G.R. No. 168338             February 15, 2008
On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul
FRANCISCO CHAVEZ, petitioner,
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of
Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION
(NTC), respondents.
DECISION
PUNO, C.J.:
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and so
inextricably woven into the right to free speech and free expression, that any attempt
to restrict it must be met with an examination so critical that only a danger that is clear
and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have
struck down laws and issuances meant to curtail this right, as in Adiong v.
COMELEC,1Burgos v. Chief of Staff,2Social Weather Stations v.
COMELEC,3 and Bayan v. Executive Secretary Ermita.4 When on its face, it is clear
that a governmental act is nothing more than a naked means to prevent the free
exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004 national and
local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that
the opposition was planning to destabilize the administration by releasing an
audiotape of a mobile phone conversation allegedly between the President of the
Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission
on Elections (COMELEC). The conversation was audiotaped allegedly through wire-
tapping.5 Later, in a Malacañang press briefing, Secretary Bunye produced two
versions of the tape, one supposedly the complete version, and the other, a spliced,
“doctored” or altered version, which would suggest that the President had instructed
the COMELEC official to manipulate the election results in the President’s favor. 6 It
seems that Secretary Bunye admitted that the voice was that of President Arroyo, but
subsequently made a retraction. 7
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan
Paguia, subsequently released an alleged authentic tape recording of the wiretap.
Included in the tapes were purported conversations of the President, the First
Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late
Senator Barbers.8
3.
Gonzales warned reporters that those who had copies of the compact disc (CD) and
those broadcasting or publishing its contents could be held liable under the Anti-
Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also
stated that persons possessing or airing said tapes were committing a continuing
offense, subject to arrest by anybody who had personal knowledge if the crime was
committed or was being committed in their presence.9
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the
National Bureau of Investigation (NBI) to go after media organizations “found to have
caused the spread, the playing and the printing of the contents of a tape” of an
alleged wiretapped conversation involving the President about fixing votes in the 2004
national elections. Gonzales said that he was going to start with Inq7.net, a joint
venture between the Philippine Daily Inquirer and GMA7 television network,
because by the very nature of the Internet medium, it was able to disseminate the
contents of the tape more widely. He then expressed his intention of inviting the
editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, “I
[have] asked the NBI to conduct a tactical interrogation of all concerned.” 10
5. On June 11, 2005, the NTC issued this press release: 11
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION
OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the country’s unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and television
network owners/operators that the conditions of the authorization and permits issued
to them by Government like the Provisional Authority and/or Certificate of Authority
explicitly provides that said companies shall not use [their] stations for the
broadcasting or telecasting of false information or willful misrepresentation. Relative
thereto, it has come to the attention of the [NTC] that certain personalities are in
possession of alleged taped conversations which they claim involve the President of
the Philippines and a Commissioner of the COMELEC regarding supposed violation
of election laws.
These personalities have admitted that the taped conversations are products of illegal
wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor
could it be said at this time that the tapes contain an accurate or truthful
representation of what was recorded therein, it is the position of the [NTC] that the
continuous airing or broadcast of the said taped conversations by radio and television
stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the
Provisional Authority and/or Certificate of Authority issued to these radio and
television stations. It has been subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the concerned radio
and television companies are hereby warned that their broadcast/airing of such
false information and/or willful misrepresentation shall be just cause for the
suspension, revocation and/or cancellation of the licenses or authorizations
issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program
standards to be observed by radio and television stations. NTC Memorandum
Circular 111-12-85 explicitly states, among others, that “all radio broadcasting and
television stations shall, during any broadcast or telecast, cut off from the air the
speech, play, act or scene or other matters being broadcast or telecast the tendency
thereof is to disseminate false information or such other willful misrepresentation, or
to propose and/or incite treason, rebellion or sedition.” The foregoing directive had
been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto,
prohibited radio, broadcasting and television stations from using their stations to
broadcast or telecast any speech, language or scene disseminating false information
or willful misrepresentation, or inciting, encouraging or assisting in subversive or
treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process, to
apply with full force the provisions of said Circulars and their accompanying
sanctions on erring radio and television stations and their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of
the Kapisanan ng mga Brodkaster sa Pilipinas (KBP).  NTC allegedly assured the
KBP that the press release did not violate the constitutional freedom of speech, of
expression, and of the press, and the right to information. Accordingly, NTC and KBP
issued a Joint Press Statement which states, among others, that: 12
 NTC respects and will not hinder freedom of the press and the right to
information on matters of public concern. KBP & its members have always
been committed to the exercise of press freedom with high sense of
responsibility and discerning judgment of fairness and honesty.
