jsabrido│Constitutional Law II
Chavez v Gonzales
Press Secretary Bunye told reporters that the opposition was planning to
destabilize the administration by releasing an audiotape of a mobile phone
conversation allegedly between President Arroyo, and a high-ranking official
of COMELEC. The conversation was audiotaped allegedly through wire-
tapping. Paguia subsequently released an alleged authentic tape recording of
the wiretap. Included in the tapes were purported conversations of the
President, the First Gentleman Jose Miguel Arroyo, COMELEC
Commissioner Garcillano, and the late Senator Barbers.
DOJ Secretary warned reporters that those who had copies of the
compact disc (CD) and those broadcasting or publishing its contents
could be held liable under the Anti-Wiretapping Act. These persons
included Secretary Bunye and Atty. Paguia. He also stated that persons
possessing or airing said tapes were committing a continuing offense,
subject to arrest by anybody who had personal knowledge if the crime
was committed or was being committed in their presence.
In another press briefing, 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. Gonzales said that he was going to start with Inq7.net because, by
the very nature of the Internet medium, it was able to disseminate the contents
of the tape more widely. He then expressed his intention of inviting the editors
and managers of Inq7.net and GMA7 to a probe.
The NTC likewise issued this press release:
NTC GIVES FAIR WARNING TO RADIO AND
TELEVISION OWNERS/OPERATORS TO OBSERVE
ANTI-WIRETAPPING LAW AND PERTINENT
CIRCULARS ON PROGRAM STANDARDS
The concerned radio and television companies are
hereby warned that their broadcast/airing of such false
information and/or willful misrepresentation shall be just
cause for the suspension, revocation and/or cancellation of
the licenses or authorizations issued to the said companies.
The [NTC] will not hesitate, after observing the requirements
of due process, to apply with full force the provisions of said
Circulars and their accompanying sanctions on erring radio
and television stations and their owners/operators.
Petitioner Chavez filed a petition against Secretary Gonzales and
the NTC. Alleging that the acts of respondents are violations of the freedom
on expression and of the press, and the right of the people to information on
matters of public concern, petitioner specifically asked the Court for the
nullification of acts, issuances, and orders of respondents committed or made
that curtail the publics rights to freedom of expression and of the press, and to
information on matters of public concern specifically in relation to
information regarding the controversial taped conversion of President Arroyo
and for prohibition of the further commission of such acts, and making of such
issuances, and orders by respondents.
Issue: WON the acts, issuances, and orders of respondents impermissible
constitute prior restraints to freedom of expression.
Held: Yes.
All speech are not treated the same. Some types of speech may
be subjected to some regulation by the State under its pervasive police power,
in order that it may not be injurious to the equal right of others or those of the
community or society. We have ruled, for example, that in our jurisdiction
slander or libel, lewd and obscene speech, as well as “fighting words” are not
entitled to constitutional protection and may be penalized.
Generally, restraints on freedom of speech and expression are
evaluated by either or a combination of three tests, i.e., (a) the dangerous
tendency doctrine which permits limitations on speech once a rational
connection has been established between the speech restrained and the danger
contemplated; 48 (b) the balancing of interests tests, used as a standard when
courts need to balance conflicting social values and individual interests, and
requires a conscious and detailed consideration of the interplay of interests
observable in a given situation of type of situation; 49 and (c) the clear and
present danger rule which rests on the premise that speech may be restrained
because there is substantial danger that the speech will likely lead to an evil
the government has a right to prevent. This rule requires that the evil
consequences sought to be prevented must be substantive, “extremely serious
and the degree of imminence extremely high.” 50
As articulated in our jurisprudence, we have applied either
the dangerous tendency doctrine or clear and present danger test to
resolve free speech challenges. More recently, we have concluded that we
have generally adhered to the clear and present danger test
Philippine jurisprudence, even as early as the period under the
1935 Constitution, has recognized four aspects of freedom of the press.
These are:
(1) freedom from prior restraint;
(2) freedom from punishment subsequent to publication;
(3) freedom of access to information; and
(4) freedom of circulation.
Considering that petitioner has argued that respondents press
statement constitutes a form of impermissible prior restraint, a closer scrutiny
of this principle is in order, as well as its sub-specie of content-based (as
distinguished from content-neutral) regulations.
Prior restraint refers to official governmental restrictions on the press or
other forms of expression in advance of actual publication or
dissemination. Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive, legislative or judicial
branch of the government. Thus, it precludes governmental acts that required
approval of a proposal to publish; licensing or permits as prerequisites to
publication including the payment of license taxes for the privilege to publish;
and even injunctions against publication. Even the closure of the business and
printing offices of certain newspapers, resulting in the discontinuation of
their printing and publication, are deemed as previous restraint or
censorship. Any law or official that requires some form of permission to
be had before publication can be made, commits an infringement of the
constitutional right, and remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility
against all prior restraints on speech, and any act that restrains speech is
presumed invalid, and any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed brows, it is
important to stress not all prior restraints on speech are invalid. Certain
previous restraints may be permitted by the Constitution, but determined
only upon a careful evaluation of the challenged act as against the appropriate
test by which it should be measured against. Hence, it is not enough to
determine whether the challenged act constitutes some form of restraint on
freedom of speech. A distinction has to be made whether the restraint is
(1) a content-neutral regulation, i.e., merely concerned with the
incidents of the speech, or one that merely controls the time, place or manner,
and under well defined standards; or
(2) a content-based restraint or censorship, i.e., the restriction is
based on the subject matter of the utterance or speech. The cast of the
restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral
regulation, only a substantial governmental interest is required for its
validity. Because regulations of this type are not designed to suppress any
particular message, they are not subject to the strictest form of judicial
scrutiny but an intermediate approach somewhere between the mere
rationality that is required of any other law and the compelling interest
standard applied to content-based restrictions. The test is
called intermediate because the Court will not merely rubberstamp the
validity of a law but also requires that the restrictions be narrowly-tailored to
promote an important or significant governmental interest that is unrelated to
the suppression of expression. The intermediate approach has been formulated
in this manner:
A governmental regulation is sufficiently justified if 1 it is within
the constitutional power of the Government, if 2 it furthers an
important or substantial governmental interest; if 3 the
governmental interest is unrelated to the suppression of free
expression; and if 4 the incident restriction is no greater than is
essential to the furtherance of that interest.
On the other hand, a governmental action that restricts freedom
of speech or of the press based on content is given the strictest scrutiny in
light of its inherent and invasive impact. Only when the challenged act has

