issues, we begin with a summary of
the undisputed facts.

The Internet

The Internet is an international network of interconnected computers. It is the outgrowth of what

began in 1969 as a

Robin S. Conrad; for Feminists for Free Expression by Barbara M cDowell; for the National
Association of Broadcasters et al. by Floyd Abrams, Jack N. Goodman, and Susanna M. Lowy; for
Playboy Enterprises, Inc., by Robert Corn-Revere and Burton Joseph; for the Reporters Committee
for Freedom of the Press et al. by Jane E. Kirtley and S. Mark Goodman; for Site Specific, Inc., et al.
by Jamie B. W Stecher; and for Volunteer Lawyers for the Arts et al. by Daniel H. Weiner.

Raphael Winick filed a brief of amicus curiae for the Speech Communication Association.

1 "Congress shall make no law ... abridging the freedom of speech."

2 The Court made 410 findings, including 356 paragraphs of the parties' stipulation and 54 findings
based on evidence received in open court. See 929 F. Supp., at 830, n. 9, 842, n. 15.

850

military program called "ARPANET," 3 which was designed to enable computers operated by the
military, defense contractors, and universities conducting defense-related research to communicate
with one another by redundant channels even if some portions of the network were damaged in a
war. While the ARPANET no longer exists, it provided an example for the development of a number
of civilian networks that, eventually linking with each other, now enable tens of millions of people to
communicate with one another and to access vast amounts of information from around the world. The
Internet is "a unique and wholly new medium of worldwide human communication."4

The Internet has experienced "extraordinary growth." 5 The number of "host" computers-those that
store information and relay communications-increased from about 300 in 1981 to approximately
9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United
States. About 40 million people used the Internet at the time of trial, a number that is expected to
mushroom to 200 million by 1999.

Individuals can obtain access to the Internet from many different sources, generally hosts themselves
or entities with a host affiliation. Most colleges and universities provide access for their students and
faculty; many corporations provide their employees with access through an office network; many
communities and local libraries provide free access; and an increasing number of storefront
"computer coffee shops" provide access for a small hourly fee. Several major national "online
services" such as America Online, CompuServe, the Microsoft Network, and Prodigy offer access to
their own extensive proprietary networks as well as a link to the much larger resources of the Internet.
These com-

3 An acronym for the network developed by the Advanced Research Project Agency.
4Id., at 844 (finding 81). 5Id., at 831 (finding 3).

851

mercial online services had almost 12 million individual subscribers at the time of trial.

Anyone with access to the Internet may take advantage of a wide variety of communication and
information retrieval methods. These methods are constantly evolving and difficult to categorize
precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail),
automatic mailing list services ("mail exploders," sometimes referred to as "listservs"), "newsgroups,"
"chat rooms," and the "World Wide Web." All of these methods can be used to transmit text; most can
transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique
medium-known to its users as "cyberspace" -located in no particular geographical location but
available to anyone, anywhere in the world, with access to the Internet.

E-mail enables an individual to send an electronic message-generally akin to a note or letter-to

another individual or to a group of addressees. The message is generally stored electronically,
sometimes waiting for the recipient to check her "mailbox" and sometimes making its receipt known
through some type of prompt. A mail exploder is a sort of e-mail group. Subscribers can send
messages to a common e-mail address, which then forwards the message to the group's other
subscribers. Newsgroups also serve groups of regular participants, but these po stings may be read
by others as well. There are thousands of such groups, each serving to foster an exchange of
information or opinion on a particular topic running the gamut from, say, the music of Wagner to
Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages are posted
every day. In most newsgroups, po stings are automatically purged at regular intervals. In addition to
posting a message that can be read later, two or more individuals wishing to communicate more
immediately can enter a chat room to engage in real-time dialogue-in other words, by typing
messages to one another that appear almost immediately on

852

the others' computer screens. The District Court found that at any given time "tens of thousands of
users are engaging in conversations on a huge range of subjects." 6 It is "no exaggeration to
conclude that the content on the Internet is as diverse as human thought."7

The best known category of communication over the Internet is the World Wide Web, which allows
users to search for and retrieve information stored in remote computers, as well as, in some cases, to
communicate back to designated sites. In concrete terms, the Web consists of a vast number of
documents stored in different computers all over the world. Some of these documents are simply files
containing information. However, more elaborate documents, commonly known as Web "pages," are
also prevalent. Each has its own address-"rather like a telephone number."s Web pages frequently
contain information and sometimes allow the viewer to communicate with the page's (or "site's")
author. They generally also contain "links" to other documents created by that site's author or to other
(generally) related sites. Typically, the links are either blue or underlined text-sometimes images.
Navigating the Web is relatively straightforward. A user may either type the address of a known page
or enter one or more keywords into a commercial "search engine" in an effort to locate sites on a
subject of interest. A particular Web page may contain the information sought by the "surfer," or,
through its links, it may be an avenue to other documents located anywhere on the Internet. Users
generally explore a given Web page, or move to another, by clicking a computer "mouse" on one of
the page's icons or links. Access to most Web pages is freely available, but some allow access only
to those who have purchased the right from a

6Id., at 835 (finding 27). 7Id., at 842 (finding 74). 8Id., at 836 (finding 36).

853

commercial provider. The Web is thus comparable, from the readers' viewpoint, to both a vast library
including millions of readily available and indexed publications and a sprawling mall offering goods
and services.

From the publishers' point of view, it constitutes a vast platform from which to address and hear from
a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or
organization with a computer connected to the Internet can "publish" information. Publishers include
government agencies, educational institutions, commercial entities, advocacy groups, and
individuals.9 Publishers may either make their material available to the entire pool of Internet users,
or confine access to a selected group, such as those willing to pay for the privilege. "No single
organization controls any membership in the Web, nor is there any single centralized point from which
individual Web sites or services can be blocked from the Web." 10

Sexually Explicit Material

Sexually explicit material on the Internet includes text, pictures, and chat and "extends from the
modestly titillating to the hardest-core." 11 These files are created, named, and posted in the same
manner as material that is not sexually explicit, and may be accessed either deliberately or
unintentionally during the course of an imprecise search. "Once a provider posts its content on the
Internet, it cannot prevent that content from entering any community." 12 Thus, for example,

9 "Web publishing is simple enough that thousands of individual users and small community
organizations are using the Web to publish their own personal 'home pages,' the equivalent of
individualized newsletters about that person or organization, which are available to everyone on the
Web." Id., at 837 (finding 42).

l°Id., at 838 (finding 46). 11 Id., at 844 (finding 82). 12 Ibid. (finding 86).

854

"when the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston
and Robert Mapplethorpe to announce that its new exhibit will travel to Baltimore and New York City,
those images are available not only in Los Angeles, Baltimore, and New York City, but also in
Cincinnati, Mobile, or Beijing-wherever Internet users live. Similarly, the safer sex instructions that
Critical Path posts to its Web site, written in street language so that the teenage receiver can
understand them, are available not just in Philadelphia, but also in Provo and Prague." 13

Some of the communications over the Internet that originate in foreign countries are also sexually
explicit.14

Though such material is widely available, users seldom encounter such content accidentally. "A
document's title or a description of the document will usually appear before the document itself ... and
in many cases the user will receive detailed information about a site's content before he or she need
take the step to access the document. Almost all sexually explicit images are preceded by warnings
as to the content." 15 For that reason, the "odds are slim" that a user would enter a sexually explicit
site by accident.16 Unlike communications received by radio or television, "the receipt of information
on the Internet requires a series of affirmative steps more deliberate and directed than merely turning
a dial. A child requires some sophistication and some ability to read to retrieve material and thereby
to use the Internet unattended." 17

Systems have been developed to help parents control the material that may be available on a home
computer with In-

13 Ibid. (finding 85).

14Id., at 848 (finding 117). 15Id., at 844-845 (finding 88). 16 Ibid.

17Id., at 845 (finding 89).

855

ternet access. A system may either limit a computer's access to an approved list of sources that have
been identified as containing no adult material, it may block designated inappropriate sites, or it may
attempt to block messages containing identifiable objectionable features. "Although parental control
software currently can screen for certain suggestive words or for known sexually explicit sites, it
cannot now screen for sexually explicit images."18 Nevertheless, the evidence indicates that "a
reasonably effective method by which parents can prevent their children from accessing sexually
explicit and other material which parents may believe is inappropriate for their children will soon be
widely available." 19

Age Verification

The problem of age verification differs for different uses of the Internet. The District Court
categorically determined that there "is no effective way to determine the identity or the age of a user
who is accessing material through e-mail, mail exploders, newsgroups or chat rooms." 20 The
Government offered no evidence that there was a reliable way to screen recipients and participants in
such forums for

18Id., at 842 (finding 72). 19 Ibid. (finding 73).

2°Id., at 845 (finding 90): "An e-mail address provides no authoritative information about the
addressee, who may use an e-mail .alias. or an anonymous remailer. There is also no universal or
reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such
listing would be or rapidly become incomplete. For these reasons, there is no reliable way in many
instances for a sender to know if the e-mail recipient is an adult or a minor. The difficulty of e-mail age
verification is compounded for mail exploders such as listservs, which automatically send information
to all e-mail addresses on a sender's list. Government expert Dr. Olsen agreed that no current
technology could give a speaker assurance that only adults were listed in a particular mail exploder's
mailing list."

856

age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and
chat rooms containing discussions of art, politics, or other subjects that potentially elicit "indecent" or
"patently offensive" contributions, it would not be possible to block their access to that material and
"still allow them access to the remaining content, even if the overwhelming majority of that content
was not indecent." 21

Technology exists by which an operator of a Web site may condition access on the verification of
requested information such as a credit card number or an adult password. Credit card verification is
only feasible, however, either in connection with a commercial transaction in which the card is used,
or by payment to a verification agency. U sing credit card possession as a surrogate for proof of age
would impose costs on noncommercial Web sites that would require many of them to shut down. For
that reason, at the time of the trial, credit card verification was "effectively unavailable to a substantial
number of Internet content providers." 929 F. Supp., at 846 (finding 102). Moreover, the imposition of
such a requirement "would completely bar adults who do not have a credit card and lack the
resources to obtain one from accessing any blocked material." 22

Commercial pornographic sites that charge their users for access have assigned them passwords as
a method of age verification. The record does not contain any evidence concerning the reliability of
these technologies. Even if passwords are effective for commercial purveyors of indecent material,
the District Court found that an adult password requirement would impose significant burdens on
noncommercial sites, both because they would discourage users from accessing their sites and
because the cost of creating and

21 Ibid. (finding 93).

22Id., at 846 (finding 102).

857

maintaining such screening systems would be "beyond their reach." 23

In sum, the District Court found:

"Even if credit card verification or adult password verification were implemented, the Government
presented no testimony as to how such systems could ensure that the user of the password or credit
card is in fact over 18. The burdens imposed by credit card verification and adult password
verification systems make them effectively unavailable to a substantial number of Internet content
providers." Ibid. (finding 107).

II

The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, was an unusually important
legislative enactment. As stated on the first of its 103 pages, its primary purpose was to reduce
regulation and encourage "the rapid deployment of new telecommunications technologies." The major
components of the statute have nothing to do with the Internet; they were designed to promote
competition in the local telephone service market, the multichannel video mar-

23Id., at 847 (findings 104-106):

"At least some, if not almost all, non-commercial organizations, such as the ACLU, Stop Prisoner
Rape or Critical Path AIDS Project, regard charging listeners to access their speech as contrary to
their goals of making their materials available to a wide audience free of charge.

"There is evidence suggesting that adult users, particularly casual Web browsers, would be
discouraged from retrieving information that required use of a credit card or password. Andrew Anker
testified that HotWired has received many complaints from its members about HotWired's registration
system, which requires only that a member supply a name, e-mail address and self-created
password. There is concern by commercial content providers that age verification requirements would
decrease advertising and revenue because advertisers depend on a demonstration that the sites are
widely available and frequently visited."

858

ket, and the market for over-the-air broadcasting. The Act includes seven Titles, six of which are the
product of extensive committee hearings and the subject of discussion in Reports prepared by
Committees of the Senate and the House of Representatives. By contrast, Title V-known as the
"Communications Decency Act of 1996" (CDA)-contains provisions that were either added in
executive committee after the hearings were concluded or as amendments offered during floor
debate on the legislation. An amendment offered in the Senate was the source of the two statutory
provisions challenged in this case.24 They are informally de-

24 See Exon Amendment No. 1268, 141 Congo Rec. 15536 (1995). See also id., at 15505. This
amendment, as revised, became § 502 of the Telecommunications Act of 1996, 110 Stat. 133, 47 U.
S. C. §§ 223(a)-(e) (1994 ed., Supp. II). Some Members of the House of Representatives opposed
the Exon Amendment because they thought it "possible for our parents now to child-proof the family
computer with these products available in the private sector." They also thought the Senate's
approach would "involve the Federal Government spending vast sums of money trying to define
elusive terms that are going to lead to a flood of legal challenges while our kids are unprotected."
These Members offered an amendment intended as a substitute for the Exon Amendment, but
instead enacted as an additional section of the Act entitled "Online Family Empowerment." See 110
Stat. 137, 47 U. S. C. §230 (1994 ed., Supp. II); 141 Congo Rec. 27881 (1995). No hearings were
held on the provisions that became law. See S. Rep. No. 104-23, p. 9 (1995). After the Senate
adopted the Exon Amendment, however, its Judiciary Committee did conduct a one-day hearing on
"Cyberporn and Children." In his opening statement at that hearing, Senator Leahy observed:

"It really struck me in your opening statement when you mentioned, Mr. Chairman, that it is the first
ever hearing, and you are absolutely right. And yet we had a major debate on the floor, passed
legislation overwhelmingly on a subject involving the Internet, legislation that could dramatically
change-some would say even wreak havoc-on the Internet. The Senate went in willy-nilly, passed
legislation, and never once had a hearing, never once had a discussion other than an hour or so on
the floor." Cyberporn and Children: The Scope of the Problem, The State of the Technology, and the
Need for Congressional Action, Hearing on S. 892 before the Senate Committee on the Judiciary,
104th Cong., 1st Sess., 7-8 (1995).

859

scribed as the "indecent transmission" provision and the "patently offensive display" provision.25

The first, 47 U. s. C. § 223(a) (1994 ed., Supp. II), prohibits the knowing transmission of obscene or
indecent messages to any recipient under 18 years of age. It provides in pertinent part:

"(a) Whoever-

"(1) in interstate or foreign communications-

"(B) by means of a telecommunications device knowingly-

"(i) makes, creates, or solicits, and "(ii) initiates the transmission of,

"any comment, request, suggestion, proposal, image, or other communication which is obscene or
indecent, knowing that the recipient of the communication is under 18 years of age, regardless of
whether the maker of such communication placed the call or initiated the communication;

"(2) knowingly permits any telecommunications facility under his control to be used for any activity
prohibited by paragraph (1) with the intent that it be used for such activity,

"shall be fined under Title 18, or imprisoned not more than two years, or both."

The second provision, § 223(d), prohibits the knowing sending or displaying of patently offensive
messages in a manner that is available to a person under 18 years of age. It provides:

25 Although the Government and the dissent break § 223(d)(1) into two separate "patently offensive"
and "display" provisions, we follow the convention of both parties below, as well as the District Court's
order and opinion, in describing § 223(d)(1) as one provision.

860
"(d) Whoever-

"(1) in interstate or foreign communications knowingly-

"(A) uses an interactive computer service to send to a specific person or persons under 18 years of
age, or

"(B) uses any interactive computer service to display in a manner available to a person under 18
years of age,

"any comment, request, suggestion, proposal, image, or other communication that, in context, depicts
or describes, in terms patently offensive as measured by contemporary community standards, sexual
or excretory activities or organs, regardless of whether the user of such service placed the call or
initiated the communication; or

"(2) knowingly permits any telecommunications facility under such person's control to be used for an
activity prohibited by paragraph (1) with the intent that it be used for such activity,

"shall be fined under Title 18, or imprisoned not more than two years, or both."

The breadth of these prohibitions is qualified by two affirmative defenses. See § 223(e)(5).26 One
covers those who take "good faith, reasonable, effective, and appropriate actions" to restrict access
by minors to the prohibited communications. § 223(e)(5)(A). The other covers those who

26 In full, § 223(e)(5) provides:

"(5) It is a defense to a prosecution under subsection (a)(l)(B) or (d) of this section, or under
subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection
(a)(l)(B) of this section that a person-

"(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances
to restrict or prevent access by minors to a communication specified in such subsections, which may
involve any appropriate measures to restrict minors from such communications, including any method
which is feasible under available technology; or

"(B) has restricted access to such communication by requiring use of a verified credit card, debit
account, adult access code, or adult personal identification number."

861

restrict access to covered material by requiring certain designated forms of age proof, such as a
verified credit card or an adult identification number or code. § 223(e)(5)(B).

III

On February 8, 1996, immediately after the President signed the statute, 20 plaintiffs 27 filed suit
against the Attorney General of the United States and the Department of Justice challenging the
constitutionality of §§ 223(a)(1) and 223(d). A week later, based on his conclusion that the term
"indecent" was too vague to provide the basis for a criminal prosecution, District Judge Buckwalter
entered a temporary restraining order against enforcement of § 223(a)(1)(B)(ii) insofar as it applies to
indecent communications. A second suit was then filed by 27 additional plaintiffs,2S the two cases

27 American Civil Liberties Union; Human Rights Watch; Electronic Privacy Information Center;
Electronic Frontier Foundation; Journalism Education Association; Computer Professionals for Social
Responsibility; N ational Writers Union; Clarinet Communications Corp.; Institute for Global
Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes;
Queer Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh
dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex
Page; Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America,
Inc.

28 American Library Association; America Online, Inc.; American Booksellers Association, Inc.;
American Booksellers Foundation for Free Expression; American Society of Newspaper Editors;
Apple Computer, Inc.; Association of American Publishers, Inc.; Association of Publishers, Editors
and Writers; Citizens Internet Empowerment Coalition; Commercial Internet Exchange Association;
CompuServe Incorporated; Families Against Internet Censorship; Freedom to Read Foundation, Inc.;
Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital Software
Association; Interactive Services Association; Magazine Publishers of America; Microsoft
Corporation; The Microsoft Network, L. L. C.; National Press Photographers Association; Netcom On-
Line Communication Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services
Company; Society of Professional Journalists; and Wired Ventures, Ltd.

862

were consolidated, and a three-judge District Court was convened pursuant to § 561 of the CDA.29
After an evidentiary hearing, that court entered a preliminary injunction against enforcement of both of
the challenged provisions. Each of the three judges wrote a separate opinion, but their judgment was
unanimous.

Chief Judge Sloviter doubted the strength of the Government's interest in regulating "the vast range
of online material covered or potentially covered by the CDA," but acknowledged that the interest was
"compelling" with respect to some of that material. 929 F. Supp., at 853. She concluded, nonetheless,
that the statute "sweeps more broadly than necessary and thereby chills the expression of adults"
and that the terms "patently offensive" and "indecent" were "inherently vague." Id., at 854. She also
determined that the affirmative defenses were not "technologically or economically feasible for most
providers," specifically considering and rejecting an argument that providers could avoid liability by
"tagging" their material in a manner that would allow potential readers to screen out unwanted
transmissions. Id., at 856. Chief Judge Sloviter also rejected the Government's suggestion that the
scope of the statute could be narrowed by construing it to apply only to commercial
pornographers. Id., at 854-855.

Judge Buckwalter concluded that the word "indecent" in § 223(a)(1)(B) and the terms "patently
offensive" and "in context" in § 223(d)(1) were so vague that criminal enforcement of either section
would violate the "fundamental constitutional principle" of "simple fairness," id., at 861, and the
specific protections of the First and Fifth Amendments, id., at 858. He found no statutory basis for the
Government's argument that the challenged provisions would be applied only to "pornographic"
materials, noting that, unlike obscenity, "indecency has not been defined to exclude works of serious
literary, artistic, political or scientific value." Id., at 863.

29110 Stat. 142-143, note following 47 U. S. C. §223 (1994 ed., Supp. II).

863

Moreover, the Government's claim that the work must be considered patently offensive "in context"
was itself vague because the relevant context might "refer to, among other things, the nature of the
communication as a whole, the time of day it was conveyed, the medium used, the identity of the
speaker, or whether or not it is accompanied by appropriate warnings." Id., at 864. He believed that
the unique nature of the Internet aggravated the vagueness of the statute. Id., at 865, n. 9.

Judge Dalzell's review of "the special attributes of Internet communication" disclosed by the evidence
convinced him that the First Amendment denies Congress the power to regulate the content of
protected speech on the Internet. Id., at 867. His opinion explained at length why he believed the
CDA would abridge significant protected speech, particularly by noncommercial speakers, while
"[p]erversely, commercial pornographers would remain relatively unaffected." Id., at 879. He
construed our cases as requiring a "medium-specific" approach to the analysis of the regulation of
mass communication, id., at 873, and concluded that the Internet-as "the most participatory form of
mass speech yet developed," id., at 883-is entitled to "the highest protection from governmental
intrusion," ibid.30

30 See also 929 F. Supp., at 877: "Four related characteristics of Internet communication have a
transcendent importance to our shared holding that the CDA is unconstitutional on its face. We
explain these characteristics in our Findings of fact above, and I only rehearse them briefly here.
First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for
both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is
available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in
the medium, and even creates a relative parity among speakers." According to Judge Dalzell, these
characteristics and the rest of the District Court's findings "lead to the conclusion that Congress may
not regulate indecency on the Internet at all." Ibid. Because appellees do not press this argument
before this Court, we do not consider it. Appellees also do not dispute that the Government generally
has a compelling interest in protecting minors from "indecent" and "patently offensive" speech.

864

The judgment of the District Court enjoins the Government from enforcing the prohibitions in §
223(a)(1)(B) insofar as they relate to "indecent" communications, but expressly preserves the
Government's right to investigate and prosecute the obscenity or child pornography activities
prohibited therein. The injunction against enforcement of §§ 223(d)(1) and (2) is unqualified because
those provisions contain no separate reference to obscenity or child pornography.

The Government appealed under the CDA's special review provisions, § 561, 110 Stat. 142-143, and
we noted probable jurisdiction, see 519 U. S. 1025 (1996). In its appeal, the Government argues that
the District Court erred in holding that the CDA violated both the First Amendment because it is
overbroad and the Fifth Amendment because it is vague. While we discuss the vagueness of the
CDA because of its relevance to the First Amendment overbreadth inquiry, we conclude that the
judgment should be affirmed without reaching the Fifth Amendment issue. We begin our analysis by
reviewing the principal authorities on which the Government relies. Then, after describing the
overbreadth of the CDA, we consider the Government's specific contentions, including its submission
that we save portions of the statute either by severance or by fashioning judicial limitations on the
scope of its coverage.

IV

In arguing for reversal, the Government contends that the CDA is plainly constitutional under three of
our prior decisions: (1) Ginsberg v. New York, 390 U. S. 629 (1968); (2) FCC v. Pacifica
Foundation, 438 U. S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). A
close look at these cases, however, raises-rather than relievesdoubts concerning the constitutionality
of the CDA.

In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors
under 17 years of age material that was considered obscene as to them even if not obscene as to
adults. We rejected the defendant's broad

865

submission that "the scope of the constitutional freedom of expression secured to a citizen to read or
see material concerned with sex cannot be made to depend on whether the citizen is an adult or a
minor." 390 U. S., at 636. In rejecting that contention, we relied not only on the State's independent
interest in the well-being of its youth, but also on our consistent recognition of the principle that "the
parents' claim to authority in their own household to direct the rearing of their children is basic in the
structure of our society." 31

In four important respects, the statute upheld in Ginsberg was narrower than the CDA. First, we noted
in Ginsberg that "the prohibition against sales to minors does not bar parents who so desire from
purchasing the magazines for their children." Id., at 639. Under the CDA, by contrast, neither the
parents' consent-nor even their participationin the communication would avoid the application of the
statute.32 Second, the New York statute applied only to commercial transactions, id., at 647, whereas
the CDA contains no such limitation. Third, the New York statute cabined its definition of material that
is harmful to minors with the requirement that it be "utterly without redeeming social importance for
minors." Id., at 646. The CDA fails to provide us with any definition of the term "indecent" as used in §
223(a)(1) and, importantly, omits any requirement that the "patently offensive" material covered by §
223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a
minor as a person under the age

31390 U. S., at 639. We quoted from Prince v. Massachusetts, 321 U. S. 158, 166 (1944): "It is
cardinal with us that the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can neither supply nor
hinder."
32 Given the likelihood that many e-mail transmissions from an adult to a minor are conversations
between family members, it is therefore incorrect for the partial dissent to suggest that the provisions
of the CDA, even in this narrow area, "are no different from the law we sustained in Ginsberg."
Post, at 892.

866

of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those
nearest majority.

In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that
the broadcast of a recording of a 12-minute monologue entitled "Filthy Words" that had previously
been delivered to a live audience "could have been the subject of administrative sanctions." 438 U.
S., at 730 (internal quotation marks omitted). The Commission had found that the repetitive use of
certain words referring to excretory or sexual activities or organs "in an afternoon broadcast when
children are in the audience was patently offensive" and concluded that the monologue was indecent
"as broadcast." Id., at 735. The respondent did not quarrel with the finding that the afternoon
broadcast was patently offensive, but contended that it was not "indecent" within the meaning of the
relevant statutes because it contained no prurient appeal. After rejecting respondent's statutory
arguments, we confronted its two constitutional arguments: (1) that the Commission's construction of
its authority to ban indecent speech was so broad that its order had to be set aside even if the
broadcast at issue was unprotected; and (2) that since the recording was not obscene, the First
Amendment forbade any abridgment of the right to broadcast it on the radio.

In the portion of the lead opinion not joined by Justices Powell and Blackmun, the plurality stated that
the First Amendment does not prohibit all governmental regulation that depends on the content of
speech. Id., at 742-743. Accordingly, the availability of constitutional protection for a vulgar and
offensive monologue that was not obscene depended on the context of the broadcast. Id., at 744-748.
Relying on the premise that "of all forms of communication" broadcasting had received the most
limited First Amendment protection, id., at 748-749, the Court concluded that the ease with which
children may obtain access to broadcasts,

867

"coupled with the concerns recognized in Ginsberg," justified special treatment of indecent
broadcasting. Id., at 749-750.

As with the New York statute at issue in Ginsberg, there are significant differences between the order
upheld in Pacifica and the CDA. First, the order in Pacifica, issued by an agency that had been
regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic
departure from traditional program content in order to designate when-rather than whether-it would be
permissible to air such a program in that particular medium. The CDA's broad categorical prohibitions
are not limited to particular times and are not dependent on any evaluation by an agency familiar with
the unique characteristics of the Internet. Second, unlike the CDA, the Commission's declaratory
order was not punitive; we expressly refused to decide whether the indecent broadcast "would justify
a criminal prosecution." 438 U. S., at 750. Finally, the Commission's order applied to a medium which
as a matter of history had "received the most limited First Amendment protection," id., at 748, in large
part because warnings could not adequately protect the listener from unexpected program content.
The Internet, however, has no comparable history. Moreover, the District Court found that the risk of
encountering indecent material by accident is remote because a series of affirmative steps is required
to access specific material.