 NTC did not issue any MC [Memorandum Circular] or Order constituting a
restraint of press freedom or censorship. The NTC further denies and does
not intend to limit or restrict the interview of members of the opposition or
free expression of views.
 What is being asked by NTC is that the exercise of press freedom [be] done
responsibly.
 KBP has program standards that KBP members will observe in the treatment
of news and public affairs programs. These include verification of sources,
non-airing of materials that would constitute inciting to sedition and/or
rebellion.
 The KBP Codes also require that no false statement or willful
misrepresentation is made in the treatment of news or commentaries.
 The supposed wiretapped tapes should be treated with sensitivity and
handled responsibly giving due consideration to the process being
undertaken to verify and validate the authenticity and actual content of the
same.”
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against
respondents Secretary Gonzales and the NTC, “praying for the issuance of the writs
of certiorari and prohibition, as extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of
authority by the respondents.”13
Alleging that the acts of respondents are violations of the freedom on expression and
of the press, and the right of the people to information on matters of public
concern,14 petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents committed or
made since June 6, 2005 until the present that curtail the public’s rights to freedom of
expression and of the press, and to information on matters of public concern
specifically in relation to information regarding the controversial taped conversion of
President Arroyo and for prohibition of the further commission of such acts, and
making of such issuances, and orders by respondents. 15
Respondents16 denied that the acts transgress the Constitution, and questioned
petitioner’s legal standing to file the petition. Among the arguments they raised as to
the validity of the “fair warning” issued by respondent NTC, is that broadcast media
enjoy lesser constitutional guarantees compared to print media, and the warning was
issued pursuant to the NTC’s mandate to regulate the telecommunications
industry. 17 It was also stressed that “most of the [television] and radio stations
continue, even to this date, to air the tapes, but of late within the parameters agreed
upon between the NTC and KBP.” 18
D. The Procedural Threshold: Legal Standing
To be sure, the circumstances of this case make the constitutional challenge peculiar.
Petitioner, who is not a member of the broadcast media, prays that we strike down
the acts and statements made by respondents as violations of the right to free
speech, free expression and a free press. For another, the recipients of the press
statements have not come forward—neither intervening nor joining petitioner in this
action. Indeed, as a group, they issued a joint statement with respondent NTC that
does not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing, having
failed to allege “such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the
Court so largely depends for illumination of difficult constitutional questions.” 19
But as early as half a century ago, we have already held that where serious
constitutional questions are involved, “the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing aside if
we must, technicalities of procedure.” 20 Subsequently, this Court has repeatedly and
consistently refused to wield procedural barriers as impediments to its addressing and
resolving serious legal questions that greatly impact on public interest, 21 in keeping
with the Court’s duty under the 1987 Constitution to determine whether or not other
branches of government have kept themselves within the limits of the Constitution
and the laws and that they have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case involves
an issue of overarching significance to our society, 22 we therefore brush aside
technicalities of procedure and take cognizance of this petition,23 seeing as it involves
a challenge to the most exalted of all the civil rights, the freedom of expression. The
petition raises other issues like the extent of the right to information of the
public. It is fundamental, however, that we need not address all issues but only
the most decisive one which in the case at bar is whether the acts of the
respondents abridge freedom of speech and of the press.
But aside from the primordial issue of determining whether free speech and
freedom of the press have been infringed, the case at bar also gives this Court
the opportunity: (1) to distill the essence of freedom of speech and of the press
now beclouded by the vagaries of motherhood statements; (2) to clarify the
types of speeches and their differing restraints allowed by law; (3) to discuss
the core concepts of prior restraint, content-neutral and content-based
regulations and their constitutional standard of review; (4) to examine the
historical difference in the treatment of restraints between print and broadcast
media and stress the standard of review governing both; and (5) to call
attention to the ongoing blurring of the lines of distinction between print and
broadcast media.
