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Freedom of Expression For burning his registration certificate, O’Brien faced criminal penalties. The United States
District Court for the District of Massachusetts indicted, tried, convicted, and sentenced
United States v. O’Brien O’Brien under Section 462. O’Brien argued to the jury that he had publicly burned his
registration certificate to “influence others to adopt his antiwar beliefs … so that other people
Case Summary and Outcome
would reevaluate their positions with Selective Service, with the armed forces, and reevaluate
their place in the culture of today, to hopefully consider my position.” (at 370.) O’Brien further
The United States Supreme Court upheld a conviction for burning a military draft registration
argued that the law was unconstitutional “because it was enacted to abridge free speech, and
certificate on the steps of a courthouse. The Court found that the prohibition against
because it served no legitimate legislative purpose.” (at 370.)
destroying or mutilating draft registration certificates was narrowly tailored to further a
substantial governmental interest, and thus was a permissible restriction on expressive
The district court sentenced O’Brien “to the custody of the Attorney General for a maximum
conduct under the United States Constitution.
period of six years for supervision and treatment.” (at 369-70 n.2.) On appeal, the First Circuit
Court of Appeals held the card-destruction statute unconstitutional for abridging free speech in
violation of the First Amendment of the United States Constitution. There was also a secondary
Facts dispute concerning conviction under the regulation requiring personal possession of
registration certificates at all times. The U.S. government petitioned for certiorari, which the
David Paul O’Brien (O’Brien) and three other people burned their registration certificates for Supreme Court granted.
the Selective Service in front of the South Boston Courthouse on March 31, 1966. A sizable
crowd that witnessed the card-burning demonstration “began attacking O’Brien and his
companions.” (at 369.) O’Brien told an FBI agent that “he had burned his registration
Decision Overview
certificate because of his beliefs.” The United States was involved in the Vietnam War at the
time of O’Brien’s demonstration, and the burning of Selective Service registration certificates
Chief Justice Warren delivered the opinion of the United States Supreme Court. O’Brien argued
(or “draft cards”) was a common form of protest.
that the card-destruction statute was unconstitutional as applied to him as
restricting protected “symbolic speech,” and alternatively that the purpose or motivation of
The Selective Service is a United States government agency that registers and maintains
Congress’s prohibition on destroying cards was an unlawful suppression of speech.
information on people (mostly men) eligible for conscription into the armed forces, such as via
a military draft. Men are required to register with their local draft board upon reaching the age
First, the Court considered whether the card-destruction statute was an unconstitutional
of 18. Two important documents related to the administration of the Selective Service are the
restriction on symbolic speech. On its face, the statute does not restrict speech itself. The
registration certificate and the classification certificate. The registration certificate is issued
statute bans forging, altering, destroying, and mutilating Selective Service registration
soon upon registration, and contains the individual’s Selective Service identification number.
certificates, making no mention of any manner of speaking. Enforcement of the statute is also
The classification certificate denotes eligibility for conscription or the draft. Both certificates
unaffected by any potentially expressive content in the destruction of registration cards; it is
have information important to the administration and management of the Selective Service.
applied indiscriminately. O’Brien argued that symbolic speech, the “communication of ideas by
conduct,” is protected, and that he was communicating his objections to the military draft by
Section 462 of the Universal Military Training and Service Act of 1948 made it illegal to forge,
his public burning of his registration certificate.
alter, or change Selective Service registration certificates. In 1965, Congress amended this
section to further forbid knowingly destroying or mutilating registration certificates (“Section
Although the Court conceded that symbolic speech is protected to an extent, it could not
462” or the “card-destruction statute”). There was also a regulation subject to criminal felony
“accept the view that an apparently limitless variety of conduct can be labeled ‘speech’
penalties which required Selective Service registrants to have both certificates “in their
whenever the person engaging in the conduct intends thereby to express an idea.” (at
personal possession at all times.”
376.) Supreme Court jurisprudence demonstrated that “that when ‘speech’ and ‘nonspeech’

elements are combined in the same course of conduct, a sufficiently important governmental
interest in regulating the nonspeech element can justify incidental limitations on First
Amendment freedoms.” (at 376.) Although the Court’s characterization of the interest the
government must demonstrate has varied from “compelling,” to “substantial,” “paramount,”
and “cogent,” the Court found “it clear that a government regulation is sufficiently justified if:
1. It is within the constitutional power of the Government;
2. It furthers an important or substantial governmental interest;
3. The governmental interest is unrelated to the suppression of free expression; and
4. The incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.” (at 376-77.)
According to the Court, the creation of Selective Service was clearly within Congress’s power to
raise and support armies, which it found “broad and sweeping.” (at 377.) Further, the second
factor was met because the “issuance of certificates indicating the registration and eligibility
classification of individuals is a legitimate and substantial administrative aid in the functioning
of this [registration] system. And legislation to insure the continuing availability of issued
certificates serves a legitimate and substantial purpose in the system’s administration.” (at
377-78.) Summarily, the Court characterized the government’s interest as “substantial.” (at
381.)
To satisfy the third requirement, the government’s interest in the smooth functioning of the
Selective Service had nothing to do with suppressing speech. Again, the enforcement of the
card-destruction statute was not inherently related to speech, but strictly related to non-
communicative conduct. Finally, the law was sufficiently narrowly drawn to preserve the
availability and integrity of the certificates maintaining the Selective Service system. The
destruction or mutilation of certificates would frustrate or defeat the purpose of the
registration system implemented by the Selective Service. Furthermore, requirements that
registrants have the certificates in their possession at all times were insufficient to preserve
these important documents: “the essential elements of nonpossession are not identical with
those of mutilation or destruction,” “they protect overlapping but not identical governmental
interests, and … they reach somewhat different classes of wrongdoers.” (at 380-81.)
Basically, the ban on conduct regulated by the card-destruction statute was necessary to
ensure a smooth functioning of the registration system. In conclusion, the law was an
appropriately narrow tool to protect the government’s sufficient and “substantial interest in
assuring the continuing availability of issued Selective Service certificates.” Because it met all
four requirements, the law was a permissible regulation on symbolic speech and did not overly
burden O’Brien’s expressive conduct.
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O’Brien’s second argument was that the card-destruction statute was unconstitutional because
the purpose was to suppress the freedom of speech. However, the Court held that it is “a
familiar principle of constitutional law that [the U.S. Supreme] Court will not strike down an
otherwise constitutional statute on the basis of an alleged illicit legislative motive.” (at 383.)
The courts may look to legislative history and intent when interpretation of the law is at issue.
But in O’Brien’s case, the interpretation of the card-destruction statute was straight-forward.
For this reason, the purpose of the 1965 amendment was irrelevant, though the Court
indicated there was scant evidence supporting O’Brien’s argument that the motivation of the
statute was to suppress speech.
Because the card-destruction statute met all four requirements for laws that indirectly impact
symbolic speech, and because the motivation for the statute is largely irrelevant under U.S.
principles of judicial review, the Court upheld O’Brien’s conviction. The Court vacated the
judgment of the Court of Appeals, and reinstated the district court’s conviction of O’Brien
under the card-destruction statute. Because of its ruling, the Court did not consider the
secondary argument regarding the possession regulation.
Justice Marshall took no part in the consideration of the case.
Justice Harlan wrote a concurring opinion to clarify that the four-prong O’Brien test does not
prevent review in cases in which a speaker is effectively prevented from reaching a significant
audience.
Justice Douglas wrote a dissenting opinion. He did not dispute the validity of the O’Brien test,
or most of the Court’s application of that test. Justice Douglas primarily argued that the Court
should request reargument from the government and O’Brien to discuss the constitutionality
of a peacetime draft when there has been no declaration of war from Congress (as there had
not been in the ongoing Vietnam War). The Court’s decision on that issue would impact the
breadth of Congress’s powers to raise and support armies, and thus the Court’s interpretation
of the first prong of the O’Brien test.
Schenck v. United States Case Brief
Relevant Facts: Schenck mailed circulars to Army draftees during the First World War. The
circulars were essentially meant to persuade the draftees to view the war as a moralyl wrong,
instigated by the leaders of a global capitalist system. The circulars were alleged to have been
incendiary because they compelled draftees to “not submit to intimidation" by acting
peacefully outside of the war rather than in the war, and by petitioning to end/repeal the
Conscription Act that made drafting legally permissible. Schenck was consequently charged
 3