In Renton, we upheld a zoning ordinance that kept adult movie theaters out of residential
neighborhoods. The ordinance was aimed, not at the content of the films shown in the theaters, but
rather at the "secondary effects" -such as crime and deteriorating property values-that these theaters
fostered: "'It is thee] secondary effect which these zoning ordinances attempt to avoid, not the
dissemination of "offensive" speech.''' 475 U. S., at 49 (quoting Young v. American Mini Theatres,
Inc., 427 U. S. 50, 71, n. 34 (1976)). According to the Government, the CDA is constitutional be-

868

cause it constitutes a sort of "cyberzoning" on the Internet. But the CDA applies broadly to the entire
universe of cyberspace. And the purpose of the CDA is to protect children from the primary effects of
"indecent" and "patently offensive" speech, rather than any "secondary" effect of such speech. Thus,
the CDA is a content-based blanket restriction on speech, and, as such, cannot be "properly analyzed
as a form of time, place, and manner regulation." 475 U. S., at 46. See also Boos v. Barry, 485 U. S.
312, 321 (1988) ("Regulations that focus on the direct impact of speech on its audience" are not
properly analyzed under Renton); Forsyth County v. Nationalist Movement, 505 U. S. 123, 134 (1992)
("Listeners' reaction to speech is not a content-neutral basis for regulation").

These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the
application of the most stringent review of its provisions.

In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that "[e]ach
medium of expression ... may present its own problems." Thus, some of our cases have recognized
special justifications for regulation of the broadcast media that are not applicable to other speakers,
see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S.
726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the
broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies
at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994);
and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).

Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have
the vast democratic forums of the Internet been subject to the type

869
of government supervision and regulation that has attended the broadcast industry.33 Moreover, the
Internet is not as "invasive" as radio or television. The District Court specifically found that
"[c]ommunications over the Internet do not 'invade' an individual's home or appear on one's computer
screen unbidden. Users seldom encounter content 'by accident.' " 929 F. Supp., at 844 (finding 88). It
also found that "[a]lmost all sexually explicit images are preceded by warnings as to the content," and
cited testimony that" 'odds are slim' that a user would come across a sexually explicit sight by
accident." Ibid.

We distinguished Pacifica in Sable, 492 U. S., at 128, on just this basis. In Sable, a company
engaged in the business of offering sexually oriented prerecorded telephone messages (popularly
known as "dial-a-porn") challenged the constitutionality of an amendment to the Communications Act
of 1934 that imposed a blanket prohibition on indecent as well as obscene interstate commercial
telephone messages. We held that the statute was constitutional insofar as it applied to obscene
messages but invalid as applied to indecent messages. In attempting to justify the complete ban and
criminalization of indecent commercial telephone messages, the Government relied
on Pacifica, arguing that the ban was necessary to prevent children from gaining access to such
messages. We agreed that "there is a compelling interest in protecting the physical and psychological
well-being of minors" which extended to shielding them from indecent messages that are not obscene
by adult standards, 492 U. S., at

33 Cf. Pacifica Foundation v. FCC, 556 F.2d 9, 36 (CADC 1977) (LevanthaI, J., dissenting),
rev'd, FCC v. Pacifica Foundation, 438 U. S. 726 (1978). When Pacifica was decided, given that radio
stations were allowed to operate only pursuant to federal license, and that Congress had enacted
legislation prohibiting licensees from broadcasting indecent speech, there was a risk that members of
the radio audience might infer some sort of official or societal approval of whatever was heard over
the radio, see 556 F. 2d, at 37, n. 18. No such risk attends messages received through the Internet,
which is not supervised by any federal agency.

870

126, but distinguished our "emphatically narrow holding" in Pacifica because it did not involve a
complete ban and because it involved a different medium of communication, id., at 127. We explained
that "the dial-it medium requires the listener to take affirmative steps to receive the
communication." Id., at 127-128. "Placing a telephone call," we continued, "is not the same as turning
on a radio and being taken by surprise by an indecent message." Id., at 128.

Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast
spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides
relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that
"[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200
million by 1999."34 This dynamic, multifaceted category of communication includes not only
traditional print and news services, but also audio, video, and still images, as well as interactive, real-
time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier
with a voice that resonates farther than it could from any soapbox. Through the use of Web pages,
mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District
Court found, "the content on the Internet is as diverse as human thought." 929 F. Supp., at 842
(finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of
First Amendment scrutiny that should be applied to this medium.
 VI

Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many
ambiguities concerning the scope of its coverage render it problematic for purposes of the First
Amendment. For instance, each of the two parts

34 Juris. Statement 3 (citing 929 F. Supp., at 831 (finding 3)).

871

of the CDA uses a different linguistic form. The first uses the word "indecent," 47 U. s. C. § 223(a)
(1994 ed., Supp. II), while the second speaks of material that "in context, depicts or describes, in
terms patently offensive as measured by contemporary community standards, sexual or excretory
activities or organs," § 223(d). Given the absence of a definition of either term,35 this difference in
language will provoke uncertainty among speakers about how the two standards relate to each
other36 and just what they mean.37 Could a speaker confidently assume that a serious discussion
about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to
our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty
undermines the likelihood that the CDA has been carefully tailored to the congressional goal of
protecting minors from potentially harmful materials.

The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-
based regulation of speech. The vagueness of such a regulation raises

35 "Indecent" does not benefit from any textual embellishment at all.

"Patently offensive" is qualified only to the extent that it involves "sexual or excretory activities or
organs" taken "in context" and "measured by contemporary community standards."

36 See Gozlon-Peretz v. United States, 498 U. S. 395, 404 (1991) ("[W]here Congress includes
particular language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate inclusion and
exclusion" (internal quotation marks omitted)).

37 The statute does not indicate whether the "patently offensive" and "indecent" determinations
should be made with respect to minors or the population as a whole. The Government asserts that
the appropriate standard is "what is suitable material for minors." Reply Brief for Appellants 18, n. 13
(citing Ginsberg v. New York, 390 U. S. 629, 633 (1968)). But the Conferees expressly rejected
amendments that would have imposed such a "harmful to minors" standard. See S. Conf. Rep. No.
104-230, p. 189 (1996) (S. Conf. Rep.), 142 Congo Rec. H1145, H1165-H1166 (Feb. 1, 1996). The
Conferees also rejected amendments that would have limited the proscribed materials to those
lacking redeeming value. See ibid.

872
special First Amendment concerns because of its obvious chilling effect on free speech.
See, e. g., Gentile v. State Bar of Nev., 501 U. S. 1030, 1048-1051 (1991). Second, the CDA is a
criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens
violators with penalties including up to two years in prison for each act of violation. The severity of
criminal sanctions may well cause speakers to remain silent rather than communicate even arguably
unlawful words, ideas, and images. See, e. g., Dombrowski v. Pfister, 380 U. S. 479, 494 (1965). As a
practical matter, this increased deterrent effect, coupled with the "risk of discriminatory enforcement"
of vague regulations, poses greater First Amendment concerns than those implicated by the civil
regulation reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S.
727 (1996).

The Government argues that the statute is no more vague than the obscenity standard this Court
established in Miller v. California, 413 U. S. 15 (1973). But that is not so. In Miller, this Court reviewed
a criminal conviction against a commercial vendor who mailed brochures containing pictures of
sexually explicit activities to individuals who had not requested such materials. Id., at 18. Having
struggled for some time to establish a definition of obscenity, we set forth in Miller the test for
obscenity that controls to this day:

"(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." Id., at
24 (internal quotation marks and citations omitted).

873

Because the CDA's "patently offensive" standard (and, we assume, arguendo, its synonymous
"indecent" standard) is one part of the three-prong Miller test, the Government reasons, it cannot be
unconstitutionally vague.

The Government's assertion is incorrect as a matter of fact. The second prong of the Miller test-the
purportedly analogous standard-contains a critical requirement that is omitted from the CDA: that the
proscribed material be "specifically defined by the applicable state law." This requirement reduces the
vagueness inherent in the open-ended term "patently offensive" as used in the CDA. Moreover,
the Miller definition is limited to "sexual conduct," whereas the CDA extends also to include (1)
"excretory activities" as well as (2) "organs" of both a sexual and excretory nature.

The Government's reasoning is also flawed. Just because a definition including three limitations is not
vague, it does not follow that one of those limitations, standing by itself, is not vague.38 Each
of Miller's additional two prongs-(l) that, taken as a whole, the material appeal to the "prurient"
interest, and (2) that it "lac[k] serious literary, artistic, political, or scientific value"-critically limits the
uncertain sweep of the obscenity definition. The second requirement is particularly important
because, unlike the "patently offensive" and "prurient interest" criteria, it is not judged by
contemporary community standards. See Pope v. Illinois, 481 U. S. 497, 500 (1987). This "societal
value" requirement, absent in the CDA, allows appellate courts to impose some limitations and
regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value.
The Government's contention that courts will be able to give such legal limitations to the CDA's
standards is belied by Miller's own rationale for having juries determine whether material
38 Even though the word "trunk," standing alone, might refer to luggage, a swimming suit, the base of
a tree, or the long nose of an animal, its meaning is clear when it is one prong of a three-part
description of a species of gray animals.

874

is "patently offensive" according to community standards: that such questions are essentially ones
of fact.39

In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers whose messages would be entitled
to constitutional protection. That danger provides further reason for insisting that the statute not be
overly broad. The CDA's burden on protected speech cannot be justified if it could be avoided by a
more carefully drafted statute.

VII

We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute
regulates the content of speech. In order to deny minors access to potentially harmful speech, the
CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive
and to address to one another. That burden on adult speech is unacceptable if less restrictive
alternatives would be at least as effective in achieving the legitimate purpose that the statute was
enacted to serve.

In evaluating the free speech rights of adults, we have made it perfectly clear that "[s]exual
expression which is indecent but not obscene is protected by the First Amendment." Sable, 492 U. S.,
at 126. See also Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) ("[W]here obscenity is
not involved, we have consistently held that the

39413 U. S., at 30 (Determinations of "what appeals to the 'prurient interest' or is 'patently offensive'
... are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to
reasonably expect that such standards could be articulated for all 50 States in a single formulation,
even assuming the prerequisite consensus exists"). The CDA, which implements the "contemporary
community standards" language of Miller, thus conflicts with the Conferees' own assertion that the
CDA was intended "to establish a uniform national standard of content regulation." S. Conf. Rep., at
191.

875

fact that protected speech may be offensive to some does not justify its suppression").
Indeed, Pacifica itself admonished that "the fact that society may find speech offensive is not a
sufficient reason for suppressing it." 438 U. S., at 745.
It is true that we have repeatedly recognized the governmental interest in protecting children from
harmful materials. See Ginsberg, 390 U. S., at 639; Pacifica, 438 U. S., at 749. 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." Denver, 518 U. S., at 759 (internal quotation marks omitted) (quoting Sable, 492 U. S., at
128).40 "[R]egardless of the strength of the government's interest" in protecting children, "[t]he level
of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a
sandbox." Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74-75 (1983).

The District Court was correct to conclude that the CDA effectively resembles the ban on "dial-a-porn"
invalidated in Sable. 929 F. Supp., at 854. In Sable, 492 U. S., at 129, this Court rejected the
argument that we should defer to the congressional judgment that nothing less than a total ban would
be effective in preventing enterprising youngsters from gaining access to indecent
communications. Sable thus made clear that the mere fact that a statutory regulation of speech was
enacted for the important purpose of protecting children from exposure to sexually explicit material
does not foreclose inquiry into its validity.41 As we pointed out last

40 Accord, Butler v. Michigan, 352 U. S. 380, 383 (1957) (ban on sale to adults of books deemed
harmful to children unconstitutional); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128
(1989) (ban on "dial-aporn" messages unconstitutional); Bolger v. Youngs Drug Products Corp., 463
U. S. 60, 73 (1983) (ban on mailing of unsolicited advertisement for contraceptives unconstitutional).

41 The lack of legislative attention to the statute at issue in Sable suggests another parallel with this
case. Compare 492 U. S., at 129-130 ("[A]side from conc1usory statements during the debates by
proponents of

876

Term, that inquiry embodies an "overarching commitment" to make sure that Congress has designed
its statute to accomplish its purpose "without imposing an unnecessarily great restriction on
speech." Denver, 518 U. S., at 741.

In arguing that the CDA does not so diminish adult communication, the Government relies on the
incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients
is a minor would not interfere with adult-to-adult communication. The findings of the District Court
make clear that this premise is untenable. Given the size of the potential audience for most
messages, in the absence of a viable age verification process, the sender must be charged with
knowing that one or more minors will likely view it. Knowledge that, for instance, one or more
members of a 100-person chat group will be a minor-and therefore that it would be a crime to send
the group an indecent message-would surely burden communication among adults.42

The District Court found that at the time of trial existing technology did not include any effective
method for a sender to prevent minors from obtaining access to its communications on the Internet
without also denying access to adults. The Court found no effective way to determine the age of a
user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. 929 F.
Supp., at 845 (findings 90-94). As a practical matter, the Court also found
the bill, as well as similar assertions in hearings on a substantially identical bill the year before, ... the
congressional record presented to us contains no evidence as to how effective or ineffective the
FCC's most recent regulations were or might prove to be .... No Congressman or Senator purported
to present a considered judgment with respect to how often or to what extent minors could or would
circumvent the rules and have access to dial-a-porn messages" (footnote omitted)), with n. 24, supra.

42 The Government agrees that these provisions are applicable whenever "a sender transmits a
message to more than one recipient, knowing that at least one of the specific persons receiving the
message is a minor." Opposition to Motion to Affirm and Reply to Juris. Statement 4-5, n. 1.

877

that it would be prohibitively expensive for noncommercialas well as some commercial-speakers who
have Web sites to verify that their users are adults. Id., at 845-848 (findings 95-116).43 These
limitations must inevitably curtail a significant amount of adult communication on the Internet. By
contrast, the District Court found that "[dJespite its limitations, currently available user-based software
suggests that a reasonably effective method by which parents can prevent their children from
accessing sexually explicit and other material which parents may believe is inappropriate for their
children will soon be widely available." Id., at 842 (finding 73) (emphases added).

The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld
in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial
entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent
messages or displaying them on their own computers in the presence of minors. The general,
undefined terms "indecent" and "patently offensive" cover large amounts of nonpornographic material
with serious educational or other value.44 Moreover, the "community standards" criterion as applied
to the Internet means that any communication avail-

43 The Government asserts that "[t]here is nothing constitutionally suspect about requiring
commercial Web site operators ... to shoulder the modest burdens associated with their use." Brief for
Appellants 35. As a matter of fact, however, there is no evidence that a "modest burden" would be
effective.

44 Transmitting obscenity and child pornography, whether via the Internet or other means, is already
illegal under federal law for both adults and juveniles. See 18 U. S. C. §§ 1464-1465 (criminalizing
obscenity); § 2251 (criminalizing child pornography). In fact, when Congress was considering the
CDA, the Government expressed its view that the law was unnecessary because existing laws
already authorized its ongoing efforts to prosecute obscenity, child pornography, and child solicitation.
See 141 Congo Rec. 16026 (1995) (letter from Kent Markus, Acting Assistant Attorney General, U. S.
Department of Justice, to Sen. Leahy).

878

able to a nationwide audience will be judged by the standards of the community most likely to be
offended by the message.45 The regulated subject matter includes any of the seven "dirty words"
used in the Pacifica monologue, the use of which the Government's expert acknowledged could
constitute a felony. See Olsen Testimony, Tr. Vol. V, 53:1654:10. It may also extend to discussions
about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably
the card catalog of the Carnegie Library.

For the purposes of our decision, we need neither accept nor reject the Government's submission
that the First Amendment does not forbid a blanket prohibition on all "indecent" and "patently
offensive" messages communicated to a 17-year-old-no matter how much value the message may
contain and regardless of parental approval. It is at least clear that the strength of the Government's
interest in protecting minors is not equally strong throughout the coverage of this broad statute. Under
the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the
Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. See
47 U. S. C. § 223(a)(2) (1994 ed., Supp. II). Similarly, a parent who sent his 17-year-old college
freshman information on birth control via e-mail could be incarcerated even though neither he, his
child, nor anyone in their home community found the material "indecent" or "patently offensive," if the
college town's community thought otherwise.

45 Citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), among other cases,
appellees offer an additional reason why, in their view, the CDA fails strict scrutiny. Because so much
sexually explicit content originates overseas, they argue, the CDA cannot be "effective." Brief for
Appellees American Library Association et al. 33-34. This argument raises difficult issues regarding
the intended, as well as the permissible scope of, extraterritorial application of the CDA. We find it
unnecessary to address those issues to dispose of this case.

879

The breadth of this content-based restriction of speech imposes an especially heavy burden on the
Government to explain why a less restrictive provision would not be as effective as the CDA. It has
not done so. The arguments in this Court have referred to possible alternatives such as requiring that
indecent material be "tagged" in a way that facilitates parental control of material coming into their
homes, making exceptions for messages with artistic or educational value, providing some tolerance
for parental choice, and regulating some portions of the Internet-such as commercial Web sites-
differently from others, such as chat rooms. Particularly in the light of the absence of any detailed
findings by the Congress, or even hearings addressing the special problems of the CDA, we are
persuaded that the CDA is not narrowly tailored if that requirement has any meaning at all.

VIII

In an attempt to curtail the CDA's facial overbreadth, the Government advances three additional
arguments for sustaining the Act's affirmative prohibitions: (1) that the CDA is constitutional because
it leaves open ample "alternative channels" of communication; (2) that the plain meaning of the CDA's
"knowledge" and "specific person" requirement significantly restricts its permissible applications; and
(3) that the CDA's prohibitions are "almost always" limited to material lacking redeeming social value.

The Government first contends that, even though the CDA effectively censors discourse on many of
the Internet's modalities-such as chat groups, newsgroups, and mail exploders-it is nonetheless
constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted
speech on the World Wide Web. Brief for Appellants 39. This argument is unpersuasive because the
CDA regulates speech on the basis of its content. A "time, place, and manner" analysis is therefore
inapplicable. See Consolidated Edison Co. of N. Y. v. Public Servo Comm'n of N. Y.,

880

447 U. S. 530, 536 (1980). It is thus immaterial whether such speech would be feasible on the Web
(which, as the Government's own expert acknowledged, would cost up to $10,000 if the speaker's
interests were not accommodated by an existing Web site, not including costs for data base
management and age verification). The Government's position is equivalent to arguing that a statute
could ban leaflets on certain subjects as long as individuals are free to publish books. In invalidating a
number of laws that banned leafletting on the streets regardless of their content, we explained that
"one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea
that it may be exercised in some other place." Schneider v. State (Town of Irvington), 308 U. S. 147,
163 (1939).

The Government also asserts that the "knowledge" requirement of both §§ 223(a) and (d), especially
when coupled with the "specific child" element found in § 223(d), saves the CDA from overbreadth.
Because both sections prohibit the dissemination of indecent messages only to persons known to be
under 18, the Government argues, it does not require transmitters to "refrain from communicating
indecent material to adults; they need only refrain from disseminating such materials to persons they
know to be under 18." Brief for Appellants 24. This argument ignores the fact that most Internet
forums-including chat rooms, newsgroups, mail exploders, and the Web-are open to all comers. The
Government's assertion that the knowledge requirement somehow protects the communications of
adults is therefore untenable. Even the strongest reading of the "specific person" requirement of §
223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a "heckler's
veto," upon any opponent of indecent speech who might simply log on and inform the would-be
discoursers that his 17-year-old child-a "specific person ... under 18 years of age," 47 U. S. C.
§223(d)(1)(A) (1994 ed., Supp. H)-would be present.

881

Finally, we find no textual support for the Government's submission that material having scientific,
educational, or other redeeming social value will necessarily fall outside the CDA's "patently
offensive" and "indecent" prohibitions. See also n. 37, supra.

IX

The Government's three remaining arguments focus on the defenses provided in § 223(e)(5).46 First,
relying on the "good faith, reasonable, effective, and appropriate actions" provision, the Government
suggests that "tagging" provides a defense that saves the constitutionality of the CDA. The
suggestion assumes that transmitters may encode their indecent communications in a way that would
indicate their contents, thus permitting recipients to block their reception with appropriate software. It
is the requirement that the good-faith action must be "effective" that makes this defense illusory. The
Government recognizes that its proposed screening software does not currently exist. Even if it did,
there is no way to know whether a potential recipient will actually block the encoded material. Without
the impossible knowledge that every guardian in America is screening for the "tag," the transmitter
could not reasonably rely on its action to be "effective."

For its second and third arguments concerning defenseswhich we can consider together-the
Government relies on the latter half of § 223(e)(5), which applies when the transmitter has restricted
access by requiring use of a verified credit card or adult identification. Such verification is not only
technologically available but actually is used by commercial providers of sexually explicit material.
These providers, therefore, would be protected by the defense. Under the findings of the District
Court, however, it is not economically feasible for most noncommercial speakers to employ such
verification. Accordingly, this defense would not signifi-

46 For the full text of § 223(e )(5), see n. 26, supra.

882

cantly narrow the statute's burden on noncommercial speech. Even with respect to the commercial
pornographers that would be protected by the defense, the Government failed to adduce any
evidence that these verification techniques actually preclude minors from posing as adults.47 Given
that the risk of criminal sanctions "hovers over each content provider, like the proverbial sword of
Damocles,"48 the District Court correctly refused to rely on unproven future technology to save the
statute. The Government thus failed to prove that the proffered defense would significantly reduce the
heavy burden on adult speech produced by the prohibition on offensive displays.

We agree 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. In Sable, 492 U. S., at 127, we remarked that
the speech restriction at issue there amounted to "'burn[ing] the house to roast the pig.'" The CDA,
casting a far darker shadow over free speech, threatens to torch a large segment of the Internet
community.

At oral argument, the Government relied heavily on its ultimate fall-back position: If this Court should
conclude that the CDA is insufficiently tailored, it urged, we should save the statute's constitutionality
by honoring the severability clause, see 47 U. S. C. § 608, and construing nonseverable terms
narrowly. In only one respect is this argument acceptable.

A severability clause requires textual provisions that can be severed. We will follow § 608's guidance
by leaving con-

47 Thus, ironically, this defense may significantly protect commercial purveyors of obscene postings
while providing little (or no) benefit for transmitters of indecent messages that have significant social
or artistic value. 48929 F. Supp., at 855-856.

883
stitutional textual elements of the statute intact in the one place where they are, in fact, severable.
The "indecency" provision, 47 U. S. C. § 223(a) (1994 ed., Supp. II), applies to "any comment,
request, suggestion, proposal, image, or other communication which is obscene or
indecent." (Emphasis added.) Appellees do not challenge the application of the statute to obscene
speech, which, they acknowledge, can be banned totally because it enjoys no First Amendment
protection. See Miller, 413 U. S., at 18. As set forth by the statute, the restriction of "obscene"
material enjoys a textual manifestation separate from that for "indecent" material, which we have held
unconstitutional. Therefore, we will sever the term "or indecent" from the statute, leaving the rest of §
223(a) standing. In no other respect, however, can § 223(a) or § 223(d) be saved by such a textual
surgery.

The Government also draws on an additional, less traditional aspect of the CDA's severability clause,
47 U. S. C. § 608, which asks any reviewing court that holds the statute facially unconstitutional not to
invalidate the CDA in application to "other persons or circumstances" that might be constitutionally
permissible. It further invokes this Court's admonition that, absent "countervailing considerations," a
statute should "be declared invalid to the extent it reaches too far, but otherwise left
intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985). There are two flaws in this
argument.

First, the statute that grants our jurisdiction for this expedited review, § 561 of the
Telecommunications Act of 1961, note following 47 U. S. C. § 223 (1994 ed., Supp. II), limits that
jurisdictional grant to actions challenging the CDA "on its face." Consistent with § 561, the plaintiffs
who brought this suit and the three-judge panel that decided it treated it as a facial challenge. We
have no authority, in this particular posture, to convert this litigation into an "as-applied" challenge.
Nor, given the vast array of plaintiffs, the range of their expressive activities, and the vagueness of
the stat-

884

ute, would it be practicable to limit our holding to a judicially defined set of specific applications.

Second, one of the "countervailing considerations" mentioned in Brockett is present here. In

considering a facial challenge, this Court may impose a limiting construction on a statute only if it is
"readily susceptible" to such a construction. Virginia v. American Booksellers Assn., Inc., 484 U. S.
383, 397 (1988). See also Erznoznik v. Jacksonville, 422 U. S. 205, 216 (1975) ("readily subject" to
narrowing construction). The open-ended character of the CDA provides no guidance whatever for
limiting its coverage.

This case is therefore unlike those in which we have construed a statute narrowly because the text or
other source of congressional intent identified a clear line that this Court could draw. Cf., e. g.,
Brockett, 472 U. S., at 504-505 (invalidating obscenity statute only to the extent that word "lust" was
actually or effectively excised from statute); United States v. Grace, 461 U. S. 171, 180-183 (1983)
(invalidating federal statute banning expressive displays only insofar as it extended to public
sidewalks when clear line could be drawn between sidewalks and other grounds that comported with
congressional purpose of protecting the building, grounds, and people therein). Rather, our decision
in United States v. Treasury Employees, 513 U. S. 454, 479, n. 26 (1995), is applicable. In that case,
we declined to "dra[w] one or more lines between categories of speech covered by an overly broad
statute, when Congress has sent inconsistent signals as to where the new line or lines should be
drawn" because doing so "involves a far more serious invasion of the legislative domain."49 This
Court "will not rewrite a ... law

49 As this Court long ago explained: "It would certainly be dangerous if the legislature could set a net
large enough to catch all possible offenders, and leave it to the courts to step inside and say who
could be rightfully detained, and who should be set at large. This would, to some extent, substitute
the judicial for the legislative department of the government." United States v. Reese, 92 U. S. 214,
221 (1876). In part because of these

885

to conform it to constitutional requirements." American Booksellers, 484 U. S., at 397.50

XI

In this Court, though not in the District Court, the Government asserts that-in addition to its interest in
protecting children-its "[e]qually significant" interest in fostering the growth of the Internet provides an
independent basis for upholding the constitutionality of the CDA. Brief for Appellants 19. The
Government apparently assumes that the unregulated availability of "indecent" and "patently
offensive" material on the Internet is driving countless citizens away from the medium because of the
risk of exposing themselves or their children to harmful material.

We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of
ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the
Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the
absence of evidence to the contrary, we presume that governmental 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.

For the foregoing reasons, the judgment of the District Court is affirmed.

It is so ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT
OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU
OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

x-----------------------x

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND
R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS
GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.

x-----------------------x

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the Executive Department of Government), Respondents.

x-----------------------x

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

x-----------------------x

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.

x-----------------------x

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN
A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY
EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity
as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.

x-----------------------x

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police,Respondents.

x-----------------------x

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity
as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.

x-----------------------x

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR

MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A.
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA
TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR
OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system since it could not filter out a number of
persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting
defamatory statements against him that people can read.

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.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories
of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended
the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

 o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime
of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) 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.

The Court has in a way found the strict scrutiny standard, an American constitutional construct, 1 useful in
determining the constitutionality of laws that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing
with the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection.3

In the cases before it, the Court finds 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. 4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ
tools and techniques used by criminal hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in
it and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the
search, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free
card."6Since the ethical hacker does his job with prior permission from the client, such permission would insulate him
from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) 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.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9 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. 10 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.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) 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 clause12 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. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for 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.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) 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.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures. 13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon" 15 the
relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the
right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights
which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the
right to the protection of the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches16 and
seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy,
a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion. 18

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.19 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.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of the
offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. 20 As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) 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. 21 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."22 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.

But 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."23 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.24 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.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act
of 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography." 26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it
apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the
lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has
intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or 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.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (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.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded
in the cyberspace is incalculable.

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"33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish.34 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.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For
now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

 xxxx

(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 above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which
actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu. 35

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.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads.
What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.

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.36 The State cannot rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

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.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos,
or both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) 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 lament that libel provisions of the penal code37 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. 38 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.

Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin
v. People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice. 40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not. 42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice. 43

The prosecution bears the burden of proving the presence of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false,
is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs. 44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on
her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in
fact, as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above
case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement. 45 For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact
true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34
to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives
and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of
their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression. 48Indeed,
the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it special
duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and
as may be provided by law.49

The Court agrees 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.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a
world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the
internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter
that the Court will deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law

Section 5 provides:

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.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of
the internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is
at times sufficient to guide law enforcement agencies in enforcing the law. 51 The legislature is not required to define
every single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The
idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within
a year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or
other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this
particular user’s posts, enabling them to read the same, and "Following," those whom this particular user is
subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to
his Followers, or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet without the need of copying and pasting
it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun
Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are
so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to
friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds
it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers"
then "Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses
agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel
in the physical world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends
or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or
abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or
abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice
as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a case involving
the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission,
by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA
threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal
sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas,
and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts, comments, and other messages. 64 Hence,
Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements of
the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only
insofar as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of
a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such latitude that they could
arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it
will destroy relationships and, under certain circumstances, will generate enmity and tension between social or
economic groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child pornography," does
this make Google and its users aiders and abettors in the commission of child pornography crimes?68 Byars
highlights a feature in the American law on child pornography that the Cybercrimes law lacks—the exemption of a
provider or notably a plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any action
voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected. 69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details.
In this way, certain information is forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of
this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.

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. 71 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.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor is alerted. 72 If Section 5
that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the
username and password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),
Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable certainty through adroit tracking of their works.
Absent concrete proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

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.

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.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave
the determination of the correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353.
Section 4(c)(4) merely establishes the computer system as another means of publication.75 Charging the offender
under both laws would be a blatant violation of the proscription against double jeopardy. 76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as
to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the
damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished
with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not
exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished
with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,
That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two
hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate
to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have
been connected with another crime.77 Judges and magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body. 78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized
to collect or record by technical or electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of
the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees. 81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to
the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities
to collect or record "traffic data, in real time, associated with specified communications." 83 And this is precisely what
Section 12 does. It empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right, 84 transmitting viruses,85 lasciviously exhibiting
sexual organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade
detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones
under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be
located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle
child pornography could use relays of computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-
issued search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of
privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the beginning of all freedoms. 89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this
Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation
of privacy must be one society is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the
packet fits together with other packets.93 The difference is that traffic data sent through the internet at times across
the ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to another where
their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s communication’s
system will put his voice message into packets and send them to the other person’s cellphone where they are
refitted together and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when he puts his call through. He
also reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone
users in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain
private, such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another
over cyberspace except through some service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this data takes them out of the private
sphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognize
as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s
close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the
law.
Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the
Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data.
It is akin to the use of a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against
an identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of
their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But
this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in
"fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of
individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it
is not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and
that the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations
must be narrowly drawn to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such
analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even impossible. "All
the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In
modern terms, the capacity to maintain and support this enclave of private life marks the difference between a
democratic and a totalitarian society."96 The Court must ensure that laws seeking to take advantage of these
technologies be written with specificity and definiteness as to ensure respect for the rights that the Constitution
guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They
liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and
are to be considered private communications. But it is not clear that a service provider has an obligation to
indefinitely keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13,
however, the law now requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and those relating to content data for
at least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process
of preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue
an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or
relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a
valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the
purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that
the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure
for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications
and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly
issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

 (b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning
of the computer system and the measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures.
On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court
warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted
upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service
provider’s storage systems and prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in
its storage system. If he wanted them preserved, he should have saved them in his computer when he generated
the data or received it. He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and
right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states
that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on
the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content
alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one. 100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear
and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829, 102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20
to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be
a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are
not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from
the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating
Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation
and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is
to enforce it. The second test mandates adequate guidelines or limitations in the law to determine the boundaries of
1avvphi1

the delegate’s authority and prevent the delegation from running riot. 103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best
practices, assurance and technologies that can be used to protect cyber environment and organization and user’s
assets.104 This definition serves as the parameters within which CICC should work in formulating the cybersecurity
plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such
[cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international cooperation." 105 This policy is clearly adopted
in the interest of law and order, which has been considered as sufficient standard. 106 Hence, Sections 24 and 26(a)
are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

 c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad
faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual
activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised
Penal Code are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-
issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and

2. Section 5 that 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

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; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:
 1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the
posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the
authorized posting areas that it fixes.

On January 13, 1992, 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.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or
printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in
length. Provided, That decals and stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda. —

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place,
whether public or private, mobile or stationary, except in the COMELEC common posted areas
and/or billboards, at the campaign headquarters of the candidate or political party, organization or
coalition, or at the candidate's own residential house or one of his residential houses, if he has more
than one:Provided, that such posters or election propaganda shall not exceed two (2) feet by three
(3) feet in size. (Emphasis supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on
lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

 (a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more
than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two
feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in
announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in
size, shall be allowed: Provided, That said streamers may not be displayed except one week before
the date of the meeting or rally and that it shall be removed within seventy-two hours after said
meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may
authorize after due notice to all interested parties and hearing where all the interested parties were
given an equal opportunity to be heard: Provided, That the Commission's authorization shall be
published in two newspapers of general circulation throughout the nation for at least twice within one
week after the authorization has been granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda

prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint,
inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether
private, or public, except in the common poster areas and/or billboards provided in the immediately
preceding section, at the candidate's own residence, or at the campaign headquarters of the
candidate or political party: Provided, That such posters or election propaganda shall in no case
exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3)
feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and
shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)

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."

The petition is impressed with merit. 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.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of
our own Bill of Rights provision on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of
a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36
SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable
condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA
438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may
be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it
may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
(New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief
Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will
deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will
truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what
may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.
(Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms
in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-
called balancing of interests — individual freedom on one hand and substantial public interests on the other — is
made even more difficult in election campaign cases because the Constitution also gives specific authority to the
Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory
powers vis-a-vis the conduct and manner of elections, to wit:

Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for
public information campaigns and forms among candidates in connection with the object of holding
free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v.
Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is
to draw a dividing line between permissible regulation of election campaign activities and indefensible repression
committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to
reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns
through political advertisements. The gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in
the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected
parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or
oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for
rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an
unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and
irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the
part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local
officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and
the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to
maintain them, the freedom to speak and the right to know are unduly curtailed.
There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but
all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not
the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that
regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in
time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her
qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable
nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National
Press Club, we find the regulation in the present case of a different category. The promotion of a substantial
Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of the

Government, if it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at
377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d
772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any
substantial government interest. There is no clear public interest threatened by such activity so as to justify the
curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule
not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the
individual's freedom ends and the State's power begins. Choice on that border, now as always
delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the
preferred place given in our scheme to the great, the indispensable democratic freedom secured by
the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting
dubious intrusions and it is the character of the right, not of the limitation, which determines what
standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest,
threatened not doubtfully or remotely, but by clear and present danger. The rational connection
between the remedy provided and the evil to be curbed, which in other context might support
legislation against attack on due process grounds, will not suffice. These rights rest on firmer
foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at
appropriate time and place, must have clear support in public danger, actual or impending. Only the
greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas
V. Collins, 323 US 516 [1945]). (Emphasis supplied)

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. If, in the National Press Club case, the Court was careful to rule out
restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as
these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the
prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who
pastes a sticker or decal on his private property.

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." (Zwickler v. Koota, 19 L ed
2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be
legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance
prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license,
pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims.
In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of
four different municipalities which either banned or imposed prior restraints upon the distribution of
handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of
fundamental personal rights and liberties is asserted, "the courts should be astute to examine the
effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S
Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection
of society," but pointed out that in each case "the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v.
Tucker, 364 US 479 [1960]

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. Verily, the restriction as to where the decals and stickers should be posted is so
broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In
consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1,
Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by
the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving
vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only
deprive the owner who consents to such posting of the decals and stickers the use of his property but more
important, in the process, it would deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital
to the preservation of a free society that, putting aside reasonable police and health regulations of
time and manner of distribution, it must be fully preserved. The danger of distribution can so easily
be controlled by traditional legal methods leaving to each householder the full right to decide
whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that
forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of
Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable.
The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election
propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC.
This means that a private person cannot post his own crudely prepared personal poster on his own front door or on
a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what
overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the
privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his
concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is
unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."

Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the
electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to
Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public
service, . . . while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce social, economic, andpolitical
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good."
(Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving
vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this
kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and,
therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same
number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise
his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property.
To strike down this right and enjoin it is impermissible encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the
authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity
of any public act whether proceeding from the highest official or the lowest functionary, is a postulate
of our system of government. That is to manifest fealty to the rule of law, with priority accorded to
that which occupies the topmost rung in the legal hierarchy. The three departments of government in
the discharge of the functions with which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes
must ever be on guard lest the restrictions on its authority, either substantive or formal, be
transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains.
In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to
maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass
upon the validity of the acts of the coordinate branches in the course of adjudication is a logical.
corollary of this basic principle that the Constitution is paramount. It overrides any governmental
measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme
law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the
freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms
and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to
bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective
positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds
of the candidates running for Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the
voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is
expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation
includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC
prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the
Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero
and Nocon, J.J., concur.

Feliciano and Bellosillo, JJ., are on leave.

 EN BANC

[G.R. No. 133486. January 28, 2000]

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON

ELECTIONS, respondent.

DECISION

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary,
exit polls -- properly conducted and publicized -- can be vital tools in eliminating the evils of
election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so
as to minimize or suppress the incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on
Elections (Comelec) en banc Resolution No. 98-1419 dated April 21, 1998. In the said Resolution,
[1]

the poll body

"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
[2]

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.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were
actually conducted and reported by media without any difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave
abuse of discretion amounting to a lack or excess of jurisdiction 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 x x x May 11 elections." [3]

In his Memorandum, the solicitor general, in seeking to dismiss the Petition, brings up additional
[4]

issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of
the assailed Comelec Resolution.

The Court's Ruling

The Petition is meritorious.

[5]

Procedural Issues: Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998
election has already been held and done with. Allegedly, there is no longer any actual controversy
before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11,
1998 election, its implications on the people's fundamental freedom of expression transcend the
past election. The holding of periodic elections is a basic feature of our democratic government. By
its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now
will only postpone a task that could well crop up again in future elections. [6]

In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty
to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has
the symbolic function of educating bench and bar on the extent of protection given by
constitutional guarantees." Since the fundamental freedoms of speech and of the press are being
[7]

invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise
protect the holding of exit polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure to
exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over to
prevent a miscarriage of justice, when the issue involves the principle of social justice or the
[8]

protection of labor, when the decision or resolution sought to be set aside is a nullity, or when
[9] [10]

the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy
available.[11]

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only
twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on
May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time for the May 11, 1998 elections. Moreover,
not only is time of the essence; the Petition involves transcendental constitutional issues. Direct
resort to this Court through a special civil action for certiorari is therefore justified.
 Main Issue: Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups of

individuals for the purpose of determining the probable result of an election by confidentially
asking randomly selected voters whom they have voted for, immediately after they have officially
cast their ballots. The results of the survey are announced to the public, usually through the mass
media, to give an advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until
the recent May 11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of

the mass media, committed to report balanced election-related data, including "the exclusive results
of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting of their results are valid
exercises of the freedoms of speech and of the press. It submits that, in precipitately and
unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its
discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it
gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional
and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and
"to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the
conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were
designed "to condition the minds of people and cause confusion as to who are the winners and the
[losers] in the election," which in turn may result in "violence and anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle to
preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in
violation of Section 2, Article V of the Constitution; and relevant provisions of the Omnibus
[12]

Election Code. It submits that the constitutionally protected freedoms invoked by petitioner "are
[13]

not immune to regulation by the State in the legitimate exercise of its police power," such as in the
present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and
present danger of destroying the credibility and integrity of the electoral process," considering that
they are not supervised by any government agency and can in general be manipulated easily. He
insists that these polls would sow confusion among the voters and would undermine the official
tabulation of votes conducted by the Commission, as well as the quick count undertaken by the
Namfrel.

Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be
more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our jurisprudence on the freedoms of speech
and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a
'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties.
x x x [T]his must be so because the lessons of history, both political and legal, illustrate that
freedom of thought and speech is the indispensable condition of nearly every other form of
freedom." [14]

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or
of the press. In the landmark case Gonzales v. Comelec, this Court enunciated that at the very
[15] [16]

least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter
of public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth,
of securing participation by the people in social and political decision-making, and of maintaining
the balance between stability and change. It represents a profound commitment to the principle
[17]

that debates on public issues should be uninhibited, robust, and wide open. It means more than the
[18]

right to approve existing political beliefs or economic arrangements, to lend support to official
measures, or to take refuge in the existing climate of opinion on any matter of public consequence.
And paraphrasing the eminent justice Oliver Wendell Holmes, we stress that the freedom
[19]

encompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of
speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times
and under all circumstances. They are not immune to regulation by the State in the exercise of its
[20]

police power. While the liberty to think is absolute, the power to express such thought in words
[21]

and deeds has limitations.

In Cabansag v. Fernandez this Court had occasion to discuss two theoretical tests in determining
[22]

the validity of restrictions to such freedoms, as follows:

"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The
first, as interpreted in a number of cases, means that the evil consequence of the
comment or utterance must be 'extremely serious and the degree of imminence
extremely high' before the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented. x x x"
[23]

"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as

follows: If the words uttered create a dangerous tendency which the state has a right to
prevent, then such words are punishable. It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is
sufficient if the natural tendency and probable effect of the utterance be to bring about
the substantive evil which the legislative body seeks to prevent." [24]
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its
earlier decisions in Primicias v. Fugoso and American Bible Society v. City of Manila; as well as
[25] [26]

in later ones, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo Umpar Adiong v.
[27] [28] [29]

Comelec and, more recently, in Iglesia ni Cristo v. MTRCB. In setting the standard or test for the
[30] [31]

"clear and present danger" doctrine, the Court echoed the words of justice Holmes: "The question
in every case is whether the words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree." [32]

A limitation on the freedom of expression may be justified only by a danger of

such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency"
doctrine, the danger must not only be clear but also present. "Present" refers to the time element;
the danger must not only be probable but very likely to be inevitable. The evil sought to be [33]

avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing
instrument. [34]

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is
treated an exemption. The power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity. And it is respondent's burden to overthrow such presumption.
[35]

Any act that restrains speech should be greeted with furrowed brows, so it has been said. [36]

To justify a restriction, the promotion of a substantial government interest must be clearly

shown. Thus:
[37]

"A government regulation is sufficiently justified if it is within the constitutional

power of the government, if it furthers an important or substantial government
interest; if the governmental interest is unrelated to the suppression of free expression;
and if the incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest." [38]

Hence, even though the government's purposes are legitimate and substantial, they cannot be
pursued by means that broadly, stifle fundamental personal liberties, when the end can be more
narrowly achieved. [39]

The freedoms of speech and of the press should all the more be upheld when what is sought to be
curtailed is the dissemination of information meant to add meaning to the equally vital right of
suffrage. We cannot support any ruling or order "the effect of which would be to nullify so vital a
[40]

constitutional right as free speech." When faced with borderline situations in which the freedom
[41]

of a candidate or a party to speak or the freedom of the electorate to know is invoked against
actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom.
For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not
be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed. [42]
True, the government has a stake in protecting the fundamental right to vote by providing voting
places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve
the sanctity and the integrity of the electoral process. However, in order to justify a restriction of
the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly
voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important research
data which may be used to study influencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit
poll data not only for election-day projections, but also for long-term research. [43]

Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its
constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While
admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] x x x an
exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof
creates a clear and present danger to the community or it has a dangerous tendency." It then
contends that "an exit poll has the tendency to sow confusion considering the randomness of
selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that
the results of such exit poll may not be in harmony with the official count made by the Comelec x x
x is ever present. In other words, the exit poll has a clear and present danger of destroying the
credibility and integrity of the electoral process."

Such 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.

The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and
confusion in the voting centers -- does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution is too broad, since its application is without qualification as to whether the
polling is disruptive or not. Concededly, the Omnibus Election Code prohibits disruptive behavior
[44]

around the voting centers. There is no showing, however, that exit polls or the means to interview
[45]

voters cause chaos in voting centers. Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct tends to create disorder or confuse the
voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any
purpose. The valuable information and ideas that could be derived from them, based on the voters'
answers to the survey questions will forever remain unknown and unexplored. Unless the ban is
restrained, candidates, researchers, social scientists and the electorate in general would be deprived
of studies on the impact of current events and of election-day and other factors on voters' choices.

In Daily Herald Co. v. Munro, the US Supreme Court held that a statute, one of the purposes of
[46]

which was to prevent the broadcasting of early returns, was unconstitutionalbecause 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. [47]

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.

For instance, a specific limited area for conducting exit polls may be designated. Only professional
survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance
from the voting center. They may be required to explain to voters that the latter may refuse to be
interviewed, and that the interview is not part of the official balloting process. The pollsters may
further be required to wear distinctive clothing that would show they are not election
officials. Additionally, they may be required to undertake an information campaign on the nature
[48]

of the exercise and the results to be obtained therefrom. These measures, together with a general
prohibition of disruptive behavior, could ensure a clean, safe and orderly election.

For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are
randomly selected in each province; (2) residences to be polled in such communities are also
chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on
their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results
are released to the public only on the day after the elections. These precautions, together with the
[49]

possible measures earlier stated, may be undertaken to abate the Comelec's fear, without
consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the
electorate. Quite the contrary, instead of disrupting elections, exit polls -- properly conducted and
publicized -- can be vital tools for the holding of honest, orderly, peaceful and credible elections;
and for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy
of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the
voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be
identified. Also proscribed is finding out the contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is
the association of voters with their respective votes, for the purpose of assuring that the votes have
been cast in accordance with the instructions of a third party. This result cannot, however, be
achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they
have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation
of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to
reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the
Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without
transgressing the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the
Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by
the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

SO ORDERED.
 EN BANC

[G.R. No. 147571. May 5, 2001]

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING

CORPORATION, doing business as MANILA STANDARD, petitioners,
vs. COMMISSION ON ELECTIONS, respondent.

DECISION
MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution
conducting surveys in various fields, including economics, politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner
Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which
features newsworthy items of information including election surveys.
Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 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.

The term election surveys is defined in 5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a
candidates popularity, qualifications, platforms or a matter of public discussion in relation to the
election, including voters preference for candidates or publicly discussed issues during the
campaign period (hereafter referred to as Survey).

To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins

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.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both
at the national and local levels and release to the media the results of such survey as well as publish them directly.
Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey
results up to the last day of the elections on May 14, 2001.
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. It contends that (1) the prohibition on the publication of election survey results during the period
proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement
of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is
narrowly tailored to meet the evils sought to be prevented; and (3) the impairment of freedom of expression is
minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the
last 7 days before a local election, and in scope as it does not prohibit election survey results but only require
timeliness. Respondent claims that in National Press Club v. COMELEC, [1] a total ban on political advertisements,
with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC
hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in 5.4 of R.A.
No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment
of freedom of speech, expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the
publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days
immediately preceding a national election and seven (7) days before a local election. Because of the preferred
status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty
presumption of invalidity.[2] Indeed, any system of prior restraints of expression comes to this Court bearing a
heavy presumption against its constitutional validity. . . . The Government thus carries a heavy burden of showing
justification for the enforcement of such restraint.[3] There is thus a reversal of the normal presumption of validity
that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC
supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of
communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in
sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is
limited to ensuring equal opportunity, time, space, and the right to reply as well as uniform and reasonable rates
of charges for the use of such media facilities for public information campaigns and forums among
candidates.[4] This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption
of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the
Comelec for the purpose of securing equal opportunity among candidates for political office,
although such supervision or regulation may result in some limitation of the rights of free speech
and free press.[5]

MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for
determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC, [6] this test was originally
formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful
for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate
for such regulations as the one in question. For such a test is concerned with questions of the gravity and
imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing and balancing
the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections]
is served by the regulation of the free enjoyment of the rights (page 7). After canvassing the reasons for the
prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates,
misinformation, the junking of weak and losing candidates by their parties, and the form of election cheating
called dagdag-bawas and invoking the States power to supervise media of information during the election period
(pages 11-16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its
limiting impact on the rights of free speech and of the press is not unduly repressive or
unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of
election surveys. It is limited in duration; it applies only during the period when the voters are
presumably contemplating whom they should elect and when they are most susceptible to such
unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should outweigh the value of
freedom of expression. Instead, reliance is placed on Art. IX-C, 4.As already stated, the purpose of Art. IX-C, 4
is to ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor
for public information campaigns and forums among candidates. Hence the validity of the ban on media
advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their
candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would
sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably
results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little
protection. For anyone who can bring a plausible justification forward can easily show a rational connection
between the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by
then Justice Castro in Gonzales v. COMELEC,[7] from which the dissent in this case takes its cue, was a strong
one resulting in his conclusion that 50-B of R.A. No. 4880, which limited the period of election campaign and
partisan political activity, was an unconstitutional abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there are other countries 78, according to
the Solicitor General, while the dissent cites 28 which similarly impose restrictions on the publication of election
surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the
publication of election survey results exists. It cannot be argued that this is because the United States is a mature
democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other
countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland,
Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are
no older nor more mature than the Philippines in political development, do not restrict the publication of election
survey results.
What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme
Court, through Chief Justice Warren, held in United States v. OBrien:

[A] government regulation is sufficiently justified [1] if it is within the constitutional power of
the Government; [2] if it furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression; and [4] if the
incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is
no greater than is essential to the furtherance of that interest.[8]

This is so far the most influential test for distinguishing content-based from content-neutral regulations and
is said to have become canonical in the review of such laws. [9] It is noteworthy that the OBrien test has been applied
by this Court in at least two cases.[10]
 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.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal connection of expression to the
asserted governmental interest makes such interest not unrelated to the suppression of free expression. By
prohibiting the publication of election survey results because of the possibility that such publication might
undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators,
armchair theorists, and other opinion makers. In effect, 5.4 shows a bias for a particular subject matter, if not
viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of
expression means that the government has no power to restrict expression because of its message, its ideas, its
subject matter, or its content.[11] The inhibition of speech should be upheld only if the expression falls within one
of the few unprotected categories dealt with in Chaplinsky v. New Hampshire,[12] thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem.These include
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. [S]uch
utterances are no essential part of any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality.

Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v. Minnesota,[13] it
was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has
been recognized only in exceptional cases. . . . No one would question but that a government might
prevent actual obstruction to its recruiting service or the publication of the sailing dates of
transports or the number and location of troops. On similar grounds, the primary requirements of
decency may be enforced against obscene publications. The security of the community life may be
protected against incitements to acts of violence and the overthrow by force of orderly government
....

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.
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid in National
Press Club v. COMELEC[14] and Osmea v. COMELEC.[15] For the ban imposed by R.A. No. 6646, 11(b) is not only
authorized by a specific constitutional provision,[16] but it also provided an alternative so that, as this Court pointed
out in Osmea, there was actually no ban but only a substitution of media advertisements by the COMELEC space
and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech
and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of
the OBrien test, namely, that the restriction be not greater than is necessary to further the governmental
interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon
effect, junking of weak or losing candidates, and resort to the form of election cheating called dagdag-
bawas. Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the
fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather
than speech because of apprehension that such speech creates the danger of such evils. Thus, under the
Administrative Code of 1987,[17] the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or
false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the
COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own
surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free
market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it
is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want
to be identified with the winners. Some are susceptible to the herd mentality. Can these be legitimately prohibited
by suppressing the publication of survey results which are a form of expression? It has been held that [mere]
legislative preferences or beliefs respecting matters of public convenience may well support regulation directed
at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the
maintenance of democratic institutions.[18]
To summarize then, we hold 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.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders,
or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that
its Resolution 3636, dated March 1, 2001 is a decision, order, or resolution within the meaning of Art. IX-A,
7.Indeed, counsel for COMELEC maintains that Resolution 3636 was rendered by the Commission. However,
the Resolution does not purport to adjudicate the right of any party.It is not an exercise by the COMELEC of its
adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is
promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELECs claim
that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing the
constitutionality of various election laws, rules, and regulations. [19]
WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and 24(h) of
COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE
BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.

DECISION

LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the fundamental and
preferred right to expression of the electorate during political contests no matter how seemingly benign will be
tolerated.

This case defines the extent that our people may shape the debates during elections. It is significant and of first
impression. We are asked to decide whether the Commission on Elections (COMELEC) has the competence to limit
expressions made by the citizens — who are not candidates — during elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary injunction and
temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove
Campaign Materials2 dated February 22, 2013 and letter3 issued on February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the San Sebastian
Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10') in size. They were posted on
the front walls of the cathedral within public view. The first tarpaulin contains the message "IBASURA RH Law"
referring to the Reproductive Health Law of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of
the present case.4 This tarpaulin 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.5 The electoral candidates were
classified according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law.6Those who voted for the passing of the law were classified by petitioners as comprising "Team Patay," while
those who voted against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo

Honasan, Gregorio Casiño, Teddy

Magsaysay, Mitos Cayetano, Alan Peter

Pimentel, Koko Enrile, Jackie

Trillanes, Antonio Escudero, Francis

 Villar, Cynthia Hontiveros, Risa

Party List Buhay Legarda, Loren

Party List Ang Pamilya Party List Gabriela

Party List Akbayan

Party List Bayan Muna

Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by any
candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the 2013 elections, but not
of politicians who helped in the passage of the RH Law but were not candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City,
issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulin’s removal within three (3) days from receipt for being oversized. COMELEC
Resolution No. 9615 provides for the size requirement of two feet (2’) by three feet (3’). 9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be given a definite
ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this opinion and the availment of
legal remedies, the tarpaulin be allowed to remain.11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal of the tarpaulin;
otherwise, it will be constrained to file an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already given you notice
on February 22, 2013 as regards the election propaganda material posted on the church vicinity promoting for or
against the candidates and party-list groups with the following names and messages, particularly described as
follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No. 9615
promulgated on January 15, 2013 particularly on the size (even with the subsequent division of the said tarpaulin
into two), as the lawful size for election propaganda material is only two feet (2’) by three feet (3’), please
order/cause the immediate removal of said election propaganda material, otherwise, we shall be constrained to file
an election offense case against you.
We pray that the Catholic Church will be the first institution to help the Commission on Elections inensuring the
conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners initiated this case
through this petition for certiorari and prohibition with application for preliminary injunction and temporary restraining
order.14 They question respondents’ notice dated February 22, 2013 and letter issued on February 27, 2013. They
pray that: (1) the petition be given due course; (2) a temporary restraining order (TRO) and/or a writ of preliminary
injunction be issued restraining respondents from further proceeding in enforcing their orders for the removal of the
Team Patay tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining respondents from enforcing them or any
other similar order.15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining respondents from
enforcing the assailed notice and letter, and set oral arguments on March 19, 2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and prohibition under
Rule 65 of the Rules of Court filed before this court is not the proper remedy to question the notice and letter of
respondents; and (2) the tarpaulin is an election propaganda subject to regulation by COMELEC pursuant to its
mandate under Article IX-C, Section 4 of the Constitution. Hence, respondents claim that the issuances ordering its
removal for being oversized are valid and constitutional.18

During the hearing held on March 19, 2013, the parties were directed to file their respective memoranda within 10
days or by April 1, 2013, taking into consideration the intervening holidays. 19

The issues, which also served as guide for the oral arguments, are: 20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON AND THE 27
FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA
RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE AND

JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT CONSIDERED

JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE ARE
EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE
COGNIZANCE OF THE CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL

ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL
CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR ELECTION

PROPAGANDA/POLITICAL ADVERTISEMENT[;]
 A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION,
WHETHER THE COMELEC POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON AND THE 27
FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF
SEPARATION OF CHURCH AND STATE[;] [AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not final orders,
decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of its adjudicatory powers,
reviewable via Rule 64 of the Rules of Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to raise objections
relating to a grave abuse of discretion resulting in the ouster of jurisdiction. 22 As a special civil action, there must also
be a showing that there be no plain, speedy, and adequate remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court, whose power to
review is "limited only to final decisions, rulings and orders of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, respondents claim that the assailed notice and letter are reviewable
only by COMELEC itself pursuant to Article IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide
all questions affecting elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC, 26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how
judicialintervention is limited to final decisions, orders, rulings and judgments of the COMELEC En Banc. 31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the election protest. 32 At
issue was the validity of the promulgation of a COMELEC Division resolution.33 No motion for reconsideration was
filed to raise this issue before the COMELEC En Banc. This court declared that it did not have jurisdiction and
clarified:

We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and decisionsof the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This decision must be a final
decision or resolution of the Comelec en banc, not of a division, certainly not an interlocutory order of a division.The
Supreme Court has no power to review viacertiorari, an interlocutory order or even a final resolution of a Division of
the Commission on Elections.35 (Emphasis in the original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions to this general
rule. Repolwas another election protest case, involving the mayoralty elections in Pagsanghan, Samar. 36 This time,
the case was brought to this court because the COMELEC First Division issued a status quo ante order against the
Regional Trial Court executing its decision pending appeal. 37 This court’s ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a COMELEC
Division.38However, consistent with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration]
may be glossed over to prevent miscarriage of justice, when the issue involves the principle of social justice or the
protection of labor, when the decision or resolution sought to be set aside is a nullity, or when the need for relief is
extremely urgent and certiorari is the only adequate and speedy remedy available. 40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral contests — despite
not being reviewed by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by the COMELEC
Division was unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case involving candidates
for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari against
an interlocutory order of the COMELEC First

Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the main election
protest case.43 Sorianoapplied the general rule that only final orders should be questioned with this court. The
ponencia for this court, however, acknowledged the exceptions to the general rule in ABS-CBN.44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the mayoralty
candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that petitioner could not qualify for the
2007 elections due to the findings in an administrative case that he engaged in vote buying in the 1995
elections.46No motion for reconsideration was filed before the COMELEC En Banc. This court, however, took
cognizance of this case applying one of the exceptions in ABS-CBN: The assailed resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the mayoralty candidates
of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her motion for reconsideration to dismiss
the election protest petition for lack of form and substance. 49 This court clarified the general rule and refused to take
cognizance of the review of the COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled
that these exceptions did not apply.50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as precedents to oust this
court from taking jurisdiction over this case. All these cases cited involve election protests or disqualification cases
filed by the losing candidate against the winning candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed to assert their
fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its adjudicatory or quasi-
judicial power. This case pertains to acts of COMELEC in the implementation of its regulatory powers. When it
issued the notice and letter, the COMELEC was allegedly enforcingelection laws.

