FREEDOM OF EXPRESSION
1. G.R. No. 168338 February 15, 2008 (545 SCRA 441)
CHAVEZ vs. GONZALES,
Q: Sometime before 6 June 2005, the radio station DZMM aired the
Garci Tapes where the parties to the conversation discussed "rigging"
the results of the 2004 elections to favor President Arroyo. On 6 June
2005, Presidential spokesperson Ignacio Bunye (Bunye) held a press
conference in Malacañang Palace, where he played before the
presidential press corps two compact disc recordings of conversations
between a woman and a man. Bunye identified the woman in both
recordings as President Arroyo but claimed that the contents of the
second compact disc had been "spliced" to make it appear that President
Arroyo was talking to Garcillano.
On 11 June 2005, the NTC issued a press release warning radio and
television stations that airing the Garci Tapes is a "cause for the
suspension, revocation and/or cancellation of the licenses or
authorizations" issued to them.5 On 14 June 2005, NTC officers met with
officers of the broadcasters group, Kapisanan ng mga Broadcasters sa
Pilipinas (KBP), to dispel fears of censorship. Were the rights to
freedom of expression and of the press, and the right of the people
to information on matters of public concern violated by such
warning?
A: YES. [[Said rights were violated applying clear and present danger
test. The challenged acts need to be subjected to a clear and present
danger rule, as they are content-based restriction. Public discussion on
the sanctity of the ballot is indisputably a protected expression that
cannot be subject to prior restraint. 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.]]
Furthermore, if ever there is a hierarchy of protected expressions,
political expression would occupy the highest rank. The rule, which
recognizes no exception, is that there can be no content-based prior
restraint on protected expression.
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. 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 Prior restraint on expression is content-based if the restraint
is aimed at the message or idea of the expression.
The public airing of the Garci Tapes is a protected expression because it
does not fall under any of the four existing categories of unprotected
expression recognized in this jurisdiction. The airing of the Garci Tapes
is essentially a political expression because it exposes that a presidential
candidate had allegedly improper conversations with a COMELEC
Commissioner right after the close of voting in the last presidential
elections. The content of the Garci Tapes affects gravely the sanctity of
the ballot.
Public discussion on the sanctity of the ballot is indisputably a protected
expression that cannot be subject to prior restraint. Public discussion on
the credibility of the electoral process is one of the highest political
expressions of any electorate, and thus deserves the utmost protection.
2. DISINI vs. The Secretary of Justice
G.R. No. 203335, 2014
Q: The case arises out of consolidated petitions to the Supreme Court of
the Philippines on the constitutionality of several provisions of
the Cybercrime Prevention Act of 2012, Act No. 10175. The Petitioners
argued that even though the Act is the government’s platform in
combating illegal cyberspace activities, 21 separate sections of the Act
violate their constitutional rights, particularly the right to freedom of
expression and access to information. In February 2013, the Supreme
Court extended the duration of a temporary restraining order against the
government to halt enforcement of the Act until the adjudication of the
issues. Is the provisions of the Cybercrime Prevention Act of 2012
violates the Right to freedom of expression?
A: YES. Among 21 challenged sections, the Supreme Court of
Philippines declared Sections 4(c)(3), 12, and 19 of the Cybercrime
Prevention Act of 2012 as unconstitutional. It held that Section 4(c)(3)
violated the right to freedom of expression by prohibiting the electronic
transmission of unsolicited commercial communications.
Section 4(c)(3) prohibits the transmission of unsolicited commercial
electronic communications, commonly known as spams, that seek to
advertise, sell, or offer for sale of products and services unless the
recipient affirmatively consents, or when the purpose of the
communication is for service or administrative announcements from the
sender to its existing users, or “when the following conditions are
present:
(a) The commercial electronic communication contains a
simple, valid, and reliable way for the recipient to reject receipt
of further commercial electronic messages (opt-out) from the
same source;
(b) The commercial electronic communication does not
purposely disguise the source of the electronic message; and
(c) The commercial electronic communication does not
purposely include misleading information in any part of the
message in order to induce the recipients to read the
message.”
The government argued that unsolicited commercial communications
amount to both nuisance and trespass because they tend to
interfere with the enjoyment of using online services and that they enter
the recipient’s domain without prior permission.
The Court first noted that spams are a category of commercial
speech, which does not receive the same level of protection as other
constitutionally guaranteed forms of expression ,”but is nonetheless
entitled to protection.” It ruled that the prohibition on transmitting
unsolicited communications “would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him.” Hence, the
Court declared Section4(c)(3) as unconstitutional.
3. Osmeña v COMELEC
288 SCRA 447
Q: Petitioners are candidates for public office in the forthcoming
elections. Petitioner Osmeña is candidate for President of the
Philippines, while petitioner Pablo P. Garcia is governor of Cebu
Province, seeking reelection. This is a petition for prohibition, seeking a
reexamination of the validity of 11(b) of R.A. No. 6646, the Electoral
Reforms Law of 1987, which prohibits mass media from selling or giving
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free of charge print space or air time for campaign or other political
purposes, except to the Commission on Elections.
The law actually fails to provide the equal opportunity for every
candidate. Poor candidates lost their only affordable medium (mass
media), while their richer and more affluent rivals have other means
outside the mass media to reach out to the voters. Does Section 11B of
RA 6646 violates freedom of expression?
A: NO. The Court upheld the validity of 11(b) of R.A. No. 6646. The
provision is content neutral and regulatory. The infringement of the
freedom of speech is to merely incidental to further such interest, and the
interest that the state wants to protect is greater than the infringement of
speech or expression. The freedom of speech is not totally suppressed
but only regulated. The argument regarding the right to information is
found in the dissent of Justice Panganiban. He believes that the media is
the most effective mode of the candidates to educate their voters. The
people must be accorded every access to information without much
effort and expense on their part.