with conspiracy to violate the Espionage Act on the grounds that he actively attempted to Specific allegations against him included bribery charges, involuntary servitude, and theft.
compel draftees to be insubordinate, particularly during wartime, and as a result also
attempted to obstruct the military from recruiting necessary personnel for the First World The justice denied the charges. In the CFI, not all the charges were proved. But, the judge still
War. found him guilty.

Issues: The legal question presented was whether Schenck’s actions, i.e. his words and overall Punsalan filed charges alleging that he was the victim of prosecution and one Jaime, an
expression, was protected by the free speech clause of the First Amendment or whether it was auxiliary justice, instigated the charges against him for personal reasons. He was acquitted.
not protected, with the implicit argument being that there are different First Amendment rules
The complainants filed an appeal to the Governor General but it wasn’t acted upon.
to be observed during wartime.
Criminal action was instituted aganst the residents by Punsalan.
Holding: The Supreme Court unanimously ruled that Schenck’s words and his expressions in
this case were not protected, and thus his 1stAmendment rights to freedom of speech and
The CFI found almost all of the 34 defendants guilty and sentenced them to pay 10 pesos or
expression had not been violated.
suffer imprisonment in case of insolvency.
Majority Opinion: Associate Justice Holmes wrote the Court’s opinion, which reasoned that
The defendants filed a motion for a retrial to retire the objection made by Punsalan. The trial
Schenck was not protected because the circumstances (wartime) were so severe and critical to
court denied the motion. All except 2 of the defendants appealed. Making assignments of
the state of the country that his words effectively presented a “clear and present danger" to
error.
the war effort, something that the U.S. Congress had the authority and onus to prevent. The
Court thus concluded that typical peacetime actions and expressions that would be fine when 1. The court erred in overruling motion for retrial.
there is no war or conflict must to some degree(s) be scaled back during wartime.
2. Error in not holding that the libelous statement was not privileged
Conclusion: This case was important because it provided a distinction (one of several
ultimately made by the U.S. Supreme Court) that freedom of speech and expression is not an 3. Error in not acquitting defendants
absolute right; there are parameters and limitations to what individuals can express. In this
case, speech that works to subject the country to a “clear and present danger" is not permitted 4. Evidence failed to show gult of defendants beyond reasonable doubt.
by the Constitution, with the implicit argument being that Schenck’s expression in particular
5. Erred in making defendants prove that the libelous statements were true.
was anathema to national security and therefore problematic for a country trying to protect its
Constitution by presenting an effective war effort founded upon sufficient troop levels. 6. Error in sustaining the prosecution’s objection to the introduction in evidence by the
accused of the affidavits upon which the petition forming the basis of the libelous charge was
U.S. v Bustos G.R. No. L-12592 March 8, 1918 based.

J. Malcolm 7. Erred in refusing to permit the defendants to retire the objection in advertently interposed
by their counsel to the admission in evidence of the expediente administrativo out of which
Facts:
the accusation in this case arose.
In 1915, 34 Pampanga residents signed a petition to the Executive Secretary regarding charges
Issue:
against Roman Punsalan, the justice of the peace of Macabebe. They wanted to oust him from
his office. Whether or not the defendants and appellants are guilty of a libel of Roman Punsalan, justice
of the peace in Pampanga.

Held: Yes. Defendants acquitted.
Ratio:
Freedom of speech was non existent in the country before 1900. There were small efforts at
reform made by the La Solidaridad. The Malolos Constitution, on the other hand, guaranteed
freedom of speech.
During the U.S. period, President McKinley himself laid down the tenet Magna Charta of
Philippine Liberty when he wrote, “that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for a redress of grievances." This was in the Philippine Bill.
In the Amrican cases it was held, there were references to “public opinion should be the
constant source of liberty and democracy.” It also said “the guaranties of a free speech and a
free press include the right to criticize judicial conduct. The administration of the law is a
matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit
subject for proper comment. If the people cannot criticize a justice of the peace or a judge the
same as any other public officer, public opinion will be effectively muzzled. Attempted
terrorization of public opinion on the part of the judiciary would be tyranny of the basest sort.”
“It is a duty which every one owes to society or to the State to assist in the investigation of any
alleged misconduct. It is further the duty of all who know of any official dereliction on the part
of a magistrate or the wrongful act of any public officer to bring the facts to the notice of those
whose duty it is to inquire into and punish them.”
The right to assemble and petition is the necessary consequence of republican institutions and
the complement of the part of free speech. Assembly means a right on the part of citizens to
meet peaceably for consultation in respect to public affairs. Petition means that any person or
group of persons can apply, without fear of penalty, to the appropriate branch or office of the
government for a redress of grievances. The persons assembling and petitioning must, of
course, assume responsibility for the charges made.
Public policy has demanded protection for public opinion. The doctrine of privilege has been
the result of this. Privilged communications may in some instances afford an immunity to the
slanderer. Public policy is the “unfettered administration of justice.”
Privilege is either absolute or qualified. Qualified privilege is prima facie which may be lost by
proof of malice. This is apparent in complaints made in good faith against a public official’s
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conduct having a duty in the matter. Even if the statements were found to be false, the
protection of privilege may cover the individual given that it was in good faith. There must be a
sense of duty and not a self-seeking motive.
A communication made bona fide upon any subject-matter in which the party communicating
has an interest, or in reference to which has a duty, is privileged, if made to a person having a
corresponding interest or duty, although it contained criminatory matter which without this
privilege would be slanderous and actionable.
In the usual case malice can be presumed from defamatory words. Privilege destroys that
presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring
home to the defendant the existence of malice as the true motive of his conduct. Falsehood
and the absence of probable cause will amount to proof of malice.
It is true that the particular words set out in the information, if said of a private person, might
well be considered libelous per se. The charges might also under certain conceivable conditions
convict one of a libel of a government official. As a general rule words imputing to a judge or a
justice of the peace dishonesty or corruption or incapacity or misconduct touching him in his
office are actionable. But as suggested in the beginning we do not have present a simple case
of direct and vicious accusations published in the press, but of charges predicated on affidavits
made to the proper official and thus qualifiedly privileged. Express malice has not been proved
by the prosecution. Further, although the charges are probably not true as to the justice of the
peace, they were believed to be true by the petitioners. Good faith surrounded their action.
Probable cause for them to think that malfeasance or misfeasance in office existed is apparent.
The ends and the motives of these citizens— to secure the removal from office of a person
thought to be venal — were justifiable. In no way did they abuse the privilege. These
respectable citizens did not eagerly seize on a frivolous matter but on instances which not only
seemed to them of a grave character, but which were sufficient in an investigation by a judge
of first instance to convince him of their seriousness. No undue publicity was given to the
petition. The manner of commenting on the conduct of the justice of the peace was proper.
THE PEOPLE OF THE PHILIPPINES v. SALVADOR ALARCON, ET AL.
Facts: As an aftermath of the decision rendered by the Court of first Instance of Pampanga in
criminal case No. 5733, The People of the Philippines vs. Salvador Alarcon, et al., convicting the
accused therein — except one — of the crime of robbery committed in band, a denunciatory
letter, signed by Luis M. Taruc, was addressed to His Excellency, the President of the
Philippines. A copy of said letter found its way to the herein respondent, Federico Mañgahas