overcome the clear and present danger rule will it pass constitutional
muster, with the government having the burden of overcoming the
presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-
based restraint will be struck down.
With respect to content-based restrictions, the government must
also show the type of harm the speech sought to be restrained would bring
about especially the gravity and the imminence of the threatened harm
otherwise the prior restraint will be invalid. Prior restraint on speech based on
its content cannot be justified by hypothetical fears, but only by showing a
substantive and imminent evil that has taken the life of a reality already
on ground. As formulated, the question in every case is whether the
words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and
degree.
The regulation which restricts the speech content must also
serve an important or substantial government interest, which is unrelated
to the suppression of free expression.
Also, the incidental restriction on speech must be no greater than
what is essential to the furtherance of that interest. A restriction that is so
broad that it encompasses more than what is required to satisfy the
governmental interest will be invalidated. The regulation, therefore, must be
reasonable and narrowly drawn to fit the regulatory purpose, with the least
restrictive means undertaken.
Thus, when the prior restraint partakes of a content-neutral
regulation, it is subjected to an intermediate review. A content-based
regulation,[73] however, bears a heavy presumption of invalidity and is
measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague.
The Case At Bar
Applying the foregoing, it is clear that the challenged acts in the
case at bar need to be subjected to the clear and present danger rule, as
they are content-based restrictions. The acts of respondents focused solely
on but one object a specific content fixed as these were on the alleged taped
conversations between the President and a COMELEC official. Undoubtedly
these did not merely provide regulations as to the time, place or manner of the
dissemination of speech or expression.
Having settled the applicable standard to content-based restrictions
on broadcast media, let us go to its application to the case at bar. To
recapitulate, 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.
This outlines the procedural map to follow in cases like the one at
bar as it spells out the following: (a) the test; (b) the presumption; (c) the
burden of proof; (d) the party to discharge the burden; and (e) the quantum of
evidence necessary. On the basis of the records of the case at bar, respondents
who have the burden to show that these acts do not abridge freedom of speech
and of the press failed to hurdle the clear and present danger test. It appears
that the great evil which government wants to prevent is the airing of a tape
recording in alleged violation of the anti-wiretapping law.
The records of the case at bar, however are confused and
confusing, and respondents evidence falls short of satisfying the clear and
present danger test.
Firstly, the various statements of the Press Secretary obfuscate the
identity of the voices in the tape recording.
Secondly, the integrity of the taped conversation is also suspect.
The Press Secretary showed to the public two versions, one supposed to be a
complete version and the other, an altered version.
Thirdly, the evidence of the respondents on the whos and the hows
of the wiretapping act is ambivalent, especially considering the tapes different
versions. The identity of the wire-tappers, the manner of its commission and
other related and relevant proofs are some of the invisibles of this case.
Fourthly, given all these unsettled facets of the tape, it is even
arguable whether its airing would violate the anti-wiretapping law.
We rule that not every violation of a law will justify
straitjacketing the exercise of freedom of speech and of the press.
Our laws are of different kinds and doubtless, some of them provide norms
of conduct which even if violated have only an adverse effect on a person’s
private comfort but do not endanger national security. There are laws of great
significance but their violation, by itself and without more, cannot support
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suppression of free speech and free press. In fine, violation of law is just a
factor, a vital one to be sure, which should be
weighed in adjudging whether to restrain freedom of speech and of the press.
The totality of the injurious effects of the violation to private and public
interest must be calibrated in light of the preferred status accorded by the
Constitution and by related international covenants protecting freedom of
speech and of the press.
In calling for a careful and calibrated measurement of the
circumference of all these factors to determine compliance with the clear and
present danger test, the Court should not be misinterpreted as
devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the
State for they breed their own evil consequence. But to repeat, the need to
prevent their violation cannot per se trump the exercise of
free speech and free press, a preferred right whose breach can lead to
greater evils. For this failure of the respondents alone to offer proof to satisfy
the clear and present danger test, the Court has no option but to uphold the
exercise of free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national
security of the State.
This is not all the fault line in the stance of the respondents. We
slide to the issue of whether the mere press statements of the Secretary of
Justice and of the NTC in question constitute a form of content-based prior
restraint that has transgressed the Constitution. In resolving this issue, we hold
that it is not decisive that the press statements made by respondents were
not reduced in or followed up with formal orders or circulars. It is
sufficient that the press statements were made by respondents while in
the exercise of their official functions. Undoubtedly, respondent Gonzales
made his statements as Secretary of Justice, while the NTC issued its
statement as the regulatory body of media. Any act done, such as a speech
uttered, for and on behalf of the government in an official capacity is
covered by the rule on prior restraint. The concept of an act does not
limit itself to acts already converted to a formal order or official
circular. Otherwise, the non-formalization of an act into an official order
or circular will result in the easy circumvention of the prohibition on
prior restraint. The press statements at bar are acts that should be struck
down as they constitute impermissible forms of prior restraints on the right to
free speech and press.
There is enough evidence of chilling effect of the complained acts
on record. The warnings given to media came from no less the NTC, a
regulatory agency that can cancel the Certificate of Authority of the radio and
broadcast media. They also came from the Secretary of Justice, the alter ego
of the Executive, who wields the awesome power to prosecute those perceived
to be violating the laws of the land. After the warnings, the KBP
inexplicably joined the NTC in issuing an ambivalent Joint Press Statement.
After the warnings, petitioner Chavez was left alone to fight this battle for
freedom of speech and of the press. This silence on the sidelines on the part of
some media practitioners is too deafening to be the subject of
misinterpretation.
Notes from the concurring opinion of Justice Carpio
The rule is that expression is not subject to any prior restraint or
censorship because the Constitution commands that freedom of expression
shall not be abridged. Over time, however, courts have carved out narrow and
well defined exceptions to this rule out of necessity.
The exceptions, when expression may be subject to prior
restraint, apply in this jurisdiction to only four categories of expression,
namely: pornography, false or misleading advertisement, advocacy of
imminent lawless action, and danger to national security. All other
expression is not subject to prior restraint. As stated in Turner
Broadcasting System v. Federal Communication Commission, "[T]he First
Amendment (Free Speech Clause), subject only to narrow and well
understood exceptions, does not countenance governmental control over the
content of messages expressed by private individuals.
Expression not subject to prior restraint is protected expression or
high-value expression. Any content-based prior restraint on protected
expression is unconstitutional without exception. A protected expression
means what it says – it is absolutely protected from censorship. Thus, there
can be no prior restraint on public debates on the amendment or repeal of
existing laws, on the ratification of treaties, on the imposition of new tax
measures, or on proposed amendments to the Constitution.
Prior restraint on expression is content-based if the restraint is
aimed at the message or idea of the expression. Courts will subject to strict
scrutiny content-based restraint. If the content-based prior restraint is directed
at protected expression, courts will strike down the restraint as