I.B
Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and the "chilling
effect" caused by respondent COMELEC’s notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction
in issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013 ordering the removal of the
tarpaulin.53 It is their position that these infringe on their fundamental right to freedom of expression and violate the
principle of separation of church and state and, thus, are unconstitutional. 54

The jurisdiction of this court over the subject matter is determined from the allegations in the petition. Subject matter
jurisdiction is defined as the authority "to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes the court and defines its
powers."55Definitely, the subject matter in this case is different from the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by COMELEC.
Political speech is motivated by the desire to be heard and understood, to move people to action. It is concerned
with the sovereign right to change the contours of power whether through the election of representatives in a
republican government or the revision of the basic text of the Constitution. The zeal with which we protect this kind
of speech does not depend on our evaluation of the cogency of the message. Neither do we assess whether we
should protect speech based on the motives of COMELEC. We evaluate restrictions on freedom of expression from
their effects. We protect both speech and medium because the quality of this freedom in practice will define the
quality of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition. Under the
conditions in which it was issued and in view of the novelty of this case,it could result in a "chilling effect" that would
affect other citizens who want their voices heard on issues during the elections. Other citizens who wish to express
their views regarding the election and other related issues may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid such proscribed conditions. Rule 65 is also the procedural
platform for raising grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s expanded
exercise of certiorari as provided by the Constitution as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether ornot there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions affectingelections. Article
IX-C, Section 2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the
number and location of polling places, appointment of election officials and inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of jurisdiction, gravely
abused it. We are confronted with the question as to whether the COMELEC had any jurisdiction at all with its acts
threatening imminent criminal action effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on free speech.
This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the word "affecting" in this provision
cannot be interpreted to mean that COMELEC has the exclusive power to decide any and allquestions that arise
during elections. COMELEC’s constitutional competencies during elections should not operate to divest this court of
its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the Constitution.This provision
provides for this court’s original jurisdiction over petitions for certiorari and prohibition. This should be read alongside
the expanded jurisdiction of the court in Article VIII, Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of discretion. Thus, the
constitutionality of the notice and letter coming from COMELEC is within this court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act tainted with
unconstitutionality on the part of any government branch or instrumentality. This includes actions by the COMELEC.
Furthermore, it is this court’s constitutional mandate to protect the people against government’s infringement of their
fundamental rights. This constitutional mandate out weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in directly filing their
petition before this court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent jurisdiction is
sufficient ground for the dismissal of their petition.57 They add that observation of the hierarchy of courts is
compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents claim that while there are exceptions to
the general rule on hierarchy of courts, none of these are present in this case. 59

On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take cognizance of a
petition filed directly to it if warranted by "compelling reasons, or [by] the nature and importance of the issues raised.
. . ."61 Petitioners submit that there are "exceptional and compelling reasons to justify a direct resort [with] this
Court."62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not
to be ignored without serious consequences. The strictness of the policy is designed to shield the Court from having
to deal with causes that are also well within the competence of the lower courts, and thus leave time to the Court to
deal with the more fundamental and more essential tasks that the Constitution has assigned to it. The Court may act
on petitions for the extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or
when serious and important reasons exist to justify an exception to the policy. 64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari, prohibition,
and mandamus, citing Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the functions assigned
to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be
exercised only where absolutely necessary or where serious and important reasons exist therefore. Hence, that
jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts for some reason or another are not controllable by
the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of
Appeals or a Regional Trial Court, it is in either of these courts that the specific action for the writ’s procurement
must be presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must
strictly observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that every level of
the judiciary performs its designated roles in an effective and efficient manner. Trial courts do not only determine the
facts from the evaluation of the evidence presented before them. They are likewise competent to determine issues
of law which may include the validity of an ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are territorially organized into regions and then into
branches. Their writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before them. In many
instances, the facts occur within their territorial jurisdiction, which properly present the ‘actual case’ that makes ripe
a determination of the constitutionality of such action. The consequences, of course, would be national in scope.
There are, however, some cases where resort to courts at their level would not be practical considering their
decisions could still be appealed before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts and law
made by the trial courts. It is collegiate in nature. This nature ensures more standpoints in the review of the actions
of the trial court. But the Court of Appeals also has original jurisdiction over most special civil actions. Unlike the trial
courts, its writs can have a nationwide scope. It is competent to determine facts and, ideally, should act on
constitutional issues thatmay not necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in the light of new
circumstances or in the light of some confusions of bench or bar — existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court promulgates these doctrinal devices in
order that it truly performs that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect constitutional rights
when these become exigent should not be emasculated by the doctrine in respect of the hierarchy of courts. That
has never been the purpose of such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary power to take
cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the issues clearly and specifically raised in the petition." 70 As
correctly pointed out by petitioners,71 we have provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that must be
addressed at the most immediate time. A direct resort to this court includes availing of the remedies of certiorari and
prohibition toassail the constitutionality of actions of both legislative and executive branches of the government. 72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of expression in
the present case, but also of others in future similar cases. The case before this court involves an active effort on
the part of the electorate to reform the political landscape. This has become a rare occasion when private citizens
actively engage the public in political discourse. To quote an eminent political theorist:

[T]he theory of freedom of expression involves more than a technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an
age that was awakened and invigorated by the idea of new society in which man's mind was free, his fate
determined by his own powers of reason, and his prospects of creating a rational and enlightened civilization
virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually
robust community. It contemplates a mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of political decision-
making is recognized. It deserves the highest protection the courts may provide, as public participation in nation-
building isa fundamental principle in our Constitution. As such, their right to engage in free expression of ideas must
be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental importance. 74 In these cases, the imminence
and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. The doctrine
relating to constitutional issues of transcendental importance prevents courts from the paralysis of procedural
niceties when clearly faced with the need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech and freedom of
expression which warrants invocation of relief from this court. The principles laid down in this decision will likely
influence the discourse of freedom of speech in the future, especially in the context of elections. The right to
suffrage not only includes the right to vote for one’s chosen candidate, but also the right to vocalize that choice to
the public in general, in the hope of influencing their votes. It may be said that in an election year, the right to vote
necessarily includes the right to free speech and expression. The protection of these fundamental constitutional
rights, therefore, allows for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no jurisprudence
yet exists that will guide the lower courts on this matter. In Government of the United States v. Purganan, 76 this court
took cognizance of the case as a matter of first impression that may guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem
it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which
there is, as yet, no local jurisprudence to guide lower courts. 77

This court finds that this is indeed a case of first impression involving as it does the issue of whether the right of
suffrage includes the right of freedom of expression. This is a question which this court has yet to provide
substantial answers to, through jurisprudence. Thus, direct resort to this court is allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim, 78 this court held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgmentof this Court
in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and
with the concurrence of the majority of those who participated in its discussion. 79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality on whether
COMELEC committed grave abuse of discretion or performed acts contrary to the Constitution through the assailed
issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013 election
period. Although the elections have already been concluded, future cases may be filed that necessitate urgency in
its resolution. Exigency in certain situations would qualify as an exception for direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body. In Albano v.
Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that would ensue if the Court of First
Instance ofeach and every province were [to] arrogate itself the power to disregard, suspend, or contradict any order
of the Commission on Elections: that constitutional body would be speedily reduced to impotence."81

In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with the lower courts,
any ruling on their part would not have been binding for other citizens whom respondents may place in the same
situation. Besides, thiscourt affords great respect to the Constitution and the powers and duties imposed upon
COMELEC. Hence, a ruling by this court would be in the best interest of respondents, in order that their actions may
be guided accordingly in the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the ordinary course
of law that could free them from the injurious effects of respondents’ acts in violation of their right to freedom of
expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an exceptionally compelling
reason to justify the direct resort to this court. The lack of other sufficient remedies in the course of law alone is
sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of public policy, or
demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the
appeal was consideredas clearly an inappropriate remedy."82 In the past, questions similar to these which this court
ruled on immediately despite the doctrine of hierarchy of courts included citizens’ right to bear arms, 83 government
contracts involving modernization of voters’ registration lists, 84 and the status and existence of a public office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a direct resort to this
court. While generally, the hierarchy of courts is respected, the present case falls under the recognized exceptions
and, as such, may be resolved by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question, hence not within the
ambit of this court’s power of review. They cite Justice Vitug’s separate opinion in Osmeña v. COMELEC 86 to
support their position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State shall guarantee
equal access to opportunities for public service, and prohibit political dynasties as may be defined by law." I see
neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that adversarial or irreconcilably
inconsistent with the right of free expression. In any event, the latter, being one of general application, must yield to
the specific demands of the Constitution. The freedom of expression concededly holds, it is true, a vantage point in
hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the "weak" in our
society but it is to me a genuine attempt on the part of Congress and the Commission on Elections to ensure that all
candidates are given an equal chance to media coverage and thereby be equally perceived as giving real life to the
candidates’ right of free expression rather than being viewed as an undue restriction of that freedom. The wisdom in
the enactment of the law, i.e., that which the legislature deems to be best in giving life to the Constitutional mandate,
is not for the Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon. 87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and weak, on their equal
opportunities for media coverage of candidates and their right to freedom of expression. This case concerns the
right of petitioners, who are non-candidates, to post the tarpaulin in their private property, asan exercise of their right
of free expression. Despite the invocation of the political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political question:

What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to
be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other
department or particular officer of the government, withdiscretionary power to act. 89 (Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the law should be. In political
forums, particularly the legislature, the creation of the textof the law is based on a general discussion of factual
circumstances, broadly construed in order to allow for general application by the executive branch. Thus, the
creation of the law is not limited by particular and specific facts that affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a specific case-to-
case basis, where parties affected by the legal provision seek the courts’ understanding of the law.
The complementary nature of the political and judicial branches of government is essential in order to ensure that
the rights of the general public are upheld at all times. In order to preserve this balance, branches of government
must afford due respectand deference for the duties and functions constitutionally delegated to the other. Courts
cannot rush to invalidate a law or rule. Prudence dictates that we are careful not to veto political acts unless we can
craft doctrine narrowly tailored to the circumstances of the case.

The case before this court does not call for the exercise of prudence or modesty. There is no political question. It
can be acted upon by this court through the expanded jurisdiction granted to this court through Article VIII, Section 1
of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of different agencies and
departments of the executive or those of the legislature. The political question doctrine is used as a defense when
the petition asks this court to nullify certain acts that are exclusively within the domain of their respective
competencies, as provided by the Constitution or the law. In such situation, presumptively, this court should act with
deference. It will decline to void an act unless the exercise of that power was so capricious and arbitrary so as to
amount to grave abuse of discretion.

The concept of a political question, however, never precludes judicial review when the act of a constitutional organ
infringes upon a fundamental individual or collective right. Even assuming arguendo that the COMELEC did have
the discretion to choose the manner of regulation of the tarpaulin in question, it cannot do so by abridging the
fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official
concerned and decide a matter which by its nature or by law is for the latter alone to decide. 91

How this court has chosen to address the political question doctrine has undergone an evolution since the timethat it
had been first invoked in Marcos v. Manglapus. Increasingly, this court has taken the historical and social context of
the case and the relevance of pronouncements of carefully and narrowly tailored constitutional doctrines. This trend
was followed in cases such as Daza v. Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987 Constitution
involving the removal of petitioners from the Commission on Appointments. In times past, this would have involved a
quint essentially political question as it related to the dominance of political parties in Congress. However, in these
cases, this court exercised its power of judicial review noting that the requirement of interpreting the constitutional
provision involved the legality and not the wisdom of a manner by which a constitutional duty or power was
exercised. This approach was again reiterated in Defensor Santiago v. Guingona, Jr. 94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence ofa political
question did not bar an examination of whether the exercise of discretion was done with grave abuse of discretion.
In that case, this court ruled on the question of whether there was grave abuse of discretion in the President’s use of
his power to call out the armed forces to prevent and suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President resigned was not a
political question even if the consequences would be to ascertain the political legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the resolution of
constitutional issues as leverage. But the expanded jurisdiction of this court now mandates a duty for it to exercise
its power of judicial review expanding on principles that may avert catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas v. Executive
Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's discretionary powers are
exercised or into the wisdom for its exercise, it is also a settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said powers are within the limits prescribed by the Constitution, We
will not decline to exercise our power of judicial review. And such review does not constitute a modification or
correction of the act of the President, nor does it constitute interference with the functions of the President. 98

The concept of judicial power in relation to the concept of the political question was discussed most extensively in
Francisco v. HRET.99 In this case, the House of Representatives arguedthat the question of the validity of the second
impeachment complaint that was filed against former Chief Justice Hilario Davide was a political question beyond
the ambit of this court. Former Chief Justice Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new Constitution
which expanded the definition of judicial power as including "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." As well observed by retired Justice Isagani Cruz, this expanded definition of
judicial power considerably constricted the scope of political question. He opined that the language luminously
suggests that this duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers. 100 (Emphasis in the original, citations
omitted)

Francisco also provides the cases which show the evolution of the political question, as applied in the following
cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution
limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the
Court,under previous constitutions, would have normally left to the political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover,
as held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of
the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate
that obligation mandated by the 1987 Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases." (Emphasis and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that,
even if we were to assume that the issue presented before us was political in nature, we would still not be precluded
from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.x x x (Emphasis and italics supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable question lies in
the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred
upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality
of the government properly acted within such limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no constitutionally imposed
limits on powers or functions conferred upon political bodies. Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to the scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance that this right may
be abridged demands judicial scrutiny. It does not fall squarely into any doubt that a political question brings.
I.E

Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative remedies. Respondents
insist that petitioners should have first brought the matter to the COMELEC En Banc or any of its divisions.102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course of law."103 They add that the proper venue to assail
the validity of the assailed issuances was in the course of an administrative hearing to be conducted by
COMELEC.104 In the event that an election offense is filed against petitioners for posting the tarpaulin, they claim that
petitioners should resort to the remedies prescribed in Rule 34 of the COMELEC Rules of Procedure. 105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is already ripe for
adjudication. Ripeness is the "prerequisite that something had by then been accomplished or performed by either
branch [or in this case, organ of government] before a court may come into the picture." 106

Petitioners’ exercise of their rightto speech, given the message and their medium, had understandable relevance
especially during the elections. COMELEC’s letter threatening the filing of the election offense against petitioners is
already an actionable infringement of this right. The impending threat of criminal litigation is enough to curtail
petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in their pleadings
prolongs the violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v. Gonzales, 107 Justice Carpio
in a separate opinion emphasized: "[i]f everthere is a hierarchy of protected expressions, political expression would
occupy the highest rank, and among different kinds of political expression, the subject of fair and honest elections
would be at the top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current controversy is
within the exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial action may be
validly resorted to immediately: (a) when there is a violation of due process; (b) when the issue involved is purely a
legal question; (c) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; (d)
when there is estoppel on the part ofthe administrative agency concerned; (e) when there is irreparable injury; (f)
when the respondent is a department secretary whose acts as analter ego of the President bear the implied and
assumed approval of the latter; (g) when to require exhaustion of administrative remedies would be unreasonable;
(h) when it would amount to a nullification of a claim; (i) when the subject matter is a private land in land case
proceedings; (j) whenthe rule does not provide a plain, speedy and adequate remedy; or (k) when there are
circumstances indicating the urgency of judicial intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners allegethat the
assailed issuances violated their right to freedom of expression and the principle of separation of church and state.
This is a purely legal question. Second, the circumstances of the present case indicate the urgency of judicial
intervention considering the issue then on the RH Law as well as the upcoming elections. Thus, to require the
exhaustion of administrative remedies in this case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to except a case from
their operation when compelling reasons so warrant, or whenthe purpose of justice requires it, [and when] [w]hat
constitutes [as] good and sufficient cause that will merit suspension of the rules is discretionary upon the
court".112Certainly, this case of first impression where COMELEC has threatenedto prosecute private parties who
seek to participate in the elections by calling attention to issues they want debated by the publicin the manner they
feel would be effective is one of those cases.

II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the power to
regulate the tarpaulin.113 However, all of these provisions pertain to candidates and political parties. Petitioners are
not candidates. Neither do theybelong to any political party. COMELEC does not have the authority to regulate the
enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible elections. 114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the creation of the
Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the provision prohibiting journalists from
covering plebiscite issues on the day before and on plebiscite day. 117 Sanidad argued that the prohibition was a
violation of the "constitutional guarantees of the freedom of expression and of the press. . . ." 118 We held that the "evil
sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or radio or television time."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor
the candidates[,]"120 thus, their right to expression during this period may not be regulated by COMELEC. 121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates. II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows: 122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied) Based on the enumeration made on actsthat may be
penalized, it will be inferred that this provision only affects candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was followed bythe
assailed letter regarding the "election propaganda material posted on the church vicinity promoting for or against the
candidates and party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and "candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to
erect common poster areas for their candidates in not more than ten (10) public places such as plazas, markets,
barangay centers and the like, wherein candidates can post, display or exhibit election propaganda: Provided, That
the size ofthe poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent. Independent
candidates with no political parties may likewise be authorized to erect common poster areas in not more than ten
(10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post
any lawful propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates. (Emphasis supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the Fair Election
Act, provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful campaign material in:

a. Authorized common poster areasin public places subject to the requirements and/or limitations set forth in
the next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster areas and those
enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting the same shall be liable
together with the candidates and other persons who caused the posting. It will be presumed that the candidates and
parties caused the posting of campaign materials outside the common poster areas if they do not remove the same
within three (3) days from notice which shall be issued by the Election Officer of the city or municipality where the
unlawful election propaganda are posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election Officeror other officials of the
COMELEC shall apprehend the violators caught in the act, and file the appropriate charges against them.
(Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above provisions regulating
the posting of campaign materials only apply to candidates and political parties, and petitioners are neither of the
two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are "allowed for all
registered political parties, national, regional, sectoral parties or organizations participating under the party-list
elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides
for a similar wording. These provisions show that election propaganda refers to matter done by or on behalf of and
in coordination with candidates and political parties. Some level of coordination with the candidates and political
parties for whom the election propaganda are released would ensure that these candidates and political parties
maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party. 125 There was no allegation that petitioners
coordinated with any of the persons named in the tarpaulin regarding its posting. On the other hand, petitioners
posted the tarpaulin as part of their advocacy against the RH Law. Respondents also cite National Press Club v.
COMELEC126 in arguing that its regulatory power under the Constitution, to some extent, set a limit on the right to
free speech during election period.127

National Press Club involved the prohibition on the sale and donation of space and time for political advertisements,
limiting political advertisements to COMELEC-designated space and time. This case was brought by representatives
of mass media and two candidates for office in the 1992 elections. They argued that the prohibition on the sale and
donation of space and time for political advertisements is tantamount to censorship, which necessarily infringes on
the freedom of speech of the candidates.128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However, this case does
not apply as most of the petitioners were electoral candidates, unlike petitioners in the instant case. Moreover, the
subject matter of National Press Club, Section 11(b) of Republic Act No. 6646,129 only refers to a particular kind of
media such as newspapers, radio broadcasting, or television. 130 Justice Feliciano emphasized that the provision did
not infringe upon the right of reporters or broadcasters to air their commentaries and opinions regarding the
candidates, their qualifications, and program for government. Compared to Sanidadwherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National Press Clubdoes not involve the same
infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013 national elections
because of the COMELEC notice and letter. It was not merelya regulation on the campaigns of candidates vying for
public office. Thus, National Press Clubdoes not apply to this case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, defines
an"election campaign" as follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of
any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of
any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants for nomination for
candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as
election campaign or partisan election activity. Public expressions or opinions or discussions of probable issues in a
forthcoming electionor on attributes of or criticisms against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as part of any election campaign or partisan political
activity contemplated under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and political parties
themselves. The focus of the definition is that the act must be "designed to promote the election or defeat of a
particular candidate or candidates to a public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either appreciation
or criticism on votes made in the passing of the RH law. Thus, petitioners invoke their right to freedom of
expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their fundamental right
to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their regulation
pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter
ordering itsremoval for being oversized are valid and constitutional. 131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances. 132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law Department, this
court has applied Article III, Section 4 of the Constitution even to governmental acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised Ordinances of 1927 of
Manila for the public meeting and assembly organized by petitioner Primicias.134 Section 1119 requires a Mayor’s
permit for the use of streets and public places for purposes such as athletic games, sports, or celebration of national
holidays.135 What was questioned was not a law but the Mayor’s refusal to issue a permit for the holding of
petitioner’s public meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute, 137 and the petition for mandamus to
compel respondent Mayor to issue the permit was granted. 138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution No. 98-1419
where the COMELEC resolved to approve the issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this case and, consequently, the assailed
resolution was nullified and set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against the abridgment of
speech should not mean an absolute prohibition against regulation. The primary and incidental burden on speech
must be weighed against a compelling state interest clearly allowed in the Constitution. The test depends on the
relevant theory of speech implicit in the kind of society framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition to the freedom of
speech and of the press provided in the US Constitution. The word "expression" was added in the 1987 Constitution
by Commissioner Brocka for having a wider scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29, it says: "No
law shall be passed abridging the freedom of speech." I would like to recommend to the Committee the change of
the word "speech" to EXPRESSION; or if not, add the words AND EXPRESSION after the word "speech," because
it is more expansive, it has a wider scope, and it would refer to means of expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none; the amendment
is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of speech,
expression or of the press . . . ."141 Speech may be said to be inextricably linked to freedom itself as "[t]he right to
think is the beginning of freedom, and speech must be protected from the government because speech is the
beginning of thought."142

II.B.2

Communication is an essential outcome of protected speech.143 Communication exists when "(1) a speaker, seeking
to signal others, uses conventional actions because he orshe reasonably believes that such actions will be taken by
the audience in the manner intended; and (2) the audience so takes the actions." 144 "[I]n communicative action[,] the
hearer may respond to the claims by . . . either accepting the speech act’s claims or opposing them with criticism or
requests for justification."145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes referred to as
‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are combined in the same course of
conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of
expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct
enacted, and even to inaction itself as a symbolic manner of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of the religious sect
Jehovah’s Witnesses were to be expelled from school for refusing to salute the flag, sing the national anthem, and
recite the patriotic pledge.149 In his concurring opinion, Justice Cruz discussed how the salute is a symbolic manner
of communication and a valid form of expression.150 He adds that freedom of speech includes even the right to be
silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that guarantees to the
individual the liberty to utter what is in his mind also guarantees to him the liberty not to utter what is not in his mind.
The salute is a symbolic manner of communication that conveys its messageas clearly as the written or spoken
word. As a valid form of expression, it cannot be compelled any more than it can be prohibited in the face of valid
religious objections like those raised in this petition. To impose it on the petitioners is to deny them the right not to
speak when their religion bids them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the unconventional and even the
bizarre or eccentric. The will of the majority prevails, but it cannot regiment thought by prescribing the recitation by
rote of its opinions or proscribing the assertion of unorthodox or unpopular views as inthis case. The conscientious
objections of the petitioners, no less than the impatience of those who disagree with them, are protected by the
Constitution. The State cannot make the individual speak when the soul within rebels. 151

Even before freedom "of expression" was included in Article III, Section 4 of the present Constitution,this court has
applied its precedent version to expressions other than verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the motion picture
"Kapit sa Patalim" as "For Adults Only." They contend that the classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic expression." 153 This court recognized that "[m]otion pictures are
important both as a medium for the communication of ideas and the expression of the artistic impulse." 154 It adds that
"every writer,actor, or producer, no matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what constitutes obscenity appears to be unduly
restrictive."156 However, the petition was dismissed solely on the ground that there were not enough votes for a ruling
of grave abuse of discretion in the classification made by the Board.157

II.B.3
Size does matter

The form of expression is just as important as the information conveyed that it forms part of the expression. The
present case is in point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier to view its
messages from greater distances. Furthermore, a larger tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians, the passengers inside moving vehicles have lesser
time to view the content of a tarpaulin. The larger the fonts and images, the greater the probability that it will catch
their attention and, thus, the greater the possibility that they will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader. From an ordinary
person’s perspective, those who post their messages in larger fonts care more about their message than those who
carry their messages in smaller media. The perceived importance given by the speakers, in this case petitioners, to
their cause is also part of the message. The effectivity of communication sometimes relies on the emphasis put by
the speakers and onthe credibility of the speakers themselves. Certainly, larger segments of the public may tend to
be more convinced of the point made by authoritative figures when they make the effort to emphasize their
messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more opportunities to
amplify, explain, and argue points which the speakers might want to communicate. Rather than simply placing the
names and images of political candidates and an expression of support, larger spaces can allow for brief but
memorable presentations of the candidates’ platforms for governance. Larger spaces allow for more precise
inceptions of ideas, catalyze reactions to advocacies, and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the possibilities of both good governance and accountability in
our government.