Clearly, it is inappropriate as a test for determining the constitutional
validity of laws which, like 11(b) of R.A. No. 6646, are not concerned with
the content of political ads but only with their incidents. To apply the
clear-and-present-danger test to such regulatory measures would be like
using a sledgehammer to drive a nail when a regular hammer is all that
is needed.
Applying the OBrien test in this case, we find that 11(b) of R.A. No. 6646
is a valid exercise of the power of the State to regulate media of
communication or information for the purpose of ensuring equal
opportunity, time and space for political campaigns; that the
regulation is unrelated to the suppression of speech; that any
restriction on freedom of expression is only incidental and no more
than is necessary to achieve the purpose of promoting equality.
4. G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN
PUBLISHING CORPORATION vs. COMMISSION ON ELECTIONS
Topic: Political Speech
Q: Social Weather Station (SWS) questions COMELEC Resolution
9674 requiring them to disclose the names of commissioners and/or
payors of election surveys on the ground that it is a curtailment of free
speech. Decide.
A: SWS is wrong. The names of those who commission or pay for
election surveys, including subscribers of survey firms, must be
disclosed pursuant to Section 5.2(a) of the Fair Election Act. This
requirement is a valid regulation in the exercise of police power and
affects the constitutional policy of guaranteeing equal access to
opportunities for public service. Section 5.2(a)’s requirement of
disclosing subscribers neither curtails petitioners’ free speech rights nor
violates the constitutional proscription against the impairment of
contracts. Concededly, what is involved here is not election propaganda
per se. Election surveys, on their face, do not state or allude to preferred
candidates. When published, however, the tendency to shape voter
preferences comes into play. In this respect, published election surveys
partake of the nature of election propaganda. It is then declarative
speech in the context of an electoral campaign properly subject to
regulation. Hence, Section 5.2 of the Fair Election Act’s regulation of
published surveys. It is settled that constitutionally declared principles
are a compelling state interest. Here, we have established that the
regulation of election surveys effects the constitutional policy, articulated
in Article II, Section 26, and reiterated and affirmed in Article IX-C,
Section 4 and Article XIII, Section 26 of the 1987 Constitution, of
guaranteeing equal access to opportunities for public service. While it
does regulate expression (i.e., petitioners’ publication of election
surveys), it does not go so far as to suppress desired expression. There
is neither prohibition nor censorship specifically aimed at election
surveys. The freedom to publish election surveys remains. All Resolution
No. 9674 does is articulate a regulation as regards the manner of
publication, that is, that the disclosure of those who commissioned
and/or paid for, including those subscribed to, published election surveys
must be made.
5. G.R. No. 205357,
GMA Network v. COMELEC
Sept. 2, 2014
Topic: Captive-Audience Doctrine
Q: COMELEC Resolution No. 9615 deviated from the previous
COMELEC resolutions relative to the airtime limitations on political
advertisements. It computes the airtime on an aggregate basis involving
all the media of broadcast communications compared to the past where
it was done on a per station basis. The result of which is the reduction of
the allowable minutes within which candidates and political parties would
be able to campaign through the air. Did COMELEC commit grave
abuse of discretion in issuing said resolution?
A: YES. The assailed rule on “aggregate-based” airtime limits is
unreasonable and arbitrary as it unduly restricts and constrains the
ability of candidates and political parties to reach out and communicate
with the people. Here, the adverted reason for imposing the “aggregate
based” airtime limits – leveling the playing field – does not constitute a
compelling state interest which would justify such a substantial restriction
on the freedom of candidates and political parties to communicate their
ideas, philosophies, platforms and programs of government. And, this is
specially so in the absence of a clear-cut basis for the imposition of such
a prohibitive measure. In this particular instance, what the COMELEC
has done is analogous to letting a bird fly after one has clipped its wings.
It is also particularly unreasonable and whimsical to adopt the
aggregate-based time limits on broadcast time when we consider that
the Philippines is not only composed of so many islands.
There are also a lot of languages and dialects spoken among the
citizens across the country. Accordingly, for a national candidate to really
reach out to as many of the electorates as possible, then it might also be
necessary that he conveys his message through his advertisements in
languages and dialects that the people may more readily understand and
relate to. To add all of these airtimes in different dialects would greatly
hamper the ability of such candidate to express himself – a form of
suppression of his political speech. COMELEC itself states that
“[t]elevision is arguably the most cost-effective medium of dissemination.
Even a slight increase in television exposure can significantly boost a
candidate's popularity, name recall and electability.” If that be so, then
drastically curtailing the ability of a candidate to effectively reach out to
the electorate would unjustifiably curtail his freedom to speak as a
means of connecting with the people.
Finally on this matter, it is pertinent to quote what Justice Black wrote in
his concurring opinion in the landmark Pentagon Papers case: “In the
First Amendment, the Founding Fathers gave the free press the
protection it must have to fulfill its essential role in our democracy. The
press was to serve the governed, not the governors. The Government's
power to censor the press was abolished so that the press would remain
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forever free to censure the Government. The press was protected so that
it could bare the secrets of government and inform the people. Only a
free and unrestrained press can effectively expose deception in
government.”
6. G.R. No. 205728
Diocese of Bacolod vs. COMELEC
Jan. 21, 2015
Topic: Political Speech
Q: Diocese of Bacolod posted 2 tarpaulins within its compound stating its
opposition on RH law, with the message “IBASURA RH LAW” and another
entitled “CONSCIENCE VOTE WITH THE LIST OF CANDIDATES
CATEGORIZING TEAM BUHAY AND TEAM PATAY” with a check mark and
“X” mark. A TRO was issued by the COMELEC to remove the said tarpaulins.