who, as columnist of the Tribune, a newspaper of general circulation in the Philippines, quoted
the letter in an article published by him in the issue of that paper of September 23, 1937.
On 29 September 1937, the provincial fiscal of Pampanga filed with the Court of First Instance
of that province to cite Federico Mangahas for contempt. On the same date, the lower court
ordered Mangahas to appear and show cause. Mangahas appeared and filed an answer,
alleging, among others, that “the publication of the letter in question is in line with the
constitutional Narratives (Berne Guerrero) guarantee of freedom of the press.”
Issue: Whether the trial court properly cited Mangahas for contempt inasmuch as the robbery-
in-band case is still pending appeal.
Held: Newspaper publications tending to impede, obstruct, embarrass, or influence the courts
in administering justice in a pending suit or proceeding constitutes criminal contempt, which is
summarily punishable by the courts. The rule is otherwise after the cause is ended. It must,
however, clearly appear that such publications do impede, interfere with, and embarrass the
administration of justice before the author of the publications should be held for contempt.
What is thus sought to be shielded against the influence of newspaper comments is the all-
important duty of the court to administer justice in the decision of a pending case.
Contempt of court is in the nature of a criminal offense (Lee Yick Hon vs. Collector of Customs,
41 Phil., 548), and in considering the probable effects of the article alleged to be
contemptuous, every fair and reasonable inference consistent with the theory of defendant's
innocence will be indulged (State v. New Mexican Printing Co., 25 N. M., 102, 177 p. 751), and
where a reasonable doubt in fact or in law exists as to the guilt of one of constructive
contempt for interfering with the due administration of justice the doubt must be resolved in
his favor, and he must be acquitted.
AYER PRODUCTIONS VS. CAPULONG [160 SCRA 861; G.R. NO. L-82380; 29 APR 1988]
Facts: Petitioner McElroy an Australian film maker, and his movie production company, Ayer
Productions, envisioned, sometime in 1987, for commercial viewing and for Philippine and
international release, the historic peaceful struggle of the Filipinos at EDSA. The proposed
motion picture entitled "The Four Day Revolution" was endorsed by the MTRCB as and other
government agencies consulted. Ramos also signified his approval of the intended film
production.
It is designed to be viewed in a six-hour mini-series television play, presented in a "docu-
5
drama" style, creating four fictional characters interwoven with real events, and utilizing actual
documentary footage as background. David Williamson is Australia's leading playwright and
Professor McCoy (University of New South Wales) is an American historian have developed a
script.
Enrile declared that he will not approve the use, appropriation, reproduction and/or exhibition
of his name, or picture, or that of any member of his family in any cinema or television
production, film or other medium for advertising or commercial exploitation. petitioners
acceded to this demand and the name of Enrile was deleted from the movie script, and
petitioners proceeded to film the projected motion picture. However, a complaint was filed by
Enrile invoking his right to privacy. RTC ordered for the desistance of the movie production and
making of any reference to plaintiff or his family and from creating any fictitious character in
lieu of plaintiff which nevertheless is based on, or bears substantial or marked resemblance to
Enrile. Hence the appeal.
Issue: Whether or Not freedom of expression was violated.
Held: Yes. Freedom of speech and of expression includes the freedom to film and produce
motion pictures and exhibit such motion pictures in theaters or to diffuse them through
television. Furthermore the circumstance that the production of motion picture films is a
commercial activity expected to yield monetary profit, is not a disqualification for availing of
freedom of speech and of expression.
The projected motion picture was as yet uncompleted and hence not exhibited to any
audience. Neither private respondent nor the respondent trial Judge knew what the completed
film would precisely look like. There was, in other words, no "clear and present danger" of any
violation of any right to privacy. Subject matter is one of public interest and concern. The
subject thus relates to a highly critical stage in the history of the country.
At all relevant times, during which the momentous events, clearly of public concern, that
petitioners propose to film were taking place, Enrile was a "public figure:" Such public figures
were held to have lost, to some extent at least, their right to privacy.
The line of equilibrium in the specific context of the instant case between the constitutional
freedom of speech and of expression and the right of privacy, may be marked out in terms of a
requirement that the proposed motion picture must be fairly truthful and historical in its
presentation of events.