These points become more salient when it is the electorate, not the candidates or the political parties, that speaks.
Too often, the terms of public discussion during elections are framed and kept hostage by brief and catchy but
meaningless sound bites extolling the character of the candidate. Worse, elections sideline political arguments and
privilege the endorsement by celebrities. Rather than provide obstacles to their speech, government should in fact
encourage it. Between the candidates and the electorate, the latter have the better incentive to demand discussion
of the more important issues. Between the candidates and the electorate, the former have better incentives to avoid
difficult political standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of expression
protected under Article III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic right to freedom of
expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to criticize government
actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue
isa critical, and indeed defining, feature of a good polity."159 This theory may be considered broad, but it definitely
"includes [a] collective decision making with the participation of all who will beaffected by the decision." 160 It anchors
on the principle that the cornerstone of every democracy is that sovereignty resides in the people. 161 To ensure order
in running the state’s affairs, sovereign powers were delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the theory on deliberative democracy may evolve to the
right of the people to make government accountable. Necessarily, this includes the right of the people to criticize
acts made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent, should thus be
protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and proposed remedies."162

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government demand a
full discussion of public affairs."163 This court has, thus, adopted the principle that "debate on public issues should be
uninhibited, robust,and wide open . . . [including even] unpleasantly sharp attacks on government and public
officials."164

Second, free speech should be encouraged under the concept of a market place of ideas. This theory was
articulated by Justice Holmes in that "the ultimate good desired is better reached by [the] free trade in ideas:" 165

When men have realized that time has upset many fighting faiths, they may come to believe even more than they
believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in
ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market,
and that truth is the only ground upon which their wishes safely can be carried out. 166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their own
conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new ones. This promotes
both stability and change where recurring points may crystallize and weak ones may develop. Of course, free
speech is more than the right to approve existing political beliefs and economic arrangements as it includes, "[t]o
paraphrase Justice Holmes, [the] freedom for the thought that we hate, no less than for the thought that agrees with
us."168 In fact, free speech may "best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger." 169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means of assuring
individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to
man's enjoyment of his life, to his happiness and to his full and complete fulfillment.Thru these freedoms the citizens
can participate not merely in the periodic establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these
rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well
as for the imposition of the lawful sanctions on erring public officers and employees. 172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an] important
democratic role [in providing] forums for the development of civil skills, for deliberation, and for the formation of
identity and community spirit[,] [and] are largely immune from [any] governmental interference." 173 They also "provide
a buffer between individuals and the state - a free space for the development of individual personality, distinct group
identity, and dissident ideas - and a potential source of opposition to the state."174 Free speech must be protected as
the vehicle to find those who have similar and shared values and ideals, to join together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities against majoritarian
abuses perpetrated through [the] framework [of democratic governance]." 175 Federalist framers led by James
Madison were concerned about two potentially vulnerable groups: "the citizenry at large - majorities - who might be
tyrannized or plundered by despotic federal officials"176 and the minorities who may be oppressed by "dominant
factions of the electorate [that] capture [the] government for their own selfish ends[.]"177 According to Madison, "[i]t is
of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one
part of the society against the injustice of the other part."178 We should strive to ensure that free speech is protected
especially in light of any potential oppression against those who find themselves in the fringes on public issues.

Lastly, free speech must be protected under the safety valve theory. 179 This provides that "nonviolent manifestations
of dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of a
menacing flood of sullen anger behind the walls of restriction’"181 has been used to describe the effect of repressing
nonviolent outlets.182 In order to avoid this situation and prevent people from resorting to violence, there is a need for
peaceful methods in making passionate dissent. This includes "free expression and political participation"183 in that
they can "vote for candidates who share their views, petition their legislatures to [make or] change laws, . . .
distribute literature alerting other citizens of their concerns[,]"184 and conduct peaceful rallies and other similar
acts.185 Free speech must, thus, be protected as a peaceful means of achieving one’s goal, considering the
possibility that repression of nonviolent dissent may spill over to violent means just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection. Respondents argue that
the tarpaulinis election propaganda, being petitioners’ way of endorsing candidates who voted against the RH Law
and rejecting those who voted for it.186 As such, it is subject to regulation by COMELEC under its constitutional
mandate.187 Election propaganda is defined under Section 1(4) of COMELEC Resolution No. 9615 as follows:
SECTION 1. Definitions . . .

....

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed,
displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with a candidate or party, and is intended
to draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of
the said candidate or candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers. Political advertising includes matters, not
falling within the scope of personal opinion, that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary
estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views and beliefs
about issues and candidates."188 They argue that the tarpaulin was their statement of approval and appreciation of
the named public officials’ act of voting against the RH Law, and their criticism toward those who voted in its
favor.189It was "part of their advocacy campaign against the RH Law,"190 which was not paid for by any candidate or
political party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and curtail[ed] [their] freedom of
expression should be declared unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of constitutional
values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills, this court discussed the
preferred position occupied by freedom of expression:

Property and property rights can belost thru prescription; but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government
and ceases to be an efficacious shield against the tyranny of officials, of majorities, ofthe influential and powerful,
and of oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they
are essential to the preservation and vitality of our civil and political institutions; and such priority "gives these
liberties the sanctity and the sanction not permitting dubious intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of suffrage."196 A similar idea appeared in our
jurisprudence as early as 1969, which was Justice Barredo’s concurring and dissenting opinion in Gonzales v.
COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine democracy
thrives only where the power and right of the people toelect the men to whom they would entrust the privilege to run
the affairs of the state exist. In the language of the declaration of principles of our Constitution, "The Philippines is a
republican state. Sovereignty resides in the people and all government authority emanates from them" (Section 1,
Article II). Translating this declaration into actuality, the Philippines is a republic because and solely because the
people in it can be governed only by officials whom they themselves have placed in office by their votes. And in it is
on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and peaceful assembly
and redress of grievances are being exercised in relation to suffrage or asa means to enjoy the inalienable right of
the qualified citizen to vote, they are absolute and timeless. If our democracy and republicanism are to be
worthwhile, the conduct of public affairs by our officials must be allowed to suffer incessant and unabating scrutiny,
favorable or unfavorable, everyday and at all times. Every holder of power in our government must be ready to
undergo exposure any moment of the day or night, from January to December every year, as it is only in this way
that he can rightfully gain the confidence of the people. I have no patience for those who would regard public
dissection of the establishment as an attribute to be indulged by the people only at certain periods of time. I consider
the freedoms of speech, press and peaceful assembly and redress of grievances, when exercised in the name of
suffrage, as the very means by which the right itself to vote can only be properly enjoyed.It stands to reason
therefore, that suffrage itself would be next to useless if these liberties cannot be untrammelled [sic] whether as to
degree or time.198 (Emphasis supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of speech may be
subject to regulation:

Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order
that it may not be injurious to the equal right of others or those of the community or society. The difference in
treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctionshave therefore been made in the treatment, analysis, and
evaluation ofthe permissible scope of restrictions on various categories of speech. We have ruled, for example, that
in our jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both intended and
received as a contribution to public deliberation about some issue,"200 "foster[ing] informed and civicminded
deliberation."201 On the other hand, commercial speech has been defined as speech that does "no more than
propose a commercial transaction."202 The expression resulting from the content of the tarpaulin is, however,
definitely political speech. In Justice Brion’s dissenting opinion, he discussed that "[t]he content of the tarpaulin, as
well as the timing of its posting, makes it subject of the regulations in RA 9006 and Comelec Resolution No.
9615."203 He adds that "[w]hile indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners
gave the issue converted the non-election issue into a live election one hence, Team Buhay and Team Patay and
the plea to support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin was not paid for or posted "in return for consideration" by
any candidate, political party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and regulations implementing
Republic Act No. 9006 as an aid to interpret the law insofar as the facts of this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed,
displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with a candidate or party, and is intended
to draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of
the said candidate or candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers. Political advertising includes matters, not
falling within the scope of personal opinion, that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary
estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored messages are
covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office, and shall include any of the following:

....

Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered acts of
election campaigning or partisan politicalactivity unless expressed by government officials in the Executive
Department, the Legislative Department, the Judiciary, the Constitutional Commissions, and members of the Civil
Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters should be deemed
narrowly tailored only in relation to the facts and issues in this case. It also appears that such wording in COMELEC
Resolution No. 9615 does not similarly appear in Republic Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of public affairs. We
acknowledged that free speech includes the right to criticize the conduct of public men:

The interest of society and the maintenance of good government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision
of its probe relieves the abscesses of official dom. Men in public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-
skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual
be exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of grievances, allowing for
criticism, save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this court noted every citizen’s
privilege to criticize his or her government, provided it is "specific and therefore constructive, reasoned or tempered,
and not a contemptuous condemnation of the entire government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision "penaliz[ing] the
anonymous criticism of a candidate by means of posters or circulars."211 This court explained that it is the poster’s
anonymous character that is being penalized.212 The ponente adds that he would "dislike very muchto see this
decision made the vehicle for the suppression of public opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views. According to this
court, "[i]ts value may lie in the fact that there may be something worth hearing from the dissenter [and] [t]hat is to
ensurea true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government contributes to every
society’s goal for development. It puts forward matters that may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also makes the government accountable for acts that violate
constitutionally protected rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass media from
selling print space and air time for campaign except to the COMELEC, to be a democracy-enhancing
measure.216This court mentioned how "discussion of public issues and debate on the qualifications of candidates in
an election are essential to the proper functioning of the government established by our Constitution." 217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of elections when the
free exercise thereof informs the people what the issues are, and who are supporting what issues." 218 At the heart of
democracy is every advocate’s right to make known what the people need to know, 219 while the meaningful exercise
of one’s right of suffrage includes the right of every voter to know what they need to know in order to make their
choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and the freedom of
expression especially in relation to information that ensures the meaningful exercise of the right of suffrage:

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it
may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest
essential if our elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what
may be curtailed is the dissemination of information to make more meaningful the equally vital right of
suffrage.221(Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights and even
government protection of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are still subjectto
some restrictions. The degree of restriction may depend on whether the regulation is content-based or content-
neutral.223 Content-based regulations can either be based on the viewpoint of the speaker or the subject of the
expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The order was made
simply because petitioners failed to comply with the maximum size limitation for lawful election propaganda. 224

On the other hand, petitioners argue that the present size regulation is content-based as it applies only to political
speech and not to other forms of speech such as commercial speech. 225 "[A]ssuming arguendo that the size
restriction sought to be applied . . . is a mere time, place, and manner regulation, it’s still unconstitutional for lack of
a clear and reasonable nexus with a constitutionally sanctioned objective." 226

The regulation may reasonably be considered as either content-neutral or content-based.227 Regardless, the
disposition of this case will be the same. Generally, compared with other forms of speech, the proposed speech is
content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order applies only to
posters and tarpaulins that may affect the elections because they deliver opinions that shape both their choices. It
does not cover, for instance, commercial speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will be adjudged
as "election paraphernalia." There are no existing bright lines to categorize speech as election-related and those
that are not. This is especially true when citizens will want to use their resources to be able to raise public issues
that should be tackled by the candidates as what has happened in this case. COMELEC’s discretion to limit speech
in this case is fundamentally unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not easily divorced
from the size of its medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear and present
danger rule as measure.228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and
present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the
restrictions imposedare neither overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely serious and the
degree of imminence extremely high.’"230 "Only when the challenged act has overcome the clear and present danger
rule will it pass constitutional muster, with the government having the burden of overcoming the presumed
unconstitutionality."231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no compelling and
substantial state interest endangered by the posting of the tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the right of non-candidate petitioners to post the tarpaulin in
their private property. The size of the tarpaulin does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the utterance or
speech."232 In contrast, content-neutral regulation includes controls merely on the incidents of the speech such as
time, place, or manner of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of Primicias v.
Fugoso.234The ordinance in this case was construed to grant the Mayor discretion only to determine the public places
that may be used for the procession ormeeting, but not the power to refuse the issuance of a permit for such
procession or meeting.235 This court explained that free speech and peaceful assembly are "not absolute for it may
be so regulated that it shall not beinjurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that prohibited the
passing of animal-drawn vehicles along certain roads at specific hours. 238 This court similarly discussed police power
in that the assailed rules carry outthe legislative policy that "aims to promote safe transit upon and avoid
obstructions on national roads, in the interest and convenience of the public." 239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement. . . ."241 It is with this backdrop that the state is justified in imposing restrictions
on incidental matters as time, place, and manner of the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants must follow
which include informing the licensing authority ahead of time as regards the date, public place, and time of the
assembly.242 This would afford the public official time to inform applicants if there would be valid objections, provided
that the clear and present danger test is the standard used for his decision and the applicants are given the
opportunity to be heard.243 This ruling was practically codified in Batas Pambansa No. 880, otherwise known as the
Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral regulation. In the 2006
case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No. 880 does not prohibit assemblies but
simply regulates their time, place, and manner.245 In 2010, this court found in Integrated Bar of the Philippines v.
Atienza246 that respondent Mayor Atienza committed grave abuse of discretion when he modified the rally permit by
changing the venue from Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be
heard.247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily divorced from
the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for tarpaulins are
content-neutral regulations as these "restrict the mannerby which speech is relayed but not the content of what is
conveyed."248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the three
requirements for evaluating such restraints on freedom of speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial governmental interest is required for its validity,"250 and it is subject only
to the intermediate approach.251

This intermediate approach is based on the test that we have prescribed in several cases. 252 A content-neutral
government regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incident
restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that
interest.253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the tarpaulin. As
discussed earlier, this is protected speech by petitioners who are non-candidates. On the second requirement, not
only must the governmental interest be important or substantial, it must also be compelling as to justify the
restrictions made.

Compelling governmental interest would include constitutionally declared principles. We have held, for example, that
"the welfare of children and the State’s mandate to protect and care for them, as parens patriae,254 constitute a
substantial and compelling government interest in regulating . . . utterances in TV broadcast." 255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information campaigns among
candidates in connection with the holding of a free, orderly, honest, peaceful, and credible election.256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure equality of
public information campaigns among candidates, as allowing posters with different sizes gives candidates and their
supporters the incentive to post larger posters[,] [and] [t]his places candidates with more money and/or with deep-
pocket supporters at an undue advantage against candidates with more humble financial capabilities." 257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private citizen] to freely
express his choice and exercise his right of free speech."258 In any case, faced with both rights to freedom of speech
and equality, a prudent course would be to "try to resolve the tension in a way that protects the right of
participation."259

Second, the pertinent election lawsrelated to private property only require that the private property owner’s consent
be obtained when posting election propaganda in the property.260 This is consistent with the fundamental right
against deprivation of property without due process of law.261 The present facts do not involve such posting of
election propaganda absent consent from the property owner. Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to minimize
election spending. Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied) This does not qualify as a compelling and substantial
government interest to justify regulation of the preferred right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet (3’) size limitation
under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements the Fair Election Act that
provides for the same size limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in guaranteeing
freedom of expression, any financial considerations behind the regulation are of marginal significance." 264 In fact,
speech with political consequences, as in this case, should be encouraged and not curtailed. As petitioners pointed
out, the size limitation will not serve the objective of minimizing election spending considering there is no limit on the
number of tarpaulins that may be posted.265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing the restriction,
but more so at the effects of such restriction, if implemented. The restriction must not be narrowly tailored to achieve
the purpose. It must be demonstrable. It must allow alternative avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum sizeof the
tarpaulin would render ineffective petitioners’ message and violate their right to exercise freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading expressions with political
consequences. These should be encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.

The restriction in the present case does not pass even the lower test of intermediate scrutiny for content-neutral
regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate. Given the stature
of petitioners and their message, there are indicators that this will cause a "chilling effect" on robust discussion
during elections.

The form of expression is just as important as the message itself. In the words of Marshall McLuhan, "the medium is
the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted that "the materials on which
words were written down have often counted for more than the words themselves."267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the endorsement of their
electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form of tarpaulins,
posters, or media advertisements are made ostensibly by "friends" but in reality are really paid for by the candidate
or political party. This skirts the constitutional value that provides for equal opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the situation that confronts us.
In such cases, it will simply be a matter for investigation and proof of fraud on the part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political candidate should not
be held hostage by the possibility of abuse by those seeking to be elected. It is true that there can be underhanded,
covert, or illicit dealings so as to hide the candidate’s real levels of expenditures. However, labelling all expressions
of private parties that tend to have an effect on the debate in the elections as election paraphernalia would be too
broad a remedy that can stifle genuine speech like in this case. Instead, to address this evil, better and more
effective enforcement will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will spend their own
resources in order to lend support for the campaigns. This may be without agreement between the speaker and the
candidate or his or her political party. In lieu of donating funds to the campaign, they will instead use their resources
directly in a way that the candidate or political party would have doneso. This may effectively skirt the constitutional
and statutory limits of campaign spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will carry in their
election posters or media ads. The message of petitioner, taken as a whole, is an advocacy of a social issue that it
deeply believes. Through rhetorical devices, it communicates the desire of Diocese that the positions of those who
run for a political position on this social issue be determinative of how the public will vote. It primarily advocates a
stand on a social issue; only secondarily — even almost incidentally — will cause the election or non-election of a
candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such devices as
sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any individual or group in
society, private and government alike. It seeks to effectively communicate a greater purpose, often used for "political
and social criticism"269 "because it tears down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is
more thoroughly democratic than to have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown
in this literary field, claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense
of the grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses exaggeration, analogy,
and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could the
Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the candidates in his list was
to cause death intentionally. The tarpaulin caricatures political parties and parodies the intention of those in the list.
Furthermore, the list of "Team Patay" is juxtaposed with the list of "Team Buhay" that further emphasizes the theme
of its author: Reproductive health is an important marker for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election paraphernalia from
candidates and political parties are more declarative and descriptive and contain no sophisticated literary allusion to
any social objective. Thus, they usually simply exhort the public to vote for a person with a brief description of the
attributes of the candidate. For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z],
Iba kami sa Makati."

This court’s construction of the guarantee of freedom of expression has always been wary of censorship or
subsequent punishment that entails evaluation of the speaker’s viewpoint or the content of one’s speech. This is
especially true when the expression involved has political consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming humility on the part of any human institution no matter how
endowed with the secular ability to decide legal controversies with finality entails that we are not the keepers of all
wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent. Tolerance has
always been a libertarian virtue whose version is embedded in our Billof Rights. There are occasional heretics of
yesterday that have become our visionaries. Heterodoxies have always given us pause. The unforgiving but
insistent nuance that the majority surely and comfortably disregards provides us with the checks upon reality that
may soon evolve into creative solutions to grave social problems. This is the utilitarian version. It could also be that it
is just part of human necessity to evolve through being able to express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions which, taken
together with the guarantee of free expression, enhances each other’s value. Among these are the provisions that
acknowledge the idea of equality. In shaping doctrine construing these constitutional values, this court needs to
exercise extraordinary prudence and produce narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as exercised in reality and, thus, render them
meaningless.

III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that separate at the point of
giving priority to equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting
political equality prevails over speech."273 This view allows the government leeway to redistribute or equalize
‘speaking power,’ such as protecting, even implicitly subsidizing, unpopular or dissenting voices often systematically
subdued within society’s ideological ladder.274 This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that may drown out the messages of
others. This is especially true in a developing or emerging economy that is part of the majoritarian world like ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to participate in the self
determination of one’s communities is not new only to law. It has always been a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background limitation, rendering freedoms exercised within such limitation as
merely "protect[ing] the already established machinery of discrimination." 275 In his view, any improvement "in the
normal course of events" within an unequal society, without subversion, only strengthens existing interests of those
in power and control.276

In other words, abstract guarantees of fundamental rights like freedom of expression may become meaningless if
not taken in a real context. This tendency to tackle rights in the abstract compromises liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results from a whole series
of synthetic judgments. It stipulates the ability to determine one’s own life: to be able to determine what to do and
what not to do, what to suffer and what not. But the subject of this autonomy is never the contingent, private
individual as that which he actually is or happens to be; it is rather the individual as a human being who is capable of
being free with the others. And the problem of making possible such a harmony between every individual liberty and
the other is not that of finding a compromise between competitors, or between freedom and law, between general
and individual interest, common and private welfare in an established society, but of creating the society in which
man is no longer enslaved by institutions which vitiate self-determination from the beginning. In other words,
freedom is still to be created even for the freest of the existing societies. 277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the people —
"implies a necessary condition, namely, that the people must be capable of deliberating and choosing on the basis
of knowledge, that they must have access to authentic information, and that, on this basis, their evaluation must be
the result of autonomous thought."278 He submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited
by those who determine the national and the individual interest."279 A slant toward left manifests from his belief that
"there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use extralegal means if the legal
ones have proved to be inadequate."280 Marcuse, thus, stands for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations. The tolerance of libertarian society he refers to as
"repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent protections of expressive
liberty,"281 especially by political egalitarians. Considerations such as "expressive, deliberative, and informational
interests,"282 costs or the price of expression, and background facts, when taken together, produce bases for a
system of stringent protections for expressive liberties. 283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed that "public
discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent protection. 285 He defined political speech as "both intended and
received as a contribution to public deliberation about some issue."286

But this is usually related also tofair access to opportunities for such liberties. 287 Fair access to opportunity is
suggested to mean substantive equality and not mere formal equalitysince "favorable conditions for realizing the
expressive interest will include some assurance of the resources required for expression and some guarantee that
efforts to express views on matters of common concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the harms of speech with more speech."289 This view moves away
from playing down the danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing]
expression as the preferred strategy for addressing them."290 However, in some cases, the idea of more speech may
not be enough. Professor Laurence Tribe observed the need for context and "the specification of substantive values
before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds that "equality continues to be viewed
in a formal rather than a substantive sense."292 Thus, more speech can only mean more speech from the few who
are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b) ofthe Electoral
Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free of charge print space or air
time for campaign or other political purposes, except to the Commission on Elections." 294 This court explained that
this provision only regulates the time and manner of advertising in order to ensure media equality among
candidates.295 This court grounded this measure on constitutional provisions mandating political equality: 296 Article IX-
C, Section 4

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and enhance the right
of all the people to human dignity, reducesocial, economic, and political inequalities, and remove cultural inequities
by equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
(Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive expressive
freedoms that take equality of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or equality inthe ability of
citizens as speakers should not have a bearing in free speech doctrine. Under this view, "members of the public are
trusted to make their own individual evaluations of speech, and government is forbidden to intervene for paternalistic
or redistributive reasons . . . [thus,] ideas are best left to a freely competitive ideological market." 297 This is consistent
with the libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity or
invalidity of speech.

The textual basis of this view is that the constitutional provision uses negative rather than affirmative language. It
uses ‘speech’ as its subject and not ‘speakers’. 298 Consequently, the Constitution protects free speech per se,
indifferent to the types, status, or associations of its speakers. 299 Pursuant to this, "government must leave speakers
and listeners in the private order to their own devices in sorting out the relative influence of speech." 300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of speech includes
"not only the right to express one’s views, but also other cognate rights relevant to the free communication [of]
ideas, not excluding the right to be informed on matters of public concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of voters and candidates,
education, means of transportation, health, public discussion, private animosities, the weather, the threshold of a
voter’s resistance to pressure — the utmost ventilation of opinion of men and issues, through assembly, association
and organizations, both by the candidate and the voter, becomes a sine qua non for elections to truly reflect the will
of the electorate.302 (Emphasis supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech primacy such
that"courts, as a rule are wary to impose greater restrictions as to any attempt to curtail speeches with political
content,"303 thus:

the concept that the government may restrict the speech of some elements in our society in order to enhance the
relative voice of the others is wholly foreign to the First Amendment which was designed to "secure the widest
possible dissemination of information from diverse and antagonistic sources" and "to assure unfettered interchange
of ideas for the bringing about of political and social changes desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the best alternative to
censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme Court in the
campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if content-neutral) on expressive
liberty imposed in the name of ‘enhanc[ing] the relative voice of others’ and thereby ‘equaliz[ing] access to the
political arena."306 The majority did not use the equality-based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can speak, which
takes out of his exclusive judgment the decision of when enough is enough, deprives him of his free speech." 307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the sum of public
information and runs counter to our ‘profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the plight of those
without funds in the first place . . . [and] even if one’s main concern isslowing the increase in political costs, it may
be more effective torely on market forces toachieve that result than on active legal intervention." 309 According to
Herbert Alexander, "[t]o oppose limitations is not necessarily to argue that the sky’s the limit [because in] any
campaign there are saturation levels and a point where spending no longer pays off in votes per dollar." 310

III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional respect for human
potentiality and the effect of speech. It valorizes the ability of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take into consideration the effects it will have in a deliberative
democracy. Skewed distribution of resources as well as the cultural hegemony of the majority may have the effect of
drowning out the speech and the messages of those in the minority. In a sense, social inequality does have its effect
on the exercise and effect of the guarantee of free speech. Those who have more will have better access to media
that reaches a wider audience than those who have less. Those who espouse the more popular ideas will have
better reception than the subversive and the dissenters of society.To be really heard and understood, the
marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her expression. This
view, thus, restricts laws or regulation that allows public officials to make judgments of the value of such viewpoint or
message content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to some
expression during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the members of their
political parties or their political parties may be regulated as to time, place, and manner. This is the effect of our
rulings in Osmeña v. COMELEC and National Press Club v. COMELEC.

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.

This does not mean that there cannot be a specie of speech by a private citizen which will not amount toan election
paraphernalia to be validly regulated by law.

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. The
regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time,
place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored onthe
basis of its content. For this purpose, it will notmatter whether the speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal message in the twin
tarpaulins of petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law — Section 3.3 of
Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if applied to this case, will not pass
the test of reasonability. A fixed size for election posters or tarpaulins without any relation to the distance from the
intended average audience will be arbitrary. At certain distances, posters measuring 2 by 3 feet could no longer be
read by the general public and, hence, would render speech meaningless. It will amount to the abridgement of
speech with political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to suffrage, 312 the present
case also involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating to election
propaganda by applying such regulations to private individuals.314 Certainly, any provision or regulation can be
circumvented. But we are not confronted with this possibility. Respondents agree that the tarpaulin in question
belongs to petitioners. Respondents have also agreed, during the oral arguments, that petitioners were neither
commissioned nor paid by any candidate or political party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of petitioners.
Their right to use their property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz: 315

Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary
or unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of
due process and equal protection of the laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted is "so broad
that it encompasses even the citizen’s private property."317 Consequently, it violates Article III, Section 1 of the
Constitution which provides thatno person shall be deprived of his property without due process of law. This court
explained:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it;
and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use,
and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366,
391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a
person’s acquisitions without control or diminution save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan
v. Warley 245 US 60 [1917])318

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable.
The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election
propaganda in any place, whether public or private, except inthe common poster areas sanctioned by COMELEC.
This means that a private person cannot post his own crudely prepared personal poster on his own front dooror on a
post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous
and partisan police officers, armed with a copy of the statute or regulation, may do.319 Respondents ordered
petitioners, who are private citizens, to remove the tarpaulin from their own property. The absurdity of the situation is
in itself an indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no expression when there
is no place where the expression may be made. COMELEC’s infringement upon petitioners’ property rights as in the
present case also reaches out to infringement on their fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the intrusion into
petitioners’ property rights. Election laws and regulations must be reasonable. It must also acknowledge a private
individual’s right to exercise property rights. Otherwise, the due process clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election propaganda in
private property without the consent of the owners of such private property. COMELEC has incorrectly implemented
these regulations. Consistent with our ruling in Adiong, we find that the act of respondents in seeking to restrain
petitioners from posting the tarpaulin in their own private property is an impermissible encroachments on the right to
property.