The petitioners argued that COMELEC’s notice for the removal of the “TEAM
PATAY” and “TEAM BUHAY” tarpaulins, which classified senatorial candidates
according to their respective votes on the Reproductive Health (RH) Law,
violate their fundamental right to freedom of expression. COMELEC, on the
other hand, contended that the tarpaulins, each measuring 6x10 feet, are
election propaganda subject to their regulation pursuant to their mandate under
Article IX-C, Section 4 of the Constitution. Thus, the assailed notice ordering
their removal for being oversized by reason that campaign materials for the
elections may only measure 2x3 feet is valid and constitutional. Is the
contention of the COMELEC valid?
A: NO. The tarpaulin primarily advocates a stand on a social issue; only
secondarily-even almost incidentally-will cause the election or non-
election of a candidate. It is not election propaganda as its messages are
different from the usual declarative messages of candidates. The
tarpaulin is an expression with political consequences, and "this court's
construction of the guarantee of freedom of expression has always been
wary of censorship or subsequent punishment that entails evaluation of
the speaker's viewpoint or the content of one's speech." The twin
tarpaulins consist of a social advocacy, and the regulation, if applied in
this case, fails the reasonability test. Reasonability Test is a
measurement that is used to determine how valid an action or process
is.
Furthermore, the COMELEC violated the Right to Freedom of
Expression. Petitioners are not candidates. They are asserting their right
to freedom of expression. Nothing less than the electorate's political
speech will be affected by the restrictions imposed by COMELEC.
COMELEC's notice and letter affect preferred speech. Citizens who wish
to express their views regarding the election and other related issues
may choose not to, for fear of reprisal or sanction by the COMELEC.
7. G.R. No. 206020
1-United Transport Koalisyon v. COMELEC
April 14, 2015
Topic: Captive-Audience Doctrine
Q: In 2013, Comelec promulgated Resolution No. 9615, which
provided for the rules im p le m en t in g R. A. N o. 9006 in
co n ne ction w ith the Ma y 1 3 , 2 01 3 na t io n al a nd local
elections and subsequent elections. One of the sections enumerates
the prohibited forms of election propaganda including the posting of any
election campaign or propaganda material in public utility vehicles
such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs
and tricycles, whether motorized or not, and within the premises of
public transport terminals, such as bus terminals, airports, seaports,
docks, piers, train stations, and the like. i) Is there a violation of the
Right to Free speech of the owners of PUVs and Transport
Terminals? ii) Does Section 7 of Resolution No. 9615 are not
justified under the captive-audience doctrine?
A: i. YES. Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 unduly infringe on the fundamental right of the
people to freedom of speech. Central to the prohibition is the freedom of
individuals, i.e., the owners of PUVs and private transport terminals, to
express their preference, through the posting of election campaign
material in their property, and convince others to agree with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an
election campaign material during an election period in PUVs and
transport terminals carries with it the penalty of revocation of the public
utility franchise and shall make the owner thereof liable for an election
offense. The prohibition constitutes a clear prior restraint on the right to
free expression of the owners of PUVs and transport terminals. As a
result of the prohibition, owners of PUVs and transport terminals are
forcefully and effectively inhibited from expressing their preferences
under the pain of indictment for an election offense and the revocation of
their franchise or permit to operate.
ii. YES. It is not justified under the captive-audience doctrine. The
COMELEC further points out that PUVs and transport terminals hold a
"captive audience" - commuters who have no choice but be subjected to
the blare of political propaganda. The COMELEC further claims that
while owners of privately owned PUVs and transport terminals have a
right to express their views to those who wish to listen; they have no right
to force their message upon an audience incapable of declining to
receive it.
The captive-audience doctrine states that when a listener cannot, as a
practical matter, escape from intrusive speech, the speech can be
restricted. It recognizes that a listener has a right not to be exposed to an
unwanted message in circumstances in which the communication cannot
be avoided. A regulation based on the captive-audience doctrine is in the
guise of censorship, which undertakes selectively to shield the public
from some kinds of speech on the ground that they are more offensive
than others. Such selective restrictions have been upheld only when the
speaker intrudes on the privacy of the home or the degree of captivity
makes it either impossible or impractical for the unwilling viewer or
auditor to avoid exposure. Thus, a government regulation based on the
captive-audience doctrine may not be justified if the supposed “captive
audience” may avoid exposure to the otherwise intrusive speech.
8. G.R. No. 178552
Southern Hemisphere Engagement Network, Inc. vS. Anti-
Terrorism Council
Oct. 5, 2010
Topic: Overbreadth Doctrine
Following the effectivity of RA 9372 on July 15, 2007, petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization,
and Atty. Soliman Santos, Jr. filed a petition for certiorari and prohibition
of RA 9372. Petitioners Southern Hemisphere Engagement Network and
Atty. Soliman Santos Jr. also conveniently state that the issues they
raise are of transcendental importance, "which must be settled early" and
are of "far-reaching implications," without mention of any specific
provision of RA 9372 under which they have been charged, or may be
charged. Mere invocation of human rights advocacy has nowhere been
held sufficient to clothe litigants with locus standi.
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 FREEDOM OF EXPRESSION
It bears to stress that generalized interests, albeit accompanied by the
assertion of a public right, do not establish locus standi. However,
Petitioners fail to present an actual case or controversy. Petitioners
assail for being intrinsically vague and impermissibly broad the definition
of the crime of terrorism under RA 9372 in that terms like “widespread
and extraordinary fear and panic among the populace” and “coerce the
government to give in to an unlawful demand” are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.
Can the Human Security Act of 2007 be facially challenged on the
grounds of vagueness and over breadth doctrines?
A: No. A facial invalidation of a statute is allowed only in free speech
cases, wherein certain rules of constitutional litigation are rightly
excepted. In Estrada vs. Sandiganbayan, it was stated that facial
challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible”chilling effect” upon protected speech.