unconstitutional because there can be no content-based prior restraint on
protected expression. The analysis thus turns on whether the prior restraint is
content-based, and if so, whether such restraint is directed at protected
expression, that is, those not falling under any of the recognized categories of
unprotected expression.
If the prior restraint is not aimed at the message or idea of the
expression, it is content-neutral even if it burdens expression. A content-
neutral restraint is a restraint which regulates the time, place or manner of the
expression in public places without any restraint on the content of the
expression. Courts will subject content-neutral restraints to intermediate
scrutiny.
An example of a content-neutral restraint is a permit specifying the
date, time and route of a rally passing through busy public streets. A content-
neutral prior restraint on protected expression which does not touch on the
content of the expression enjoys the presumption of validity and is thus
enforceable subject to appeal to the courts. Courts will uphold time, place or
manner restraints if they are content-neutral, narrowly tailored to serve a
significant government interest, and leave open ample alternative channels of
expression.
Expression that may be subject to prior restraint is unprotected
expression or low-value expression. By definition, prior restraint on
unprotected expression is content-based since the restraint is imposed because
of the content itself. In this jurisdiction, there are currently only four
categories of unprotected expression that may be subject to prior restraint.
This Court recognized false or misleading advertisement as unprotected
expression only in October 2007.
Only unprotected expression may be subject to prior
restraint. However, any such prior restraint on unprotected expression must
hurdle a high barrier. First, such prior restraint is presumed
unconstitutional. Second, the government bears a heavy burden of proving the
constitutionality of the prior restraint.
Courts will subject to strict scrutiny any government action
imposing prior restraint on unprotected expression. The government action
will be sustained if there is a compelling State interest, and prior restraint is
necessary to protect such State interest. In such a case, the prior restraint shall
be narrowly drawn - only to the extent necessary to protect or attain the
compelling State interest.
Prior restraint is a more severe restriction on freedom of
expression than subsequent punishment. Although subsequent punishment
also deters expression, still the ideas are disseminated to the public. Prior
restraint prevents even the dissemination of ideas to the public.
While there can be no prior restraint on protected expression, such
expression may be subject to subsequent punishment, either civilly or
criminally. Thus, the publication of election surveys cannot be subject to prior
restraint, but an aggrieved person can sue for redress of injury if the survey
turns out to be fabricated.
If the unprotected expression warrants prior restraint, necessarily
the same expression is subject to subsequent punishment. There must be a law
punishing criminally the unprotected expression before prior restraint on such
expression can be justified. The legislature must punish the unprotected
expression because it creates a substantive evil that the State must prevent.
Otherwise, there will be no legal basis for imposing a prior restraint on such
expression.
The prevailing test in this jurisdiction to determine the
constitutionality of government action imposing prior restraint on three
categories of unprotected expression – pornography, advocacy of imminent
lawless action, and danger to national security - is the clear and present danger
test. The expression restrained must present a clear and present danger of
bringing about a substantive evil that the State has a right and duty to prevent,
and such danger must be grave and imminent.
Prior restraint on unprotected expression takes many forms - it may
be a law, administrative regulation, or impermissible pressures like threats of
revoking licenses or withholding of benefits. The impermissible pressures
need not be embodied in a government agency regulation, but may emanate
from policies, advisories or conduct of officials of government agencies.
Newsound Broadcasting v. Dy
Among the stations run by Newsounds is Bombo Radyo DZNC
Cauayan. Newsounds commenced relocation of its broadcasting stations,
management office and transmitters on property located in Cauayan City. The
property is used by Bombo Radyo stations throughout the country.
The Office of the Municipal Planning and Development
Coordinator of Cauayan also affirmed that the commercial structure to be
constructed by CDC conformed to local zoning regulations, noting as well that
the location is classified as a Commercial area. A building was consequently
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erected on the property, and therefrom, DZNC and Star FM operated as radio
stations.
Petitioners applied for the renewal of the mayor’s permit. It
formally requested the City Zoning Administrator to issue a zoning clearance
for the property. The City Administrator declined requiring the petitioners to
submit an approved land conversion papers from the Department of Agrarian
Reform (DAR) showing that the property was converted from prime
agricultural land to commercial land. Due to this refusal by Maximo to issue
the zoning clearance, petitioners were unable to secure a mayor’s permit.
Petitioners sought to obtain from the DAR a formal recognition of
the conversion of the CDC property from agricultural to commercial. The
DAR office granted. The City Administrator wrote to petitioners claiming that
the DAR Order was spurious or void. The City legal Officer closed the radio
stations.
Petitioners proceeded to file a petition with the COMELEC
seeking enforcement of the Omnibus Election Code, which prohibited the
closure of radio stations during the then-pendency of the election period.
Petitioners were thus able to continue operations until June 2004, the day
when respondents yet again closed the radio stations. This closure proved to
be more permanent.
Petitioners have taken great pains to depict their struggle as a
textbook case of denial of the right to free speech and of the press. In their
tale, there is undeniable political color. They admit that in 2001, Bombo
Radyo was aggressive in exposing the widespread election irregularities in
Isabela that appear to have favored respondent Dy and other members of the
Dy political dynasty. Respondent Ceasar Dy is the brother of Faustino Dy, Jr.,
governor of Isabela from 2001 until he was defeated in his re-election bid in
2004 by Grace Padaca, a former assistant station manager at petitioners own
DZNC Bombo Radyo. A rival AM radio station, DWDY, is owned and
operated by the Dy family. Petitioners likewise direct our attention to a 20
February 2004 article printed in the Philippine Daily Inquirer where Dy is
quoted as intending to file disenfranchisement proceedings against DZNC-
AM.
The following undisputed facts bring the issue of free expression to
fore. Petitioners are authorized by law to operate radio stations
in Cauayan City, and had been doing so for some years undisturbed by local
authorities. Beginning in 2002, respondents in their official capacities have
taken actions, whatever may be the motive, that have impeded the ability of
petitioners to freely broadcast, if not broadcast at all. These actions have
ranged from withholding permits to operate to the physical closure of those
stations under color of legal authority. While once petitioners were able to
broadcast freely, the weight of government has since bore down upon them to
silence their voices on the airwaves. An elementary school child with a basic
understanding of civics lessons will recognize that free speech animates these
cases.
Without taking into account any extenuating circumstances that
may favor the respondents, we can identify the bare acts of closing the
radio stations or preventing their operations as an act of prior restraint
against speech, expression or of the press. Prior restraint refers to official
governmental restrictions on the press or other forms of expression in advance
of actual publication or dissemination. While any system of prior restraint
comes to court bearing a heavy burden against its constitutionality, not all
prior restraints on speech are invalid.
ISSUE: WON the closure of the Bombo Radio stations constiture a prior
restraint to the freedom of expression.
HELD: YES
That the acts imputed against respondents constitute a prior
restraint on the freedom of expression of respondents who happen to be
members of the press is clear enough. There is a long-standing tradition of
special judicial solicitude for free speech, meaning that governmental action
directed at expression must satisfy a greater burden of justification than
governmental action directed at most other forms of behavior.] We had said
in SWS v. COMELEC: 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.
At the same time, jurisprudence distinguishes between a content-
neutral regulation, i.e., merely concerned with the incidents of the speech,
or one that merely controls the time, place or manner, and under well
defined standards; and a content-based restraint or censorship, i.e., the

