III. FREEDOM OF EXPRESSION 2.

Police power of the State – premised on the need

to promote public welfare, safety, morals and national
security.
Section 4. No law shall be passed abridging the
freedom of speech, of expression, or of the press, or
of the right of the people peaceably to assemble and Examples of State regulation:
petition the government for redress of grievances. 1. Seditious speeches are not covered
2. Slanderous/libelous words can be penalized
3. Exclusion from the mails of newspapers
FREEDOM OF EXPRESSION is available only insofar as it is containing seditious articles is valid
exercised for the discussion of matters affecting the public 4. A moviegoer has no right to yell “fire” inside the
interest. Purely private matters do not come w/i the movie house.
guaranty.
Rights included:
SCOPE: 3. Speech and Expression
 The ideas that may be expressed under this 4. Assembly and petition
freedom are not confined only to those that are sympathetic 5. Press
of acceptable to the majority. 6. Religion
 It permits the articulation of even the unorthodox 7. To form association
view, that it be hostile to or derided by others, or “induces a
condition of unrest, creates dissatisfaction w/ conditions as Freedom of Speech and Expression is the right to freely utter
they are, or even stirs people to anger”. whatever the citizen may please, and to be protected from
 The freedom to speak includes the right to be any responsibility for doing so.
silent. It also includes the right to an audience, in the sense
that the state cannot prohibit the people from hearing what a Freedom of the Press the liberty to discuss publicly and
person has to say, whatever be the quality of his thoughts. publish truthfully any matter of public interest without
The right to listen also includes the right NOT to listen. previous censorship from the government.

ACTS PROTECTED ACTS NOT COVERED Freedom of Assembly is the right to assemble peacefully for
1. Political speech 1. seditious the consultation and discussion of matters of public interest
2. self/artistic expression speeches and to petition the government for redress of grievances.
3. commercial speech 2. libelous
a. speech must not be speeches Purposes:
false, misleading or 3. obscene •To protect and preserve the right of the people to
proposing an illegal speeches/expressi information and matters of public concern;
activity on •To enable every citizen to bring the Government and
b. governmental 4. contemp persons in authority to the bar of public opinion;
interest sought to be tuous •To encourage free and general discussion of matters of
served by the speeches public concern.
regulation must be
substantial Scope of Protection (what are protected): political speeches,
c. the regulation must self or artistic expressions, symbolic speeches. One cannot be
directly advance the punished for doing these things)
government’s
interest Protected speech includes every form of expression, whether
d. regulation must not oral, written, tape or disc recorded. It includes motion
be overbroad pictures as well as what is known as symbolic speech such as
4. scientific information the wearing of an armband as a symbol of protest. Peaceful
5. symbolic speeches picketing has also been included within the meaning of
6. picketing speech.

MODES OF EXPRESSION:
• These rights are preferred rights. (Philippine 1. language – oral or written
2. symbolism
Blooming Mills case)
• These rights are not absolute. They are always
Prohibitions under Section 4/ Forms of Curtailment of
subject to:
Freedom of Speech:
1. PRIOR RESTRAINT :
1. State regulation – premised on the need to protect
society from the injurious exercise of such freedom.

1
 It means official governmental restrictions on
the press or other forms of expression in advance of actual
publication or dissemination; curtailment of the freedom of
expression made through restrictions in advance of actual
publication or dissemination. This means that the exercise
of such freedom depends upon the prior approval of the
government.
Note: Generally, when the state exercises police power it
bears the presumption of constitutionality. However, in
cases of prior restraint, the presumption of
constitutionality is not applicable. The government has
the burden of proof in proving the constitutionality of the
law. (Pass the Clear and present danger test)
REASONS for the presumption of unconstitutionality:
a. When one is restrained from expressing
himself, no one knows what that person is
going to say;
b. The value of the presumption against the
State is that one has no evidence for
conviction.
 official/governmental restrictions on the press
and other forms of expression in advance of actual
publication or dissemination
 in cases of prior restraint the rule that all
exercise of police power bears the presumption of
constitutionality does not apply (so this is an exception)
 EXCEPTIONS (the exercise of police power
bears a presumption of constitutionality --- exception to the
exception so that the rule applies):
a. when a nation is at war
b. when the COMELEC exercises its power to
regulate the mass media for election purposes [Art. IX C Sec.
4; NPC vs. COMELEC (207 SCRA 1)]
 FORMS:
a. censorship
b. closures
c. court injunctions
d. system of issuance of permits and
licenses
Q: What is CENSORHIP?
A: CENSORSHIP conditions the exercise of freedom of
expression upon prior approval of the government. It need
not partake of total suppression; even restriction of
circulation is unconstitutional.
Examples/forms of prior restraint
1. movie censorship
2. judicial prior restraint = court injunction
against publication
3. issuances of licenses and permits, taxes based
on gross receipts for the privilege of engaging
in the business of advertising in any
newspaper
4. flat license fees for the privilege of selling
religious books
5. Closures
EXCEPTION TO THE EXCEPTION (when prior restraint in
unconstitutional and burden of proof is on the person
restrained. In other words, there is a presumption of
constitutionality):
a.) IN TIMES OF WAR -- Ex. Government can
prevent publication about the number/locations of its troops
(Near v. Minnesota, 238 US 697)
b.) ART. 9 (C), SEC. 4, -- when the comelec
exercises its power to regulate mass media for election
purposes. (take Note, for election purposes only)
c.) OBSCENE PUBLICATIONS.
d.) CONTENT NEUTRAL- does not restrict the
content of the speech, or the content of your publication,
but the time, the manner or the place. The restriction is
not imposed on the content of the speech and publication,
but only on the time and manner of expression. There is no
presumption of unconstitutionality. What is only required
is substantial government interest for the restriction to be
accepted. There is no need for the clear and present
danger test ex. preventing people from writing graffiti on
the wall.
As opposed to CONTENT BASED - restriction of the
content of the speech, what the person is going to say or
write ex. preventing people from writing about GMA on
the wall; there is a presumption of unconstitutionality and
the test to be applied is the clear and present danger test)
Note: Just because it is content neutral and there is no
presumption of unconstitutionality, this doesn't mean that
okay na sya. It still has to pass a test. What kind of test
should be used if the restriction is content neutral?
- The O’Brien Test (SWS vs. COMELEC
case):
A. if it (restriction) is within the
constitutional powers of the government;
B. if furthers an important or substantial
government interest;
C. if the substantial government interest is
unrelated to the suppression of the expression;
D. if the incidental restriction is no greater
than is essential to the furtherance of the substantial
interest.
Examples of Content neutral restrictions:
1. When the Comelec exercises its power to regulate
mass media for election purposes under Art 9-C se.
4 in relation to Sec. 11 of RA 6646. (Osmena vs.
comelec)
2
 2. Preventing the conducting of exit polls right after
the elections. (ABS-CBN vs. Comelec – here, even if
it is a content neutral provision it still violates the
freedom of expression as holding of exit polls does
not really undermine the result of the election. The
comelec resolution is overbroad. )
3. Preventing the publication of surveys before an
election. SWS vs. Comelec
2. SUBSEQUENT PUNISHMENT
 a restraint that comes AFTER the exercise
of the freedom of speech, press or expression.
 Punishing the expression that has
already come out. What the Constitution protects is
the right to be able to express one's ideas without
being punished for it. However, it doesn't mean that
anything that one says, one can escape punishment
for that by invoking the freedom of expression since
this freedom is not absolute. (Correlate with
unprotected speech)
 Freedom from any punishment as a
consequence of, or in connection with a speech,
utterance or writing. (This is the guarantee of the
constitution)
 In order to make the freedom of
expression clause more meaningful, there must be an
assurance that, after making any utterance or
publication, the author will not be subjected to any form
of punishment.
Coverage of valid subsequent punishment
Criminal prosecution for:
 sedition
 libel
 obscenity
 citation for contempt
 damages
*Unprotected speech
 Freedom of speech includes freedom after speech.
Q: Is this right absolute?
A: NO! Freedom of expression is not absolute. It is subject to
the police power and may be properly regulated in the
interest of the public.
Q: Does this right cover ideas offensive to the public order or
decency or reputation of persons entitled to protection by
the state?
A: NO.
CRITICISM OF OFFICIAL CONDUCT
 The general rule in criticism of official conduct is
characterized by liberality. The official acts, and even the
private life of a public servant are legitimate subjects of
public comment. People have a right to scrutinize and
commend or condemn the conduct of their chosen
representatives in government.
 As long as the people’s comments are made in good
faith and w/ justifiable ends, they are insulated from
prosecution or damage suits for defamation even if such
views are found to be inaccurate or erroneous.
 A private individual may still be the subject of public
comment even if he is not a public official or at least a public
figure, as long as he is involved in a public issue.
 If a matter is a subject of general/public interest, it
cannot suddenly become less so because a private 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.
CONTEMPT
 Public comment is proscribed pending litigation on the
ground that it would interfere w/ the administration of
justice.
 Newspaper publications tending to impede, obstruct,
embarrass or influence the courts in the administering justice
in a pending suit/proceeding constitutes criminal contempt,
summarily punishable by the courts. The rule is otherwise if
the case is ended [ROSENBLOOM vs. METROMEDIA].
 This section is subordinate to the authority, integrity and
independence of the judiciary and the proper administration
of justice.
 For expression to constitute contempt, the danger must
cause a serious imminent threat to the administration of
justice.
 Only publication made in the pendency of a case
constituted contempt.
 Where the questioned publication was alleged to be
contemptuous of the SC or its Justices, publication was
declared contemptuous. But in every case where an inferior
court or its judge was the target, absolution followed.
 The freedom of expression under Sec. 4 is subordinate to
the authority, integrity, independence of the judiciary in the
proper administration of justice.
Q: Who has the power to declare a person in contempt?
A: The courts – this is an inherent power even w/o any
express grant in the Constitution because it is part of the
exercise of judicial power
Congress – can pass a law as to which agency has
the power to cite a person in contempt.
LIBELOUS SPEECH
 are by no means essential to the exposition of ideas
and are of such scant social value that any benefit w/c may
be derived from them is outweighed by the social interest of
public order
 NOT protected speech
 there are no tests
A. FAIR COMMENT (U.S. Rule). These are
statements of OPINION, not of fact, and are not
3
 considered actionable, even if the words used are 1. whether the average
neither mild nor temperate. What is important is person, applying contemporary
that the opinion is the true and honest opinion of community standards, would find that
the person. The statements are not used to attack the work, taken as a whole, appeals to
personalities but to give one’s opinion on decisions prurient interest
and actions. 2. whether the work
depicts/describes, in a patently offensive
B. OPINIONS. With respect to public way, sexual conduct specifically defined
personalities (politicians, actors, anyone with a by the applicable law whether the work,
connection to a newsworthy event), opinions can taken as a whole, lacks serious literary,
be aired regarding their public actuations. artistic, political or scientific value
Comment on their private lives, if not germane to
their public personae, are not protected.  In determining WON an expression is
obscene, the courts should apply the standard of
Note: LIBEL/SLANDER - a crime; as a general rule, the the community in w/c the material is being tested
burden of proof is on the prosecution. In libel, generally, Procedure for seizure of allegedly obscene publications
proof of truth is not a defense. But if it is against the
public official, proof of truth is a defense. When the libel is 1. Authorities must apply for issuance of search warrant.
against a public official, it is incumbent on the public
official to prove certain things (3 things). 2. Court must be convinced that the materials are obscene.
Apply clear and present danger test.
(1) He must prove that the charge is false,
(2)That the one making the charge knows that it is false 3. Judge will determine whether they are in fact “obscene”.
and
(3) That there was utter disregard as to whether or not the 4. Judge will issue a search warrant.
charge is really false.
5. Proper action should be filed under Art. 201 of the RPC.
Note: If the person being attacked is a public official, and
what is being said is in relation to his public function, then 6. Conviction is subject to appeal.
the freedom of expression is stronger even if the
statement is slanderous or libelous. Borjal case expanded Principles:
the Vasquez decision stating that not only public officials
or government employees have to prove these things, but 1. Movies/Tv programs- admin officials such as MTCRB have
also someone who is a public figure. the power to determine what is obscene or not (Iglesia vs.
CA) – Classification only, not prohibition, ie R-18
Libelous Statements Libelous Statements vs. PUBLIC
vs. PRIVATE INDIVIDUALS 2. Printed material – it is the court who will determine if it is
INDIVIDUALS obscene or not.
 almost always  if the statement concerns
punishable matters that are essentially 3. Obscene materials cannot be considered as nuisance per
because a person of his private life are se:
has a right to his protected by law --- Sec. 4 is
reputation and NOT a defense a.Procedure to be taken by authorities when there
integrity  if the statement concerns are alleged obscene materials:
 freedom of matters connected w/ his
expression under official acts, OR his mental, 1. Obtain a search warrant
Sec. 4 is NOT a moral or physical fitness to
defense be in office --- issue is 2. It must be the judge, and not the
constitutional policemen, who will determine what is obscene and what is
 statements that are purely not
destructive that affect his
function as an official are 3. The warrant can only be granted by the
restricted BUT as a public judge if a clear and present danger of a substantive evil.
official it is expected that
you may be criticized Subsequent punishment