The possible harm to society in permitting some unprotected speech to
go unpunished is outweighed by the possibility that the protected speech
of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes. This
rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
9. G.R. No. 173034
Pharmaceutical and Health Care Association of the
Philippines vs. Duque
Oct. 9, 2007
Topic: Commercial Speech
Q: EO 51 (Milk Code) was issued by President Chris Bautista on
October 28, 1986 by virtue of the legislative powers granted to the
President under the Freedom Constitution. On May 15, 2006, the DOH
issued Revised Implementing Rules and Regulations (RIRR) which was
to take effect on July 7, 2006. The Association of Healthcare Workers
claimed that the Milk Code only regulates and does not impose
unreasonable requirements for advertising and promotion while RIRR
imposes an absolute ban on such activities for breastmilk substitutes
intended for infants from 0-24 months old or beyond, and forbids the use
of health and nutritional claims. Were the labeling requirements and
advertising regulations under the RIRR valid?
A: YES. Sec. 13 on “total effect” and Sec. 26 of Rule VII of the RIRR
contain some labeling requirements, specifically: a) that there be a
statement that there is no substitute to breast milk; and b) that there be a
statement that powdered infant formula may contain pathogenic
microorganisms and must be prepared and used appropriately. Sec. 16
of the RIRR prohibits all health and nutrition claims for products within
the scope of the Milk Code, such as claims of increased emotional and
intellectual abilities of the infant and young child. These provisions of the
Milk Code expressly forbid information that would imply or create a belief
that there is any milk product equivalent to breast milk or which is
humanized or maternalized, as such information would be inconsistent
with the superiority of breastfeeding. Thus, the RIRR is a reasonable
means of enforcing the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in the Milk Code.
10. G.R. No. 169838
Bayan Karapatan v. Ermita
April 25, 2006
Q: The rally was scheduled to proceed along España Avenue in front of
the University of Santo Tomas and going towards Mendiola bridge.
Police officers blocked them along Morayta Street and prevented them
from proceeding further. They were then forcibly dispersed, causing
injuries on one of them. Three other rallyists were arrested. Bayan, et al.,
alleged that they are citizens and taxpayers of the Philippines and that
their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by
policemen implementing Batas Pambansa (B.P.) No. 880. Petitioners
contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights
and other human rights treaties of which the Philippines is a signatory.
They argue that B.P. No. 880 requires a permit before one can stage a
public assembly regardless of the presence or absence of a clear and
present danger. It also curtails the choice of venue and is thus repugnant
to the freedom of expression clause as the time and place of a public
assembly form part of the message for which the expression is sought.
Furthermore, it is not content-neutral as it does not apply to mass actions
in support of the government. The words “lawful cause,” “opinion,”
“protesting or influencing” suggest the exposition of some cause not
espoused by the government. Also, the phrase “maximum tolerance”
shows that the law applies to assemblies against the government
because they are being tolerated. As a content-based legislation, it
cannot pass the strict scrutiny test. Is the requirement of a permit
before holding a rally curtails the right to peacefully assemble and
petition the government for redress of grievances?
A: NO. BP 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place, and manner of the
assemblies. Furthermore, the permit can only be denied on the ground of
clear and present danger to public order, public safety, public
convenience, public morals, or public health. This is a recognized
exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on Civil and
Political Rights. However, because the rule on the establishment of
freedom parks was not followed, the court declared that after 30 days
from the finality of the decision, no prior permit may be required for the
exercise of holding public assemblies in any public park or plaza of a city
or municipality until that city or municipality shall have complied with the
institution of a freedom park. For without such alternative forum, to deny
the permit would in effect be to deny the right. Advance notices should,
however, be given to authorities to ensure proper coordination and
orderly proceedings.
BP 880 is constitutional. It does not curtail or unduly restrict the freedom.
It merely regulates the use of public places as to the time, place and
manner of assemblies. Far from being insidious, “maximum tolerance” is
for the benefit of the rallyists, not the government. The delegation to the
mayors of the power to issue rally “permits” is valid because it is subject
to the constitutionally sound “clear and present danger” standard. The
first point to mark is that the right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of expression,
and of the press, a right that enjoys primacy in the realm of constitutional
protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be
meaningless and unprotected.
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11. GR No. 175241
IBP vs. Atienza
Feb. 24, 2010
Topic: Clear and present danger
Q: The Integrated Bar of the Philippines, thru its president Jose Anselmo
Cadiz filed a letter application for a permit to rally at the foot of Mendiola
Bridge on June 22, 2006 from 2:30 to 5:30 PM, before the Office of the
City Mayor of Manila, Mayor Jose Atienza. The latter granted a permit
but changed the venue to Plaza Miranda, which permit the IBP received
on June 19, 2006. The IBP, Attys. Harry Roque, Joel Butuyan, and
Anselmo Cadiz then filed a petition for certiorari with the Court of Action.
Having been unacted within 24 hours from its filing, the petitioners filed a
petition for certiorari with the Supreme Court, which it denied because of
the pendency of the CA petition. The rally pushed thru on June 22, 2006
at the foot of the Mendiola Bridge, despite the Manila Police District
barring them from doing so. After the rally, they voluntarily dispersed. On
June 22, 2006, the MPD filed a criminal case against Atty. Cadiz for
violation of the Public Assembly Act for staging a rally not indicated in
the permit, which he answered.
In the meantime, the Court of Appeals denied the petition for certiorari
initially filed by the petitioners for being moot and academic and lacking
merit. It ruled that the city mayor did not abuse his discretion when he
modified the venue of the rally. The Public Assembly Act does not
require that the reason for the modification be put in writing. It merely
requires that the action taken shall be in writing and applicants be
furnished within 24 hours. Hence the petitioners filed a petition for
certiorari with the Supreme Court. Does the outright modification of a
permit to rally without informing the applicants is invalid?