V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice and letter
violated the right of petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many forms. Article III,
Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever
be allowed. Noreligious test shall be required for the exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the free exercise
and enjoyment of religious profession and worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make such act
immune from any secular regulation.324 The religious also have a secular existence. They exist within a society that is
regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to religious
expression. This notwithstanding petitioners’ claim that "the views and position of the petitioners, the Bishop and the
Diocese of Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith, and moral teachings. . . ." 325

The difficulty that often presents itself in these cases stems from the reality that every act can be motivated by
moral, ethical, and religious considerations. In terms of their effect on the corporeal world, these acts range from
belief, to expressions of these faiths, to religious ceremonies, and then to acts of a secular character that may, from
the point of view of others who do not share the same faith or may not subscribe to any religion, may not have any
religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court. Certainly, our powers of
adjudication cannot be blinded by bare claims that acts are religious in nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of Cebu326 in
claiming that the court "emphatically" held that the adherents ofa particular religion shall be the ones to determine
whether a particular matter shall be considered ecclesiastical in nature. 327 This court in Ebralinagexempted
Jehovah’s Witnesses from participating in the flag ceremony "out of respect for their religious beliefs, [no matter
how] "bizarre" those beliefsmay seem to others."328 This court found a balance between the assertion of a religious
practice and the compelling necessities of a secular command. It was an early attempt at accommodation of
religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion
under certain circumstances. Accommodations are government policies that take religion specifically intoaccount not
to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion
without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s
or institution’s religion. As Justice Brennan explained, the "government [may] take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which
voluntary religious exercise may flourish."330

This court also discussed the Lemon test in that case, such that a regulation is constitutional when: (1) it has a
secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not foster an excessive
entanglement with religion.331

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious doctrine of the
Catholic church."332 That the position of the Catholic church appears to coincide with the message of the tarpaulin
regarding the RH Law does not, by itself, bring the expression within the ambit of religious speech. On the contrary,
the tarpaulin clearly refers to candidates classified under "Team Patay" and "Team Buhay" according to their
respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the expression onthe
tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of the Catholic religion in the Philippines as regards the RH
Law does not suffice to qualify the posting by one of its members of a tarpaulin as religious speech solely on such
basis. The enumeration of candidates on the face of the tarpaulin precludes any doubtas to its nature as speech
with political consequences and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations Commission 333 cited by
petitioners finds no application in the present case. The posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as enumerated in the Austriacase such as "proceedings for
excommunication, ordinations of religious ministers, administration of sacraments and other activities withattached
religious significance."334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this case. However, it
was misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending among candidates
and their registered political parties. It is not to regulate or limit the speech of the electorate as it strives to participate
inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for public office.Their
message may be construed generalizations of very complex individuals and party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of a single issue — and a
complex piece of legislation at that — can easily be interpreted as anattempt to stereo type the candidates and
party-list organizations. Not all may agree to the way their thoughts were expressed, as in fact there are other
Catholic dioceses that chose not to follow the example of petitioners.

Some may have thought that there should be more room to consider being more broad-minded and non-judgmental.
Some may have expected that the authors would give more space to practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties. It is not a
detailed code that prescribes good conduct. It provides space for all to be guided by their conscience, not only in the
act that they do to others but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority. This can often be
expressed by dominant institutions, even religious ones. That they made their point dramatically and in a large way
does not necessarily mean that their statements are true, or that they have basis, or that they have been expressed
in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of expression protected by
our fundamental law. It is an expression designed to invite attention, cause debate, and hopefully, persuade. It may
be motivated by the interpretation of petitioners of their ecclesiastical duty, but their parishioner’s actions will have
very real secular consequences. Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate that tends to rouse
the public to debate contemporary issues. This is not speechby candidates or political parties to entice votes. It is a
portion of the electorate telling candidates the conditions for their election. It is the substantive content of the right to
suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected as a
fundamental and primordial right by our Constitution. The expression in the medium chosen by petitioners deserves
our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is hereby made
permanent. The act of the COMELEC in issuing the assailed notice dated February 22, 2013 and letter dated
February 27, 2013 is declared unconstitutional.

SO ORDERED.
 EN BANC

G.R. No. 206020, April 14, 2015

1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

DECISION

REYES, J.:

The right to participate in electoral processes is a basic and fundamental right in any democracy. It includes not only the
right to vote, but also the right to urge others to vote for a particular candidate. The right to express one's preference for a
candidate is likewise part of the fundamental right to free speech. Thus, any governmental restriction on the right to
convince others to vote for a candidate carries with it a heavy presumption of invalidity.

This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules of Court filed by 1-United Transport Koalisyon
(petitioner), a party-list organization, assailing Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
96152 of the Commission on Elections (COMELEC).

The Facts

On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the "Fair Elections Act", was passed. Section 9
thereof provides:

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect common
poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the
like, wherein candidates can post, display or exhibit election propaganda: Provided that the size of the poster areas shall not
exceed twelve (12) by sixteen (16) feet or its equivalent.

Independent candidates with no political parties may likewise be authorized to erect common poster areas in not more than
ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent.

Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in public
places or property which shall be allocated equitably and impartially among the candidates.

On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which provided for the rules implementing R.A. No.
9006 in connection with the May 13, 2013 national and local elections and subsequent elections. Section 7 thereof, which
enumerates the prohibited forms of election propaganda, pertinently provides:

SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign period, it is unlawful:

xxxx

(f) To post, display or exhibit any election campaign or propaganda material outside of authorized common poster areas, in
public places, or in private properties without the consent of the owner thereof.

(g) Public places referred to in the previous subsection (f) include any of the following:
xxxx

5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs and tricycles, whether motorized or not;

6. Within the premises of public transport terminals, such as bus terminals, airports, seaports, docks, piers, train stations,
and the like.
The violation of items [5 and 6] under subsection (g) 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 under Section 9
of Republic Act No. 9006 as implemented by Section 18 (n) of these Rules.3

In its letter4 dated January 30, 2013, the petitioner, through its president, Melencio F. Vargas, sought clarification from the
COMELEC as regards the application of Resolution No. 9615, particularly Section 7(g) items (5) and (6), in relation to Section
7(f), vis-a-vis privately owned public utility vehicles (PUVs) and transport terminals. The petitioner explained that the
prohibition stated in the aforementioned provisions impedes the right to free speech of the private owners of PUVs and
transport terminals. The petitioner then requested the COMELEC to reconsider the implementation of the assailed provisions
and allow private owners of PUVs and transport terminals to post election campaign materials on their vehicles and transport
terminals.

On February 5, 2013, the COMELEC en banc issued Minute Resolution No. 13-0214,5 which denied the petitioner's request to
reconsider the implementation of Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615. The
COMELEC en banc, adopting the recommendation of Commissioner Christian Robert S. Lim, opined that:

From the foregoing, x x x the primary fact in consideration here is actually whether 1 -UTAK or any other [PUV] owners in
the same position do in fact possess a franchise and/or certificate of public convenience and operate as a public
utility. If it does not, then the ruling in Adiong applies squarely. If it does, then its operations, pursuant to Section 4, Article
IX-C of the Constitution, will be placed directly under the supervision and regulation of the Commission for the duration of
the election period so as to ensure equality of opportunity, time, and space for all candidates in the placement of political
advertisements. Having placed their property for use by the general public and having secured a license or permit to do so,
1-UTAK and other PUV owners, as well as transport terminal owners, cannot now complain that their property is subject to
regulation by the State. Securing a franchise or a certificate of public convenience in their favor does not exempt them from
the burdens imposed by the Constitution, Republic Act No. 9006 x x x, and other related statutes. It must be stressed that
the Constitution itself, under Section 6, Article XII, commands that the use of property bears a social function and all
economic agents shall contribute to the common good; and there is no higher Common good than that as espoused in
R.A. No. 9006 - the equalization of opportunities for all candidates for political office during elections - a policy which Res.
No. 9615 merely implements.

As required in Adiong, and in compliance with the O'Brien standards, the prohibition furthers two important and substantial
governmental interests - equalizing opportunity, time, and space for all candidates, and putting to a stop excessive campaign
spending. The regulation bears a clear and reasonable nexus with these Constitutionally- and statutorily-sanctioned
objectives, and the infringement of freedom is merely incidental and limited as to time. The Commission has not taken away
all avenues of expression available to PUV and transport terminal owners. They may express their political preferences
elsewhere.

The exact purpose for placing political advertisements on a PUV or in transport terminals is exactly because it is public and
can be seen by all; and although it is true that private vehicles ply the same route as public vehicles, the exposure of a
[PUV] servicing the general, riding public is much more compared to private vehicles. Categorizing PUVs and transport
terminals as 'public places' under Section 7 (f) of Reso. No. 9615 is therefore logical. The same reasoning for
limiting political advertisements in print media, in radio, and in television therefore holds true for political advertisements in
PUVs and transport terminals.6

Hence, the instant petition.

Arguments of the Petitioner

The petitioner maintains that Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the
right to free speech of the owners of PUVs and transport terminals; that the prohibition curtails their ideas of who should be
voted by the public. The petitioner also claims that there is no substantial public interest threatened by the posting of
political advertisements on PUVs and transport terminals to warrant the prohibition imposed by the COMELEC. Further, the
petitioner posits that the ownership of the PUVs per se, as well as the transport terminals, remains private and, hence, the
owners thereof could not be prohibited by the COMELEC from expressing their political opinion lest their property rights be
unduly intruded upon.

Further, assuming that substantial public interest exists in the said prohibition imposed under Resolution No. 9615, the
petitioner claims that the curtailment of the right to free speech of the owners of PUVs and transport terminals is much
greater than is necessary to achieve the desired governmental purpose, i.e., ensuring equality of opportunity to all
candidates in elective office.

Arguments of COMELEC

On the other hand, the COMELEC posits that privately-owned PUVs and transport terminals are public spaces that are subject
to its regulation. It explains that under the Constitution, the COMELEC has the power to enforce and administer all laws and
regulations relative to the conduct of an election, including the power to regulate the enjoyment or utilization of all franchises
and permits for the operation of transportation utilities.

The COMELEC points out that PUVs and private transport terminals hold a captive audience - the commuters, who have no
choice but be subjected to the blare of political propaganda. Thus, the COMELEC avers, it is within its constitutional authority
to prevent privately-owned PUVs and transport terminals from concurrently serving campaign materials to the captive
audience that they transport.

The COMELEC further claims that Resolution No. 9615 is a valid content-neutral regulation and, thus, does not impinge on
the constitutional right to freedom of speech. It avers that the assailed regulation is within the constitutional power of the
COMELEC pursuant to Section 4, Article IX-C of the Constitution. The COMELEC alleges that the regulation simply aims to
ensure equal campaign opportunity, time, and space for all candidates - an important and substantial governmental interest,
which is totally unrelated to the suppression of free expression; that any restriction on free speech is merely incidental and is
no greater than is essential to the furtherance of the said governmental interest.

The Issue

The petitioner presents the following issues for the Court's resolution:

I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE SPEECH OF THE OWNERS OF [PUVs] AND TRANSPORT
TERMINALS.

II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO FREE SPEECH AND EXPRESSION FOR FAILURE TO
SATISFY THE O'BRIEN TEST.

III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL OPPORTUNITY TO INFORM THE ELECTORATE IS NOT
IMPAIRED BY POSTING POLITICAL ADVERTISEMENTS ON PUVs AND TRANSPORT TERMINALS.

IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND INDEPENDENT FROM THE FRANCHISE OR OPERATION
OF THE PUBLIC UTILITY, THE FORMER BEING BEYOND THE POWER OF REGULATION BY THE COMELEC.7

In sum, the issue presented for the Court's resolution is whether Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615, which prohibits the posting of any election campaign or propaganda material, inter alia, in PUVs and
public transport terminals are valid regulations.

Ruling of the Court

The petition is meritorious.

Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-C of the Constitution and the provisions of
R.A. No. 9006, lays down the administrative rules relative to the COMELEC's exercise of its supervisory and regulatory
powers over all franchises and permits for the operation of transportation and other public utilities, media of communication
or information, and all grants, special privileges, or concessions granted by the Government.

Like any other administrative regulations, Resolution No. 9615, or any part thereof, must not run counter to the Constitution.
It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has
no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the
Constitution.8 In this regard, an administrative regulation, even if it purports to advance a legitimate governmental interest,
may not be permitted to run roughshod over the cherished rights of the people enshrined in the Constitution.

Section 7(g) items (5) and (6), in

relation to Section 7(f), of Resolution No.
9615 are prior restraints on speech.

Free speech may be identified with the liberty to discuss publicly and truthfully any matter of public concern without prior
restraint or censorship and subsequent punishment.9 Prior restraint refers to official governmental restrictions on the press or
other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom
from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the
executive, legislative or judicial branch of the government.10 Any system of prior restraints of expression comes to this Court
bearing a heavy presumption against its validity.11

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly infringe on the fundamental right of
the people to freedom of speech. 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.

Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign material during an election period in
PUVs and transport terminals carries with it the penalty of revocation of the public utility franchise and shall make the owner
thereof liable for an election offense.

The prohibition 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.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press enjoys a preferred status in our
hierarchy of rights. The rationale is that the preservation of other rights depends on how well we protect our freedom of
speech and of the press.12 It has been our constant holding that this preferred freedom calls all the more for utmost respect
when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.13
Thus, in Adiong v. COMELEC,14 the Court struck down the COMELEC's prohibition against the posting of decals and stickers
on "mobile places." The Court ratiocinated that:

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. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspaper
or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or
purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support
and a proclamation of belief by an individual person who pastes a sticker or decal on his private
property.15 (Emphases ours)

The assailed prohibition on posting

election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.

The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615 may incidentally restrict the right to
free speech of owners of PUVs and transport terminals, the same is nevertheless constitutionally permissible since it is a valid
content-neutral regulation. The Court does not agree.

A content-neutral regulation, i.e., which is merely concerned with the incidents of the speech, or one that merely controls the
time, place or manner, and under well-defined standards,16 is constitutionally permissible, even if it restricts the right to free
speech, provided that the following requisites concur: first, the government regulation is within the constitutional power of
the Government; second, it furthers an important or substantial governmental interest; third, the governmental interest is
unrelated to the suppression of free expression; and fourth, the incidental restriction on freedom of expression is no greater
than is essential to the furtherance of that interest.17

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.

It is conceded that Resolution No. 9615, including the herein assailed provisions, furthers an important and substantial
governmental interest, i.e., ensuring equal opportunity, time and space among candidates aimed at the holding of free,
orderly, honest, peaceful, and credible elections. It is further conceded that the governmental interest in imposing the said
prohibition is unrelated to the suppression of free expression. However, 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.

The COMELEC may only regulate

the franchise or permit to operate and
not the ownership per se of PUVs
and transport terminals.

The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 is not within the
COMELEC's constitutionally delegated power of supervision or regulation. It is not disputed that the COMELEC has the power
to supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation utilities
during an election period. Section 4, Article IX-C of the Constitution, thus provides:

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections.

Nevertheless, the constitutional grant of supervisory and regulatory powers to the COMELEC over franchises and permits to
operate, though seemingly unrestrained, has its limits. Notwithstanding the ostensibly broad supervisory and regulatory
powers granted to the COMELEC during an election period under Section 4, Article IX-C of the Constitution, the Court had
previously set out the limitations thereon. In Adiong, the Court, while recognizing that the COMELEC has supervisory
power vis-a-vis the conduct and manner of elections under Section 4, Article IX-C of the Constitution, nevertheless held that
such supervisory power does not extend to the very freedom of an individual to express his preference of candidates in an
election by placing election campaign stickers on his vehicle.

In National Press Club v. COMELEC,18 while the Court upheld the constitutionality of a prohibition on the selling or giving free
of charge, except to the COMELEC, of advertising space and commercial time during an election period, it was emphasized
that the grant of supervisory and regulatory powers to the COMELEC under Section 4, Article IX-C of the Constitution, is
limited to ensuring equal opportunity, time, space, and the right to reply among candidates.

Further, in Social Weather Stations, Inc. v. COMELEC,19 the Court, notwithstanding the grant of supervisory and regulatory
powers to the COMELEC under Section 4, Article IX-C of the Constitution, declared unconstitutional a regulation prohibiting
the release of election surveys prior to the election since it "actually suppresses a whole class of expression, while allowing
the expression of opinion concerning the same subject matter by newspaper columnists, radio and [television (TV)]
commentators, armchair theorists, and other opinion makers." 20

In the instant case, the Court further delineates the constitutional grant of supervisory and regulatory powers to the
COMELEC during an election period. As worded, Section 4, Article IX-C of the Constitution only grants COMELEC supervisory
and regulatory powers over the enjoyment or utilization "of all franchises or permits for the operation," inter alia, of
transportation and other public utilities. The COMELEC's constitutionally delegated powers of supervision and regulation do
not extend to the ownership per se of PUVs and transport terminals, but only to the franchise or permit to operate the same.

There is a marked difference between the franchise or permit to operate transportation for the use of the public and the
ownership per se of the vehicles used for public transport. Thus, in Tatad v. Garcia, Jr.,21the Court explained that:

What private respondent owns are the rail tracks, rolling stocks like the coaches, rail stations, terminals and the power plant,
not a public utility. While a franchise is needed to operate these facilities to serve the public, they do not by themselves
constitute a public utility. What constitutes a public utility is not their ownership but their use to serve the public x x x.

The Constitution, in no uncertain terms, requires a franchise for the operation of a public utility. However, it does not require
a franchise before one can own the facilities needed to operate a public utility so long as it does not operate them to serve
the public.

xxxx

In law, there is a clear distinction between the "operation" of a public utility and the ownership of the facilities
and equipment used to serve the public.

xxxx

The right to operate a public utility may exist independently and separately from the ownership of the facilities
thereof. One can own said facilities without operating them as a public utility, or conversely, one may operate a
public utility without owning the facilities used to serve the public. The devotion of property to serve the public may
be done by the owner or by the person in control thereof who may not necessarily be the owner thereof.

This dichotomy between the operation of a public utility and the ownership of the facilities used to serve the public can be
very well appreciated when we consider the transportation industry. Enfranchised airline and shipping companies may lease
their aircraft and vessels instead of owning them themselves.22 (Emphases ours)

The franchise or permit to operate transportation utilities is a privilege granted to certain persons to engage in the business
of transporting people or goods; it does not refer to the ownership of the vehicleper se. Ownership is a relation in private law
by virtue of which a thing pertaining to one person is completely subjected to his will in everything not prohibited by public
law or the concurrence with the rights of another.23 Thus, the owner of a thing has the right to enjoy and dispose of a thing,
without other limitations than those established by law.24

One such limitation established by law, as regards PUVs, is the franchise or permit to operate. However, a franchise or
permit to operate a PUV is a limitation only on certain aspects of the ownership of the vehicle pertinent to the franchise or
permit granted, but not on the totality of the rights of the owner over the vehicle. Otherwise stated, a restriction on the
franchise or permit to operate transportation utilities is necessarily a limitation on ownership, but a limitation on the rights of
ownership over the PUV is not necessarily a regulation on the franchise or permit to operate the same.

A franchise or permit to operate transportation utilities pertains to considerations affecting the operation of the PUV as
such, e.g., safety of the passengers, routes or zones of operation, maintenance of the vehicle, of reasonable fares, rates, and
other charges, or, in certain cases, nationality.25 Thus, a government issuance, which purports to regulate a franchise or
permit to operate PUVs, must pertain to the considerations affecting its operation as such. Otherwise, it becomes a
regulation or supervision not on the franchise or permit to operate, but on the very ownership of the vehicle used for public
transport.

The expression of ideas or opinion of an owner of a PUV, through the posting of election campaign materials on the vehicle,
does not affect considerations pertinent to the operation of the PUV. Surely, posting a decal expressing support for a certain
candidate in an election will not in any manner affect the operation of the PUV as such. Regulating the expression of ideas or
opinion in a PUV, through the posting of an election campaign material thereon, is not a regulation of the franchise or permit
to operate, but a regulation on the very ownership of the vehicle.

The dichotomy between the regulation of the franchise or permit to operate of a PUV and that of the very ownership thereof
is better exemplified in the case of commercial advertisements posted on the vehicle. A prohibition on the posting of
commercial advertisements on a PUV is considered a regulation on the ownership of the vehicle per se; the restriction on the
enjoyment of the ownership of the vehicle does not have any relation to its operation as a PUV.

On the other hand, prohibitions on the posting of commercial advertisements on windows of buses, because it hinders police
authorities from seeing whether the passengers inside are safe, is a regulation on the franchise or permit to operate. It has a
direct relation to the operation of the vehicle as a PUV, i.e., the safety of the passengers.

In the same manner, the COMELEC does not have the constitutional power to regulate public transport terminals owned by
private persons. The ownership of transport terminals, even if made available for use by the public commuters, likewise
remains private. Although owners of public transport terminals may be required by local governments to obtain permits in
order to operate, the permit only pertains to circumstances affecting the operation of the transport terminal as such. The
regulation of such permit to operate should similarly be limited to circumstances affecting the operation of the transport
terminal. A regulation of public transport terminals based on extraneous circumstances, such as prohibiting the posting of
election campaign materials thereon, amounts to regulating the ownership of the transport terminal and not merely the
permit to operate the same.

Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the constitutionally delegated power of the
COMELEC to supervise or regulate the franchise or permit to operate of transportation utilities. The posting of election
campaign material on vehicles used for public transport or on transport terminals is not only a form of political expression,
but also an act of ownership - it has nothing to do with the franchise or permit to operate the PUV or transport terminal.

The rulings in National Press Club

and Osmena v. COMELEC26
find no application to this case.

The COMELEC pointed out that the issue presented in the instant case is akin to the Court's rulings in National Press
Club and Osmeña. It explained that in both cases, the Court sustained Section II(b) of R.A. No. 6646 or the Electoral
Reforms Law of 1997, which prohibits newspapers, radio broadcasting or TV stations, and other mass media from selling or
giving print space or airtime for campaign or other political purposes, except to the COMELEC, during the election campaign.
The COMELEC averred that if the legislature can empower it to impose an advertising ban on mass media, it could likewise
empower it to impose a similar ban on PUVs and transport terminals.

The Court does not agree.

The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct relation to the enjoyment and utilization of the
franchise or permit to operate of newspapers, radio broadcasting and TV stations, and other mass media, which the
COMELEC has the power to regulate pursuant to Section 4, Article IX-C of the Constitution. The print space or airtime is an
integral part of the franchise or permit to operate of mass media utilities. Thus, the restriction under Section ll(b) of R.A. No.
6646 is within the confines of the constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the
Constitution.

On the other hand, the prohibition on the posting of election campaign materials under Section 7(g) items (5) and (6) of
Resolution No. 9615, as already explained, does not have any relation to the franchise or permit of PUVs and transport
terminals to operate as such and, hence, is beyond the power of the COMELEC under Section 4, Article IX-C of the
Constitution.

The restriction on free speech of

owners of PUVs and transport
terminals is not necessary to
further the stated governmental
interest.

Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy the fourth requisite of a valid content-neutral
regulation, i.e., the incidental restriction on freedom of expression is no greater than is essential to the furtherance of that
interest. There is absolutely no necessity to restrict the right of the owners of PUVs and transport terminals to free speech to
further the governmental interest. While ensuring equality of time, space, and opportunity to candidates is an important and
substantial governmental interest and is essential to the conduct of an orderly election, this lofty aim may be
achieved sans any intrusion on the fundamental right of expression.

First, while Resolution No. 9615 was promulgated by the COMELEC to implement the provisions of R.A. No. 9006, the
prohibition on posting of election campaign materials on PUVs and transport terminals was not provided for therein.

Second, there are more than sufficient provisions in our present election laws that would ensure equal time, space, and
opportunity to candidates in elections. Section 6 of R.A. No. 9006 mandates that "all registered parties and bona fide
candidates shall have equal access to media time and space" and outlines the guidelines to be observed in the
implementation thereof, viz:

Section 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to
media time and space. The following guidelines may be amplified on by the COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet and one-half (1/2) page in tabloids thrice a
week per newspaper, magazine or other publications, during the campaign period.

6.2 a. Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than
one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement
whether by purchase or donation.

b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty
(60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its
broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of
advertisements broadcast for any candidate or political party.

6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any
political party or the candidacy of any person for public office within five (5) days after its signing. In every case, it sh all be
signed by the donor, the candidate concerned or by the duly authorized representative of the political party.

6.4 No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during
the election period. In all instances, the COMELEC shall supervise the use and employment of press, radio and television
facilities insofar as the placement of political advertisements is concerned to ensure that candidates are given equal
opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits
set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending.

The COMELEC shall ensure that radio or television or cable television broadcasting entities shall not allow the scheduling of
any program or permit any sponsor to manifestly favor or oppose any candidate or political party by unduly or repeatedly
referring to or including said candidate and/or political party in such program respecting, however, in all instances the right
of said broadcast entities to air accounts of significant news or news worthy events and views on matters of public interest.

6.5 All members of media, television, radio or print, shall scrupulously report and interpret the news, taking care not to
suppress essential facts nor to distort the truth by omission or improper emphasis. They shall recognize the duty to air the
other side and the duty to correct substantive errors promptly.

6.6 Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate
for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or
political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work
as such during the campaign period: Provided, That any media practitioner who is an official of a political party or a member
of the campaign staff of a candidate or political party shall not use his/her time or space to favor any candidate or political
party.

6.7 No movie, cinematograph or documentary portraying the life or biography of a candidate shall be publicly exhibited in a
theater, television station or any public forum during the campaign period.

6.8 No movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate shall
likewise be publicly exhibited in a theater or any public forum during the campaign period.

Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and independent candidates to erect common
poster areas and candidates to post lawful election campaign materials in private places, with the consent of the owner
thereof, and in public places or property, which are allocated equitably and impartially.

Further, Section 1327 of R.A. No. 716628 provides for the authorized expenses of registered political parties and candidates for
every voter; it affords candidates equal opportunity in their election campaign by regulating the amount that should be spent
for each voter. Likewise, Section 1429 of R.A. No. 7166 requires all candidates and treasurers of registered political parties to
submit a statement of all contributions and expenditures in connection with the election. Section 14 is a post-audit measure
that aims to ensure that the candidates did not overspend in their election campaign, thereby enforcing the grant of equal
opportunity to candidates under Section 13.

A strict implementation of the foregoing provisions of law would suffice to achieve the governmental interest of ensuring
equal time, space, and opportunity for candidates in elections. There is thus no necessity of still curtailing the right to free
speech of the owners of PUVs and transport terminals by prohibiting them from posting election campaign materials on their
properties.

Section 7(g) items (5) and (6) of

Resolution No. 9615 are not justified under
the captive-audience doctrine.

The COMELEC further points out that PUVs and transport terminals hold a "captive audience" - commuters who have no
choice but be subjected to the blare of political propaganda. The COMELEC further claims that while owners of privately
owned PUVs and transport terminals have a right to express their views to those who wish to listen, they have no right to
force their message upon an audience incapable of declining to receive it.

The COMELEC's claim is untenable.

The captive-audience doctrine states that when a listener cannot, as a practical matter, escape from intrusive speech, the
speech can be restricted.30 The "captive-audience" doctrine recognizes that a listener has a right not to be exposed to an
unwanted message in circumstances in which the communication cannot be avoided. 31

A regulation based on the captive-audience doctrine is in the guise of censorship, which undertakes selectively to shield the
public from some kinds of speech on the ground that they are more offensive than others. Such selective restrictions have
been upheld only when the speaker intrudes on the privacy of the home or the degree of captivity makes it either impossible
or impractical for the unwilling viewer or auditor to avoid exposure.32

In Consolidated Edison Co. v. Public Service Commission,33 the Supreme Court of the United States of America (U.S.
Supreme Court) struck down the order of New York Public Service Commission, which prohibits public utility companies from
including inserts in monthly bills discussing controversial issues of public policy. The U.S. Supreme Court held that "[t]he
prohibition cannot be justified as being necessary to avoid forcing appellant's views on a captive audience, since customers
may escape exposure to objectionable material simply by throwing the bill insert into a wastebasket." 34

Similarly, in Erznoznik v. City of Jacksonville,35 the U.S. Supreme Court nullified a city ordinance, which made it a public
nuisance and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible
from a public street or place. The U.S. Supreme Court opined that the degree of captivity is not so great as to make it
impracticable for an unwilling viewer to avoid exposure, thus:

The Jacksonville ordinance discriminates among movies solely on the basis of content. Its effect is to deter drive-in theaters
from showing movies containing any nudity, however innocent or even educational. This discrimination cannot be justified as
a means of preventing significant intrusions on privacy. The ordinance seeks only to keep these films from being seen from
public streets and places where the offended viewer readily can avert his eyes. In short, the screen of a drive-in theater
is not "so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it." x x x Thus, we
conclude that the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise
protected speech on the basis of its content.36 (Emphasis ours)

Thus, a government regulation based on the captive-audience doctrine may not be justified if the supposed "captive
audience" may avoid exposure to the otherwise intrusive speech. The prohibition under Section 7(g) items (5) and (6) of
Resolution No. 9615 is not justified under the captive-audience doctrine; the commuters are not forced or compelled to read
the election campaign materials posted on PUVs and transport terminals. Nor are they incapable of declining to receive the
messages contained in the posted election campaign materials since they may simply avert their eyes if they find the same
unbearably intrusive.