OBSECENTITY Subsequent punishment... the second component...

 TESTS of OBSCENITY: the restrictions come in the form of punishments.

4
There are two considerations when a regulation in a
form of subsequent punishment is tested:
1. It has to be determined whether it is a
content-based restriction or a content
neutral restriction
In content-based restriction, the usual tests would be:
a. Dangerous Tendency Test
b. Clear-and-Present Danger Test
c. Balancing of Interest Test
Those are the three most common tests. There are
two tests mentioned also in your outline:
d. Direct Incitement
e. Grave but Improbable Danger
C. Content-based Restrictions
1. Some Tests of Validity of content-based restrictions
1. DANGEROUS TENDENCY TEST - if the word spoken
creates a dangerous tendency which the state has the
right to prevent.
 This test has been abandoned by the court
already.
 It is only used when there purpose to ignite strife
or sedition. You cannot use it on anything else. It
is only used when the crime committed is
sedition.
 it is not necessary that some definite or immediate
act or force, violence, or unlawfulness be advocated
in general terms
 it is also not 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 w/c the legislative body seeks
to prevent
 a person could be punished for his ideas even if
they only tended to create the evil sought to be
prevented --- it is not necessary to actually create
the evil; mere tendency toward the evil is enough
The Dangerous Tendency Test: when there is a
state interest which has to be protected from the
evils to be brought about by the speech or
expression and there is a dangerous tendency that
the speech or expression will bring about that evil,
then the State has the right to prevent it from
happening. This test is normally used if the speech
or regulation has something to do with national
security interest. When the very existence of an
organized government is at stake, the State will not
wait that there is a clear- and-present danger. The
mere tendency that these utterances claimed under
free speech will bring about the evil which will
generally affect the very existence of an organized
government is sufficient for the State to regulate
that particular form of expression.
2. CLEAR AND PRESENT DANGER – It is a “working
principle” that: (Before the utterance can be punished)
 whether the words used in such circumstances
are of such nature as to create a clear and present danger
that they will bring about the substantive evils that the State
has a right to prevent
 the danger created must not only be clear and
present but also traceable to the ideas expressed --- unless
this nexus is established, the individual may not be held
accountable
 JUSTICE FERNANDO:
- clear seems to point to a causal connection w/
the danger arising from the utterance questioned
- present refers to the time element --- it must
be imminent and immediate danger
- the danger must not only be probable but very
likely inevitable
[Case: GONZALES vs. COMELEC (27 SCRA 835)
Notes:
a. A substantive evil must be extremely
serious, and
b. Degree of imminence extremely high
 Furthermore, the danger created must have a
causal relation to the expression, and the evil which the
state has the right to suppress. (Gonzales vs. Comelec)
 Used when the suit is between a private
individual and the government.
Requisites:
a. the word used must is of such nature that would create
a danger that would bring about a substantive evil that the
state has the right to prevent;
b. the substantive evil that will be brought about by such
expression must be extremely serious and clear. (There
must be a causal relation between the act sought to be
prevented and the evil that will be brought about by the
utterance)
c. And it must be present, not mere tendency. It
probability of occurrence is inevitable and apparent.
Case: Zaldivar vs. Gonzales - there doesn't need to be an
immediate catastrophe, the evil sought to be avoided here
was the obstruction of justice, the derogation of the
justice system and the diminishing of the standard of
5
professional conduct. It is actually a danger if you degrade
the justice system.
In Clear-and-Present Danger Test, there are two
operative phrases there. Clear meaning there is a
causal relation between the expression or the
exercise of the right and the evil sought to be
avoided. Present that it is inevitable that the evil
sought to be avoided will happen because of the
subject expression. Now in this test, it is not only
the words which are supposed to be tested, it is
also to consider the circumstances that these
utterances are made. Usual example is when you
shout the word “fire” in an open field. Though fire
or the existence of fire or expressing that there is a
fire will bring about some form of distraction but if
it is
uttered in the open field it cannot bring about such
distraction.
But if it is uttered in a movie house, then that will
bring about stampede, distraction, injury or death
to the movie theatre goers. So the circumstances
are also considered in determining whether or not
the evil sought to be avoided will inevitably happen
if the expression is not regulated.
has preferred rights in accordance with their importance or
value in our system of existence. And when there are several
of these rights clashing with each other, then the court will
have to exercise its discretion with the use of this Balancing
of Interest test. Which of these interests should be upheld in
this particular situation? Again, while there is a hierarchy of
these rights not because one occupies a higher level than
the other (that automatically this right in the higher level
will prevail over that which pertains to a lower right in the
hierarchy), it is to be decided or resolved based on the
circumstances of the case and which of these rights will
prevail using the Balancing of Interest test.
Direct incitement: The guarantees of free speech and free
press do not permit a state to forbid or prescribe the
advocacy of the use of force or of law violation except where
such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such
action. (Brandenburg vs. Ohio, 395 U.S. 444 (1969); cited in
Salonga vs. Cruz Pano, 134 SCRA 438 [1985])
Grave-but-improbable danger: Whether the gravity of the
evil, discounted by its improbability, justifies such an invasion
of speech as is necessary to avoid the danger. (Dennis vs.
United States, 341 U.S. 494 [1951])

3. BALANCING OF INTEREST. - Principle which requires the 2. Applications of tests in various contexts
court to consider the circumstances of each particular
case and thereafter it shall settle the issue of which right a. Freedom of expression and national security
demands greater protection. The court must weigh and
balance two or more conflicting social interests. It involves b. Freedom of expression and criticism of official conduct:
many considerations but in the end, the court will uphold The Test of “Actual Malice” Read Rev. Penal Code, Arts.,
what should be considered as the most important interest. 353-354 and 361-362
Compare Act No. 2928, March 26, 1920 Com. Act No. 382,
 It is used when there are two or more rights from Sept. 6, 1938
the Bill of Rights being invoked by private
individuals. CLEAR and DANGEROUS BALANCE-OF-INTEREST
 When particular conduct is regulated in the interest PRESENT TENDENCY TEST TEST
of public order, and the regulation results in the DANGER TEST
indirect, conditional, partial abridgment of speech,  liberty is  authority  resolves the issue
the duty of the courts is to determine w/c of the 2 pre-ferred is pre- in the light of the
conflicting interests demands greater protection  a ferred peculiar cir-
under the particular circumstances presented question cumstances
 if in a given situation it should appear that there is of pro- obtai-ning in each
urgent necessity for protecting the national. ximity case
security against improvident exercise of freedom of and
expression, the right must yield BUT if no special degree
justification for its curtailment exists, it must prevail
 FLAW: it in effect allows the courts to decide that CASES:
this freedom may not be enforced unless they
believe it is reasonable to do so SOLIVEN VS. MAKASIAR;