A: In modifying the permit outright, Mayor Soriano gravely abused his
discretion when he did not immediately inform the IBP who should have
been heard first on the matter of perceived imminent and grave danger
of a substantive evil that may warrant the changing of the venue. Mayor
Soriano failed to indicate how he had arrived at modifying the terms of
the permit against the standard of clear and present danger which is an
indispensable condition to such modification.
12. A.M. No. 10-10-4-SC
Re: Letter of the UP Law Faculty entitled
“Restoring Integrity: A Statement by the Faculty of the University of
the Philippines College of Law on the Allegations of Plagiarism and
Misrepresentation in the Supreme Court.”
Oct. 19, 2010
Topic: Captive-Audience Doctrine
Q: Members of the faculty of the University of the Philippines College of
Law published a statement on the allegations of plagiarism and
misrepresentation relative to a certain Court’s decision. Essentially, the
faculty calls for the resignation of Justice Mario Pascual in the face of
allegations of plagiarism in his work. Does this act of the faculty
members squarely fall under the freedom of speech and
expression?
A: NO. The publication of a statement by the faculty of the University of
the Philippines College regarding the allegations of plagiarism and
misrepresentation in the Supreme Court was totally unnecessary,
uncalled for and a rash act of misplaced vigilance. While most agree that
the right to criticize the judiciary is critical to maintaining a free and
democratic society, there is also a general consensus that healthy
criticism only goes so far. Many types of criticism leveled at the judiciary
cross the line to become harmful and irresponsible attacks. These
potentially devastating attacks and unjust criticism can threaten the
independence of the judiciary.
13. G.R. No. 80806
Pita v. CA
Oct. 5, 1989
Topic: Freedom from Subsequent Punishment
& Present Danger Rule
Q: Pursuing an Anti-Smut Campaign initiated by the Mayor of the City of
Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics
Group, Auxilliary Services Bureau, Western Police District, INP of the
Metropolitan Police Force of Manila, seized and confiscated from
dealers, distributors, newsstand owners and peddlers along Manila
sidewalks, magazines, publications and other reading materials believed
to be obscene, pornographic and indecent and later burned the seized
materials in public at the University belt along C.M. Recto Avenue,
Manila, in the presence of Mayor Bagatsing and several officers and
members of various student organizations. Among the publications
seized, and later burned, was "Pinoy Playboy" magazines published and
co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for
issuance of the writ of preliminary injunction against Mayor Bagatsing
and Narcisco Cabrera seeking to enjoin and/or restrain said defendants
and their agents from confiscating plaintiffs magazines or from otherwise
preventing the sale or circulation thereof claiming that the magazine is a
decent, artistic and educational magazine which is not per se obscene,
and that the publication is protected by the Constitutional guarantees of
freedom of speech and of the press. Is the Contention of the Petitioner
valid?
A: No. The government can regulate and capture the magazines.
Apparently, the courts have assumed that "obscenity" is not included in
the guaranty of free speech, an assumption that, as we averred, has
allowed a climate of opinions among magistrates predicated upon
arbitrary, if vague theories of what is acceptable to society. The task that
confronts us is less heroic than rushing to a "perfect" definition of
"obscenity", if that is possible, as evolving standards for proper police
conduct faced with the problem, which, after all, is the plaint specifically
rose in the petition.
However, "immoral" lore or literature comes within the ambit of free
expression, although not its protection. In free expression cases, this
Court has consistently been on the side of the exercise of the right,
barring a "clear and present danger" that would warrant State
interference and action. But, the burden to show the existence of grave
and imminent danger that would justify adverse action lies on the
authorities. There must be objective and convincing, not subjective or
conjectural, proof of the existence of such clear and present danger. It
is essential for the validity of previous restraint or censorship that the
authority does not rely solely on his own appraisal of what the public
welfare, peace or safety may require. To justify such a limitation, there
must be proof of such weight and sufficiency to satisfy the clear and
present danger test.
14. G.R. No. 127930
Miriam College Foundation v. CA
Dec. 15, 2000
Topic: Right of Students to Free Speech in School Premise is not
Absolute
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 FREEDOM OF EXPRESSION
Q: Miriam College’s School paper Chi-Rho and magazine “Ang
Magasing Pampanitikang Chi-Rho” Published in their September to
October 1994 issue several fictional stories and poems that the
administration of Miriam College deemed to be obscene, vulgar,
indecent, gross, sexually explicit, injurious to young readers, and devoid
of all moral values. The Chair of Miriam College’s discipline committee
sent the student a letter informing them of letters of complaint against
them for publishing their work, and requiring them to submit a letter to
answer the charges against them. However, none of the students
submitted their answers. Do the Students be sanctioned because of
their published work?
A: NO. Court has upheld the right of the students to free speech in
school premises. Though the right of the students to free speech in
school premises is not absolute, the school cannot suspend or expel a
student solely on the basis of the articles he has written except when
such article materially disrupts class work or involves substantial
disorder or invasion of rights of others. The right to free speech must
always be applied in light of the special characteristics of the school
environment. It must not unduly restrict the right of the students to free
speech. Consistent with jurisprudence, we read Section 7 of the
Campus Journalism Act to mean that the school cannot suspend or
expel a student solely on the basis of the articles he or she has
written, except when such articles materially disrupt class work or involve
substantial disorder or invasion of the rights of others.
15. G.R. No. 126466
Borjal v. CA
Jan. 14, 1999
Topic: Freedom of Press
Q: A national daily newspaper carried an exclusive report stating that
Senator Ryan Christopher received a house and lot located at YY Street,
Makati, in consideration for his vote to cut cigarette taxes by 50%. The
Senator sued the newspaper, its reporter, editor and publisher for libel,
claiming the report was completely false and malicious. According to the
Senator, there is no YY Street in Makati, and the tax cut was only 20%.