restriction is based on the subject matter of the utterance or
speech. Content-based laws are generally treated as more suspect than
content-neutral laws because of judicial concern with discrimination in the
regulation of expression. Content-neutral regulations of speech or of conduct
that may amount to speech are subject to lesser but still heightened scrutiny.
Ostensibly, the act of an LGU requiring a business of proof that the
property from which it operates has been zoned for commercial use can be
argued, when applied to a radio station, as content-neutral since such a
regulation would presumably apply to any other radio station or business
enterprise within the LGU.
However, the circumstances of this case dictate that we view
the action of the respondents as a content-based restraint. In their petition
filed with the RTC, petitioners make the following relevant allegations:
a. DZNC (Bombo Radio) is engaged in discussing public
issues that include the conduct of public officials that are
detrimental to the constituents of Isabela. In view of its
wide coverage, DZNC has been a primary medium for
the exercise of the people of Isabela of their
constitutional right to free speech. Corollary, DZNC has
always been at the forefront of the struggle to maintain
and uphold freedom of the press, and the people’s
corollary right to freedom of speech, expression and
petition the government for redress of grievances.
b. Newsounds only rival AM station in Cauayan and the
rest of Isabela, DWDY, is owned and operated by the
family of respondent Dy.
Respondent’s closure of petitioner’s radio stations is
clearly tainted with ill motives. It must be pointed out
that in the 2001 elections, Bombo Radyo was aggressive
in exposing the widespread election irregularities in
Isabela that appear to have favored respondent Dy and
other members of the Dy political dynasty. It is just too
coincidental that it was only after the 2001 elections
(i.e., 2002) that the Mayor’s Office started
questioning petitioner’s applications for renewal of
their mayors permit.
c. In an article found in the Philippine Daily inquirer, Dy
was quoted as saying that he will disenfranchise the
radio station. Such statement manifests and confirms
that respondents denial of petitioner’s renewal
applications on the ground that the Property is
commercial is merely a pretext and that their real
agenda is to remove petitioners from Cauayan City
and suppress the latter’s voice. This is a blatant
violation of the petitioner’s constitutional right to press
freedom.
d. The timing of respondent’s closure of petitioner’s radio
stations is also very telling. The closure comes at a
most critical time when the people are set to exercise
their right of suffrage. Such timing emphasizes the ill
motives of respondents.
Prior to 2002, petitioners had not been frustrated in securing the
various local government requirements for the operation of their stations. It
was only in the beginning of 2002, after the election of respondent Ceasar
Dy as mayor of Cauayan, that the local government started to impose
these new requirements substantiating the conversion of CDCs property for
commercial use.
Petitioners admit that during the 2001 elections, Bombo Radyo
was aggressive in exposing the widespread election irregularities in Isabela
that appear to have favored Respondent Dy and other members of the Dy
political dynasty. Respondent’s efforts to close petitioner’s radio station
clearly intensified immediately before the May 2004 elections, where a
former employee of DZNC Bombo Radyo, Grace Padaca, was mounting a
credible and ultimately successful challenge against the incumbent
Isabela governor, who happened to be the brother of respondent Dy. It also
bears notice that the requirements required of petitioners by
the Cauayan City government are frankly beyond the pale and not
conventionally adopted by local governments throughout the Philippines.
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All those circumstances lead us to believe that the steps employed by
respondents to ultimately shut down petitioner’s radio station were
ultimately content-based. The facts confronting us now could have easily
been drawn up by a constitutional law professor eager to provide a plain
example on how free speech may be violated.
The Court is of the position that the actions of the respondents
warrant heightened or strict scrutiny from the Court, the test which we
have deemed appropriate in assessing content-based restrictions on free
speech, as well as for laws dealing with freedom of the mind or restricting the
political process, of laws dealing with the regulation of speech, gender, or race
as well as other fundamental rights as expansion from its earlier applications
to equal protection. The immediate implication of the application of the
strict scrutiny test is that the burden falls upon respondents as agents of
government to prove that their actions do not infringe upon petitioners
constitutional rights. As content regulation cannot be done in the absence of
any compelling reason, the burden lies with the government to establish such
compelling reason to infringe the right to free expression.
The application of the strict scrutiny analysis to petitioner’s claims
for provisional relief warrants the inevitable conclusion that the trial court
cannot deny provisional relief to the party alleging a prima facie case alleging
government infringement on the right to free expression without hearing from
the infringer the cause why its actions should be sustained provisionally. Such
acts of infringement are presumptively unconstitutional, thus the trial court
cannot deny provisional relief outright since to do so would lead to the
sustention of a presumptively unconstitutional act. It would be necessary for
the infringer to appear in court and somehow rebut against the presumption of
unconstitutionality for the trial court to deny the injunctive relief sought for in
cases where there is a prima facie case establishing the infringement of the
right to free expression.
The LGC authorizes local legislative bodies to enact ordinances
authorizing the issuance of permits or licenses upon such conditions and for
such purposes intended to promote the general welfare of the inhabitants of
the LGU. A municipal or city mayor is likewise authorized under the LGC to
issue licenses and permits and suspend or revoke the same for any violation of
the conditions upon which said licenses or permits had been issued, pursuant
to law or ordinance. Generally, LGUs have exercised its authority to require
permits or licenses from business enterprises operating within its territorial
jurisdiction.
A municipal license is essentially a governmental restriction upon
private rights and is valid only if based upon an exercise by the
municipality of its police or taxing powers.
Nothing in national law exempts media entities that also operate as
businesses such as newspapers and broadcast stations such as petitioners from
being required to obtain permits or licenses from local governments in the
same manner as other businesses are expected to do so. While this may lead to
some concern that requiring media entities to secure licenses or permits from
local government units infringes on the constitutional right to a free press, we
see no concern so long as such requirement has been duly ordained
through local legislation and content-neutral in character, i.e., applicable
to all other similarly situated businesses.
In the case of Cauayan City, the authority to require a mayor’s
permit was enacted through AN ordinance enacted in 1993 when Cauayan
was still a municipality. Petitioners do not challenge the validity of Ordinance
No. 92-004. On its face, it operates as a content-neutral regulation that does
not impose any special impediment to the exercise of the constitutional right
to free expression.
Nothing in the ordinance which requires, as respondents did,
that an applicant for a mayors permit submit either an approved land
conversion papers from the DAR showing that its property was converted
from prime agricultural land to commercial land, or an approved
resolution from the Sangguniang Bayan or Sangguniang
Panglungsod authorizing the re-classification of the property from
agricultural to commercial land. The aforecited provision which details the
procedure for applying for a mayors permit does not require any
accompanying documents to the application, much less those sought from
petitioners by respondents.
Assuming that respondents are correct that the property was
belatedly revealed as non-commercial, it could only mean that even the
HLURB, and not just the local government of Cauayan erred when in 1996 it
classified the property as commercial. Or, that between 1996 to 2002, the
property somehow was reclassified from commercial to agricultural. There is
neither evidence nor suggestion from respondents that the latter circumstance
obtained.