Case: Lagunzad vs. Sotto (right to privacy is superior to the
freedom of expression)
The Balancing of Interest Test is normally used when there
are clashes of rights or claims of rights. Remember when
we mentioned about the hierarchy of rights? The Constitution
BELTRAN VS. MAKASIAR, 167 SCRA 393 (1988)
BORJAL VS. CA 301 SCRA 1 (1999)
Facts: Respondent, a private citizen, was Executive Director of
the First National Conference on Land Transportation
(ENOLT). The Conference, to be participated in by the private

6
sector and government agencies, was intended to find ways
to solve the transportation crises, and to draft an omnibus bill
to be presented to Congress that would embody tong-term
transportation policy. In several issues of the Philippine Star,
petitioner implicated respondent in some anomalous
activities. Hence, the latter filed a case for libel. Is
respondent a “public figure” so as to shift to him the burden
of proving actual malice?
Issue: WON the implications made by petitioner is within the
protection of freedoms of expresson and of speech.
Ruling: Yes. In the crime of libel, as a general rule, the burden
of proof is on the prosecution. In libel, generally, proof of
truth is not a defense. But if it is against the public official,
proof of truth is a defense. When the libel is against a public
official, it is incumbent on the public official to prove certain
things such as: (1) He must prove that the charge is false;
(2)That the one making the charge knows that it is false; and
(3) That there was utter disregard as to whether or not the
charge is really false.
As held in the case of Vasquez vs. CA, if the person
being attacked is a public official, and what is being said is in
relation to his public function, then the freedom of
expression is stronger even if the statement is slanderous or
libelous. This case expanded the decision of in Vasquez by
stating that not only public officials or government
employees have to prove these things, but also someone who
is a public figure. Respondent is deemed a public figure within
the purview of the New York Times ruling, being “a person
who, by his accomplishments, fame, 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,
had become a public personage.” The FNCLT was an
undertaking infused with public interest. It was promoted as
a joint project of the government and the private sector, and
organized by top management officials and prominent
businessmen. For this reason, it attracted media mileage and
drew public attention. As its Executive Director and
spokesman, private respondent consequently assumed the
status of a public figure.
VASQUEZ VS. CA 314 SCRA 460 (2000)
Vasquez was a spokesman of a group of squatters. During an
interview which was published in a newspaper, he charged
that the Barangay Captain connived with officials of the
National Housing Authority to grab their land, and that the
Barangay Captain was involved in illegal gambling and theft of
chicken.
Issue: WON placing on the accused the burden of proving the
truth of the allegations would infringe freedom of expression.
Ruling: Yes. Under Art. 361 of the Revised Penal Code, when
the libelous statement is made against a public official with
respect to the discharge of his official duties and functions,
truth is a defense. For that matter, even if the defamatory
statement is false, no liability can attach if it relates to official
conduct unless the public official proves that the statement
was made with actual malice --- that is, with the knowledge
that it was false or with reckless disregard of whether it was
false or not. In this case, the prosecution failed to prove not
only that the charges made were false, but also that Vasquez
made them with knowledge of their falsity or with reckless
disregard or whether they were false or not. A rule placing
on the accused the burden of proving the truth of allegations
of official misconduct and/or good motives and justifiable
ends in making the allegation would infringe on the
constitutionally guaranteed freedom of expression. If the
person being attacked is a public official, and what is being
said is in relation to his public function, then the freedom of
expression is stronger even if the statement is slanderous or
libelous.
TULFO VS. PEOPLE 565 SCRA 283 (2008)
Facts: Atty. Ding So of the Bureau of Customs filed four
separateInformations against Erwin Tulfo, Susan Cambri, Rey
Salao, JocelynBarlizo, and Philip Pichay, accusing them of libel
in connection with the publication of articles in the column
“Direct Hit” of the daily tabloid Remate.
The column accused So of corruption, and portrayed him as
an extortionist and smuggler. After trial, the RTC found Tulfo,
et al. guilty of libel. The CA affirmed the decision.
Issues: W/N the assailed articles are fair commentaries.
Ruling: NO.
a. Good faith is lacking, as Tulfo failed to substantiate or even
attempt to verify his story before publication. He provided no
details on the acts committed by the subject. They are plain
and simple baseless accusations, backed up by the word of
one unnamed source.
b. Not “fair” or “true” because “fair” is defined as “having the
qualities of impartiality and honesty.” “True” is defined as
“comfortable to fact; correct; exact; actual; genuine; honest.”
Tulfo failed to satisfy these requirements, as he did not do
research before making his allegations, and it has been
shown that these allegations were baseless. The articles are
not “fair and true reports,” but merely wild accusations.
The elements of fair commentary (to be considered
privileged): a. That it is a fair and true report of a judicial,
legislative, or other official proceedings which are not of
confidential nature, or of a statement, report, or speech
delivered 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; c. That it is without any comments or
remarks.
Journalists may be allowed an adequate margin of error in
the exercise of their profession, but this margin does not
expand to cover every defamatory or injurious statement
they may make in the furtherance of their profession, nor
does this margin cover total abandonment of responsibility.
The mere fact that the subject of an article is a public figure
or a matter of public interest does not mean it is a fair
7
commentary within the scope of qualified privileged
communication, which would automatically exclude the
author from liability. The confidentiality of sources and their
importance to journalists are accepted and respected. What
cannot be accepted are journalists making no efforts to verify
the information given by a source, and using that unverified
information to throw wild accusations and besmirch the
name of possibly an innocent person. Journalists have a
responsibility to report the truth, and in doing so must at
least investigate their stories before publication, and be able
to back up their stories with proof. Journalists are not
storytellers or novelists who may just spin tales out of
fevered imaginings, and pass them off as reality. There must
be some foundation to their reports; these reports must be
warranted by facts. Freedom of expression as well as
freedom of the press may not be unrestrained, but neither
must it be reined in too harshly.
ANNOTATION - 301 SCRA 34
c. Freedom of expression and the right of privacy
CASES:
AYER PRODUCTIONS VS. CAPULONG, 160 SCRA
861 (1988)
Facts: Hal McElroy, an Australian film-maker, wanted to join
the People’s Power Revolution in a movie entitled “The 4-day
Revolution”. The movie was a mixture of fiction and history to
that in addition to a love story, prominent personalities, like
Enrile, had to be portrayed. While the production was in
progress, Enrile obtained a court injunction to stop it. He
argued that the film violated his right to privacy. TAU MU
Issue (1): WON Sec. 4 also protects foreigners
Ruling (1): The court held that the Freedom of Expression
protects not only citizens of the Philippines but also
foreigners in our country. Sec.4 also extends to commercial
media. Even if they did it for profit, they are also protected.
The reason is that most media is privately owned and
operates for profit. To prohibit them would render Sec. 4
useless. Nobody can say anything anymore.
Issue (2): WON it violated Enrile’s right to privacy
Ruling (2): As to the contention of Enrile that it violated his
right to privacy. The SC looked at the particular circumstances
and did not apply any formula to decide on the issue of which
shall prevail: right to privacy or the freedom of expression.
The court ruled that the events that were portrayed were of
public interest and Enrile is also a public figure. And because
of this, the SC is constrained to rule that his Right to Privacy
shall give way to Freedom of Expression. Only the balancing
of interest was used by the SC in deciding(during this time,
Enrile was a Senator). What is protected by the Right to
Privacy is unwarranted publicity and wrongful publicizing of
private affairs. The trial judge should not have issued an
injunction beforehand because of the preferred character of
the Right of Freedom of Speech and of Expression. And while
production was still in progress, no one knew whether the
final outcome would pose a clear and present danger. There
should have been no prior restraint because there was no
basis yet.
NOTE: Private individuals have more rights than public
figures. The decision did not, however, define what a “public
figure” is. The right to privacy comes out of the shadows of
the other rights in the Constitution. There is no textual grant
of the Right of Privacy found in the Constitution.
PHILIPPINE JOURNALISTS, INC. VS. THEONEN
477 SCRA 482 (2005)
d. Freedom of expression and the administration of
justice (contempt of court)
CASES:
IN RE PUBLISHED . . . 385 SCRA 285 (2002)
IN THE MATTER – MACASAET 561 SCRA 395 (2008)
LEJANO VS. PEOPLE 638 SCRA 104 (2010)
e. Symbolic Expression – The Flag-burning case
CASE:
TEXAS VS. JOHNSON, 491 U.S. 109 S. Ct. 2533
(1989) In the case of Texas vs. Johnson regarding the flag
burning issue it has been upheld that such is a valid freedom
of expression provided that the flag that you burn is you own,
meaning that it is your own property and for so long as you
burn your own property which will not result in burning of
another person's property that is sufficiently protected under
freedom of expression. So the flag is therefore not icon or an
object which would be imbued with such interest that it will
promote nationalism or patriotism on individual. There are a
lot of acts which would ordinarily be shown as disrespect in
relation to how flags are tainted in certain national activities.
Of course it would be different if it is the flag owned by the
state which would be subjected to such acts because that
would necessarily show disrespect.
Even in the Philippines, we still have that law which would
penalize unauthorized use or destruction of Philippine flag
which are ordinarily used in the course or conduct of official
business. There is a way of disposing a tattered flags which if
not followed will subject the person to a criminal liability.
Cf. Act No. 2928, March 26, 1920;
Com. Act No. 382, Sept. 5, 1938
Adm. Code of 1987, Bk. I, Ch. 4, secs. 12-13
8
f. Assembly and Petition
CASE:
DELA CRUZ VS. CA 305 SCRA 303 (1999)
D. Content-neutral restrictions
O’Brien Test: 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
freedom of expression is no greater than is essential to the
furtherance of that interest. (United States vs. O’Brien, 391
U.S. 367 (1968), adopted, in Adiong vs. Comelec, 207 SCRA
712 [1992])
Now, CONTENT NEUTRAL RESTRICTIONS, the regulation, as a
form of subsequent punishment, may be allowed because it is
on the circumstances when the expression is made and not
on the content of the expression. The normal test used is the
O’BRIEN TEST taken from the US decision of US vs. O’BRIEN
(1968). This was adopted in the case of ADIONG VS. COMELEC
(1992).
If you remember this case, this refers to the political exercise
where the COMELEC issued, then, what was referred to
COMELEC TIME and COMELEC SPACE -that the public or that
the election propaganda of any candidate in printed form can
only be posted in areas designated as COMELEC SPACES. Now
this refers to cars, stickers or decals bearing the name of a
candidate. Now, can the COMELEC penalize or regulate the
posting of these election propaganda in the form of stickers
or decals to be posted only in COMELEC spaces not to be
allowed to be posted in anywhere else like a motor vehicle.
So, the SC quoted the case the principle in the case of US vs.
O’BRIEN, the regulation is valid:
1. if it is within the constitutional powers of government;