E. Re-examining The law on freedom of speech,
of expression and of the press
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.24
Freedom of expression has gained recognition as a fundamental principle of every
democratic government, and given a preferred right that stands on a higher level than
substantive economic freedom or other liberties. The cognate rights codified by Article
III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of
the U.S. Bill of Rights,25 were considered the necessary consequence of republican
institutions and the complement of free speech.26 This preferred status of free speech
has also been codified at the international level, its recognition now enshrined in
international law as a customary norm that binds all nations.27
In the Philippines, the primacy and high esteem accorded freedom of expression is a
fundamental postulate of our constitutional system. 28 This right was elevated to
constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our
own lesson of history, both political and legal, that freedom of speech is an
indispensable condition for nearly every other form of freedom.29 Moreover, our
history shows that the struggle to protect the freedom of speech, expression and the
press was, at bottom, the struggle for the indispensable preconditions for the exercise
of other freedoms.30 For it is only when the people have unbridled access to
information and the press that they will be capable of rendering enlightened
judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and
ignorant.
E.1. Abstraction of Free Speech
Surrounding the freedom of speech clause are various concepts that we have
adopted as part and parcel of our own Bill of Rights provision on this basic
freedom.31 What is embraced under this provision was discussed exhaustively by the
Court in Gonzales v. Commission on Elections, 32 in which it was held:
…At the very least, free speech and free press may be identified with the liberty to
discuss publicly and truthfully any matter of public interest without censorship and
punishment. There is to be no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for
damages, or contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. 33
Gonzales further explained that the vital need of a constitutional democracy for
freedom of expression is undeniable, whether as a means of assuring individual self-
fulfillment; of attaining the truth; of assuring participation by the people in social,
including political, decision-making; and of maintaining the balance between stability
and change.34 As early as the 1920s, the trend as reflected in Philippine and
American decisions was to recognize the broadest scope and assure the widest
latitude for this constitutional guarantee. The trend represents a profound
commitment to the principle that debate on public issue should be uninhibited, robust,
and wide-open. 35
Freedom of speech and of the press means something more than the right to approve
existing political beliefs or economic arrangements, to lend support to official
measures, and to take refuge in the existing climate of opinion on any matter of public
consequence.36 When atrophied, the right becomes meaningless.37 The right belongs
as well—if not more—to those who question, who do not conform, who differ.38 The
ideas that may be expressed under this freedom are confined not only to those that
are conventional or acceptable to the majority. To be truly meaningful, freedom of
speech and of the press should allow and even encourage the articulation of the
unorthodox view, though it be hostile to or derided by others; or though such view
“induces a condition of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger.”39 To paraphrase Justice Holmes, it is freedom for the
thought that we hate, no less than for the thought that agrees with us. 40
The scope of freedom of expression is so broad that it extends protection to nearly all
forms of communication. It protects speech, print and assembly regarding secular as
well as political causes, and is not confined to any particular field of human interest.
The protection covers myriad matters of public interest or concern embracing all
issues, about which information is needed or appropriate, so as to enable members of
society to cope with the exigencies of their period. The constitutional protection
assures the broadest possible exercise of free speech and free press for religious,
political, economic, scientific, news, or informational ends, inasmuch as the
Constitution’s basic guarantee of freedom to advocate ideas is not confined to the
expression of ideas that are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The protection
afforded free speech extends to speech or publications that are entertaining as well
as instructive or informative. Specifically, in Eastern Broadcasting Corporation
(DYRE) v. Dans,41 this Court stated that all forms of media, whether print or
broadcast, are entitled to the broad protection of the clause on freedom of speech
and of expression.
While all forms of communication are entitled to the broad protection of freedom of
expression clause, the freedom of film, television and radio broadcasting is
somewhat lesser in scope than the freedom accorded to newspapers and other
print media, as will be subsequently discussed.
E.2. Differentiation: The Limits & Restraints of Free Speech
From the language of the specific constitutional provision, it would appear that the
right to free speech and a free press is not susceptible of any limitation. But the
realities of life in a complex society preclude a literal interpretation of the provision
prohibiting the passage of a law that would abridge such freedom. For freedom of
expression is not an absolute, 42 nor is it an “unbridled license that gives immunity for
every possible use of language and prevents the punishment of those who abuse this
freedom.”