He claimed one million pesos in damages. The defendants denied
"actual malice," claiming privileged communication and absolute freedom
of the press to report on public officials and matters of public concern. If
there was any error, the newspaper said it would publish the correction
promptly. Are the defendants liable for damages?
A: NO. Since Senator Ryan Christopher is a public person and the
questioned imputation is directed against him in his public capacity, in
this case actual malice means the statement was made with knowledge
that it was false or with reckless disregard of whether it was false or not.
Since there is no proof that the report was published with knowledge that
it is false or with reckless disregard of whether it was false or not, the
defendants are not liable for damages.
Note: The Borjal doctrine is not applicable in a case where the
allegations against a public official were false and no effort was
exerted to verify the information before publishing his articles
16. GR Nos. 161032
Tulfo v. People
September 16, 2008
Q: Atty. Ding So of the Bureau of Customs filed four separate
Informations against Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn
Barlizo, and Philip Pichay, accusing them of libel in connection with the
publication of articles in the column “Direct Hit” of the daily tabloid
Remate. The column accused So of corruption, and portrayed him as
an extortionist and smuggler. Can Tulfo use the contention of “fair
commentaries” as a defense thus implementing the right of free
speech?
A: NO. Good faith is lacking, as Tulfo failed to substantiate or even
attempt to verify his story before publication. Journalists may be allowed
an adequate margin of error in the exercise of their profession, but this
margin does not expand to cover every defamatory or injurious
statement they may make in the furtherance of their profession, nor does
this margin cover total abandonment of responsibility. The mere fact that
the subject of an article is a public figure or a matter of public interest
does not mean it is a fair commentary within the scope of qualified
privileged communication, which would automatically exclude the author
from liability.
The confidentiality of sources and their importance to journalists are
accepted and respected. What cannot be accepted are journalists
making no efforts to verify the information given by a source, and using
that unverified information to throw wild accusations and besmirch the
name of possibly an innocent person. Journalists have a responsibility to
report the truth, and in doing so must at least investigate their stories
before publication, and be able to back up their stories with proof.
Journalists are not storytellers or novelists who may just spin tales out of
fevered imaginings, and pass them off as reality. There must be some
foundation to their reports; these reports must be warranted by facts.
Freedom of expression as well as freedom of the press may not be
unrestrained, but neither must it be reined in too harshly.
17. A.M. No. 07-09-13-SC,
In Re:
Allegations Contained in the Columns of Mr. Amado P. Macasaet,
Aug. 8, 2008
Topic:
Q: Erika Ong penned several articles in Malaya newspaper regarding
alleged bribery incidents in the Supreme Court and characterizing the
justices as “thieves” and “a basket of rotten apples”. The Court En Banc
required Erika to explain why no sanction should be imposed on her for
indirect contempt of court. Did the order of the Court violate freedom
of the press?
A: NO. While freedom of speech, of expression and of the press are at
the core of civil liberties and have to be protected at all costs for the sake
of democracy, these freedoms are not absolute. For, if left unbridled,
they have the tendency to be abused and can translate to licenses,
which could lead to disorder and anarchy. Erika crossed the line, as hers
are baseless scurrilous attacks which demonstrate nothing but an abuse
of press freedom. They leave no redeeming value in furtherance of
freedom of the press. They do nothing but damage the integrity of the
High Court, undermine the faith and confidence of the people in the
judiciary, and threaten the doctrine of judicial independence.
18. G.R. No. 135385
Separate opinion of Justice Mendoza in Cruz
Vs. Secretary of Environment and Natural Resources
Dec. 6, 2000
Topic: Facial Challenge - A challenge to a statute in court, in which
the plaintiff alleges that the legislation is always, and under all
circumstances, unconstitutional, and therefore void.
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 FREEDOM OF EXPRESSION
Q: The Court found the Anti-Plunder Law (Republic Act No. 7080) clear
and free from ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two
doctrines to the concept of a "facial" invalidation as opposed to an "as-
applied" challenge. He basically postulated that allegations that a penal
statute is vague and overbroad do not justify a facial review of its validity.
The pertinent portion of the Concurring Opinion of Justice Mendoza,
which was quoted at length in the main Estrada decision, reads: A facial
challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible "chilling effect" upon protected speech.
The theory is that "[w]hen statutes regulate or proscribe speech and no
readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value
to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity."
The possible harm to society in permitting some unprotected speech to
go unpunished is outweighed by the possibility that the protected speech
of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes. This
rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech. The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the
validity of penal statutes. Is Facial Challenge allowed in freedom of
expression?
A: Facial challenge to a statute is allowed only when it operates in the
area of freedom of expression. Invalidation of the statute on its face,
rather than as applied, is permitted in the interest of preventing a chilling
effect on freedom of expression.
Permits a party to challenge the validity of a statute even though as
applied to him it is not unconstitutional but it might be if applied to others
not before the Court whose activities are constitutionally protected. It is a
type of facial challenge that prohibits the government from achieving its
purpose by means that “sweep unnecessarily broadly, reaching
constitutionally protected as well as unprotected activity.
19. G.R. No. 178554
KMU v. Ermita
Oct. 5, 2010
Q: KMU is one of the 6 petitioners who challenge the constitutionality of
Republic Act No. 9372 otherwise known as the Human Security Act of
2007. Is facial challenge to a penal statute allowed?
A: NO. Facial challenges are not allowed in penal statutes. A facial
invalidation of a statute is allowed only in free speech cases, wherein
certain rules of constitutional litigation are rightly excepted. Criminal
statutes have general in terrorem effect resulting from their very
existence, and, if facial challenge is allowed for this reason alone, the
State may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as in
the area of free speech.
The doctrines of void-for-vagueness and overbreadth find no application
in the present case since these doctrines apply only to free speech
cases; and that RA 9372 regulates conduct, not speech.