2. if it furthers an important or substantial government
interest;
3. if the governmental interest is unrelated to the
suppression of free expression; and
4. if the incidental restriction on alleged freedom of
expression is greater than is essential to the furtherance of
government interest.
1. Regulation of political campaign/election activity
CASES:
OSMENA V. COMELEC
Facts: This is a petition for prohibition, seeking a re-
examination of the validity of Sec. 11(b) of R.A. No. 6646, the
Electoral Reforms Law of 1987, which 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. Petitioner Osmeña is candidate for
President of the Philippines, while petitioner Pablo P. Garcia
is governor of Cebu Province, seeking reelection. They
contend that events after the ruling in National Press Club v.
Commission on Elections “have called into question the
validity of the very premises of that decision.”
In NPC vs. COMELEC, the SC upheld upheld the
validity of Sec. 11(b) of R.A. No. 6646 against claims that it
abridged freedom of speech and of the press. In urging a
reexamination of that ruling, petitioners claim that
experience in the last five years since the decision in that case
has shown the “undesirable effects” of the law because “the
ban on political advertising has not only failed to level the
playing field, but actually worked to the grave disadvantage
of the poor candidates” by depriving them of a medium
which they can afford to pay for while their more affluent
rivals can always resort to other means of reaching voters like
airplanes, boats, rallies, parades, and handbills.
Issue: WON freedom of expression and of the press was
abridged by Sec. 11(b) of RA 6646.
Ruling: The SC, in applying the O’Brien test in this case, held
that Sec. 11(b) of R.A. No. 6646 is a valid exercise of the
power of the State to regulate media of communication or
information for the purpose of ensuring equal opportunity,
time and space for political campaigns; that the regulation is
unrelated to the suppression of speech; that any restriction
on freedom of expression is only incidental and no more than
is necessary to achieve the purpose of promoting equality.
The Court is just as profoundly aware that
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. But it is precisely with this awareness that the
SC think democratic efforts at reform should be seen for what
they are: genuine efforts to enhance the political process
rather than infringements on freedom of expression. The
statutory provision involved in this case is part of the reform
measures adopted in 1987 in the aftermath of EDSA. A
reform-minded Congress passed bills which were
consolidated into what is now R.A No. 6646 with near
unanimity. The House of Representatives, of which petitioner
Pablo P. Garcia was a distinguished member, voted 96 to 1
(Rep. Eduardo Pilapil) in favor, while the Senate approved it
19-0.
In the book The Irony of Free Speech by Owen Fiss,
it speaks of “a truth that is full of irony and contradiction:
that the state can be both an enemy and a friend of speech;
that it can do terrible things to undermine democracy but
some wonderful things to enhance it as well.” Thus, the SC
held R.A. No. 6646, Sec. 11 (b) to be such a democracy-
enhancing measure.
CHAVEZ vs. GONZALES
555 SCRA 441
Facts: Press Secretary Bunye told reporters that the
opposition was planning to destabilize the administration by
9
releasing an audiotape of a mobile phone conversation
allegedly between the PGMA and a high-ranking official of the
COMELEC. The conversation was audiotaped allegedly
through wire-tapping. Later, in a Malacañang 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 President’s favor. It seems that
Secretary Bunye admitted that the voice was that of
President Arroyo, but subsequently made a retraction.
Counsel of ERAP 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. Respondent 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, counsel of ERAP. 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. Secretary Gonzales ordered the
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.
Thereafter, the NTC issued a press release which
states that: NTC GIVES FAIR WARNING TO RADIO AND
TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-
WIRETAPPING LAW AND PERTINENT CIRCULARS ON
PROGRAM STANDARDS. Thereafter, 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.
Petitioner Chavez filed a petition against
respondents Secretary Gonzales and the NTC alleging that the
acts of respondents are violations of the freedom of
expression and of the press, and the right of the people to
information on matters of public concern. Respondents
denied that the acts transgress the Constitution, and
questioned petitioner’s legal standing to file the petition.
Issue: WON 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
constitutionally protected freedoms of speech, of expression
and of the press.
Ruling: The SC held 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 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, the SC must be swift in
striking them down as nullities per se. A blow too soon struck
for freedom is preferred than a blow too late.
ABS-CBN vs. COMELEC
323 SCRA 811
Facts: This case stems from a petition assailing Commission
on Elections (Comelec) en banc Resolution No. 98-1419. In
the said Resolution, 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 and to make an
exit survey of the vote during the elections for national
officials particularly for President and Vice President, results
of which shall be broadcast immediately." The electoral body
believed that such project might conflict with the official
Comelec count, as well as the unofficial quick count of the
National Movement for Free Elections (Namfrel). It also noted
10
that it had not authorized or deputized Petitioner ABS-CBN to
undertake the exit survey.
Thereafter, the Supreme Court issued the
Temporary Restraining Order prayed for by petitioner and
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.
Issue: WON the act of the COMELEC in restraining petitioner
from holding exit polls and the nationwide reporting of their
results violated freedoms of speech and of the press.
Ruling: 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 that debates on public issues should be uninhibited,
robust, and wide open. It means more than the 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.
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. Any act
that restrains speech should be greeted with furrowed brows,
so it has been said. To justify a restriction, the promotion of a
substantial government interest must be clearly shown. Thus,
"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."
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.
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. The Court cannot support any
ruling or order "the effect of which would be to nullify so vital
a constitutional right as free speech." When faced with
borderline situations in which the freedom 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.
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.
The Comelec's concern with the possible non-
communicative effect of exit polls -- disorder and confusion in
the voting centers -- does not justify a total ban on them.
Undoubtedly, the assailed Comelec Resolution is too broad,
since its application is without qualification as to whether the
polling is disruptive or not. There is no showing, however,
that exit polls or the means to interview voters cause chaos in
voting centers. Neither has any evidence been presented
proving that the presence of exit poll reporters near an
election precinct tends to create disorder or confuse the
voters. Moreover, the prohibition incidentally prevents the
collection of exit poll data and their use for any purpose. The
valuable information and ideas that could be derived from
them, based on the voters' answers to the survey questions
will forever remain unknown and unexplored. 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. 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.
SWS INC. vs. COMELEC
357 SCRA 497
Facts: Petitioner Social Weather Stations 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 Sec. 5.4 of R.A. No. 9006, the Fair
Elections Act.
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. Petitioners argue that the
restriction on the publication of election survey results
11
constitutes a prior restraint on the exercise of freedom of
speech without any clear and present danger to justify such
restraint. Respondent Commission on Elections justifies the
restrictions in Sec. 5.4 of R.A. No. 9006 as necessary to
prevent the manipulation and corruption of the electoral
process by unscrupulous and erroneous surveys just before
the election.
Issue: WON Section 5.4 of RA 9006 violated the freedoms of
speech, of expression and of the press.
Ruling: The SC held that Sec. 5.4 of R.A. No. 9006 constitutes
an unconstitutional abridgment of freedom of speech,
expression, and the press. Sec. 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 days immediately
preceding a national election and seven 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. 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.’”
There is thus a reversal of the normal presumption of validity
that inheres in every legislation.
Hence, the SC ruled that Sec. 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.
2. Freedom of Assembly
 FREEDOM OF ASSEMBLY is the right of the people to
assemble peaceably for consultation and discussion of
matters of public concern.
 This right is important to freedom of expression because
public issues are better resolved after an exchange of views
among citizens meeting w/ each other for the purpose.
 Public meeting is an effective forum for the ventilation
of ideas affecting common welfare. The size of these
gatherings is often a dependable gauge of the people’s
support, or lack of it, for particular causes or candidates, and
a barometer also of the political climate in general.
 The right to assemble is NOT subject to previous
restraint or censorship.
 If the assembly is intended to be held in a public place, a
permit for the use of such place, and not for the assembly
itself, may be required.
 The power of local officials in this regard is only one of
regulation and not of prohibition. They cannot altogether bar
the use of public places for lawful assemblies; the most they
can do is indicate the time and conditions for their use.
PROCEDURE to be followed before holding a RALLY:
1. Apply for a permit to hold a rally;
2. The application must contain the date, time and place
of the intended rally;
3. The permit is for the PLACE;
4. The authorities can modify the particulars if there is
CLEAR AND PRESENT DANGER;
5. If the rally is to be held on a private property, the
consent of the owner is sufficient. A permit is not
necessary.
a. in the campus of a GOCC-operated educational
institution
b. in a freedom park – to be established in every
municipality and city
 The permit must be filed w/ the Mayor’s Office at least 5
days before the activity. The application must be acted on by
the said office w/i 2 days from the filing, otherwise it will be
deemed granted by the Mayor.
 Denial of the application may be justified upon clear and
convincing evidence that the activity will create a clear and
present danger to public order, safety, convenience, morals
or health.
 Action on the application shall be communicated w/I 24
hours to the applicant who may appeal the same to the
appropriate court.
 The test of the lawfulness of an assembly is the purpose
for w/c it is held, regardless of the auspices under w/c it is
organized. Untoward incidents during the assembly do not
make it unlawful.
 The law prohibits law enforcers from interfering w/ a
lawful assembly but permits them to detail a contingent
under a responsible commander @ least 100 meters away in
case it becomes necessary to maintain order.
Q: Can there be demonstrations in the vicinity of the courts?
A: AM 98-7-02 SC provides that:
Demonstrators, picketers, rallyists and all other
similar persons are enjoined from holding any
activity on the sidewalks and streets adjacent to, in
front of, or w/i a radius of 200 meters from, the
outer boundary of the Supreme Court Building, any
Hall of Justice, and any other building that houses at
least 1 court sala. Such activities unquestionably
interrupt and hamper the working conditions in the
salas, offices and chambers of courts.
Q: Is the right of assembly and petition subject to any
prior restraint?
A: NO. You cannot prevent people if they want to