Soriano v. Laguardia
Petitioner, as host of the program Ang Dating Daan, aired on
UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di
ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito]
kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa
putang babae yan. Sabi ng lola ko masahol pa sa putang babae
yan. Sobra ang kasinungalingan ng mga demonyong ito.
After a preliminary conference the MTRCB preventively
suspended the showing of Ang Dating Daan program for 20 days. The same
order also set the case for preliminary investigation. Later, the MTRCB issued
a decision finding respondent Soriano liable for his utterances and thereby
imposing on him a penalty of three (3) months suspension from his program,
Ang Dating Daan.
ISSUE: WON the suspension of Ang Dating Daan infringes religious
freedom.
HELD: No
There is nothing in petitioner’s statements subject of the complaints
expressing any particular religious belief, nothing furthering his avowed
evangelical mission. The fact that he came out with his statements in a
televised bible exposition program does not automatically accord them the
character of a religious discourse. Plain and simple insults directed at another
person cannot be elevated to the status of religious speech.
ISSUE: WON the suspension is an abridgement of the freedom of speech and
expression and an impermissible prior restraint.
HELD: No
It is settled that expressions by means of newspapers, radio, television, and
motion pictures come within the broad protection of the free speech and
expression clause. Each method though, because of its dissimilar presence in
the lives of people and accessibility to children, tends to present its own
problems in the area of free speech protection, with broadcast media, of all
forms of communication, enjoying a lesser degree of protection. Just as settled
is the rule that restrictions, be it in the form of prior restraint, e.g., judicial
injunction against publication or threat of cancellation of license/franchise, or
subsequent liability, whether in libel and damage suits, prosecution for
sedition, or contempt proceedings, are censure to the freedom of
expression. The freedom of expression, as with the other freedoms encased in
the Bill of Rights, is, however, not absolute. It may be regulated to some
extent to serve important public interests, some forms of speech not being
protected. In the oft-quoted expression of Justice Holmes, the constitutional
guarantee obviously was not intended to give immunity for every possible
use of language.
Some forms of speech are not protected by the Constitution,
meaning that restrictions on unprotected speech may be decreed without
running afoul of the freedom of speech clause. A speech would fall under
the unprotected type if the utterances involved are no essential part of any
exposition of ideas, and are of such slight social value as a step of truth that
any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality.
Petitioner asserts that his utterance in question is a protected form
of speech.
The Court rules otherwise. It has been established in this
jurisdiction that unprotected speech or low-value expression refers to:
a. Libelous statements
b. Obscenity or pornography
c. False or misleading advertisement
d. Insulting or fighting words, i.e., those which by their very
utterance inflict injury or tend to incite an immediate breach
of peace and expression endangering national security.
The Court finds that petitioner’s statement can be treated as
obscene, at least with respect to the average child. Hence, it is, in that context,
unprotected speech. A patently offensive utterance would come within the
pale of the term obscenity should it appeal to the prurient interest of an
average listener applying contemporary standards.
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A cursory examination of the utterances complained of and the
circumstances of the case reveal that to an average adult, the utterances “Gago
ka talaga. Masahol ka pa sa putang babae. Yung putang babae ang gumagana
lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba!”
may not constitute obscene but merely indecent utterances. They can be
viewed as figures of speech or merely a play on words. In the context they
were used, they may not appeal to the prurient interests of an adult. The
problem with the challenged statements is that they were uttered in a TV
program that is rated G or for general viewership, and in a time slot that
would likely reach even the eyes and ears of children. While adults may
have understood that the terms thus used were not to be taken literally,
children could hardly be expected to have the same discernment. Without
parental guidance, the unbridled use of such language as that of petitioner in a
television broadcast could corrupt impressionable young minds.
Even if we concede that petitioner’s remarks are not obscene but
merely indecent speech, still the Court rules that petitioner cannot avail
himself of the constitutional protection of free speech. Said statements were
made in a medium easily accessible to children. With respect to the young
minds, said utterances are to be treated as unprotected speech.
The Court in Chavez elucidated on the distinction between
regulation or restriction of protected speech that is content-based and that
which is content-neutral. A content-based restraint is aimed at the contents
or idea of the expression, whereas a content-neutral restraint intends to
regulate the time, place, and manner of the expression under well-defined
standards tailored to serve a compelling state interest, without restraint
on the message of the expression. Courts subject content-based restraint
to strict scrutiny.
With the view we take of the case, the suspension MTRCB
imposed under the premises was, in one perspective, permissible
restriction. We make this disposition against the backdrop of the following
interplaying factors: First, the indecent speech was made via television, a
pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak, easily
reaches every home where there is a set and where children will likely be
among the avid viewers of the programs therein shown; second, the broadcast
was aired at the time of the day when there was a reasonable risk that children
might be in the audience; and third, petitioner uttered his speech on a G or for
general patronage rated program. The words petitioner used were, by any
civilized norm, clearly not suitable for children. Where a language is
categorized as indecent, as in petitioner’s utterances on a general-
patronage rated TV program, it may be readily proscribed as
unprotected speech.
A view has been advanced that unprotected speech refers only to
pornography, false or misleading advertisement, advocacy of imminent
lawless action, and expression endangering national security. But this list is
not, as some members of the Court would submit, exclusive or carved in
stone. As the Court has been impelled to recognize exceptions to the rule
against censorship in the past, this particular case constitutes yet another
exception, another instance of unprotected speech, created by the
necessity of protecting the welfare of our children. As unprotected speech,
petitioner’s utterances can be subjected to restraint or regulation.
Petitioner asserts that his utterances must present a clear and
present danger of bringing about a substantive evil the State has a right and
duty to prevent and such danger must be grave and imminent.
Petitioner’s invocation of the clear and present danger doctrine,
arguably the most permissive of speech tests, would not avail him any relief,
for the application of said test is uncalled for under the premises. The
doctrine, first formulated by Justice Holmes, accords protection for utterances
so that the printed or spoken words may not be subject to prior restraint or
subsequent punishment unless its expression creates a clear and present
danger of bringing about a substantial evil which the government has the
power to prohibit. Under the doctrine, freedom of speech and of press is
susceptible of restriction when and only when necessary to prevent grave
and immediate danger to interests which the government may lawfully
protect. As it were, said doctrine evolved in the context of prosecutions for
rebellion and other crimes involving the overthrow of government. The clear
and present danger rule has been applied to this jurisdiction. As a standard of
limitation on free speech and press, however, the clear and present danger test
is not a magic incantation that wipes out all problems and does away with
analysis and judgment in the testing of the legitimacy of claims to free speech
and which compels a court to release a defendant from liability the moment
the doctrine is invoked, absent proof of imminent catastrophic disaster. The
clear and present danger test does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.
To be sure, the clear and present danger doctrine is not the only
test which has been applied by the courts. The Court in several cases applied
the balancing of interests test.