The COMELEC, in insisting that it has the right to restrict the posting of election campaign materials on PUVs and transport
terminals, cites Lehman v. City of Shaker Heights,37 a case decided by the U.S. Supreme Court. In Lehman, a policy of the
city government, which prohibits political advertisements on government-run buses, was upheld by the U.S. Supreme Court.
The U.S. Supreme Court held that the advertising space on the buses was not a public forum, pointing out that
advertisement space on government-run buses, "although incidental to the provision of public transportation, is a part of
commercial venture."38 In the same way that other commercial ventures need not accept every proffer of advertising from
the general public, the city's transit system has the discretion on the type of advertising that may be displayed on its
vehicles.

Concurring in the judgment, Justice Douglas opined that while Lehman, a candidate for state office who sought to avail
himself of advertising space on government-run buses, "clearly has a right to express his views to those who wish to listen,
he has no right to force his message upon an audience incapable of declining to receive it." 39 Justice Douglas concluded: "the
right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of
public transportation into forums for the dissemination of ideas upon this captive audience." 40

The COMELEC's reliance on Lehman is utterly misplaced.

In Lehman, the political advertisement was intended for PUVs owned by the city government; the city government, as owner
of the buses, had the right to decide which type of advertisements would be placed on its buses. The U.S. Supreme Court
gave primacy to the city government's exercise of its managerial decision, viz:

Revenue earned from long-term commercial advertising could be jeopardized by a requirement that short-term candidacy or
issue-oriented advertisements be displayed on car cards. Users would be subjected to the blare of political propaganda.
There could be lurking doubts about favoritism, and sticky administrative problems might arise in parceling out limited space
to eager politicians. In these circumstances, the managerial decision to limit car card space to innocuous and less
controversial commercial and service-oriented advertising does not rise to the dignity of First Amendment
violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds,
and other public facilities immediately would become Hyde Parks open to every would be pamphleteer and politician. This the
Constitution does not require.41 (Emphasis ours)
Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the city government, in choosing the types of
advertisements that would be placed on its properties. In stark contrast, Section 7(g) items (5) and (6) of Resolution No.
9615 curtail the choice of the owners of PUVs and transport terminals on the advertisements that may be posted on their
properties.

Also, the city government in Lehman had the right, nay the duty, to refuse political advertisements on their buses.
Considering that what were involved were facilities owned by the city government, impartiality, or the appearance thereof,
was a necessity. In the instant case, the ownership of PUVs and transport terminals remains private; there exists no valid
reason to suppress their political views by proscribing the posting of election campaign materials on their properties.

Prohibiting owners of PUVs and transport

terminals from posting election campaign
materials violates the equal protection
clause.

Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free speech clause, but also of the equal
protection clause. One of the basic principles on which this government was founded is that of the equality of right, which is
embodied in Section 1, Article III of the 1987 Constitution.42 "Equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words,
should not be treated differently, so as to give undue favor to some and unjustly discriminate against others." 43

"The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the
departments of the government including the political and executive departments, and extend to all actions of a state
denying equal protection of the laws, through whatever agency or whatever guise is taken." 44

Nevertheless, the guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws to all
citizens of the state. Equality of operation of statutes does not mean their indiscriminate operation on persons merely as
such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things, which are different in fact, be treated in law as though they were the same. The
equal protection clause does not forbid discrimination as to things that are different. 45

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of
equal protection, it is necessary that the four requisites of valid classification be complied with, namely: (1) it must be based
upon substantial distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all members of the class.46

It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution No. 9615 is not limited to existing
conditions and applies equally to the members of the purported class. However, the classification remains constitutionally
impermissible since it is not based on substantial distinction and is not germane to the purpose of the law.

A distinction exists between PUVs and transport terminals and private vehicles and other properties in that the former, to be
considered as such, needs to secure from the government either a franchise or a permit to operate. Nevertheless, as pointed
out earlier, the prohibition imposed under Section 7(g) items (5) and (6) of Resolution No. 9615 regulates the ownership per
se of the PUV and transport terminals; the prohibition does not in any manner affect the franchise or permit to operate of the
PUV and transport terminals.

As regards ownership, there is no substantial distinction between owners of PUVs and transport terminals and owners of
private vehicles and other properties. As already explained, the ownership of PUVs and transport terminals, though made
available for use by the public, remains private. If owners of private vehicles and other properties are allowed to express
their political ideas and opinion by posting election campaign materials on their properties, there is no cogent reason to deny
the same preferred right to owners of PUVs and transport terminals. In terms of ownership, the distinction between owners
of PUVs and transport terminals and owners of private vehicles and properties is merely superficial. Superficial differences do
not make for a valid classification.47

The fact that PUVs and transport terminals are made available for use by the public is likewise not substantial justification to
set them apart from private vehicles and other properties. Admittedly, any election campaign material that would be posted
on PUVs and transport terminals would be seen by many people. However, election campaign materials posted on private
vehicles and other places frequented by the public, e.g., commercial establishments, would also be seen by many people.
Thus, there is no reason to single out owners of PUVs and transport terminals in the prohibition against posting of election
campaign materials.

Further, classifying owners of PUVs and transport terminals apart from owners of private vehicles and other properties bears
no relation to the stated purpose of Section 7(g) items (5) and (6) of Resolution No. 9615, i.e., to provide equal time, space
and opportunity to candidates in elections. To stress, PUVs and transport terminals are private properties. Indeed, the nexus
between the restriction on the freedom of expression of owners of PUVs and transport terminals and the government's
interest in ensuring equal time, space, and opportunity for candidates in elections was not established by the COMELEC.

In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the free speech clause;
they are content-neutral regulations, which are not within the constitutional power of the COMELEC issue and are not
necessary to further the objective of ensuring equal time, space and opportunity to the candidates. They are not only
repugnant to the free speech clause, but are also violative of the equal protection clause, as there is
no substantial distinction between owners of PUVs and transport terminals and owners of private vehicles and other
properties.

On a final note, it bears stressing that the freedom to advertise one's political candidacy is clearly a significant part of our
freedom of expression. A restriction on this freedom without rhyme or reason is a violation of the most valuable feature of
the democratic way of life.48

WHEREFORE, in light of the foregoing disquisitions, the instant petition is hereby GRANTED. Section 7(g) items (5) and
(6), in relation to Section 7(f), of Resolution No. 9615 issued by the Commission on Elections are hereby
declared NULL and VOID for being repugnant to Sections 1 and 4, Article III of the 1987 Constitution.

SO ORDERED.
 EN BANC

G.R. No. 208062, April 07, 2015

SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC., Petitioners, v. COMMISSION ON
ELECTIONS, Respondent.

DECISION

LEONEN, J.:

This resolves the Petition1 for certiorari and prohibition under Rule 64, in relation to Rule 65, of the 1997 Rules of Civil
Procedure praying that respondent Commission on Elections' Resolution No. 9674 2 dated April 23, 2013 be nullified and set
aside and that the Commission on Elections be permanently enjoined from enforcing the same Resolution, as well as
prosecuting Social Weather Stations, Inc. and Pulse Asia, Inc. for violating it or otherwise compelling compliance with it.3

Commission on Elections' (COMELEC) Resolution No. 9674 directed Social Weather Stations, Inc. (SWS) and Pulse Asia, Inc.
(Pulse Asia), as well as "other survey firms of similar circumstance" 4 to submit to COMELEC the names of all commissioners
and payors of all surveys published from February 12, 2013 to April 23, 2013, including those of their "subscribers." 5

SWS and Pulse Asia are social research and public polling firms. Among their activities is the conduct of pre-election
surveys.6

As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS conducted a pre-election survey on voters'
preferences for senatorial candidates. Thereafter, it published its findings. 7 The following question was asked in the survey:

Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong iboboto bilang mga SENADOR ng
PILIPINAS? Narito ang listahan ng mga kandidato. Paki-shade o itiman po ang naaangkop na oval katabi ng pangalan hg
mga taong pinakamalamang ninyong iboboto. Maaari po kayong pumili ng hanggang labindalawang (12) kandidato.

(LIST OF CANDIDATES OMITTED)

If the elections were held today, whom would you most probably vote for as SENATORS of the PHILIPPINES? Here is a
list of candidates. Please shade the oval beside the name of the persons you would most likely vote for. You may choose up
to twelve (12) candidates.

(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)

On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), Secretary-General of the United Nationalist Alliance (UNA),
wrote Atty. Esmeralda Ladra, Director of COMELEC's Law Department.9 In his letter,10 Tiangco asked COMELEC to "compel
[SWS] to either comply with the directive in the Fair Election Act and COMELEC Resolution No. 9[6]1[5] and give the names
or identities of the subscribers who paid for the [pre-election survey conducted from February 15 to February 17, 2013], or
be liable for the violation thereof, an act constitutive of an election offense." 11

Tiangco recounted that on February 28, 2013, he wrote to SWS requesting, among others, that he "be furnished the identity
of persons who paid for the [pre-election survey conducted from February 15 to February 17, 2013] as well as those who
subscribed to it."12 Sometime in March 2013, SWS supposedly replied to Tiangco, "furnishing [him] with some particulars
about the survey but [without] disclosing] the identity of the persons who commissioned or subscribed to the survey." 13

Acting on Tiangco's letter and on the COMELEC Law Department's recommendation, the COMELEC En Bane issued the
Order14 dated April 10, 2013 setting the matter for hearing on April 16, 2013. The same Order directed SWS to submit its
Comment within three (3) days of receipt.15 On April 12, 2013, Pulse Asia received a letter from COMELEC "requesting its
representative to attend the COMELEC hearing on 16 April 2013." 16

SWS and Pulse Asia recounted that during the hearing, COMELEC Chairman Sixto S. Brillantes, Jr. (COMELEC Chairman
Brillantes) stated that the proceeding was merely a clarificatory hearing and not a formal hearing or an investigation. 17

On April 23, 2013, COMELEC issued the assailed Resolution No. 9674. The entire dispositive portion of this Resolution reads:
WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it hereby RESOLVES, to DIRECT the SWS, Pulse Asia
and other survey firms of similar circumstance to submit within three (3) days from receipt of this Resolution the names of
all commissioners and payors of surveys published from February 12, 2013 to the date of the promulgation of this Resolution
for copying and verification by the Commission. The submission shall include the names of all "subscribers" of those
published surveys. Such information/data shall be for the exclusive and confidential use of the Commission;

RESOLVED FURTHER, that all surveys published subsequent to the promulgation of this Resolution must be accompanied
by all the information required in Republic Act no. 9006, including the names of commissioners, payors and subscribers.

This resolution shall take effect immediately after publication.

A violation of these rules shall constitu[t]e an election offense as provided in Republic Act no. 9006, or the Fair Election
Act.18 (Emphasis in the original)

As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1)19 of the 1987 Constitution and Sections 5.1 to
5.320 of Republic Act No. 9006, otherwise known as the Fair Election Act, as implemented by COMELEC Resolution No.
9615.21

SWS and Pulse Asia alleged that following the issuance of Resolution No. 9674 and as of their filing before this court of the
present Petition, they had not been furnished copies of Resolution No. 9674. 22(They emphasized that while a certified true
copy of this Resolution was attached to their Petition, this was a copy which they themselves secured "for the purpose of
complying.with the requirement that Rule 65 petitions must be accompanied by a certified true copy of the assailed order or
resolution[.]"23)

In the letter24 dated April 30, 2013, SWS and Pulse Asia informed COMELEC Chairman Brillantes that they had not received a
copy of Resolution No. 9674. They also articulated their view that Resolution No. 9674 was tainted with irregularities, having
been issued ultra vires (i.e., in excess of what the Fair Election Act allows) and in violation of the non-impairment of
contracts clause of the Constitution. They also expressed their intention to bring the matter before this court on account of
these supposed irregularities. Thus, they requested that COMELEC defer or hold in abeyance Resolution No. 9674's
enforcement.25

On May 8, 2013, the COMELEC Law Department issued a Notice26 to SWS (and also to Pulse Asia) directing it to furnish
COMELEC with a list of the names of all "commissioners, subscribers, and payors of surveys published from February 12,
2013 until April 23, 2013."27 SWS was warned that failure to comply with the Notice shall constitute an election offense
punishable under the Omnibus Election Code.28

On July 1, 2013, COMELEC issued a Subpoena29 notifying SWS and Pulse Asia that a Complaint "for violation of Section
264[,] par. 1 and 2 of the Omnibus Election Code30 in relation to R.A. 9006"31 was filed against them. (This was docketed as
E.O. Case No. 13-222). They were also directed to appear and to submit their counter-affidavits and other supporting
documents at the hearing set on August 6, 2013.32

SWS and Pulse Asia maintained that before receiving the Subpoena, they were never informed that a criminal case had been
filed against them. They added that they were never furnished copies of the relevant criminal Complaint. 33

On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. filed the present Petition. 34 They assail
Resolution No. 9674 as having been issued ultra vires. They are of the position that Resolution No. 9674, in requiring the
submission of information on subscribers, is in excess of what the Fair Election Act requires. 35 Likewise, they, assert that
Resolution No. 9674 transgresses the Fair Election Act in making itself executory immediately after publication. 36 Moreover,
they claim that it violates the non-impairment of contracts clause of the Constitution,37 and was enforced in violation of their
right to due process (as they were charged with its violation despite not having been properly served with copies of the
complaint filed against them).38 Petitioners pray for the issuance of a temporary restraining order and/or writ of preliminary
injunction in the interim.39

In this court's July 30, 2013 Resolution,40 COMELEC was required to file a Comment on the Petition. In the same Resolution,
this court issued a temporary restraining order "enjoining the enforcement of COMELEC Resolution No. 9674 with respect to
submission of the names of regular subscribers but not to the submission of (1) the names of specific subscribers for the
limited period of February 12, 2013 to April 23, 2013 who have paid a substantial amount of money for access to survey
results and privileged survey data; and (2) the names of all commissioners and payors of surveys published within the same
period."41

On October 10, 2013, COMELEC filed its Comment.42 On February 12, 2014, petitioners filed their Joint Reply.43

In this court's February 18, 2014 Resolution,44 the present Petition was given due course, and the parties were directed to
file their memoranda. Petitioners complied on May 16, 2014 45 and COMELEC on June 25, 2014.46

For resolution are the following issues:

First, whether Resolution No. 9674 is invalid in that it requires the disclosure of the names of "subscribers" of election
surveys;
Second, whether the rights of petitioners to free speech will be curtailed by the requirement to submit the names of their
subscribers;

Third, whether Resolution No. 9674, insofar as it compels petitioners to submit the names of their subscribers, violates the
constitutional proscription against the impairment of contracts (Article II, Section 10);

Fourth, whether at the time petitioners were required by COMELEC to reveal the names of the subscribers to their election
surveys, Resolution No. 9674 was already in force and effect; and

Lastly, whether COMELEC deprived petitioners of due process of law when it:

a) failed to provide them with a copy of Resolution No. 9674 and the criminal complaint for an election offense; and

b) refused to specify the election offense under which they were being prosecuted.

We sustain the validity of Resolution No. 9674. The names of those who commission or pay for election surveys, including
subscribers of survey firms, must be disclosed pursuant to Section 5.2(a) of 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[.]" 47 Section 5.2(a)'s requirement of disclosing subscribers neither curtails petitioners' free
speech rights nor violates the constitutional proscription against the impairment of contracts.

However, it is evident that Resolution No. 9674 was promulgated in violation of the period set by the Fair Election Act.
Petitioners were also 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 subject of E.O. Case No. 13-222. Petitioners' right to due process was,
thus, violated.

Petitioners assail Resolution No. 9674's requirement of submission of names of subscribers, including those who did not
commission or pay for a specific survey or cause its publication, for being ultra vires. They maintain that the Fair Election Act
"as it was written by Congress covers only those who commission or pay for a particular election survey, and requires
disclosure of their names only when that particular survey is published."48 From this, they add that COMELEC exceeded its
authority — "creating] an election offense where there was none before" 49 — in considering as an election offense any
violation of Resolution No. 9674.

COMELEC, for its part, insists on the "wide latitude of discretion" 50 granted to it in the performance of its constitutional duty
to "[e]nforce and administer all laws and regulations relative to the conduct of an election[.]" 51 It adds that "as the
specialized constitutional body charged with the enforcement and administration of election laws," 52 its contemporaneous
construction of Section 5.2(a) of the Fair Election Act is "entitled to great weight and respect." 53 Citing the supposed
legislative intent of Section 5.2 as "broaden[ing] the subject of disclosure," 54 COMELEC claims that Section 5.2(a) "draws no
distinction between the direct payors and the indirect payors of the survey." 55 It adds that requiring the disclosure of survey
subscribers addresses the requirement of reporting election expenditures by candidates and political parties, thereby helping
COMELEC check compliance with this requirement.56

Section 5.2(a) of the Fair Election Act, read in a manner consistent not only with its text but also with the purpose for which
it, along with the Fair Election Act, was adopted, sustains COMELEC's position.

Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or ensuring] equal opportunity for public
service"57 and to this end, stipulates mechanisms for the "supervision] or regulation of] the enjoyment or utilization of all
franchises or permits for the operation of media of communication or information[.]" 58 Hence, its short title: Fair Election Act.

Situated within the constitutional order, the Fair Election Act provides means to realize the policy articulated in Article II,
Section 26 of the 1987 Constitution to "guarantee equal access to opportunities for public service[.]" Article II, Section 26
models an understanding of Philippine political and electoral reality. It is not merely hortatory or a statement of value.
Among others, it sums up an aversion to the perpetuation of political power through electoral contests skewed in favor of
those with resources to dominate the deliberative space in any media.

Apart from making real Article II, Section 26's constitutional policy, the Fair Election Act represents the legislature's
compliance with the requirement of Article XIII, Section 1: "Congress . . . give[s] highest priority to the enactment of
measures that. . . reduce . . . political inequalities ... by equitably diffusing wealth and political power for the common
good."59

Moreover, the constitutional desire to "guarantee equal access to opportunities for public service" 60 is the same intent that
animates the Constitution's investiture in COMELEC of the power to "supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation or its subsidiary." 61

Specific provisions in the Fair Election Act regulate the means through which candidates for elective public office, as well as
political parties and groups participating in the party-list system, are able to make themselves known to voters, the same
means through which they earn votes.

Section 3 permits the use of lawful election propaganda.62 Section 4 regulates published or printed, and broadcast election
propaganda.63 Section 6 governs access to media time and space.64 Sections 7 and 8 provide for COMELEC's competencies
(i.e., affirmative action, and the so-called "COMELEC Space" and "COMELEC Time") that enable it to equalize candidates'
exposure to voters.65 Section 9 regulates venues for the posting of campaign materials.66 Section 10 provides for parties' and
candidates' right to reply.67Section 11 requires media outlets to make available the use of their facilities for election
propaganda at discounted rates.68

The Fair Election Act also governs published surveys during elections.

Section 5.1 defines election surveys-as "the measurement of opinions and perceptions of the voters as regards a candidate's
popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for
candidates or publicly discussed issues during the campaign period[.]" Sections 5.2 and 5.3 provide regulations that facilitate
transparency with respect to ' election surveys. Section 5.4 69 is no longer in effect, having been declared unconstitutional in
this court's May 5, 2001 Decision in Social Weather Stations and Kamahalan Publishing Corp. v. COMELEC.70 Section
5.571pertains to exit polls.

Section 5.2 enumerates the information that a person publishing an election survey must publish along with the survey
itself:

5.2 During the election period, any person, natural as well as juridical, candidate or organization who publishes a survey
must likewise publish the following information: ch an rob lesvirt u allawlib rary

a. The name of the person, candidate, party or. organization who commissioned or paid for the
survey;
b. The name of the person, polling firm or survey organization who conducted the survey;
c. The period during which the survey was conducted, the methodology used, including the number of
individual respondents and the areas from which they were selected, and the specific questions
asked;
d. The margin of error of the survey;
e. For each question for which the margin of error is greater than that reported under paragraph (d),
the margin of error for that question; and
f. A mailing address and telephone number, indicating it as an address or telephone number at which
the sponsor can be contacted to obtain a written report regarding the survey in accordance with
Subsection 5.3. (Emphasis supplied)

Section 5.3 facilitates the inspection, copying, and verification not only of an election survey but also of the raw data used as
bases for its conclusions:

5.3 The survey together with raw data gathered to support its conclusions shall be available for inspection, copying and
verification by the COMELEC or by a registered political party or a bona fide candidate, or by any COMELEC-accredited
citizen's arm. A reasonable fee sufficient to cover the costs of inspection, copying and verification may be charged.

As with all the other provisions of the Fair Election Act, Section 5 is a means to guarantee equal access to the deliberative
forums essential to win an elective public office. Any reading of Section 5 and of its individual components, such as Section
5.2(a), cannot be divorced from this purpose.

The inclusion of election surveys in the list of items regulated by the Fair Election Act is a recognition that election surveys
are not a mere descriptive aggregation of data. Publishing surveys are a means to shape the preference of voters, inform the
strategy of campaign machineries, and ultimately, affect the outcome of elections. Election surveys have a similar nature as
election propaganda. They are expensive, normally paid for by those interested in the outcome of elections, and have
tremendous consequences on election results.

II

Views vary on the precise extent to which surveys or "polls" shape voter preferences, if at all.

Election surveys have been critiqued for amplifying the notion of an election as a "horse race" 72 and for reducing elections to
the lowest common denominator of percentage points or a candidate's erstwhile share in the vote market rather than
focusing on issues, principles, programs, and platforms.

Several possible, albeit conflicting, effects of surveys on voter behavior have been postulated:

First, there is the bandwagon effect where "electors rally to support the candidate leading in the polls." 73 This "assumes
that knowledge of a popular 'tide' will likely change voting intentions in [favor] of the frontrunner, that many electors feel
more comfortable supporting a popular choice or that people accept the perceived collective wisdom of others as being
enough reason for supporting a candidate." 74

Second, there is the underdog effect where "electors rally to support the candidate trailing in the polls." 75 This shift can be
motivated by sympathy for the perceived underdog.76

Third, there is the motivating effect where "individuals who had not intended to vote are persuaded to do so," 77 having
been alerted to the fact of an election's imminence.78

Fourth, there is also the demotivating effect where "voters abstain from voting out of certainty that their candidate or
party will win[.]"79

Fifth, there are reports of a behavior known as strategic voting where "voting is influenced by the chances of winning[.]" 80

Lastly, there is also the theory of a free-will effect where "voters cast their ballots to prove the polls wrong[.]" 81

Election surveys published during election periods create the "politics of expectations." 82 Voters act in accordance with what
is perceived to be an existing or emerging state of affairs with respect to how candidates are faring.

Of the six (6) effects, the bandwagon effect has a particular resonance and has been of concern. Surveys, or opinion polls,
"by directly influencing individual-level support . . . , can be self-fulfilling prophecies and produce opinion cascades." 83 "[A]
poll's prediction may come to pass not only because it measures public opinion but also because it may influence public
opinion."84

The bandwagon effect is of particular concern because of the observed human tendency to conform. Three (3) mechanisms
through which survey results may induce conformity have been posited:

(1) normative social influence, or people's desire to adopt the majority position in order to feel liked and accepted or believe
they are on the winning team;

(2) informational social influence, or people learning from the 'wisdom of crowds' via social proof because they 'believe that
others' interpretation of an ambiguous situation is more accurate . . . and will help [them] choose an appropriate course of
action'; and

(3) people resolving cognitive dissonance by switching to the side they infer is going to win based on the poll. 85 cralawl awlib rary

Likewise, it has been argued that the bandwagon effect is but the obverse of the so-called false-consensus effect or false-
consensus bias:

The bandwagon effect, a form of conformity, is the mirror image of the false consensus effect, where people misperceive that
their own behaviors and attitudes are more popular than they actually are. In the political domain, one mechanism
underlying the false consensus effect is wishful thinking - people gaining utility from thinking their candidate is ahead or their
opinions are popular.86

The bandwagon effect induced by election surveys assumes even greater significance in considering the health of a
democracy.

Integral to our appreciation of democracy is the recognition that democracy is fundamentally deliberative. It is rooted in the
exchange and dialogue of ideas. Accordingly, free expression, not least of all from the minority and from those who do not
conform, i.e., those who dissent and criticize, is indispensable:

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue is a
critical, and indeed defining, feature of a good polity." This theory may be considered broad, but it definitely "includes [a]
collective decision making with the participation of all who will be affected by the decision." It anchors on the principle that
the cornerstone of every democracy is that sovereignty resides in the people. To ensure order in running the state's affairs,
sovereign powers were delegated and individuals would be elected or nominated in key government positions to represent
the people. On this note, the theory on deliberative democracy may evolve to the right of the people to make government
accountable. Necessarily, this includes the right of the people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should thus be protected and
encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity
to discuss freely supposed grievances and proposed remedies."

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government demand a full
discussion of public affairs." This court has, thus, adopted the principle that "debate on public issues should be uninhibited,
robust, and wide open . . . [including even] unpleasantly sharp attacks on government and public officials."87 cralawla wlib rary
However, "conformity pressures can suppress minority opinion." 88 The bandwagon effect conjures images of an impregnable
majority, thereby tending to push farther toward the peripheries those who are already marginalized. Worse, the bandwagon
effect foments the illusion of a homogenous monolith denying the very existence of those in the minority. This undermines
the "normative conceptions of democracy" 89 substituting the democratic dialogue with acquiescence to perceived or projected
orthodoxy.

Surveys, far from being a passive "snapshot of many viewpoints held by a segment of the population at a given time," 90 can
warp existing public opinion and can mould public opinion. They are constitutive. Published election surveys offer valuable
insight into public opinion not just because they represent it but more so because they also tend to make it.

Appreciating this tendency to both entrench and marginalize is of acute relevance in the context of Philippine political reality.
This is the same reality that our policymakers, primarily the framers of the Constitution, have seen fit to address.

III

The constitutional dictum to "guarantee equal access to opportunities for public service" 91 and (even more specifically and
explicitly) to "prohibit political dynasties" 92 does not exist in a vacuum.