Borjal v Court of Appeals 301 SCRA 1 January 14, 1999
Facts: A civil action for damages based on libel was filed before the court against Borjal and
Soliven for writing and publishing articles that are allegedly derogatory and offensive against
Francisco Wenceslao, attacking among others the solicitation letters he send to support a
conference to be launch concerning resolving matters on transportation crisis that is tainted
with anomalous activities. Wenceslao however was never named in any of the articles nor was
the conference he was organizing. The lower court ordered petitioners to indemnify the
private respondent for damages which was affirmed by the Court of Appeals. A petition for
review was filed before the SC contending that private respondent was not sufficiently
identified to be the subject of the published articles.
Issue: Whether or not there are sufficient grounds to constitute guilt of petitioners for libel.
Held: In order to maintain a libel suit, it is essential that the victim be identifiable although it is
not necessary that he be named. It is also not sufficient that the offended party recognized
himself as the person attacked or defamed, but it must be shown that at least a third person
could identify him as the object of the libelous publication. These requisites have not been
complied with in the case at bar. The element of identifiability was not met since it was
Wenceslaso who revealed he was the organizer of said conference and had he not done so the
public would not have known.
The concept of privileged communications is implicit in the freedom of the press and that
privileged communications must be protective of public opinion. Fair commentaries on matters
of public interest are privileged and constitute a valid defense in an action for libel or slander.
The doctrine of fair comment means that while in general every discreditable imputation
publicly made is deemed false, because every man is presumed innocent until his guilt is
judicially proved, and every false imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public person in his public capacity, it is not
necessarily actionable. In order that such discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred
from the facts.
The questioned article dealt with matters of public interest as the declared objective of the
conference, the composition of its members and participants, and the manner by which it was
6
intended to be funded no doubt lend to its activities as being genuinely imbued with public
interest. Respondent is also deemed to be a public figure and even otherwise is involved in a
public issue. The court held that freedom of expression is constitutionally guaranteed and
protected with the reminder among media members to practice highest ethical standards in
the exercise thereof.
A privileged communication may be either:
1. Absolutely privileged communication à those which are not actionable even if the author
has acted in bad faith. An example is found in Sec. 11, Art.VI, of the 1987 Constitution which
exempts a member of Congress from liability for any speech or debate in the Congress or in
any Committee thereof.
2. Qualifiedly privileged communications à those containing defamatory imputations are not
actionable unless found to have been made without good intention justifiable motive. To this
genre belong "private communications" and "fair and true report without any comments or
remarks."
Jose B.L. Reyes vs Ramon Bagatsing
Retired Justice JBL Reyes in behalf of the members of the Anti-Bases Coalition sought a permit
to rally from Luneta Park until the front gate of the US embassy which is less than two blocks
apart. The permit has been denied by then Manila mayor Ramon Bagatsing. The mayor claimed
that there have been intelligence reports that indicated that the rally would be infiltrated by
lawless elements. He also issued City Ordinance No. 7295 to prohibit the staging of rallies
within the 500 feet radius of the US embassy. Bagatsing pointed out that it was his intention to
provide protection to the US embassy from such lawless elements in pursuant to Art. 22 of the
Vienna Convention on Diplomatic Relations. And that under our constitution we “adhere to
generally accepted principles of international law”.
ISSUE: Whether or not a treaty may supersede provisions of the Constitution. Whether or
not the rallyists should be granted the permit.
HELD:
I. No. Indeed, the receiving state is tasked for the protection of foreign diplomats from any
lawless element. And indeed the Vienna Convention is a restatement of the generally accepted
principles of international law. But the same cannot be invoked as defense to the primacy of
the Philippine Constitution which upholds and guarantees the rights to free speech and

peacable assembly. At the same time, the City Ordinance issued by respondent mayor cannot
be invoked if the application thereof would collide with a constitutionally guaranteed rights.
II. Yes. The denial of their rally does not pass the clear and present danger test. The mere
assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. In
this case, no less than the police chief assured that they have taken all the necessary steps to
ensure a peaceful rally. Further, the ordinance cannot be applied yet because there was no
showing that indeed the rallyists are within the 500 feet radius (besides, there’s also the
question of whether or not the mayor can prohibit such rally – but, as noted by the SC, that has
not been raised an an issue in this case).
Obscenity Case Files: Miller v. California
The First Amendment guarantees our right to free speech, but there are certain types of
speech that fall outside of its protection. Obscenity is a type of unprotected speech, but what
exactly is considered obscene in the eyes of the law? Courts have struggled to sort out this
murky definition, and the landmark 1973 decision in Miller v. California has become the go to
case in defining obscenity.
Marvin Miller owned and operated a mail order pornography business based out of California.
To promote his products, Miller assembled brochures that featured graphic pictures of some of
his products. In 1971, he assembled a brochure that advertised the books Intercourse, Man-
Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography and the
movie Marital Intercourse. He mass mailed the brochures, and five of the unsolicited brochures
found their way to a restaurant in Newport Beach, California. Despite not having requested the
brochures, the restaurant owner and his mother decided to open the envelopes. They were
offended by the graphic pictures that they found in the brochures, and reported them to the
police. Subsequently, Miller was charged and convicted with violating a California statute for
“knowingly distributing obscene matter.” Miller’s conviction was upheld by the appellate court,
and the case made its way to the Supreme Court in 1973.
In examining Miller v. California we must first take a look at earlier Supreme Court cases that
had attempted to define obscenity. The standard for determining obscenity was set in 1957
in Roth v. United States. In Roth, a man named Samuel Roth had a literary business and sold a
publication called American Aphrodite, which contained both erotic literature and nude
photographs. Like Miller, he was convicted for advertising obscene material. The Roth case
established that obscenity as a category was not protected by the First Amendment. It then
attempted to define exactly what obscenity was. Roth defined obscene matter as not having
7
any redeeming social importance and determined that material is obscene, when taken as a
whole, if it appeals to the prurient interests of the average person when applying
contemporary community standards. In other words, to determine if something is obscene,
you must look at the entire context of the publication, not just an excerpt of the contentious
part. Also, it must be judged based on what the average person might think about it.
In Memoirs v. Massachusetts (1966), the Court was not content with the standard set
in Roth and tried to revise it, but their attempts were in vain. The Memoirs case was about a
book entitled The Memoirs of a Woman of Pleasure (aka Fanny Hill) by John Cleland. Many
raised concerns over the book’s content because it included scenes of sodomy and
masturbation, which caused quite a ruckus in 1960s courtrooms. In Memoirs, the Court
rejected the standard set by Roth and determined that material was obscene if it was both
patently offensive AND it was utterly without social value. Under this standard, if there was
any question that material might have some social value at all, then it could not be considered
obscene. Ultimately, due to the fact that the book was artistic literary expression despite
including some graphic content, it could not be proven that Fanny Hill had absolutely no
redeeming social value and was therefore not considered obscene.
Miller’s defense tried to base his appeal on the loose standards in Memoirs but failed.
Regardless, the Supreme Court recognized that the appellate court decision against Miller was
based on outdated standards of determining what was considered obscene and vacated
Miller’s conviction. The Supreme Court decision led to a new test for obscenity that is still in
use today.
The Miller v. California decision held the following:
1. Obscene material is not protected by the First Amendment. Roth v. United States,
354 U.S. 476 , reaffirmed. A work may be subject to state regulation where that
work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently
offensive way, sexual conduct specifically defined by the applicable state law; and,
taken as a whole, does not have serious literary, artistic, political, or scientific value.
2. The basic guidelines for the trier of fact must be: (a) whether “the average person,
applying contemporary community standards” would find that the work, taken as a
whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work
depicts or describes, in a patently offensive way, sexual conduct specifically defined
by the applicable state law, and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. If a state obscenity law is thus limited,