assemble. The exercise should not be made to depend
upon the issuance of any permit. It should not be
prohibited, but only regulated. It may be subject to
regulation but not prohibition by the State as to when and
where it should be held.
Q: Can the authorities deny a permit to assembly?
12
A: YES, the freedom of assembly is not absolute. As a general
rule, No. But the authorities can deny, but it must pass again
the clear and Present Danger Test. NOTE: The standards for
allowable impairment of speech and press also apply to the
right of assembly and petition.
Note: Intelligence information is not enough to pass the
Clear and Present Danger Test.
Rules on assembly in public places:
i. Applicant should inform the licensing authority of
the date, the public place where and the time when the
assembly will take place.
ii. The application should be filed ahead of time to
enable the public official concerned to appraise whether
there are valid objections to the grant of the permit or to its
grant, but in another public place. The grant or refusal should
be based on the application of the Clear and Present Danger
Test.
iii. If the public authority is of the view that there is
an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter.
iv. The decision of the public authority, whether
favorable or adverse, must be transmitted to the applicants
at the earliest opportunity so that they may, if they so desire,
have recourse to the proper judicial authority.
The other allowable or which still continue to be allowed
under present day consideration is the Public Assembly Act
of 1985 or BP 880. Under BP 880, the law primarily requires a
permit to be secured first if the public assembly is to be held
in a public place other than those designated as freedom
parks. Now, this requirement of permit is content neutral
because it has nothing to do with the utterances or the
expression made in that public assembly. The reason why
permit is required is in-order for the LGU or for the State, for
that matter, to allocate from among the public using the
public facility on who shall be allowed to use this for the
efficient use of everybody.
If it is in a private place, BP 880 is not applicable. So you can
do your own thing in that private place. The only requirement
is that, there must have consent from the private place
owner. If it is in the freedom park or established to be a
freedom park, still no requirement of permit because it is
supposed to be established for such purpose.
LAW - BP Blg. 880 (Public Assembly Act of 1985)
BATAS PAMBANSA BLG. 880
AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF
THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE
GOVERNMENT FOR OTHER PURPOSES
Section 4. Permit when required and when not required - A
written permit shall be required for any person or persons to
organize and hold a public assembly in a public place.
However, no permit shall be required if the public assembly
shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only
the consent of the owner or the one entitled to its legal
possession is required, or in the campus of a government-
owned and operated educational institution which shall be
subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any
election campaign period as provided for by law are not
covered by this Act.
Section 5. Application requirements - All applications for a
permit shall comply with the following guidelines:
(a) The applications shall be in writing and shall include the
names of the leaders or organizers; the purpose of such
public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the
probable number of persons participating, the transport and
the public address systems to be used.
(b) The application shall incorporate the duty and
responsibility of applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor
of the city or municipality in whose jurisdiction the intended
activity is to be held, at least five (5) working days before the
scheduled public assembly.
(d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal
mayor shall cause the same to immediately be posted at a
conspicuous place in the city or municipal building.
Section 6. Action to be taken on the application –
(a) It shall be the duty of the mayor or any official acting in his
behalf to issue or grant a permit unless there is clear and
convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public
convenience, public morals or public health.(b) The mayor or
any official acting in his behalf shall act on the application
within two (2) working days from the date the application
was filed, failing which, the permit shall be deemed granted.
Should for any reason the mayor or any official acting in his
behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises
of the office of the mayor and shall be deemed to have been
filed.(c) If the mayor is of the view that there is imminent and
grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on
the application within twenty-four hours.
13
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the
applicant may contest the decision in an appropriate court of
law.
(f) In case suit is brought before the Metropolitan Trial Court,
the Municipal Trial Court, the Municipal Circuit Trial Court,
the Regional Trial Court, or the Intermediate Appellate Court,
its decisions may be appealed to the appropriate court within
forty-eight (48) hours after receipt of the same. No appeal
bond and record on appeal shall be required. A decision
granting such permit or modifying it in terms satisfactory to
the applicant shall, be immediately executory.
(g) All cases filed in court under this Section shall be decided
within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme
Court.
(i) Telegraphic appeals to be followed by formal appeals are
hereby allowed.
Section 7. Use of public thoroughfare - Should the proposed
public assembly involve the use, for an appreciable length of
time, of any public highway, boulevard, avenue, road or
street, the mayor or any official acting in his behalf may, to
prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the
vehicular traffic to another direction so that there will be no
serious or undue interference with the free flow of commerce
and trade.
Section 8. Responsibility of applicant - It shall be the duty
and responsibility of the leaders and organizers of a public
assembly to take all reasonable measures and steps to the
end that the intended public assembly shall be conducted
peacefully in accordance with the terms of the permit. These
shall include but not be limited to the following:(a) To inform
the participants of their responsibility under the permit; (b)
To police the ranks of the demonstrators in order to prevent
non-demonstrators from disrupting the lawful activities of
the public assembly;(c) To confer with local government
officials concerned and law enforcers to the end that the
public assembly may be held peacefully;(d) To see to it that
the public assembly undertaken shall not go beyond the time
stated in the permit; and(e) To take positive steps that
demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating
in the public assembly.
Section 9. Non-interference by law enforcement authorities
- Law enforcement agencies shall not interfere with the
holding of a public assembly. However, to adequately ensure
public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meter away
from the area of activity ready to maintain peace and order at
all times.xxx
Section 15. Freedom parks - Every city and municipality in the
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or
mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time
without the need of any prior permit. In the cities and
municipalities of Metropolitan Manila, the respective mayors
shall establish the freedom parks within the period of six
months from the effectivity of this Act.
CASES:
BAYAN VS. ERMITA 488 SCRA 226 (2006)
Facts: Petitioners come in three groups. The first petitioners,
Bayan, allege that they are citizens and taxpayers of the
Philippines and that their rights as organizations and
individuals were violated when the rally they participated in
was violently dispersed by policemen implementing Batas
Pambansa 880 (The Public Assembly Act of 1985). The second
group consists of 26 individual petitioners, Jess del Prado, et
al., who allege that they were injured, arrested and detained
when a peaceful mass action was pre-empted and violently
dispersed by the police. They further assert that a group they
participated in marched to Malacañang to protest issuances
of the Palace which, they claim, put the country under an
“undeclared” martial rule, and the protest was likewise
dispersed violently and many among them were arrested and
suffered injuries. The third group, Kilusang Mayo Uno or
KMU, allege that they conduct peaceful mass actions and that
their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful
assembly, are affected by Batas Pambansa No. 880 and the
policy of “Calibrated Preemptive Response” (CPR) being
followed to implement it.
Issue: WON BP 880 is a curtailment of the right to peaceable
assembly and petition for redress of grievances.
Ruling: The right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of
expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights
constitute the very basis of a functional democratic polity,
without which all the other rights would be meaningless and
unprotected.
A fair and impartial reading of B.P. No. 880 thus
readily shows that it refers to all kinds of public assemblies
that would use public places. The reference to “lawful cause”
does not make it content-based because assemblies really
have to be for lawful causes; otherwise they would not be
“peaceable” and entitled to protection. Neither are the
words “opinion,” “protesting” and “influencing” in the
definition of public assembly content based, since they can
14
refer to any subject. The words “petitioning the government
for redress of grievances” come from the wording of the
Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefit of all rallyists and
is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the
ground of clear and present danger to public order, public
safety, public convenience, public morals or public health.
Not every expression of opinion is a public assembly. The law
refers to “rally, demonstration, march, parade, procession or
any other form of mass or concerted action held in a public
place.” So it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the
right to peaceful assembly and petition only to the extent
needed to avoid a clear and present danger of the
substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the
content of the speech is not relevant to the regulation.
Hence, B.P. No. 880 cannot be condemned as
unconstitutional; it does not curtail or unduly restrict
freedoms; it merely regulates the use of public places as to
the time, place and manner of assemblies. Moreover, the
Court goes even one step further in safeguarding liberty by
ordering the local governments to designate specific freedom
parks as provided under B.P. No. 880. If no such parks are so
identified in accordance with Section 15 of the law, all public
parks and plazas of the municipality or city concerned shall in
effect be deemed freedom parks; no prior permit of whatever
kind shall be required to hold an assembly therein. The only
requirement will be written notices to the police and the
mayor’s office to allow proper coordination and orderly
activities.
IBP VS. ATIENZA 613 SCRA 518 (2010) In this case of IBP vs.
ATIENZA, a 2010 case, 2 matters are subject of discussion, to
wit;
1. One, the application for a permit under the BP 880
can be denied based on clear and present danger. So, if the
rally is to be allowed since a permit is to be granted and there
is a clear and present danger that the evil sought to be
avoided will happen then the application must have to be
denied. However, if it is to be denied, the applicant must
have to be heard. So, relating this to the last SONA, if the city
government of QC would have denied it because they
thought that it will bring about chaos and violence if this rally
will be allowed to get in the Batasan complex when the
President will deliver his SONA, then they should have denied
the application after hearing the applicant why they would
want to have permit.
2. The second is that, still in the case of IBP, the SC
said that when the application is made, it should be granted
based on the terms of the application. So for example, the
application is made for a particular day, and that the rally
particular day at a particular place, it should be granted based