The Court explained also in Gonzales v. COMELEC the balancing
of interests test:
When particular conduct is regulated in the interest of public order,
and the regulation results in an indirect, conditional, partial abridgment of
speech, the duty of the courts is to determine which of the two conflicting
interests demands the greater protection under the particular circumstances
presented. We must, therefore, undertake the delicate and difficult task to
weigh the circumstances and to appraise the substantiality of the reasons
advanced in support of the regulation of the free enjoyment of rights.
If, on balance, it appears that the public interest served by
restrictive legislation is of such nature that it outweighs the abridgment of
freedom, then the court will find the legislation valid. In short, the balance-
of-interests theory rests on the basis that constitutional freedoms are not
absolute, not even those stated in the free speech and expression clause, and
that they may be abridged to some extent to serve appropriate and important
interests. To the mind of the Court, the balancing of interest doctrine is
the more appropriate test to follow.
In the case at bar, petitioner used indecent and obscene language
and a three (3)-month suspension was slapped on him for breach of MTRCB
rules. In this setting, the assertion by petitioner of his enjoyment of his
freedom of speech is ranged against the duty of the government to protect and
promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments
raised by petitioner in support of his claim to free speech, the Court rules
that the governments interest to protect and promote the interests and
welfare of the children adequately buttresses the reasonable curtailment
and valid restraint on petitioners prayer to continue as program host of Ang
Dating Daan during the suspension period.
Ang Ladlad Party List v. COMELEC
The case has its roots in the COMELECs refusal to accredit Ang Ladlad as a
party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-
List System Act.
Incorporated in 2003, Ang Ladlad first applied for registration with
the COMELEC in 2006. The application for accreditation was denied on the
ground that the organization had no substantial membership base. On August
17, 2009, Ang Ladlad again filed a Petition for registration. COMELEC
(Second Division) dismissed the Petition on moral grounds stating that Petitioner
tolerates immorality which offends religious beliefs and will be exposing our youth to an
environment that does not conform to the teachings of our faith.
ISSUE: WON the denial of Ang Ladlad’s application for accreditation by the
COMELEC constitutes impermissible restraint on freedom of speech.
HELD: Yes
Absent any compelling state interest, it is not for the COMELEC or this
Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly
not free to interfere with speech for no better reason than promoting an approved
message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual
conduct is not illegal in this country. It follows that both expressions concerning ones
homosexuality and the activity of forming a political association that supports LGBT
individuals are protected as well.
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that
view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal
fervor that relationships between individuals of the same sex are morally equivalent to
heterosexual relationships. They, too, are entitled to hold and express that view.
The OSG argues that since there has been neither prior restraint nor
subsequent punishment imposed on Ang Ladlad, and its members have not been
deprived of their right to voluntarily associate, then there has been no restriction on their
freedom of expression or association. The OSG argues that there was no utterance
restricted, no publication censored, or any assembly denied. COMELEC simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral
party applying to participate in the party-list system. This lawful exercise of duty cannot
be said to be a transgression of Section 4, Article III of the Constitution. A denial of the
petition for registration does not deprive the members of the petitioner to freely take part
in the conduct of elections. Their right to vote will not be hampered by said denial. In
fact, the right to vote is a constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends
that the denial of Ang Ladlad’s petition has the clear and immediate effect of limiting, if