First Amendment values are adequately protected by ultimate independent appellate
review of constitutional claims when necessary.
3. The test of “utterly without redeeming social value” articulated in Memoirs, supra, is
rejected as a constitutional standard.
4. The jury may measure the essentially factual issues of prurient appeal and patent
offensiveness by the standard that prevails in the forum community, and need not
employ a “national standard.”
In point 1, the Supreme Court reiterated that obscene material was not protected by the First
Amendment as determined in Roth v. United States. In point 3, the Supreme Court rejected the
definition of obscene material set in Memoirs v. Massachusetts. With point 4, the Court
recognized that a jury in obscenity cases is held to local standards, not a national standard.
Point 2 became what is known today as the three-prong Miller Test for obscenity. The first part
of the Miller Test — “the average person applying contemporary community standards would
find that the work, taken as a whole, appeals to the prurient interests” — emphasized that
different parts of the country might have different opinions on obscene materials. For instance,
material that might not offend your average New Yorker may be offensive to someone living in
Oklahoma. The court recognized that communities might have differing point of views, and it
wouldn’t fulfill the purpose of the test to impose a national standard. It is also important to
note that the entire work is to be considered in its entirety. Even if an excerpt is deemed
obscene, unless the entire work is determined to be obscene, the work is still protected by the
First Amendment.
The second part of the Miller Test required that “the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by state law.” This second prong also focuses
on locality. As with matters appealing to prurient interests, some things may be found patently
offensive in one state but not necessarily in the other. Imposing a national standard would be
unrealistic.
The third and final prong of the Miller Test required that “the work, taken as a whole, lacks
serious literary, artistic, political or scientific value.” Here, the Court was reworking the former
standard of being “utterly without redeeming social value.” The Court found this standard to
be far too strict — so strict, in fact, that it was virtually impossible to prove in a criminal
proceeding. (If you think about it, how can you possibly prove with any certainty that
something has zero value whatsoever?) There is always an argument to be made in one way or
another, and the courts recognized this difficulty. With this prong of the Miller Test, it would
8
only need to be proven that the work lacks literary, artistic, political or scientific value, not any
sort of value whatsoever. (It should be noted that the Court did not clearly define who made
this determination, an issue that was resolved in 1987 with Pope v. Illinois.)
After struggling for years to come to a consensus on what the law could actually consider to be
obscene, the standard that was set in Miller v. California still stands today. Although this case
didn’t directly involve comic books, it is still an extremely important decision for CBLDF’s own
legal work. Comic books are frequently labeled obscene by those who would censor them, a
label that clearly does not hold up against the Miller Test.
Summary of Miller v. California, 413 U.S. 15 (1973)
Facts: Mr. Miller sent five unsolicited advertising brochures through the mail addressed to a
restaurant. When opened the manager and his mother complained to the police. The
brochures advertised four adult book titles and an adult movie. Some descriptive language,
pictures and drawings of men and women engaged sexually were displayed.
Issue(s): Whether material, included in a mass-mailing program, soliciting the sale of adult
books and movies can be subjected to state regulation as a criminal offense?
Holding: Yes, but limited to where the work, taken as a whole, appeals to the prurient interest
in sex; portrays sexual conduct specifically defined by state law in a patently offensive way; and
taken as a whole, does not have serious literary, artistic, political or scientific value.
Procedure: Jury convicted Miller of a misdemeanor distribution of obscenity charge. Appellate
Dept Superior Ct Affirmed b/c statute was based on and reflected Memoir test. USSCt Vacated
and Remanded.
Rule(s): 1st and 14th Amend
Rationale: States have an legit interest in prohibiting the dissemination or exhibition of
obscene material when the mode used has a significant danger of offending unwilling
recipients or there’s a risk of exposure to juveniles.
1st must Define the standard used to i/d obscene material that a state may regulate w/o
infringing on the 1st Amend through the 14th.
Roth – the mailing obscene materials does not rec’v 1st Amend protection. Then in Memoirs a
new three part test for obscenity was created; 1) dominant theme of prurient interest in sex; 2)
material is patently offensive to current community standards; and 3) material is utterly

without a redeeming social value. Problem with Memoir test: Required proof obscenity was
utterly w/o social value, the prosecution had to prove a negative as an impossible BoP in
criminal case. This standard is no longer the Const’l standard.
No state since Roth has been able to agree on a standard to determine what constitutes
obscenity subject to state regulation.
Under U.S. Const 1st Amend limitations on state powers do not vary from community to
community, but this does not mean a fixed, uniform national standard of what precisely
appeals to the prurient interest or what is “patently offensive." If a jury applies the standard of
an average person under the current community standards, the material will be adjudged by its
impact on an average person and not a sensitive person.
DISSENT: J.Douglas, suspect material must first be condemned as obscene in a civil proceeding,
and then only after if a party continues to publish, show, etc. then a vague law has been made
specific, and a criminal prosecution at that point would not violate void for vagueness test.
PITA VS. COURT OF APPEALS [178 SCRA 362; G.R. NO.80806; 5 OCT 1989]
Facts: On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of
the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary
Services Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized
and confiscated from dealers, distributors, newsstand owners and peddlers along Manila
sidewalks, magazines, publications and other reading materials believed to be obscene,
pornographic and indecent and later burned the seized materials in public at the University
belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers
and members of various student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines published
and co-edited by plaintiff Leo Pita.
Plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction
against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of
the City of Manila, seeking to enjoin said defendants and their agents from confiscating
plaintiff’s magazines or from preventing the sale or circulation thereof claiming that the
magazine is a decent, artistic and educational magazine which is not per se obscene, and that
the publication is protected by the Constitutional guarantees of freedom of speech and of the
press. Plaintiff also filed an Urgent Motion for issuance of a temporary restraining order against
9
indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines,
pending hearing on the petition for preliminary injunction. The Court granted the temporary
restraining order. The case was set for trial upon the lapse of the TRO. RTC ruled that the
seizure was valid. This was affirmed by the CA.
Issue: Whether or Not the seizure violative of the freedom of expression of the petitioner.
Held: Freedom of the press is not without restraint as the state has the right to protect society
from pornographic literature that is offensive to public morals, as indeed we have laws
punishing the author, publishers and sellers of obscene publications. However, It is easier said
than done to say, that if the pictures here in question were used not exactly for art's sake but
rather for commercial purposes, the pictures are not entitled to any constitutional protection.
Using the Kottinger rule: the test of obscenity is "whether the tendency of the matter charged
as obscene, is to deprave or corrupt those whose minds are open to such immoral influences
and into whose hands a publication or other article charged as being obscene may fall."
Another is whether it shocks the ordinary and common sense of men as an indecency.
Ultimately "whether a picture is obscene or indecent must depend upon the circumstances of
the case and that the question is to be decided by the "judgment of the aggregate sense of the
community reached by it." The government authorities in the instant case have not shown the
required proof to justify a ban and to warrant confiscation of the literature First of all, they
were not possessed of a lawful court order: (1) finding the said materials to be pornography,
and (2) authorizing them to carry out a search and seizure, by way of a search warrant. The
court provides that the authorities must apply for the issuance of a search warrant from a
judge, if in their opinion an obscenity seizure is in order and that;
1. The authorities must convince the court that the materials sought to be seized are obscene
and pose a clear and present danger of an evil substantive enough to warrant State
interference and action;
2. The judge must determine whether or not the same are indeed obscene. The question is to
be resolved on a case-to-case basis and on the judge’s sound discretion;
Iglesia ni Cristo v CA 259 SCRA 529 (1996)
F: This is a petition for review on the decision of the CA affirming action of respondent Board of
Review For Moving Pictures and Television that x-rated the TV Program "Ang Iglesia ni Cristo"
classifying it not for public viewing on grounds that they offend and constitute an attack
against other religions which is expressly prohibited by law. Respondent contends the Board
acted without jurisdiction and in grave abuse of discretion by requiring them to submit VTR