on those terms. If the LGU chief executive would wish to
grant it on different terms from that of the application, the
clear and present danger test should be used to determine
why there should be a change in the terms for the application
and that grant of the application would also require hearing
for that purpose of determining whether there is clear and
present danger for a allowing the LGU to change the terms of
the application.
What happened in this case was that the IBP National Office
applied for a rally permit to conduct a rally at Mendiola
Bridge. It was granted without any hearing but they were
allowed to conduct that public assembly or rally at Plaza
Miranda. The IBP still proceeded to conduct their rally at the
designated time and date per application and also at the
place of the application but not in the place as indicated in
the permit. They went to Plaza Mendiola and they were
charge for violation of BP 880, for conducting a rally without a
permit. They went to the SC on that issue eventually and the
SC upheld the position of the IBP because the change of the
tenor of the application in the grant of the permit as applied
for can only be done if there is justifiable reasons for doing so
under the clear and present danger rule and there is a
hearing conducted to determine whether or not indeed there
is a need to alter or change the terms of the application. OK!
INTEGRATED BAR OF THE PHILIPPINES vs. MAYOR JOSE
"LITO" ATIENZA
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP)
v. Ermita, the Court reiterated:
x x x Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom of
expression, of a clear and present danger of a substantive evil
that the state has a right to prevent. Even prior to the 1935
Constitution, Justice Malcolm had occasion to stress that it is
a necessary consequence of our republican institutions and
complements the right of free speech. To paraphrase the
opinion of Justice Rutledge, speaking for the majority of the
American Supreme Court in Thomas v. Collins, it was not by
accident or coincidence that the rights to freedom of speech
and of the press were coupled in a single guarantee with the
rights of the people peaceably to assemble and to petition
the government for redress of grievances. All these rights,
while not identical, are inseparable. In every case, therefore,
where there is a limitation placed on the exercise of this right,
the judiciary is called upon to examine the effects of the
challenged governmental actuation. The sole justification for
a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of
a character both grave and imminent, of a serious evil to
public safety, public morals, public health, or any other
legitimate public interest.14 (emphasis supplied)
The Court in Bayan stated that the provisions of the Public
Assembly Act of 1985 practically codified the 1983 ruling in
Reyes v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the
15
Public Assembly Act with the pertinent portion of the Reyes
case, the Court elucidated as follows:
x x x [The public official concerned shall] appraise whether
there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached.
If he is of the view that there is such an imminent and grave
danger of a substantive evil, the applicants must be heard on
the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, they can have recourse to the
proper judicial authority.16 (italics and underscoring
supplied)
In modifying the permit outright, respondent gravely abused
his discretion when he did not immediately inform the IBP
who should have been heard first on the matter of his
perceived imminent and grave danger of a substantive evil
that may warrant the changing of the venue. The opportunity
to be heard precedes the action on the permit, since the
applicant may directly go to court after an unfavorable action
on the permit.1avvphi1
Respondent failed to indicate how he had arrived at
modifying the terms of the permit against the standard of a
clear and present danger test which, it bears repeating, is an
indispensable condition to such modification. Nothing in the
issued permit adverts to an imminent and grave danger of a
substantive evil, which "blank" denial or modification would,
when granted imprimatur as the appellate court would have
it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is
not devoid of discretion in determining whether or not a
permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may
probably occur, given all the relevant circumstances, still the
assumption – especially so where the assembly is scheduled
for a specific public place – is that the permit must be for the
assembly being held there. The exercise of such a right, in the
language of Justice Roberts, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may
be exercised in some other place." (emphasis and
underscoring supplied)
Notably, respondent failed to indicate in his Comment any
basis or explanation for his action. It smacks of whim and
caprice for respondent to just impose a change of venue for
an assembly that was slated for a specific public place. It is
thus reversible error for the appellate court not to have
found such grave abuse of discretion and, under specific
statutoryprovision, not to have modified the permit "in terms
satisfactory to the applicant."
3. Freedom of association and the right to strike
in the public sector
Art. III, sec. 8 The right of the people, including those
employed in the public and private sectors, to form
unions, associations, or societies for purposes not
contrary to law, shall not be abridged.
Art. IX, sec. 2(5) The right to self-organization shall not be
denied to government employees.
Art. XIII, sec. 3, par. 2 It shall guarantee the rights of all
workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including
the right to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of work,
and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and
benefits as may be provided by law.
The right to form associations shall not be impaired without
due process of law and is thus an aspect of the right of
liberty. It is also an aspect of the freedom of contract. In
addition, insofar as the associations may have for their object
the advancement of beliefs and ideas, the freedom of
association is an aspect of the freedom of speech and
expression, subject to the same limitation.
Even without this constitutional provision, the right of
association is part and parcel of the freedom of expression
and assembly. It is also an aspect of liberty, which is covered
by the freedom clause. It is also an aspect of contracts, which
is also related to freedom of religion because normally people
form associations to advance a specific belief.
Limitations:
1. Imposed by law
2. Dominant police power of the State
Rights included/ 2 aspects:
1. The positive aspect is the right to join or be a member of
an association.
2. The negative aspect is the right not to be compelled to be
a member of any association.
Exception to Negative Aspect: When there is a closed shop
agreement in the CBA. An employee can be compelled to be
member of the union. Because a closed shop agreement is a
valid exercise of the police power, and the state has an
interest in promoting unionism to protect labor. So, in this
case, a person can be compelled to join an association.
Exception to the exception: In the case of Victoriano vs.
Elizalde: a person cannot be compelled to be a member of a
union, even under a legal closed shop agreement if his
16
religion prohibits him to join associations because the
freedom of religion is superior to the freedom of association.
Note: But in Hernandez, mere membership in Huk Balahap is
punishable.
Tests used in limiting the right of association:
1. Test for valid exercise of police power - the right to
association is limited when the state is invoking or exercising
this police power. (Remember the tests for valid exercise of
police power). This test is used when the purpose of
association is to promote property rights.
2. Clear and Present Danger Test - used when the purpose of
association is to promote advance basic human rights or
political ideas. So if you're joining a political group, this test is
used.
 Under section 8, it says that even those employed in the
public sector can join a strike. But there are limitations
because the right of public employees are limited to the right
to form associations. Actually, they have a right to form
unions, but they do not have the constitutional right to strike.
Private employees have the constitutional right to strike, but
not the public employees.
 PAFLU case- The purpose of the registration was for the
acquisition of the legal personality. Here, nobody was being
prevented from joining a union. The union exists. But without
the registration, the union cannot enter into CBA, etc. Its just
the activities that they can't enter into if they don't enter, but
there is no violation of the right of association.
 The right to form an association is superior to the
freedom of assembly, because in association the people not
only assemble but start to form an organization. And to form
an association already involves a purpose, assembly is just
assemble, get together
Q: Is membership in the communist party punishable as a
criminal offense?
A: Mere membership and nothing more merely implies
advocacy of abstract theory or principle, remember, the
freedom to believe is absolute. It becomes a criminal offense
only if it is coupled with action or advocacy of action.
 The right to form association DOES NOT INCLUDE the
following:
a. automatic acquisition of legal personality;
b. possession of rights and privileges granted by law to
legitimate labor organizations/associations;
c. automatic registration of the association with any
legal entity.
Q: Can a lawyer’s name be cancelled in the roll of attorney’s if
he fails to pay IBP dues, or stated otherwise, can a lawyer be
forced to join the IBP?
A: Yes. (See: In Re: Edillion) Membership in IBP is not a
violation of a person’s freedom of association – Bar
association does not force lawyers to associate with anyone.
It is the lawyers choice to attend or not to attend the
meeting. The only compulsion is the payment of fees which is
a valid exercise of police power.
 Strictly speaking, this right is already comprehended in
due process, particularly as it protects the person’s liberty. It
was nevertheless deemed advisable to provide for this
separate section by way of emphasis upon this specific right.
 This right is also deemed embraced in the freedom of
expression because the organization can be used as a vehicle
for the expression of views that have a bearing on the public
welfare. These views would be more effectively disseminated
and enjoy a more respectful audience if articulated through
and organization to w/c a person belongs than if he were to
ventilate them as a mere individual.
 The instinct to organize is a very basic human drive.
 The provision guarantees the right to form association.
IT does not include the right to compel others to form an
association. BUT there may be situations w/c, by entering
into a contract, one may also be agreeing to join an
association [BEL-AIR VILLAGE ASSOCIATION vs. DIONISIO (174
SCRA 589)].
Q: Can this right be exercised by the unemployed? Where is
the seat of this right?
A: YES. The right is recognized as belonging to the PEOPLE
whether employed or not, and whether employed in
government or the private sector.
 “...for purposes not contrary to law” is a built-in limitation
of the right. All rights are subject to the inherent police
power.
 The right to associate includes the right NOT to associate.
This right is superior to the right to assemble BUT must yield
to the right to freedom of religion [INK case].
 The right does not include the right to strike.
Q: Can civil servants unionize?
A: YES under Art. IX B Sec. 2 (5) “The right to self-organization
shall not be denied to gov’t. employees” --- whether
performing proprietary or gov’t. function.
 The closed-shop is a valid form of union security and a
provisions therefor in a CBA is not considered a restriction of
the right of association [VILLAR vs. INCIONG (121 SCRA 444)].
 To compel a lawyer to become a member of the
integrated bar is not violative of his freedom to associate [IN
RE: EDILLON (127 SCRA 404)].
 The right to form association does not necessarily include
the right to be given legal personality --- must register!
 REGISTRATION is merely a condition sine qua non for the
acquisition of LEGAL PERSONALITY and the possession of the
rights and privileges granted by law.
CASES:
GSIS VS. KAPISANAN NG MGA MANGGAGAWA
510 SCRA 622 (2006)
17