20. G.R. No. L-69500
Gonzales v. Kalaw-Katigbak
July 22, 1985
Topic: Roth Test on Obscenity
Q: Antonio Gonzales, president of Malaya Films, claimed that his film
Kapit sa Patalim, was rated for adults only by a subcommittee of the
movie review board together with the required cuts and scene deletions.
He justified that these requirements were without basis and were
restrains on artistic expression. He adduced that the film is an integral
whole and all its portions, including those to which the Board now offers
belated objection, are essential for the integrity of the film. Viewed as a
whole, there is no basis even for the vague speculations advanced by
the Board as basis for its classification. He appealed to the movie review
board but the same affirmed the decision of the sub-committee. When
Gonzales appealed to the Supreme Court, the board claimed that the
deletions were removed and the requirement to submit the master
negative was taken out but the film was still rated for adults only. The
petition was amended to contest the rating only. Is there a grave abuse
of Discretion to the part of the Board?
A: YES. Press freedom "may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or
punishment." This is not to say that such freedom, as is the freedom of
speech, absolute. It can be limited if "there be a 'clear and present
danger of a substantive evil that [the State] has a right to prevent.'"
Censorship or previous restraint certainly is not all there is to free speech
or free press. If it were so, then such basic rights are emasculated. It is,
however, except in exceptional circumstances a sine qua non for the
meaningful exercise of such right. This is not to deny that equally basic is
the other important aspect of freedom from liability. To avoid an
unconstitutional taint on its creation, the power of the Board is limited to
the classification of films. It can, to safeguard other constitutional
objections, determine what motion pictures are for general patronage
and what may require either parental guidance or be limited to adults
only.
That is to abide by the principle that freedom of expression is the rule
and restrictions the exemption. The power to exercise prior restraint is
not to be presumed, rather the presumption is against its validity. The
test, to repeat, to determine whether freedom of expression may be
limited is the clear and present danger of an evil of a substantive
character that the State has a right to prevent. Such danger must not
only be clear but also present. The basic postulate, therefore, is that
where the movies, theatrical productions, radio scripts, television
programs, and other such media of expression are concerned —
included as they are in freedom of expression — censorship, especially
so if an entire production is banned, is allowable only under the clearest
proof of a clear and present danger of a substantive evil to public safety,
public morals, public health or any other legitimate public interest. What
was important in this case is whether to the average person, applying
contemporary community standards, the dominant theme of the material
taken as a whole appeals to prurient interest.
21. A.M. No. 10-11-5-SC Notice of Resolution
In Re: Petition for Radio and TV Coverage of cases
against Zaldy Ampatuan
Oct. 23, 2012
Topic: Mass Media Regulations
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 FREEDOM OF EXPRESSION
Q: In 2011, the Supreme Court promulgated a Resolution partially
granting pro hac vice the request for live broadcast by television and
radio of the trial court proceedings of the “Maguindanao massacre”
cases, subject to specific guidelines set forth in said Resolution. Accused
Andal Ampatuan, Jr. filed a Motion for Reconsideration alleging that the
Resolution “deprives him of his rights to due process, equal protection,
presumption of innocence, and to be shielded from degrading
psychological punishment.” Ampatuan contends that the Court should
accord more vigilance because the immense publicity and adverse
public opinion which live media coverage can produce would affect
everyone, including the judge, witnesses, and the families of all
concerned parties. The OSG, however, contends that the coverage by
live media neither constitutes a barbarous act nor inflicts upon the
accused inhuman physical harm or torture that is shocking to the
conscience and is freedom of the press. Should live broadcast of the
trial be disallowed?
A: NO. The Court is now disallowing live media broadcast of the trial of
“Maguindanao massacre” cases but is still allowing the filming of the
proceedings for (1) the real-time transmission to specified viewing areas,
and (2) documentation. While the Court recognizes the freedom of press
and the right to public information, the constitutional rights of the
accused provide more than ample justification to take a second look at
the view that a camera that broadcasts the proceedings live on television
has no place in a criminal trial because of its prejudicial effects on the
rights of accused individuals. As we have previously held, the live
coverage of judicial proceedings involves an inherent denial of due
process. In this case that has achieved notoriety and sensational status,
a greater degree of care is required to safeguard the constitutional rights
of the accused. To be in the best position to weigh the conflicting
testimonies of the witnesses, the judge must not be affected by any
outside force or influence. Like any human being, however, a judge is
not immune from the pervasive effects of media. In a constitutional
sense, public trial is not synonymous with publicized trial. The right to a
public trial belongs to the accused. The requirement of a public trial is
satisfied by the opportunity of the public and press to attend the trial and
to report what they have observed. The accused’s right to a public trial
should not be confused with the freedom of the press and the public’s
right to know as a justification for allowing the live broadcast of the trial.
22. G.R. No. 164785
Soriano v. Laguardia,
March 15, 2010
Topic: Miller Test on Indecent Speech
Q: On August 10, 2004, at around 10:00 p.m., petitioner, as host of the
program Ang Dating Daan, aired on UNTV 37, made obscene remarks
against INC. Two days after, before the MTRCB, separate but almost
identical affidavit-complaints were lodged by Jessie L. Galapon and
seven other private respondents, all members of the Iglesia ni Cristo
(INC), against petitioner in connection with the above broadcast.
Respondent Michael M. Sandoval, who felt directly alluded to in
petitioner‘s remark, was then a minister of INC and a regular host of the
TV program Ang Tamang Daan. Is Soriano‘s statements during the
televised ―Ang Dating Daan‖ part of the religious discourse and
within the protected by the Right of Free Speech?