tapes and x-rating them and suppression of freedom of expression. Trial court rendered
judgment ordering the Board to give petitioner the permit for their TV program while ordering
petitioners to refrain from attacking and offending other religious sectors from their program.
In their motion for reconsideration the petitioner prays for the deletion of the order of the
court to make them subject to the requirement of submitting the VTR tapes of their programs
for review prior to showing on television. Such motion was granted. Respondent board
appealed before the CA which reversed the decision of the lower court affirming the
jurisdiction and power of the board to review the TV program. In their petition for review on
certiorari, petitioner assails the jurisdiction of the Board over reviewing of their TV program
and its grave abuse of discretion of its power to review if they are indeed vested with such.
Issue: whether or not the Board has jurisdiction over the case at bar and whether or not it has
acted with grave abuse of discretion.
Held: The court affirmed the jurisdiction of the Board to review TV programs by virtue of the
powers vested upon it by PD 1986. On the account of suppression of religious freedom, the
court ruled that any act that restrains speech is accompanied with presumption of invalidity.
The burden lies upon the Board to overthrow this presumption. The decision of the lower court
is a suppression of the petitioner’s freedom of speech and free exercise of religion. Respondent
board cannot censor the speech of petitioner Iglesia ni Cristo simply because it attacks other
religions. It is only where it is unavoidably necessary to prevent an immediate and grave
danger to the security and welfare of the community that infringement of religious freedom
may be justified. There is no showing whatsoever of the type of harm the tapes will bring
about especially the gravity and imminence of the threatened harm. Prior restraint on speech,
including religious speech, cannot be justified by hypothetical fears but only by the showing of
a substantive and imminent evil. Thus the court affirmed the jurisdiction of the Board to review
the petitioner’s TV program while it reversed and set aside the decision of the lower court that
sustained the act of respondent in x-rating the TV program of the petitioner.
2 fold aspects of religious profession and worship namely:
1. Freedom to believe (absolute
2. Freedom to act on one’s belief – where an individual externalizes his beliefs in acts or
omissions affecting the public, this freedom to do so becomes subject to the regulation
authority of the state.
RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER
CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA, SECRETARY OF JUSTICE
10
HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO,
RENATO CAYETANO and ATTY. RICARDO ROMULO,petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.
A.M. No. 01-4-03-SC.
June 29, 2001
Facts: On 13 March 2001, the Kapisanan ng mgaBrodkaster ng Pilipinas (KBP) sent a
letterrequesting this Court to allow live media coverage of the anticipated trial of the plunder
and other criminal cases filed against former President Joseph E. Estrada before the
Sandiganbayan. The petitioners invoked other than the freedom of the press, the
constitutional right of the people to be informed of matters of public concern which could only
be recognized, served and satisfied by allowing live radio and television coverage of the court
proceedings. Moreover, the live radio and television coverage of the proceedings will also
serve the dual purpose of ensuring the desired transparency in the administration of justice.
However, in the Resolution of the Court on October 1991, in a case for libel filed by then
President Corazon C. Aquino read that the Court resolved to prohibit live radio and television
coverage of court proceedings in view of protecting the parties’ right to due process, to
prevent distraction of the participants in the proceedings and to avoid miscarriage of justice.
Issue : Whether the constitutional guarantees of freedom of the press and right to information
of public concern be given more weight than the fundamental rights of the accused.
Ruling : The petition is denied.
The courts recognize the constitutionally embodied freedom of the press and the right
to public information. It also approves of media's exalted power to provide the most accurate
and comprehensive means of conveying the proceedings to the public and in acquainting the
public with the judicial process in action; nevertheless, within the courthouse, the overriding
consideration is still the paramount right of the accused to due process which must never be
allowed to suffer diminution in its constitutional proportions.
Due process guarantees the accused a presumption of innocence until the contrary is proved in
a trial that is not lifted above its individual settings nor made an object of public's attention
and where the conclusions reached are induced not by any outside force or influencebut only

by evidence and argument given in open court, where fitting dignity and calm ambiance is
demanded."Television can work profound changes in the behavior of the people it focuses
on."The conscious or unconscious effect that such coverage may have on the testimony of
witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not
at all unlikely for a vote of guilt or innocence to yield to it.
Although an accused has a right to a public trial but it is a right that belongs to him, more than
anyone else, where his life or liberty can be held critically in balance. A public trial aims to
ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are
not compromised. A public trial is not synonymous with publicized trial; it only implies that the
court doors must be open to those who wish to come, sit in the available seats, conduct
themselves with decorum and observe the trial process. In the constitutional sense, a
courtroom should have enough facilities for a reasonable number of the public to observe the
proceedings, not too small as to render the openness negligible and not too large as to distract
the trial participants from their proper functions, who shall then be totally free to report what
they have observed during the proceedings.
SWS v COMELEC
Facts:
Petitioner SWS and KPC states that it wishes to conduct an election survey throughout the
period of the elections and release to the media the results of such survey as well as publish
them directly. Petitioners argue that the restriction on the publication of election survey
results constitutes a prior restraint on the exercise of freedom of speech without any clear and
present danger to justify such restraint.
Issue:
Are the Comelec Resolutions prohibiting the holding of pre-polls and exit polls and the
dissemination of their results through mass media, valid and constitutional?
Ruling:
No. The Court held that Section (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 suppression of freedom of expression.
It has been held that "[mere] legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal activities, but be
11
insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions.”
MTRCB v. ABS-CBN G.R. No. 155282. January 17, 2005
J. Sandoval Gutierrez
Facts:
Respondent abs-cbn aired “Prosti-tuition”, an episode of the TV program “The Inside Story”
produced and hosted by respondent Legarda. It depicted female students moonlighting as
prostitutes to enable them to pay for their tuition fees.
PWU was named as the school of some of the students involved and the façade of the PWU
building served as the background of the episode. This caused upsoar in the PWU community
and they filed a letter-complaint to the MTRCB.
MTRCB alleged that respondents
1) Did not submit “the inside story” to petitioner for review
2) Exhibited the same without its permission, thus violating sec 7 of PD 1986 and some sections
of MTRCB rules and regulations
ABS-CBN averred:
1) The Inside Story is a public affairs program, news documentary and socio-political editorial,
its airing is protected by the constitutional provision on freedom of expression and of the press
2) Petitioners has no power, authority and jurisdiction to impose any form of prior restraint
upon respondents.
After hearing and submission of the parties’ memoranda, MTRCB investigating committee
ordered the respondents to pay P20,000 for non-submission of the program
MTRCB affirmed the ruling
Respondents filed a special civil action for certiorari with RTC QC. RTC rendered a decision in
favor of respondents, annulling and setting aside the decision and resolution of the MTRCB and
declaring and decreeing that certain sections of PD 1986 & MTRCB do not cover the TV