GSIS VS. VILLAVIZA 625 SCRA 669 (2010) GSIS VS VILLARIZA
GR 180291
In this case, CSC found that the acts of respondents in going
to the GSIS-IU office wearing red shirts to witness a public
hearing do not amount to a concerted activity or mass action
proscribed above. CSC even added that their actuations can
be deemed an exercise of their constitutional right to
freedom of expression. The CA found no cogent reason to
deviate therefrom.
As defined in Section 5 of CSC Resolution No. 02-1316 which
serves to regulate the political rights of those in the
government service, the concerted activity or mass action
proscribed must be coupled with the “intent of effecting work
stoppage or service disruption in order to realize their
demands of force concession.” Wearing similarly colored
shirts, attending a public hearing at the GSIS-IU office,
bringing with them recording gadgets, clenching their fists,
some even badmouthing the guards and PGM Garcia, are acts
not constitutive of an (i) intent to effect work stoppage or
service disruption and (ii) for the purpose of realizing their
demands of force concession.
Precisely, the limitations or qualifications found in Section 5
of CSC Resolution No. 02-1316 are there to temper and focus
the application of such prohibition. Not all collective activity
or mass undertaking of government employees is prohibited.
Otherwise, we would be totally depriving our brothers and
sisters in the government service of their constitutional right
to freedom of expression.
Government workers, whatever their ranks, have as much
right as any person in the land to voice out their protests
against what they believe to be a violation of their rights and
interests. Civil Service does not deprive them of their
freedom of expression. It would be unfair to hold that by
joining the government service, the members thereof have
renounced or waived this basic liberty. This freedom can be
reasonably regulated only but can never be taken away.
4. Movies Censorship
CASES:
GONZALES VS. KALAW KATIGBAK, 137 SCRA 356 (1985)
IGLESIA NI CRISTO VS. CA 259 SCRA 529 (1996)
5. Radio broadcast
CASE:
EASTERN BROADCASTING CORP. (DYRE) VS. DANS,
137 SCRA 647 (1985)
g. Freedom of Information
Art. III, sec. 7 The right of the people to information on
matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
CASES:
NERI VS. SENATE 564 SCRA 152 (2008)
CPEG VS. COMELEC 631 SCRA 41 (2010) Now this case of
CenPEG vs COMELEC involves freedom of information refers
to the matter of disclosure of the source code of the
automated national and local elections of 2010. The source
code is actually as described in this case the readable
representation of the instructions on how the machine would
work during the elections. In simple terms, the SC even
likened it to a blueprint of instructions or a recipe if you
would want to be more simple about it on how the machine
would read and eventually count, canvass and eventually
transmit the votes.
Freedom of information-- the petitioner here wanted to
examine the source code. The COMELEC, however, failed to
make the source code available until the source code was
delivered and deposited with the Banko Sentral ng Pilipinas. It
was too late because the elections have already been
conducted. But still in this petition for mandamus, the SC
granted the petition compelling the COMELEC to disclose the
source code of the AES technology for the automated
elections. Rightfully so because this will be the same source
code, perhaps, that we will be using in the 2013 elections.
CENTER FOR PEOPLE EMPOWERMENT IN GOVERNANCE,
vs.COMMISSION ON ELECTIONS, This case concerns the duty
of the Commission on Elections (COMELEC) to disclose the
source code for the Automated Election System (AES)
technologies it used in the 2010 national and local elections.
The Court finds the petition and this last manifestation
meritorious. The pertinent portion of Section 12 of R.A. 9369
is clear in that "once an AES technology is selected for
implementation, the Commission shall promptly make the
source code of that technology available and open to any
interested political party or groups which may conduct their
own review thereof." The COMELEC has offered no reason
not to comply with this requirement of the law. Indeed, its
only excuse for not disclosing the source code was that it was
not yet available when CenPEG asked for it and,
subsequently, that the review had to be done, apparently for
security reason, "under a controlled environment." The
elections had passed and that reason is already stale.
WHEREFORE, the Court GRANTS the petition for mandamus
and DIRECTS the COMELEC to make the source codes for the
AES technologies it selected for implementation pursuant to
R.A. 9369 immediately available to CenPEG and all other
interested political parties or groups for independent review.
E. Academic Freedom
Academic freedom has practically types or components.
ACADEMIC FREEDOM OF THE INSTITUTION
18