Thus, all speech are not treated the same. Some types of speech may be
subjected to some regulation by the State under its pervasive police power, in order
that it may not be injurious to the equal right of others or those of the community or
society.43 The difference in treatment is expected because the relevant interests of
one type of speech, e.g., political speech, may vary from those of
another, e.g., obscene speech. Distinctions have therefore been made in the
treatment, analysis, and evaluation of the permissible scope of restrictions on various
categories of speech. 44 We have ruled, for example, that in our jurisdiction slander or
libel, lewd and obscene speech, as well as “fighting words” are not entitled to
constitutional protection and may be penalized.45
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth,
vagueness, and so on) have been applied differently to each category, either
consciously or unconsciously. 46 A study of free speech jurisprudence—whether here
or abroad—will reveal that courts have developed different tests as to specific types
or categories of speech in concrete situations; i.e., subversive speech; obscene
speech; the speech of the broadcast media and of the traditional print media; libelous
speech; speech affecting associational rights; speech before hostile audiences;
symbolic speech; speech that affects the right to a fair trial; and speech associated
with rights of assembly and petition. 47
Generally, restraints on freedom of speech and expression are evaluated by either or
a combination of three tests, i.e., (a) the dangerous tendency doctrine which
permits limitations on speech once a rational connection has been established
between the speech restrained and the danger contemplated; 48 (b) the balancing of
interests tests, used as a standard when courts need to balance conflicting social
values and individual interests, and requires a conscious and detailed consideration
of the interplay of interests observable in a given situation of type of situation; 49 and
(c) the clear and present danger rule which rests on the premise that speech may
be restrained because there is substantial danger that the speech will likely lead to an
evil the government has a right to prevent. This rule requires that the evil
consequences sought to be prevented must be substantive, “extremely serious and
the degree of imminence extremely high.” 50
As articulated in our jurisprudence, we have applied either the dangerous tendency
doctrine or clear and present danger test to resolve free speech challenges. More
recently, we have concluded that we have generally adhered to the clear and
present danger test. 51
E.3. In Focus: Freedom of the Press
Much has been written on the philosophical basis of press freedom as part of the
larger right of free discussion and expression. Its practical importance, though, is
more easily grasped. It is the chief source of information on current affairs. It is the
most pervasive and perhaps most powerful vehicle of opinion on public questions. It
is the instrument by which citizens keep their government informed of their needs,
their aspirations and their grievances. It is the sharpest weapon in the fight to keep
government responsible and efficient. Without a vigilant press, the mistakes of every
administration would go uncorrected and its abuses unexposed. As Justice Malcolm
wrote in United States v. Bustos:52
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of clear conscience.
Its contribution to the public weal makes freedom of the press deserving of extra
protection. Indeed, the press benefits from certain ancillary rights. The productions of
writers are classified as intellectual and proprietary. Persons who interfere or defeat
the freedom to write for the press or to maintain a periodical publication are liable for
damages, be they private individuals or public officials.
E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-
Based Regulations
Philippine jurisprudence, even as early as the period under the 1935 Constitution, has
recognized four aspects of freedom of the press. These are (1) freedom from prior
restraint; (2) freedom from punishment subsequent to publication; 53 (3) freedom of
access to information; 54 and (4) freedom of circulation.55
Considering that petitioner has argued that respondents’ press statement constitutes
a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as
well as its sub-specie of content-based (as distinguished from content-neutral)
regulations.
At this point, it should be noted that respondents in this case deny that their acts
constitute prior restraints. This presents a unique tinge to the present challenge,
considering that the cases in our jurisdiction involving prior restrictions on speech
never had any issue of whether the governmental act or
issuance actually constituted prior restraint. Rather, the determinations were always
about whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there is an
impermissible restraint on the freedom of speech has always been based on the
circumstances of each case, including the nature of the restraint. And in its
application in our jurisdiction, the parameters of this principle have been
etched on a case-to-case basis, always tested by scrutinizing the governmental
issuance or act against the circumstances in which they operate, and then
determining the appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or other forms
of expression in advance of actual publication or dissemination. 56 Freedom from prior
restraint is largely freedom from government censorship of publications, whatever the
form of censorship, and regardless of whether it is wielded by the executive,
legislative or judicial branch of the government. Thus, it precludes governmental acts
that required approval of a proposal to publish; licensing or permits as prerequisites to
publication including the payment of license taxes for the privilege to publish; and
even injunctions against publication. Even the closure of the business and printing
offices of certain newspapers, resulting in the discontinuation of their printing and
publication, are deemed as previous restraint or censorship. 57 Any law or official that
requires some form of permission to be had before publication can be made, commits
an infringement of the constitutional right, and remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against all prior
restraints on speech, and any act that restrains speech is presumed invalid, 58 and
“any act that restrains speech is hobbled by the presumption of invalidity and should
be greeted with furrowed brows,” 59 it is important to stress not all prior restraints on
speech are invalid. Certain previous restraints may be permitted by the
Constitution, but determined only upon a careful evaluation of the challenged act as
against the appropriate test by which it should be measured against.