program “Inside Story”, they being a public affairs programs which can be equated to a
newspaper
Hence, this petition
Issue:
Whether the MTRCB has the power or authority to review the “Inside Story” prior its exhibition
or broadcast by TV.
Held:
Sec 3 of PD 1986 enumerates the powers, functions and duties of the board:
Xxx
b) to screen, review and examine all motion pictures herein defined, TV programs, including
publicity materials
The court in INC v. CA rules that PD 1986 gives MTRCB the power to screen, review and
examine ALL TV PROGRAMS
*LESSON* where the law does not make any exceptions, courts may not exempt something
therefrom, unless there is compelling reason apparent in the law to justify it.
Thus, when the law says “all TV programs”, the word all covers all tv programs whether
religious, public affairs, news docu, etc
It then follows that since the Inside Story is a TV Program, MTRCB has the power to review it
The only exemptions from the MTRCB’s power to review are those mentioned in Sec 7 of PD
1986
1) TV programs imprinted or exhibited by Phil govt and/or departments and agencies
2) Newsreels
In a desperate attempt to be exempted, respondents content that Inside Story falls under the
category of newsreels.
12
MTRCB rules and reg defines newsreels as “straight news reporting, as distinguished from
analyses, commentaries, and opinions. Talk shows on a given issue are not considered
newsreels.
Clearly, Inside Story is not a newsreel but more of a public affairs program and within
petitioner’s power of review.
Issue related to Consti law:
Petitioner’s power to review television programs under Section 3(b) of P. D. No. 1986 does not
amount to “prior restraint.”
Ratio:
It is significant to note that in Iglesia ni Cristo, this Court declared that freedom of religion has
been accorded a preferred status by the framers of our fundamental laws, past and present,
“designed to protect the broadest possible liberty of conscience, to allow each man to believe
as his conscience directs x x x.” Yet despite the fact that freedom of religion has been accorded
a preferred status, still this Court, did not exempt the Iglesia ni Cristo’s religious program from
petitioner’s review power.
Respondents claim that the showing of “The Inside Story” is protected by the constitutional
provision on freedom of speech and of the press. However, there has been no declaration at
all by the framers of the Constitution that freedom of expression and of the press has a
preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and
review power of petitioner MTRCB, with more reason, there is no justification to exempt
therefrom “The Inside Story” which, according to respondents, is protected by the
constitutional provision on freedom of expression and of the press, a freedom bearing no
preferred status.
The only exceptions from the MTRCB’s power of review are those expressly mentioned in
Section 7 of P. D. No. 1986, such as (1) television programs imprinted or exhibited by the
Philippine Government and/or its departments and agencies, and (2) newsreels.
Chavez vs. Gonzales (2008) (Political Law)
Francisco Chavez vs. Raul M. Gonzales and NTC | G.R. No. 168338 | February 15, 2008

Facts: As a consequence of the public release of copies of the “Hello Garci” compact disc
audiotapes involving a wiretapped mobile phone conversation between then-President Gloria
Arroyo and Comelec Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales
warned reporters that those who had copies of the CD and those broadcasting or publishing its
contents could be held liable under the Anti-Wiretapping Act. He also stated that persons
possessing or airing said tapes were committing a continuing offense, subject to arrest by
anybody. Finally, he stated that he had 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.” Meanwhile,
respondent NTC warned TV and radio stations that their broadcast/airing of such false
information and/or willful misrepresentation shall be a just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations issued to the said media
establishments. Petitioner Chavez filed a petition under Rule 65 against respondents Secretary
Gonzales and the NTC directly with the Supreme Court.
Issues: (1) Will a purported violation of law such as the Anti-Wiretapping Law justify
straitjacketing the exercise of freedom of speech and of the press? (2) Did the mere press
statements of respondents DOJ Secretary and the NTC constitute a form of content-based prior
restraint that has transgressed the Constitution?
Held: (1) No, a purported violation of law such as the Anti-Wiretapping Law will not justify
straitjacketing the exercise of freedom of speech and of the press. A governmental action that
restricts freedom of speech or of the press based on content is given the strictest scrutiny, with
the government having the burden of overcoming the presumed unconstitutionality by
the clear and present danger rule. This rule applies equally to all kinds of
media, including broadcast media. Respondents, who have the burden to show that these acts
do not abridge freedom of speech and of the press, failed to hurdle the clear and present
danger test. For this failure of the respondents alone to offer proof to satisfy the clear and
present danger test, the Court has no option but to uphold the exercise of free speech and free
press. There is no showing that the feared violation of the anti-wiretapping law clearly
endangers the national security of the State.
(2) Yes, the mere press statements of respondents DOJ Secretary and the NTC constituted a
13
form of content-based prior restraint that has transgressed the Constitution. 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. 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 DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA
and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.
G.R. No. 205728 January 21, 2015
PONENTE: Leonen
TOPIC: Right to expression, right to political speech, right to property
FACTS:
On February 21, 2013, petitioners posted two (2) tarpaulins within a private
compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately
six feet (6′) by ten feet (10′) in size. They were posted on the front walls of the cathedral within
public view. The first tarpaulin contains the message “IBASURA RH Law” referring to the
Reproductive Health Law of 2012 or Republic Act No. 10354. The second tarpaulin is the
subject of the present case. This tarpaulin contains the heading “Conscience Vote” and lists
candidates as either “(Anti-RH) Team Buhay” with a check mark, or “(Pro-RH) Team Patay” with
an “X” mark. The electoral candidates were classified according to their vote on the adoption
of Republic Act No. 10354, otherwise known as the RH Law. Those who voted for the passing of
 14