The first would be academic freedom of the institution.
The right of the institution to decide for itself:
1. what subjects to teach,
2. what courses to offer,
3. who to hire as part of the members of the faculty,
4. who to admit to study in the institution.
That goes with it the discretion to determine what are the
reasonable rules for engagement of the members of the
faculty as well as reasonable rules for admission and
continued admission of its students. That would also include
the right to form its own objectives, mission, what its policies
are in relation to running the institution of higher learning.
ACADEMIC FREEDOM WITH RESPECT TO THE
TEACHERS
The second would be with respect to the teachers, the
members of the faculty because the members of the faculty
would have their academic freedom in relation to the way
they teach the subject, the way they would want to impart
their knowledge to their students, they way they handle their
particular sections or subjects.
And in the interest of their higher learning, they are supposed
to be protected also with respect to the results of any studies
that they may have done in relation to their further studies
on account of their being members of the faculty without fear
of retribution from the school for any mistake or error that
may have been caused on account of that particular study.
Of course if results of the research were, for example, or a
paper based on a research is plagiarised or something done
to come up with a false result, then that would not be
protected under academic freedom
FREEDOM WITH RESPECT TO THE STUDENTS
The third which is mostly related to freedom of expression is
that of the students. Because there have been several cases
in the past decided on which should prevail- the right of the
students to freely express themselves in joining activities in
redress of their grievances or whether the school has the
right to discipline them according to the reasonable rules of
the school.
Now, it’s a given that when students enter a school or
institutions for higher learning would not divest themselves
of their right to freedom of expression. They would always
continue to have the right to express themselves. But since
everything is not absolute, they must be subjected to
reasonable rules of the school with respect to when they
would be able to express their sentiments or thoughts on a
particular issue.
Again, for so long as these reasonable regulations are
imposed by the school at least are content neutral
restrictions then they would not be considered to be
unreasonable regulations on the content of the speech.
That is why the school would always require that the students
would have to express their grievances or conduct rallies or
similar activities in areas of the school were the holding of
regular classes would not be disturbed. Of course these
students engaged in these activities would not also be
allowed without fear of penalty to disrupt the holding of
regular classes because the other students who are in their
classes would also have the right to continue their study in
that institution of higher learning. So there would always be
that clash in that particular context.
Now when the students under the Magna Carta would have
the right to be allowed enrolment in a school and also
allowed re enrolment until the full completion of the course
requirement to earn a degree. These are subject to
reasonable rules of academics as well as rule on behaviour or
rules of discipline in school.
Everything is supposed to have been given at the time of
engagement in the sense that they are admitted to study in
the institution of higher learning. So that the students cannot
later on complain that they were proceeded against and
penalized accordingly based on the rules they do not know.
I think after some time for those who studied here in the
Ateneo undergraduate courses, before the males did not
have uniforms. But a certain time they have required the
freshmen light blue colored upper garment. Everybody now is
wearing that, for the males at least. And I think students have
been made to sign an acknowledgement, furnished with, read
of and understood the rules respecting the academic rules.
Now in relation to that is the procedural due process in the
institutions of higher learning. When the students supposed
to be proceeded against by the school for violations rules
whether academic or rules of discipline.
In academic rules, there’s not much discussion because it’s as
simple as you make the grade or you don’t. There’s no such
thing as the holding of a hearing, investigation you would be
made to explain yourself because you have been heard when
you took the exam. That’s the opportunity to be heard
already  and during the exam you were supposed to give all
the evidence why you should pass the subject and not fail the
subject. So everything is given for you to explain or even
allowed you to attach your countervailing evidence if there is.
But for violation of the school’s rules on discipline, you always
follow that procedural due process. It has been applied in
several cases already. One of the landmark cases is that of
the Ateneo involving fraternity Aquila Legis where the SC said
that the respondent student must be furnished with the
charge in writing, given the opportunity to present his
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evidence. There must be a hearing conducted where the
parties be allowed to offer evidence. Although, there is no
allowance for cross examination.
The investigating committee must act independently and
must also decide the case based on the evidence on record
adduced by the parties. These are the minimum
requirements for procedural due process when the school for
higher learning will impose sanctions upon a student.
THREE-FLUNK RULE
As to the right of the student to allow enrolment, that has
long been decided and one of the cases is the case of DECS
vs. Sandiego, where the “three-flunk rule” in the
examinations for admission in a Medical school in the
Philippines, has been to test the argument of the
respondent... is that a student has the right to be admitted to
a school of higher learning or a medical school for that
matter. But the SC said, ruling in favor of DECS, that a three-
flunk rule is reasonable considering that the profession
eventually coming out from the medical school has a close
link to a public interest issue which is public health. Stated
differently, the closer the link of a profession to a public
interest or a public interest matter, the greater there is the
state regulation allowable. So that if it were to be a different
kind of profession, there may not be stringent government
regulation given for admission in the school. But if it is a
school or a degree which has closer relation to public interest
matter, then there may be greater state regulation allowable
as to who shall be admitted. And also, the school itself has
the right under its academic freedom to impose reasonable
rules for admission.
Some would require as to take entrance examinations and
there is the requirement of passing the entrance exam, is
ordinarily considered to be reasonable regulations or rule for
admission. So, student knows he has a right under academic
freedom to enrol in the institution, he must have to comply
with reasonable regulations imposed.
In an old case, there is this case of Garcia vs. Faculty of
Admission, faculty of admission is the School of Theology of
Ateneo, there is this woman who would want to be admitted
to that school of theology. Per practice or traditions for the
Catholic Church, Schools for Theologies are always reserved
for biologically male persons.  (at least biologically....) if you
are biologically female, you may not force yourself into
admission for school of theology, at least for catholic church.
OKAY...
Now, this case of Mercado vs. Ama , this case involves AMA
members of faculty or teachers who were terminated by the
school based on non-renewal of the fixed term contracts. The
argument of the school was that, they have the right under its
academic freedom to engage the services of a teacher for
whom to employ as members of the faculty. But the question
is that, is their claim of academic freedom proper? SC looked
into the basis of the claim of petitioners, the petitioners here
won in the NLRC and eventually lost in the CA. The SC
reversed the CA ruling and decided in their favor of the
faculty members. Here is the question of whether these
teachers can be terminated based on non-renewal of
contract or whether they could be terminated because of non
-regularization after the probationary status. We all know
that in the teaching profession under the Magna Carta for
teachers, the probationary period is how long? THREE
YEARS... 6 semesters actually... that would be 3 school years.
Now these teachers involved were hired for 7 trimesters
(AMA follows trimester, 1 trimester is 1/3) almost 2 years and
1/3...
Short for the 3 years. AMA terminated them on two grounds:
1. Non-renewal of fixed term contract; and
2. The contracts, they will never be regularized
because they fail to pass the probationary status.
There was a “test”, they failed to pass the test... the
Performance Appraisal System for Teachers (PAST) and other
requirements for regularization that the school implements
to maintain its high academic standards. So they were
terminated for separate concerns. The SC said that there may
be a problem if the probationary status period overlapped
the fixed term status. We all know that as way back as the
Brent Ruling, a fixed term contract is allowed, so there is no
regularization or expectation of regularization after the
expiration of the fixed term contract. You are agreed for a
period of 1-year, you’re a temporary faculty because the
regular faculty left for further studies abroad. So you’re hired
for a fixed term of 1 year. If the period expires, automatically
you lose your work, and you are therefore not considered to
be regular or there is no violation of security of tenure. The
problem here is that, the person is supposed to have been
hired for a fixed term as provided in their probationary
status, like, you’re in contract for 3 years, how would, SC
asked, if that 3 year period as fixed in the contract... is that
probationary also or is it a fixed term?
SC said that when, the fix term overlaps the probationary
status, then the probationary status required under Article
281 of the Labor Code, that an employee must have to be
regularized after the probationary status unless,
1. he has been informed of what must be achieved
during the probationary status otherwise, he will not be
regularized;
2. Second, the employees was not able to meet those
standards conditioned to be met at that time of service.
So since, the employees here were serviced or both there’s
an overlapped within the fixed term and the probationary
status by law, then the SC said that it should be treated as
probationary status. And that the failure of AMA’s duty to
inform them of the reasonable requirements to pass the
probationary status, would make their termination or the
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claim of academic freedom of school or institution of higher
learning was not considered as valid. (pls.see digest below)
CASES:
GARCIA VS. FACULTY OF ADMISSION, 68 SCRA 277
(1975) In Garcia v. The Faculty Admission Committee, Loyola
School of Theology (68 SCRA 277 [1975]), the Court had
occasion to note the scope of academic freedom recognized
by the Constitution as follows:
(I)t is to be noted that the reference is to the 'institutions of
higher learning' as the recipients of this boon. It would follow
then that the school or college itself is possessed of such a
right. It decides for itself its aims and objectives and how best
to attain them. It is free from outside coercion or interference
save possibly when the overriding public welfare calls for
some restraint. It has a wide sphere of autonomy certainly
extending to the choice of students. This constitutional
provision is not to be construed in a niggardly manner or in a
grudging fashion. That would be to frustrate its purpose,
nullify its intent.
xxx
"To clarify further the distinction between the freedom of the
university and that of the individual scholar, he says: "The
personal aspect of freedom consists in the right of each
university teacher recognized and effectively guaranteed by
society to seek and express the truth as he personally sees it,
both in his academic work and in his capacity as a private
citizen. Thus the status of the individual university teacher is
at least as important, in considering academic freedom, as
the status of the institutions to which they belong and
through which they disseminate their learning."'
He likewise quoted from the President of the Queen's
University in Belfast, Sir Eric Ashby: "'The internal conditions
for academic freedom in a university are that the academic
staff should have de facto control of the following functions:
(i) the admission and examination of students;
(ii) the curricula for courses of study;
(iii) the appointment and tenure of office of academic
staff; and
(iv) the allocation of income among the different
categories of expenditure.
It would be a poor prospect for academic freedom if
universities had to rely on the literal interpretation of their
constitutions in order to acquire for their academic members
control of these four functions, for in one constitution or
another most of these functions are laid on the shoulders of
the law governing body .'" XXXX
It is the business of a university to provide that atmosphere
which is most conducive to speculation, experiment and
creation. It is an atmosphere in which there prevail the four
essential freedom of a university�to determine for itself on
academic grounds who may teach, what may be taught, how
it shall be taught, and who may be admitted to study"'
(Emphasis supplied; citing Sinco, Philippine Political Law, 491,
(1962) and the concurring opinion of Justice Frankfurter in
Sweezy v. New Hampshire (354 US 234 [1957]).
ANNOTATION – 313 SCRA 428
DLSU VS. CA 541 SCRA 22 (2007)
CSC VS. SOJOR 554 SCRA 160 (2008)
MERCADO VS. AMA 618 SCRA 218 (2010)
FACTS:The teachers in this case were on probationary status
on fixed term contracts from the time they were employed
and until the expiration of their teaching contracts.
Subsequently, before they were able to complete three
consecutive years of service, they were informed by the
school that with the expiration of their contract to teach,
their contract would no longer be renewed. Hence, they filed
a complaint for illegal dismissal.
The Labor Arbiter ruled that the teachers were illegally
dismissed and stated that Article 281 of the Labor Code on
probationary employment applied to the case.
On appeal, the NLRC ruled that the applicable law is Section
92 of the Manual regulations for Private Schools and not
Article 281 of the Labor Code. However, the NLRC affirmed
the Labor Arbiters decision since the teachers were
terminated on the basis of standards which were made
known to them only near the end of their probationary
period.
On a petition for certiorari, the Court of Appeals reversed the
decision of the NLRC because the teachers were not actually
dismissed in that their contracts merely expired.
RULING:
The Supreme Court stated that nothing is illegitimate in
defining the school-teacher on fixed term basis. The school,
however, cannot forget that its system of fixed-term contract
is a system that operates during the probationary period and
for this reason is subject to the terms of Article 281 of the
Labor Code. Unless this reconciliation is made, the
requirements of this Article on probationary status would be
fully negated as the school may freely choose not to renew
contracts simply because their terms have expired.
Given the clear constitutional and statutory intents, the
Supreme Court concluded that in a situation where the
probationary status overlaps with a fixed-term contract not
specifically used for the fixed term it offers, Article 281 should
assume primacy and the fixed-period character of the
contract must give way.
To highlight what the Supreme Court mean by a fixed-term
contract specifically used for the fixed term it offers, a
replacement teacher, for example, may be contracted for a
period of one year to temporarily take the place of a
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permanent teacher on a one-year study leave. The expiration
of the replacement teacher's contracted term, under the
circumstances, leads to no probationary status implications
as she was never employed on probationary basis; her
employment is for a specific purpose with particular focus on
the term and with every intent to end her teaching
relationship with the school upon expiration of this term.

While the Supreme Court can grant that the standards were
duly communicated to the teachers and could be applied
beginning the 1st trimester of the school year 2000-2001,
glaring and very basic gaps in the school's evidence still exist.

The exact terms of the standards were never introduced as

evidence; neither does the evidence show how these
standards were applied to the teachers. Without these pieces
of evidence the Supreme Court had nothing to consider and
pass upon as valid or invalid for each of the teachers.
Inevitably, the non-renewal (or effectively, the termination of
employment of employees on probationary status) lacks the
supporting finding of just cause that the law requires and,
hence, is illegal.

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