not outrightly nullifying the capacity of its members to fully and equally participate in
public life through engagement in the party list elections. OSG argues that this argument
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is puerile. The holding of a public office is not a right but a privilege subject to limitations
imposed by law.
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and as advanced by the OSG itself the
moral objection offered by the COMELEC was not a limitation imposed by law. To the
extent, therefore, that the petitioner has been precluded, because of COMELECs
action, from publicly expressing its views as a political party and participating on
an equal basis in the political process with other equally-qualified party-list
candidates, we find that there has, indeed, been a transgression of petitioner’s
fundamental rights.
Garcia v. Manrique
The instant case stemmed from an article in Luzon Tribune, a
newspaper of general circulation wherein respondent Manrique is the
publisher/editor, which allegedly contained disparaging statements against the
Supreme Court.
The petitioner, Governor Garcia, alleged that the subject article
undermines the people’s faith in the Supreme Court due to blunt allusion that
they employed bribery in order to obtain relief from the Court, particularly in
obtaining a temporary restraining order. The pertinent portions of the article
which was entitled, "TRO ng Korte Suprema binayaran ng P 20-M?" and
published in the January 14 to 20, 2009 issue of the Luzon Tribune, are
reproduced as follows:
Bukod sa mga kontrobersiya na bumabalot ngayon sa Korte
Suprema dahil sa isyu ng umano’y pagpapatalsik kay Chief Justice
Renato Puno, hindi maalis sa isip ng ilang Bataeño ang
pagtatanong kung totoo nga kayang binayaran ng kampo ni
Bataan Governor Enrique Garcia, Jr. ang isa o ilang Mahestrado
ng Korte upang mag-isyu ng Temporary Restraining Order ang
Korte na humarang sa implementasyon ng anim na buwang
suspensyon ng Punong Lalawigan.
Marami umano ang nagdududa kung papaano nakakuha ng TRO
si Garcia gayung malinaw na ang kaso ay kasalukuyang dinidinig
noon ng Court of Appeals. Ito umano ay paglabag sa tinatawag na
Forum Shopping.
Dalawang Division ng Court of Appeals ang tumanggi na dinggin
ang petisyon ni Garcia para sa TRO hanggang sa dininig ito ng
isang division. Nagpadala ng liham ang Court of Appeals sa mga
magkakatunggaling partido upang simulang dinggin ang kaso.
Nakapagtataka umano kung bakit hindi ito binigyang galang ng
Korte Suprema.
Nang inilabas ng Korte ang TRO, malinaw na naihain na ang
suspension order kay Garcia ng DILG kaya’t opisyal ng epektibo
ang suspensyon. Ano pa ba kaya ng na-TRO gayung sinisimulan
na ni Garcia ang kanyang suspensyon.
May mga nagsasabing binayaran umano ng hanggang sa P20-
Milyon ang isang mahestrado ng Korte upang pagbigyan ang
kahilingan ni Garcia.
Madiin naman itong itinanggi ni Garcia at nagsabing hindi dapat
bahiran ng dumi ang Korte Suprema at dapat igalang ang
desisyon nito.
Gayunpaman, marami ang nagtataka at laging nakakakuha ng
TRO sa Korte Suprema si Garcia lalu na sa mga mahahalagang
kasong kanyang hinaharap.
Ang kompiyansa ni Garcia umano ay kitang-kita sa mga miting
kung saan siya ay nagsasalita na kayang-kaya niyang lusutan ang
lahat ng mga kaso niya at maging kung mayroon pang kasunod na
mga kaso na isasampa sa kanya.
Kaya naman hindi maalis ng ilan ang magduda na ang taong gipit
sa kaso ay maaaring magbayad ng milyung-milyon piso upang
 jsabrido│Constitutional Law II
upuan ng Korte Suprema ang kaso at manatiling habang buhay strengthening judicial independence, which are the expected products of the
ang TRO. guaranties of free speech and press, the irresponsible exercise of these rights
wounds democracy and leads to division.
Manrique alleged that there was nothing malicious or defamatory
in his article since he only stated the facts or circumstances which attended the
issuance of the TRO. He likewise denied that he made any degrading remarks
against the Supreme Court and claimed that the article simply posed academic
questions. If the article ever had a critical undertone, it was directed against
the actions of the petitioners, who are public officers, and never against the
Supreme Court. At any rate, he asseverated that whatever was stated in his
article is protected by the constitutional guaranties of free speech and press