Politics in the Philippines has been criticized as "a lucrative means of self-aggrandizement."93 Ours is an exclusive system
that perpetuates power and provides sanctuary to those who have already secured their place. Traditional Filipino politics
connotes elite families that, with the state, are "engaged in a reciprocal relationship that constantly defines and redefines
both."94 As recounted by Alfred McCoy, this reciprocal relationship, typified by rent-seeking (i.e., "taking advantage of their
access to state privileges to expand proprietary wealth" 95), is a vicious cycle propagated for as long as the Philippines has
been a republic: "The emergence of the Republic as a weak postcolonial state augmented the power of rent-seeking political
families — a development that further weakened the state's own resources." 96

The Philippines, as it emerged in the wake of Ferdinand Marcos' presidency and the adoption of the 1987 Constitution, saw
the "celebritification"97 of political office. On the legislature and studying emerging contrasts in the composition of its two
chambers — the Senate and the House of Representatives — it has been noted:

The old political families, however are not as strong in the Senate as they are in the House. This could be read, if not as a
total repudiation by voters of family power, then at least as an attempt by them to tap other sources of national leadership.
Celebrities and military and police officers have emerged as alternatives to traditional politicians. It could be that these new
men and women have captured the popular imagination or that they are more in tune with the public pulse. But their
emergence could very well be seen as an indication of the paucity of choices: Political parties, for one, have not succeeded in
proffering a wider range of options to an electorate weary of trapos.98

This celebritification nurtures misleading notions of an enhanced or healthier democracy, one that opens avenues to a crop of
political leaders not belonging to oligarchic families. Viewed critically however, this is nothing more than a pipe dream. New
elites now share the political stage with the old. The tension between two contrary tendencies actually serves to preserve the
status quo of elitism — an expanded elitism perhaps, but elitism no less. To evoke a truism, "the more things change, the
more they stay the same":

But the "celebritification" of the Senate can also be interpreted as the democratization of an exclusive body once reserved
only for the very rich, the politically experienced, and the intellectually brilliant. In a sense, the bar of entry has been
lowered, and anyone with national renown can contest a seat in a chamber once famous for sharp debates and polysyllabic
peroration.

The main criterion for a Senate seat is now name recall. This is where celebrities have the edge even over older political
families with bankable names. . . .

....

The diminishing clout of old families in the Senate—and their continued dominance in the House—shows the push and pull of
two contrary tendencies. The first tendency is toward the new: The importance of name recall in national elections taking
place in a media-inundated environment makes it easier for movie and media personalities, and harder for old-style
politicians, to be elected. The second tendency is veering toward the old: At the district level, trapo-style patronage and
machine politics remain deeply entrenched, giving political families the edge in elections."99

Thus, where once there was elitism solely along lines of kinship — Alfred McCoy's so-called "anarchy of families" — now there
is also elitism demarcated by name recall, populist projection, and media exposure, arguably, an "anarchy of celebrities."

Certainly, it is not the business of this court to engage in its own determination of the wisdom of policy. Nevertheless, having
to grapple with the tasks of adjudication and interpretation, it has become necessary to bring to light the intent that
underlies the disputed statutory provision, as well as the constitutional regime and social context, in which this provision is
situated.

To reiterate, the inclusion of published election surveys in a statute that regulates election propaganda and other means
through which candidates may shape voter preferences is itself telling of the recognition that published election surveys, too,
may influence voter preferences. This inclusion is similarly telling of a recognition that, left unregulated, election surveys can
undermine the purposes of ensuring "fair" elections. These recognitions are embedded in the Fair Election Act; they are not
judicial constructs. In adjudicating with these' as bases, this court is merely adhering to the legislative imperative.

IV

It is necessary that the Fair Election Act be appreciated for what it is: a mechanism for ensuring equality. The Fair Election
Act is a means to effect the "necessary condition" to a genuine democratic dialogue, to realizing a deliberative democracy.
The concept of this "necessary condition" was previously considered by this court in Diocese of Bacolod v. COMELEC:100

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized how institutionalized
inequality exists as a background limitation, rendering freedoms exercised within such limitation as merely "protecting] the
already established machinery of discrimination." In his view, any improvement "in the normal course of events" within an
unequal society, without subversion, only strengthens existing interests of those in power and control.

In other words, abstract guarantees of fundamental rights like freedom of expression may become meaningless if not taken
in a real context. This tendency to tackle rights in the abstract compromises liberties. In his words:

Liberty is selfi-determination, autonomy—this is almost a tautology, but a tautology which results from a whole series of
synthetic judgments. It stipulates the ability to determine one's own life: to be able to determine what to do and what not to
do, what to suffer and what not. But the subject of this autonomy is never the contingent, private individual as that which he
actually is or happens to be; it is rather the individual as a human being who is capable of being free with the others. And
the problem of making possible such a harmony between every individual liberty and the other is not that of finding a
compromise between competitors, or between freedom and law, between general and individual interest, common and
private welfare in an established society, but of creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still to be created even for the freest of the existing
societies.

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the people — "implies a
necessary condition, namely, that the people must be capable of deliberating and choosing on the basis of knowledge, that
they must have access to authentic information, and that, on this basis, their evaluation must be the result of autonomous
thought'." He submits that "[different opinions and 'philosophies' can no longer compete peacefully for adherence and
persuasion on rational grounds: the 'marketplace of ideas' is organized and delimited by those who determine the national
and the individual interest."

A slant toward left manifests from his belief that "there is a 'natural right' of resistance for oppressed and overpowered
minorities to use extralegal means if the legal ones have proved to be inadequate." Marcuse, thus, stands for an equality that
breaks away and transcends from established hierarchies, power structures, and indoctrinations. The tolerance of libertarian
society he refers to as "repressive tolerance." 101

What is involved here is petitioners' freedom of speech and of expression, that is, to publish their findings. More specifically,
what is involved here is their right to political speech, that which "refers to speech 'both intended and received as a
contribution to public deliberation about some issue,' 'foster[ing] informed and civic-minded deliberation."102

The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring political equality, calls into operation
the equality-based approach to weighing liberty to express vis-a-vis equality of opportunities. As explained in Diocese of
Bacolod:103

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting political
equality prevails over speech." This view allows the government leeway to redistribute or equalize 'speaking power,' such as
protecting, even implicitly subsidizing, unpopular or dissenting voices often systematically subdued within society's
ideological ladder. This view acknowledges that there are dominant political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the messages of others. This is especially true in a developing or
emerging economy that is part of the majoritarian world like ours.

...

The scope of the guarantee of free expression takes into consideration the constitutional respect for human potentiality and
the effect of speech. It valorizes the ability of human beings to express and their necessity to relate. On the other hand, a
complete guarantee must also take into consideration the effects it will have in a deliberative democracy. Skewed distribution
of resources as well as the cultural hegemony of the majority may have the effect of drowning out the speech and the
messages of those in the minority. In a sense, social inequality does have its effect on the exercise and effect of the
guarantee of free speech. Those who have more will have better access to media that reaches a wider audience than those
who have less. Those who espouse the more popular ideas will have better reception than the subversive and the dissenters
of society. To be really heard and understood, the marginalized view normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her expression. This view,
thus, restricts laws or regulation that allows public officials to make judgments of the value of such viewpoint or message
content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to some expression
during electoral campaigns.104

The required judicial temperament in appraising speech in the context of electoral campaigns which is principally designed to
endorse a candidate, both by candidates and / or political parties, on the one hand, and private citizens, on the other, has
thus been articulated:

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the members of their political
parties or their political parties may be regulated as to time, place, and manner. This is the effect of our rulings in Osmeña v.
COMELEC and National Press Club v. COMELEC.

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.

This does not mean that there cannot be a specie of speech by a private citizen which will not amount to an election
paraphernalia to be validly regulated by law.

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. The regulation (a)
should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all
candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least
restrictive means to achieve that object. The regulation must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be prohibited or censored on the basis of its content. For this
purpose, it will not matter whether the speech is made with or on private property.105 [Emphasis in the original]

Concededly, what is involved here is not election propaganda per se. Election surveys, on their face, do not state or allude to
preferred candidates. As a means, election surveys are ambivalent. To an academician, they are an aggrupation of data. To a
journalist, they are matters for reportage. To a historian, they form part of a chronicle. Election surveys thus become
unambiguous only when viewed in relation to the end for which they are employed. To those whose end is to get a candidate
elected, election surveys, when limited to their own private consumption, are a means to formulate strategy. When
published, however, the tendency to shape voter preferences comes into play. In this respect, published election surveys
partake of the nature of election propaganda. It is then declarative speech in the context of an electoral campaign properly
subject to regulation. Hence, Section 5.2 of the Fair Election Act's regulation of published surveys.

We thus proceed to evaluate Resolution No. 9674's requirement of disclosing the names of subscribers to election surveys in
light of the requisites for valid regulation of declarative speech by private entities in the context of an election campaign:

First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of subscribers among those persons who "paid
for the survey[.]"106 Thus, Resolution No. 9674 is a regulation finding basis in statute.

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who "commissioned" and those who "paid
for" the published survey are separated by the disjunctive term "or."107 This disassociates those who "commissioned" from
those who "paid for" and identifies them as alternatives to each other.108 Section 5.2(a) thus requires the disclosure of two
(2) classes of persons: "[first,] those who commissioned or sponsored the survey; and [second,] those who paid for the
survey."109

The second class makes no distinction between those who pay for a specific survey and those who pay for election surveys in
general. Indeed, subscribers do not escape the burden of paying for the component articles comprising a subscription. They
may pay for them in aggregate, but they pay for them just the same. From the text of Section 5.2(a), the legislative intent
or regulatory concern is clear: "those who have financed, one way or another, the [published] survey" 110 must be disclosed.

Second, not only an important or substantial state interest but even a compelling one reasonably grounds Resolution No.
9674's inclusion of subscribers to election surveys. Thus, regardless of whether an intermediate or a strict standard is used,
Resolution No. 9674 passes scrutiny.

It is settled that constitutionally declared principles are a compelling state interest:

Compelling governmental interest would include constitutionally declared principles. We have held, for example, that "the
welfare of children and the State's mandate to protect and care for them, as parens patriae, constitute a substantial and
compelling government interest in regulating . . . utterances in TV broadcast." 111
Here, we have established that the regulation of election surveys effects the constitutional policy, articulated in Article II,
Section 26, and reiterated and affirmed in Article IX-C, Section 4 and Article XIII, Section 26 of the 1987 Constitution, of
"guarantee[ing] equal access to opportunities for public service[.]" 112

Resolution No. 9674 addresses the reality that an election survey is formative as it is descriptive. It can be a means to shape
the preference of voters and, thus, the outcome of elections. In the hands of those whose end is to get a candidate elected,
it is a means for such end and partakes of the nature of election propaganda. Accordingly, the imperative of "fair" elections
impels their regulation.

Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be
heard and considering the primacy of the guarantee of free expression" 113 and is "demonstrably the least restrictive means to
achieve that object."114

While it does regulate expression (i.e., petitioners' publication of election surveys), it does not go so far as to suppress
desired expression. There is neither prohibition nor censorship specifically aimed at election surveys. The freedom to publish
election surveys remains. 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. cr alawl awlib rary

VI

Petitioners harp on what they claim to be Section 5.2(a)'s "plain meaning" and assert that there is no room to entertain
COMELEC's construction of Section 5.2(a).115

It has been said that "[a] cardinal rule in statutory construction is that when the law is clear and free from any doubt or
ambiguity, there is no room for construction or interpretation. There is only room for application." 116

Clarifications, however, are in order.

First, verba legis or the so-called plain-meaning rule applies only when the law is completely clear, such that there
is absolutely no room for interpretation. Its application is premised on a situation where the words of the legislature are clear
that its intention, insofar as the facts of a case demand from the point of view of a contemporary interpretative community,
is neither vague nor ambiguous. This is a matter of judicial appreciation. It cannot apply merely on a party's contention of
supposed clarity and lack of room for interpretation.

This is descriptive of the situation here.

Interestingly, both COMELEC and petitioners appeal to what they (respectively) construe to be plainly evident from Section
5.2(a)'s text: on the part of COMELEC, that the use of the words "paid for" evinces no distinction between direct purchasers
and those who purchase via subscription schemes; and, on the part of petitioners, that Section 5.2(a)'s desistance from
actually using the word "subscriber" means that subscribers are beyond its contemplation. 117 The variance in the parties'
positions, considering that they are both banking on what they claim to be the Fair Election Act's plain meaning, is the best
evidence of an extant ambiguity.

Second, statutory construction cannot lend itself to pedantic rigor that foments absurdity. The dangers of inordinate
insistence on literal interpretation are commonsensical and need not be belabored. These dangers are by no means endemic
to legal interpretation. Even in everyday conversations, misplaced literal interpretations are fodder for humor. A fixation on
technical rules of grammar is no less innocuous. A pompously doctrinaire' approach to text can stifle, rather than facilitate,
the legislative wisdom that unbridled textualism purports to bolster.118

Third, the assumption that there is, in all cases, a universal plain language is erroneous. In reality, universality and
uniformity of meaning is a rarity. A contrary belief wrongly assumes that language is static.

The more appropriate and more effective approach is, thus, holistic rather than parochial: to consider context and the
interplay of the historical, the contemporary, and even the envisioned. Judicial interpretation entails the convergence of
social realities and social ideals. The latter are meant to be effected by the legal apparatus, chief of which is the bedrock of
the prevailing legal order: the Constitution. Indeed, the word in the vernacular that describes the Constitution — saligan —
demonstrates this imperative of constitutional primacy.

Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we consider not an abstruse provision but a
stipulation that is part of the whole, i.e., the statute of which it is a part, that is aimed at realizing the ideal of fair elections.
We consider not a cloistered provision but a norm that should have a present authoritative effect to achieve the ideals of
those who currently read, depend on, and demand fealty from the Constitution. cralawl awlib rary

VII

We note with favor COMELEC's emphasis on the "wide latitude of discretion"119 granted to it in the performance of its
constitutional duty to "[e]nforce and administer all laws arid regulations relative to the conduct of an election[.]" 120 But this is
with the caution that it does not reach "grave abuse of discretion[.]121

Alliance for Nationalism and Democracy v. COMELEC 122 had the following to say regarding factual findings made by
COMELEC, an independent constitutional organ:

[T]he rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is
absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force when it
concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC—created and explicitly made
independent by the Constitution itself—on a level higher than statutory administrative organs.123

Proceeding from this, we emphasize that this norm of deference applies not only to factual findings. This applies with equal
force to independent constitutional organs' general exercise of their functions. The constitutional placing of independent
constitutional organs on a plane higher than those of administrative agencies created only by statute is not restricted to
competence in fact-finding. It extends to all purposes for which the Constitution created them.

We reiterate, however, that our recognition of this deferential norm is made with caution. This rule of deference does not
give independent constitutional organs, like COMELEC, license to gravely abuse their discretion. With respect to rule-making,
while the wisdom of "subordinate legislation" or the rule-making power of agencies tasked with the administration of
government is acknowledged, rule-making agencies are not given unfettered power to promulgate rules. As explained
in Gerochi v. Department of Energy,124it is imperative that subordinate legislation "be germane to the objects and purposes
of the law and that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law."125A
regulation that purports to effect a statute but goes beyond the bounds of that statute is ultra vires; it is in excess of the
rule-making agency's competence. Thus, it is void and ineffectual.

This is not the case here. There is no grave abuse of discretion. Resolution No. 9674 serves a constitutional purpose and
works well within the bounds of the Constitution and of statute. crala wlawlib rary

VIII

Petitioners argue that Resolution No. 9674 constitutes a prior restraint in that:

Resolution No. 9674 makes it an election offense for a survey firm not to disclose the names of subscribers who have paid
substantial amounts to them, even if ihe survey portions provided to them have not been published. 1'his requirement is
unduly burdensome and onerous and constitutes a prior restraint on the right of survey firms to gather information on public
opinion and disseminate it to the citizenry.

. . . If Resolution No. 9674 is allowed to stand, survey firms will no longer be able to operate because they will not have
enough clients and will not be financially sustainable. COMELEC will finally be able to do indirectly what it could not do
directly, which is to prohibit the conduct of election surveys and the publication or dissemination of the results to the
public.126

Petitioners' assertions are erroneous.

Chavez v. Gonzales127 explained the concept of prior restraint as follows:

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications,
whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as
prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of
their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of
permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can
be had at the courts.128 (Emphasis supplied, citations omitted)

The very definition of "prior restraint" negates petitioner's assertions. Resolution No. 9674 poses no prohibition or censorship
specifically aimed at election surveys. Apart from regulating the manner of publication, petitioners remain free to publish
election surveys. COMELEC correctly points out that "[t]he disclosure requirement kicks in only upon, not prior
to, publication."129

In any case, the requirement of disclosing subscribers is neither unduly burdensome nor onerous. Prior to the promulgation
of Resolution No. 9674, survey firms were already understood to be bound by the requirement to disclose those who
commissioned or paid for published election surveys. Petitioners have been complying with this without incident since the
Fair Election Act was enacted in 2001. After more than a decade of compliance, it is odd for petitioners to suddenly assail the
disclosure requirement as unduly burdensome or onerous.

Petitioners' claim that "[i]f Resolution No. 9674 is allowed to stand, survey firms will no longer be able to operate because
they will not have enough clients and will not be financially sustainable" 130 is too speculative and conjectural to warrant our
consideration. The assumption is that persons who want to avail of election survey results will automatically be dissuaded
from doing so when there is a requirement of submission of their names during the campaign period. This is neither self-
evident, nor a presumption that is susceptible to judicial notice. There is no evidence to establish a causal connection.

Petitioners' free speech rights must be weighed in relation to the Fair Election Act's purpose of ensuring political equality and,
therefore, the speech of others who want to participate unencumbered in our political spaces. On one hand, there are
petitioners' right to publish and publications which are attended by the interests of those who can employ published data to
their partisan ends. On the other, there is regulation that may effect equality and, thus, strengthen the capacity of those on
society's margins or those who grope for resources to engage in the democratic dialogue. The latter fosters the ideals of
deliberative democracy. It does not trump the former; rather, it provides the environment where the survey group's free
speech rights should reside. cralawlawl ib rary

IX

Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the 1987 Constitution. 131They claim that it
"unduly interferes with [their] existing contracts . . . by forcing [them] to disclose information that, under the contracts, is
confidential or privileged."132

For its part, COMELEC argues that "[t]he non-impairment clause of the Constitution must yield to the loftier purposes sought
to be achieved by the government."133 It adds that "[petitioners' existing contracts with third parties must be understood to
have been made in reference to the possible exercise of the COMELEC's regulatory powers." 134

It is settled that "the constitutional guaranty of non-impairment... is limited by the exercise of the police power of the State,
in the interest of public health, safety, morals and general welfare." 135 "It is a basic rule in contracts that the law is deemed
written into the contract between the parties." 136 The incorporation of regulations into contracts is "a postulate of the police
power of the State."137

The relation of the state's police power to the principle of non-impairment of contracts was thoroughly explained in Ortigas
and Co. V. Feati Bank:138

[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with
the legitimate exercise of police power, i.e., "the power to prescribe regulations to promote the health, morals, peace,
education, good order or safety and general welfare of the people." Invariably described as "the most essential, insistent,
and illimitable of powers" and "in a sense, the greatest and most powerful attribute of government," the exercise of the
power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having
been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held through Justice
Jose P. Bengzon in Philippine Long Distance Company vs. City of Davao, et al. police power "is elastic and must be responsive
to various social conditions; it is not confined within narrow circumscriptions of precedents resting on past conditions; it must
follow the legal progress of a democratic way of life." We were even more emphatic in Vda. de Genuino vs. The Court of
Agrarian Relations, et al, when We declared: "We do not see why public welfare when clashing with the individual right to
property should not be made to prevail through the state's exercise of its police power." 139(Citations omitted)

This case does not involve a "capricious, whimsical, unjust or unreasonable" 140 regulation. We have demonstrated that not
only an important or substantial state interest, but even a compelling one anchors Resolution No. 9674's requirement of
disclosing subscribers to election surveys. It effects the constitutional policy of "guarantee[ing] equal access to opportunities
for public service"141 and is impelled by the imperative of "fair" elections.

As a valid exercise of COMELEC's regulatory powers, Resolution No. 9674 is correctly deemed written into petitioners'
existing contracts.

Parenthetically, the obligations of agreements manifested in the concept of contracts are creations of law. This right to
demand performance not only involves its requisites, privileges, and regulation in the Civil Code or special laws, but is also
subject to the Constitution. The expectations inherent in a contract may be compelling, but so are the normative frameworks
demanded by law and the provisions of the Constitution. cralawla wlib rary

Petitioners point out that Section 13 of the Fair Election Act provides that "[r]ules and regulations promulgated by the
COMELEC under and by authority of this Section shall take effect on the seventh day after their publication in at least two (2)
daily newspapers of general circulation." In contrast, Resolution No. 9674 provides that it "shall take effect immediately after
publication."142 Thus, they assert that Resolution No. 9674's effectivity clause is invalid. From this, they argue that Resolution
No. 9674 has not taken effect and cannot be enforced against them or against other persons. 143

COMELEC counters that Section 13 of the Fair Election Act's provision that rules shall take effect "on the seventh day after
their publication" applies only to Resolution No. 9615, the Implementing Rules and Regulations (IRR) of the Fair Election Act,
and not to Resolution No. 9674, which "merely enforces Section 26 144 of Resolution No. 9615."145

Noting that Resolution No. 9674 was nevertheless published in the Philippine Daily Inquirer and the Philippine Star both on
April 25, 2013, COMELEC adds that, in any case, "the lapse of the seven-day period from the date of its publication has
rendered the instant issue moot and academic." 146
It is COMELEC which is in error on this score. Section 13 of the Fair Election Act reads:

Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The COMELEC shall promulgate and furnish
all political parties and candidates and the mass media entities the rules and regulations for the implementation of this Act,
consistent with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election
Code (Batas Pambansa Bldg. 881).

Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh
day after their publication in at least two (2) daily newspapers of general circulation. Prior to effectivity of said rules and
regulations, no political advertisement or propaganda for or against any candidate or political party shall be published or
broadcast through mass media.

Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election offense
punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa Bldg. 881).
(Emphasis supplied)

Resolution No. 9615 is denominated "Rules and Regulations Implementing Republic Act No. 9006, otherwise known as the
'Fair Election Act', in connection to [sic] the 13 May 2013 National and Local Elections, and Subsequent Elections[.]"

The only conceivable reason that would lead COMELEC to the conclusion that it is only Resolution No. 9615 (and not the
assailed Resolution No. 9674) that needs to comply with the requirement of Section 13 of the Fair Election Act is Section 13's
use of the phrase "rules and regulations for the implementation of this Act[.]" That is, since Resolution No. 9615 is the
Resolution which, by name, is called the "Rules and Regulations Implementing Republic Act No. 9006," COMELEC seems to
think that other rules named differently need not comply.

It is an error to insist on this literal reasoning.

Section 13 applies to all rules and regulations implementing the Fair Election Act, regardless of how they are denominated or
called. COMELEC's further reasoning that what Resolution No. 9674 intends to implement is Resolution No. 9615 and not the
Fair Election Act itself is nothing but a circuitous denial of Resolution No. 9674's true nature. COMELEC's reasoning is its own
admission that the assailed Resolution supplements what the Implementing Rules and Regulations of the Fair Election Act
provides. Ultimately, Resolution No. 9674 also implements the Fair Election Act and must, thus, comply with the
requirements of its Section 13.

Accordingly, Resolution No. 9674 could not have become effective as soon as it was published in the Philippine Daily Inquirer
and the Philippine Star on April 25, 2013. Taking into consideration the seven-day period required by Section 13, the soonest
that it could have come into effect was on May 2, 2013.

This notwithstanding, petitioners were not bound to comply with the requirement "to submit within three (3) days from
receipt of this Resolution the names of all commissioners and payors of surveys published from February 12, 2013 to the
date of the promulgation of this Resolution[.]" 147 As shall be discussed, COMELEC's (continuing) failure to serve copies of
Resolution No. 9674 on petitioners prevented this three-day period from even commencing. cralawlaw lib rary

XI

Petitioners point out that they were never served copies of Resolution No. 9674. Thus, they claim that this Resolution's self-
stated three-day period within which they must comply has not begun to run and that COMELEC's insistence on their
compliance violates their right to due process. They add that COMELEC has also failed to provide them with copies of the
criminal complaint subject of E.O. Case No. 13-222 for which the Subpoena dated July 1, 2013 was issued against them.

COMELEC, however, insists that "[petitioners were given fair notice of the Resolution" 148 in that:

[t]he-Notice dated 08 May 2013 sent to and received by petitioners not only makes reference to the Resolution by its
number and title but also indicates its date of promulgation, the two newspapers of general circulation in which it was
published, it date of publication, and, more important [sic], reproduces in full its dispositive portion[.] 149

COMELEC adds that, in any case, petitioners were "able to secure a certified true copy of the [assailed] Resolution." 150 On the
filing of a criminal complaint, COMELEC asserts that attached to the Subpoena served on petitioners was a copy of Resolution
No. 13-0739 of the COMELEC En Bane which "provides a verbatim reproduction of the Memorandum of the Director of the
Law Department detailing petitioners' failure to comply with the assailed Resolution and of the Memorandum of
Commissioner [Christian Robert S.] Lim submitting the matter for the appropriate action of the COMELEC en bane." 151

COMELEC relies on infirm reasoning and reveals how, in criminally charging petitioners, it acted arbitrarily, whimsically, and
capriciously, and violated petitioners' right to due process.

By its own reasoning, COMELEC admits that petitioners were never actually served copies of Resolution No. 9674 after it was
promulgated on April 23, 2013. It insists, however, that this flaw has been remedied by service to petitioners of the May 8,
2013 Notice which reproduced Resolution No. 9674's dispositive portion.
Dismembering an official issuance by producing only a portion of it (even if the reproduced portion is the most significant,
i.e., dispositive, portion) is not the same as serving on the concerned parties a copy of the official issuance itself. Petitioners
may have been informed of what the dispositive portion stated, but it remains that they were never notified and served
copies of the assailed Resolution itself. In Resolution No. 9674's own words, compliance was expected "within three (3) days
from receipt of this Resolution[,]"152 not of its partial, dismembered, reproduction.

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. From this, it follows that no violation of the requirement "to submit within three (3)
days from receipt of this Resolution the names of all commissioners and payors of surveys published from February 12, 2013
to the date of the promulgation of this Resolution[.]"153 could have been committed. Thus, there was no basis for considering
petitioners to have committed an election offense arising from this alleged violation.

It is of no consequence that the May 8, 2013 Notice warned petitioners that failure to comply with it "shall constitute an
election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code." 154 It is true
that the Omnibus Election Code has been in force and effect long before Resolution No. 9674 was promulgated; nevertheless,
the supposed violation of the Omnibus Election Code rests on petitioners' alleged non-compliance with Resolution No. 9674.
This is a matter which, as we have demonstrated, is baseless, the three-day period for compliance not having even
commenced.

It is similarly inconsequential that petitioners were subsequently able to obtain certified true copies of Resolution No. 9674.
Petitioners' own diligence in complying with the formal requirements of Rule 65 petitions filed before this court cannot
possibly be the cure for COMELEC's inaction. These certified true copies were secured precisely to enable petitioners to assail
COMELEC's actions, not to validate them. It would be misguided to subscribe to COMELEC's suggestion that petitioners'
diligence should be their own undoing. To accede to this would be to effectively intimidate parties with legitimate grievances
against government actions from taking the necessary steps to comply with (formal) requisites for judicial remedies and,
ultimately, prevent them from protecting their rights.

COMELEC's error is compounded by its failure to provide petitioners with copies of the criminal complaint subject of E.O.
Case No. 13-222. COMELEC has neither alleged nor proven that it has done so. Per its own allegations, all it did was serve
petitioners with the May 8, 2013 Notice and the July 1, 2013 Subpoena.

These facts considered, it was not only grave error, but grave abuse of discretion, for COMELEC to pursue unfounded criminal
charges against petitioners. In so doing, COMELEC violated petitioners' right to due process.

WHEREFORE, the Petition is PARTIALLY GRANTED in that COMELEC Resolution No. 9674 is upheld, and respondent
Commission on Elections is ENJOINED from prosecuting petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. for
their supposed violation of COMELEC Resolution No. 9674 in respect of their non-submission of the names of all
commissioners and payors, including subscribers, of surveys published during the campaign period for the 2013 elections.

SO ORDERED. ch an rob lesvirt u allawlib rary