the law were classified by petitioners as comprising “Team Patay,” while those who voted
against it form “Team Buhay.”
Respondents conceded that the tarpaulin was neither sponsored nor paid for by any
candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.
ISSUES:
1. Whether or not the size limitation and its reasonableness of the tarpaulin is a
political question, hence not within the ambit of the Supreme Court’s power of
review.
2. Whether or not the petitioners violated the principle of exhaustion of administrative
remedies as the case was not brought first before the COMELEC En Banc or any if its
divisions.
3. Whether or not COMELEC may regulate expressions made by private citizens.
4. Whether or not the assailed notice and letter for the removal of the tarpaulin
violated petitioners’ fundamental right to freedom of expression.
5. Whether the order for removal of the tarpaulin is a content-based or content-neutral
regulation.
6. Whether or not there was violation of petitioners’ right to property.
7. Whether or not the tarpaulin and its message are considered religious speech.
HELD:
The Court ruled that the present case does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court through the
expanded jurisdiction granted to this court through Article VIII, Section 1 of the Constitution..
The concept of a political question never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.
Also the Court said that in our jurisdiction, the determination of whether an issue
involves a truly political and non-justiciable question lies in the answer to the question of
whether there are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such limits.
A political question will not be considered justiciable if there are no constitutionally
imposed limits on powers or functions conferred upon political bodies. Hence, the existence of
constitutionally imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech.
Any instance that this right may be abridged demands judicial scrutiny. It does not fall squarely
into any doubt that a political question brings.
SECOND ISSUE: No.
The Court held that the argument on exhaustion of administrative remedies is not
proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the
controversy is already ripe for adjudication. Ripeness is the “prerequisite that something had
by then been accomplished or performed by either branch or in this case, organ of government
before a court may come into the picture.”

Petitioners’ exercise of their right to speech, given the message and their medium,
FIRST ISSUE: No. had understandable relevance especially during the elections. COMELEC’s letter threatening
the filing of the election offense against petitioners is already an actionable infringement of
this right. The impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC
suggested in their pleadings prolongs the violation of their freedom of speech.
THIRD ISSUE: No.
Respondents cite the Constitution, laws, and jurisprudence to support their position
that they had the power to regulate the tarpaulin. However, the Court held that all of these
provisions pertain to candidates and political parties. Petitioners are not candidates. Neither
do they belong to any political party. COMELEC does not have the authority to regulate the
enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this
case.
FOURTH ISSUE: Yes.
The Court held that every citizen’s expression with political consequences enjoys a
high degree of protection.
Moreover, the respondent’s argument that the tarpaulin is election propaganda,
being petitioners’ way of endorsing candidates who voted against the RH Law and rejecting
those who voted for it, holds no water.
The Court held that while the tarpaulin may influence the success or failure of the
named candidates and political parties, this does not necessarily mean it is election
propaganda. The tarpaulin was not paid for or posted “in return for consideration” by any
candidate, political party, or party-list group.
By interpreting the law, it is clear that personal opinions are not included, while
sponsored messages are covered.
The content of the tarpaulin is a political speech
Political speech refers to speech “both intended and received as a contribution to public
deliberation about some issue,” “fostering informed and civic minded deliberation.” On the
other hand, commercial speech has been defined as speech that does “no more than propose a
commercial transaction.” The expression resulting from the content of the tarpaulin is,
however, definitely political speech.
FIFTH ISSUE: Content-based regulation.
15
Content-based restraint or censorship refers to restrictions “based on the subject
matter of the utterance or speech.” In contrast, content-neutral regulation includes controls
merely on the incidents of the speech such as time, place, or manner of the speech.
The Court held that the regulation involved at bar is content-based. The tarpaulin
content is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has
used the clear and present danger rule as measure.
Under this rule, “the evil consequences sought to be prevented must be substantive,
‘extremely serious and the degree of imminence extremely high.’” “Only when the challenged
act has overcome the clear and present danger rule will it pass constitutional muster, with the
government having the burden of overcoming the presumed unconstitutionality.”
Even with the clear and present danger test, respondents failed to justify the
regulation. There is no compelling and substantial state interest endangered by the posting of
the tarpaulin as to justify curtailment of the right of freedom of expression. There is no reason
for the state to minimize the right of non-candidate petitioners to post the tarpaulin in their
private property. The size of the tarpaulin does not affect anyone else’s constitutional rights.
SIXTH ISSUE: Yes.
The Court held that even though the tarpaulin is readily seen by the public, the
tarpaulin remains the private property of petitioners. Their right to use their property is
likewise protected by the Constitution.
Any regulation, therefore, which operates as an effective confiscation of private
property or constitutes an arbitrary or unreasonable infringement of property rights is void,
because it is repugnant to the constitutional guaranties of due process and equal protection of
the laws.
The Court in Adiong case held that a restriction that regulates where decals and
stickers should be posted is “so broad that it encompasses even the citizen’s private property.”
Consequently, it violates Article III, Section 1 of the Constitution which provides that no person
shall be deprived of his property without due process of law.
SEVENTH ISSUE: No.
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The Court held that the church doctrines relied upon by petitioners are not binding
upon this court. The position of the Catholic religion in the Philippines as regards the RH Law
does not suffice to qualify the posting by one of its members of a tarpaulin as religious speech
solely on such basis. The enumeration of candidates on the face of the tarpaulin precludes any
doubt as to its nature as speech with political consequences and not religious speech.
its own version known as Senate Bill 1630. Tolentino averred that what Senate could have
done is amend HB 11197 by striking out its text and substituting it with the text of SB 1630 in
that way “the bill remains a House Bill and the Senate version just becomes the text (only the
text) of the HB”. (It’s ironic however to note that Tolentino and co-petitioner Raul Roco even
signed the said Senate Bill.)

Doctrine of benevolent neutrality ISSUE: Whether or not the EVAT law is procedurally infirm.

With religion looked upon with benevolence and not hostility, benevolent neutrality
allows accommodation of religion under certain circumstances. Accommodations are
government policies that take religion specifically into account not to promote the
government’s favored form of religion, but to allow individuals and groups to exercise their
religion without hindrance. Their purpose or effect therefore is to remove a burden on, or
facilitate the exercise of, a person’s or institution’s religion.
As Justice Brennan explained, the “government may take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish.”
HELD: No. By a 9-6 vote, the Supreme Court rejected the challenge, holding that such
consolidation was consistent with the power of the Senate to propose or concur with
amendments to the version originated in the HoR. What the Constitution simply means,
according to the 9 justices, is that the initiative must come from the HoR. Note also that there
were several instances before where Senate passed its own version rather than having the HoR
version as far as revenue and other such bills are concerned. This practice of amendment by
substitution has always been accepted. The proposition of Tolentino concerns a mere matter
of form. There is no showing that it would make a significant difference if Senate were to adopt
his over what has been done.

Lemon test

A regulation is constitutional when:

1. It has a secular legislative purpose;

2. It neither advances nor inhibits religion; and

3. It does not foster an excessive entanglement with religion.

Arturo Tolentino vs Secretary of Finance

Arturo Tolentino et al are questioning the constitutionality of RA 7716 otherwise known as the
Expanded Value Added Tax (EVAT) Law. Tolentino averred that this revenue bill did not
exclusively originate from the House of Representatives as required by Section 24, Article 6 of
the Constitution. Even though RA 7716 originated as HB 11197 and that it passed the 3
readings in the HoR, the same did not complete the 3 readings in Senate for after the
1st reading it was referred to the Senate Ways & Means Committee thereafter Senate passed