Hence, it is not enough to determine whether the challenged act constitutes some
form of restraint on freedom of speech. A distinction has to be made whether the
restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents
of the speech, or one that merely controls the time, place or manner, and under well
defined standards;60 or (2) a content-based restraint or censorship, i.e., the
restriction is based on the subject matter of the utterance or speech. 61 The cast of the
restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a
substantial governmental interest is required for its validity. 62 Because regulations of
this type are not designed to suppress any particular message, they are not subject to
the strictest form of judicial scrutiny but an intermediate approach—somewhere
between the mere rationality that is required of any other law and the compelling
interest standard applied to content-based restrictions.63 The test is
called intermediate because the Court will not merely rubberstamp the validity of a
law but also require that the restrictions be narrowly-tailored to promote an important
or significant governmental interest that is unrelated to the suppression of expression.
The intermediate approach has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power
of the Government, if it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression; and if
the incident restriction on alleged [freedom of speech & expression] is no greater than
is essential to the furtherance of that interest. 64
On the other hand, a governmental action that restricts freedom of speech or of the
press based on content is given the strictest scrutiny in light of its inherent and
invasive impact. Only when the challenged act has overcome the clear and present
danger rule will it pass constitutional muster,65 with the government having the
burden of overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint
will be struck down.66
With respect to content-based restrictions, the government must also show the type
of harm the speech sought to be restrained would bring about—especially the gravity
and the imminence of the threatened harm—otherwise the prior restraint will be
invalid. Prior restraint on speech based on its content cannot be justified by
hypothetical fears, “but only by showing a substantive and imminent evil that has
taken the life of a reality already on ground.”67 As formulated, “the question in every
case is whether the words used are used in such circumstances and are of such a
nature as to create 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.”68
The regulation which restricts the speech content must also serve an important or
substantial government interest, which is unrelated to the suppression of free
expression. 69
Also, the incidental restriction on speech must be no greater than what is essential to
the furtherance of that interest. 70 A restriction that is so broad that it encompasses
more than what is required to satisfy the governmental interest will be
invalidated. 71 The regulation, therefore, must be reasonable and narrowly drawn to fit
the regulatory purpose, with the least restrictive means undertaken. 72
Thus, when the prior restraint partakes of a content-neutral regulation, it is
subjected to an intermediate review. A content-based regulation,73 however, bears a
heavy presumption of invalidity and is measured against the clear and present
danger rule. The latter will pass constitutional muster only if justified by a compelling
reason, and the restrictions imposed are neither overbroad nor vague. 74
Applying the foregoing, it is clear that the challenged acts in the case at bar need to
be subjected to the clear and present danger rule, as they are content-based
restrictions. The acts of respondents focused solely on but one 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.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents’ argument that the challenged act is valid on the ground
that broadcast media enjoys free speech rights that are lesser in scope to that of print
media. We next explore and test the validity of this argument, insofar as it has been
invoked to validate a content-based restriction on broadcast media.
The regimes presently in place for each type of media differ from one
other. Contrasted with the regime in respect of books, newspapers, magazines and
traditional printed matter, broadcasting, film and video have been subjected to
regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the United
States. There, broadcast radio and television have been held to have limited First
Amendment protection,75 and U.S. Courts have excluded broadcast media from the
application of the “strict scrutiny” standard that they would otherwise apply to content-
based restrictions.76 According to U.S. Courts, the three major reasons why
broadcast media stands apart from print media are: (a) the scarcity of the frequencies
by which the medium operates [i.e., airwaves are physically limited while print
medium may be limitless]; 77 (b) its “pervasiveness” as a medium; and (c) its unique
accessibility to children. 78 Because cases involving broadcast media need not follow
“precisely the same approach that [U.S. courts] have applied to other media,” nor go
“so far as to demand that such regulations serve ‘compelling’ government
interests,”79they are decided on whether the “governmental restriction” is
narrowly tailored to further a substantial governmental interest,” 80 or the
intermediate test.