ISSUE: WON the contents of Manrique’s article would constitute indirect

contempt under Section 3(d), Rule 71 of the Rules of Court which reads any
improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice.

HELD: YES

The power to punish for contempt does not render the courts
impenetrable to public scrutiny nor does it place them beyond the scope of
legitimate criticism. Every citizen has the right to comment upon and criticize
the actuations of public officers and such right is not diminished by the fact
that the criticism is aimed at judicial authority. It is the cardinal condition of
all such criticisms however that it shall be bona fide, and shall not spill the
walls of decency and propriety. Intemperate and unfair criticism is a gross
violation of the duty to respect courts and therefore warrants the wielding of
the power to punish for contempt.

Two kinds of publication which are punishable with contempt:

First, that which tends to impede, obstruct, embarrass or

influence the courts in administering justice in a pending suit or
proceeding.

Second, that which tends to degrade the courts and to destroy

public confidence in them or that which tends to brings them in any way
into disrepute.

We find the subject article illustrative of the second kind of

contemptuous publication for insinuating that this Court’s issuance of TRO
was founded on an illegal cause. The glaring innuendos of illegality in the
article is denigrating to the dignity of this Court and the ideals of fairness and
justice that it represents. It is demonstrative of disrespect not only for this
Court, but also for the judicial system as a whole, tends to promote
distrust and undermines public confidence in the judiciary by creating
the impression that the Court cannot be trusted to resolve cases
impartially. Manrique’s article has transgressed the ambit of fair criticism
and depicted a legitimate action of this Court as a reciprocated
accommodation of the petitioners’ interest. Contrary to Manrique’s claim of
objectivity, his article contained nothing but baseless suspicion and aspersion
on the integrity of this Court, calculated to incite doubt on the mind of its
readers on the legality of the issuance. It did not simply dwell on the propriety
of the issuance on the basis of some sound legal criteria nor did it simply
blame this Court of an irregularity in the discharge of duties but of committing
the crime of bribery. The article insinuated that processes from this Court may
be obtained for reasons other than that their issuance is necessary to the
administration of justice. To suggest that the processes of this Court can be
obtained through underhand means or that their issuance is subject to
negotiation and that members of this Court are easily swayed by money is a
serious affront to the integrity of the highest court of the land. Such
imputation smacks of utter disrespect to this Court and such temerity is
deserving of contempt.

Malicious publications cannot seek the protection of the constitutional

guaranties of free speech and press. Manrique tries to invoke the protection
of the constitutional guaranties of free speech and press, albeit unpersuasively,
to extricate himself from liability. However, said constitutional protection is
not a shield against scurrilous publications, which are heaved against the
courts with no apparent reason but to trigger doubt on their integrity based on
some imagined possibilities. Contrary to nourishing democracy and