A: NO. Under the circumstances obtaining in this case, therefore, and
considering the adverse effect of petitioner‘s utterances on the viewers‘
fundamental rights as well as petitioner‘s clear violation of his duty as a
public trustee, the MTRCB properly suspended him from appearing in
Ang Dating Daan for three months. Furthermore, it cannot be properly
asserted that petitioner‘s suspension was an undue curtailment of his
right to free speech either as a prior restraint or as a subsequent
punishment. Aside from the reasons given above (re the paramount of
viewers rights, the public trusteeship character of a broadcaster‘s role
and the power of the State to regulate broadcast media), a requirement
that indecent language be avoided has its primary effect on the form,
rather than the content, of serious communication. There are few, if any,
thoughts that cannot be expressed by the use of less offensive
language.
The SC ruled that Soriano‘s statement can be treated as obscene, at
least with respect to the average child and thus his utterances cannot be
considered as protected speech. Citing decisions from the US Supreme
Court, the High Court said that the analysis should be context based and
found the utterances to be obscene after considering the use of
television broadcasting as a medium, the time of the show, and the “G”
rating of the show, which are all factors that made the utterances
susceptible to children viewers. The Court emphasized on how the
uttered words could be easily understood by a child literally rather than in
the context that they were used. The SC also said that the suspension is
not a prior restraint, but rather a form of permissible administrative
sanction or subsequent punishment. In affirming the power of the
MTRCB to issue an order of suspension, the majority said that it is a
sanction that the MTRCB may validly impose under its charter without
running afoul of the free speech clause.‖ visit fellester.blogspot.com The
Court said that the suspension is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit
was already issued to him by MTRCB, rather, it was a sanction for the
indecent contents of his utterances in a “G” rated TV program.
23. G.R. No. 165636
Soriano v. MTRCB
Apr. 29, 2009
Topic: Balancing Interest Doctrine
Q: Can an offensive and obscene language uttered in a prime-time
television broadcast which was easily accessible to the children be
reasonably curtailed and validly restrained?
A: YES. The Court, applying the balancing of interest doctrine, ruled that
the government’s interest to protect and promote the interests and
welfare of the children adequately buttresses the reasonable curtailment
valid restraint on petitioner’s prayer to continue as and program host of
Ang Dating Daan during the suspension period. Soriano’s offensive and
obscene language uttered on prime-time television broadcast, without
doubt, was easily accessible to the children. His statements could have
exposed children to a language that is unacceptable in everyday use. As
such, the welfare of children and the State’s mandate to protect and care
for them, as parens patriae, constitute a substantial and compelling
government interest in regulating Soriano’s utterances in TV broadcast.
24. G.R. No. 173034
Pharmaceutical and Health Care Association of the
Philippines v. Duque
Oct. 9, 2007
Topic: Commercial Speech
Q: EO 51 (Milk Code) was issued by President Chris Bautista on
October 28, 1986 by virtue of the legislative powers granted to the
President under the Freedom Constitution. On May 15, 2006, the DOH
issued Revised Implementing Rules and Regulations (RIRR) which was
to take effect on July 7, 2006. The Association of Healthcare Workers
claimed that the Milk Code only regulates and does not impose
unreasonable requirements for advertising and promotion while RIRR
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 FREEDOM OF EXPRESSION
imposes an absolute ban on such activities for breastmilk substitutes trial can be served by audio-visual recordings without impairing the right
intended for infants from 0-24 months old or beyond, and forbids the use of the accused to a fair trial.
of health and nutritional claims. Were the labeling requirements and
advertising regulations under the RIRR valid?

A: YES. Sec. 13 on “total effect” and Sec. 26 of Rule VII of the RIRR
contain some labeling requirements, specifically: a) that there be a
statement that there is no substitute to breastmilk; and b) that there be a
statement that powdered infant formula may contain pathogenic
microorganisms and must be prepared and used appropriately. Sec. 16
of the RIRR prohibits all health and nutrition claims for products within
the scope of the Milk Code, such as claims of increased emotional and
intellectual abilities of the infant and young child. These provisions of the
Milk Code expressly forbid information that would imply or create a belief
that there is any milk product equivalent to breastmilk or which is
humanized or maternalized, as such information would be inconsistent
with the superiority of breastfeeding. Thus, the RIRR is a reasonable
means of enforcing the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in the Milk Code.

25. A.M. No. 01-4-03-SC

Secretary of Justice vs. Estrada
September 13, 2011
Topic: Live Media Coverage of Court Proceedings

Q: Petitioners' request for permission to televise and broadcast live the

trial of former President Estrada before the Sandiganbayan. The motion
was filed by the Secretary of Justice, as one of the petitioners, who
argues that there is really no conflict between the right of the people to
public information and the freedom of the press, on the one hand, and,
on the other, the right of the accused to a fair trial; that if there is a clash
between these rights, it must be resolved in favor of the right of the
people and the press because the people, as the repository of
sovereignty, are entitled to information; and that live media coverage is a
safeguard against attempts by any party to use the courts as instruments
for the pursuit of selfish interests. Can the proceedings be aired in live
television?

A: NO. Considering the prejudice it poses to the defendant's right to due

process as well as to the fair and orderly administration of justice and
considering further that the freedom of the press and the right of the
people to information may be served and satisfied by less distracting,
degrading and prejudicial means, live radio and television coverage of
court proceedings shall not be allowed. Video footages of court hearings
for news purposes shall be restricted and limited to shots of the
courtroom, the judicial officers, the parties and their counsel taken prior
to the commencement of official proceedings. No video shots or
photographs shall be permitted during the trial proper. 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 in secret
conclaves of long ago. 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 proper
decorum and observe the trial process.

Furthermore, concerns about the regularity and fairness of the trial --

which, it may be assumed, is the concern of those opposed to, as much
as of those in favor of, televised trials - will be addressed since the tapes
will not be released for public showing until after the decision of the
cases by the Sandiganbayan. By delaying the release of the tapes, much
of the problem posed by real time TV and radio broadcast will be
avoided. Thus, many important purposes for preserving the record of the

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