As pointed out by respondents, Philippine jurisprudence has also echoed a
differentiation in treatment between broadcast and print media. Nevertheless, a
review of Philippine case law on broadcast media will show that—as we have
deviated with the American conception of the Bill of Rights 81—we likewise did
not adopt en masse  the U.S. conception of freespeech as it relates to broadcast
media, particularly as to which test would govern content-based prior
restraints.
Our cases show two distinct features of this dichotomy. First, the difference in
treatment, in the main, is in the regulatory scheme applied to broadcast media that is
not imposed on traditional print media, and narrowly confined to unprotected speech
(e.g.,  obscenity, pornography, seditious and inciting speech), or is based on a
compelling government interest that also has constitutional protection, such as
national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is subjected to,
the Court has consistently held that the clear and present danger test applies to
content-based restrictions on media, without making a distinction as to traditional print
or broadcast media.
The distinction between broadcast and traditional print media was first enunciated
in Eastern Broadcasting Corporation (DYRE) v. Dans,82 wherein it was held that “[a]ll
forms of media, whether print or broadcast, are entitled to the broad protection of the
freedom of speech and expression clause. The test for limitations on freedom of
expression continues to be the clear and present danger rule…”83
Dans was a case filed to compel the reopening of a radio station which had been
summarily closed on grounds of national security. Although the issue had become
moot and academic because the owners were no longer interested to reopen, the
Court still proceeded to do an analysis of the case and made formulations to serve as
guidelines for all inferior courts and bodies exercising quasi-judicial functions.
Particularly, the Court made a detailed exposition as to what needs be considered in
cases involving broadcast media. Thus:84
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the broad protection
of the freedom of speech and expression clause. The test for limitations on
freedom of expression continues to be the clear and present danger rule,that
words are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that the lawmaker
has a right to prevent, In his Constitution of the Philippines  (2nd Edition, pp. 569-570)
Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the
test. More recently, the clear and present danger test was applied in J.B.L. Reyes in
behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test,
however, does not lend itself to a simplistic and all embracing interpretation
applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated among
qualified users. A broadcast corporation cannot simply appropriate a certain
frequency without regard for government regulation or for the rights of others.
All forms of communication are entitled to the broad protection of the freedom of
expression clause. Necessarily, however, the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper
and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular
radio program, explained why radio broadcasting, more than other forms of
communications, receives the most limited protection from the free expression clause.
First, broadcast media have established a uniquely pervasive presence in the lives of
all citizens, Material presented over the airwaves confronts the citizen, not only in
public, but in the privacy of his home. Second, broadcasting is uniquely accessible to
children. Bookstores and motion picture theaters may be prohibited from making
certain material available to children, but the same selectivity cannot be done in radio
or television, where the listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the
lives of all Filipinos. Newspapers and current books are found only in metropolitan
areas and in the poblaciones of municipalities accessible to fast and regular
transportation. Even here, there are low income masses who find the cost of books,
newspapers, and magazines beyond their humble means. Basic needs like food and
shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be
within reach of a blaring radio or television set. The materials broadcast over the
airwaves reach every person of every age, persons of varying susceptibilities to
persuasion, persons of different I.Q.s and mental capabilities, persons whose
reactions to inflammatory or offensive speech would be difficult to monitor or predict.
The impact of the vibrant speech is forceful and immediate. Unlike readers of the
printed work, the radio audience has lesser opportunity to cogitate analyze, and reject
the utterance.
(5) The clear and present danger test, therefore, must take the particular
circumstances of broadcast media into account. The supervision of radio stations-
whether by government or through self-regulation by the industry itself calls for
thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the
listeners to violently overthrow it. Radio and television may not be used to organize a
rebellion or to signal the start of widespread uprising. At the same time, the people
have a right to be informed. Radio and television would have little reason for
existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining
utterances. Since they are the most convenient and popular means of disseminating
varying views on public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a
representative democracy. In the 1918 case of United States v. Bustos  (37 Phil. 731)
this Court was already stressing that.
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of media by
the due process and freedom of expression clauses of the Constitution. [Citations
omitted]
It is interesting to note that the Court in Dans adopted the arguments found in U.S.
jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness
and accessibility to children), but only after categorically declaring that “the test
for limitations on freedom of expression continues to be the clear and present
danger rule,” for all forms of media, whether print or broadcast. Indeed, a close
reading of the above-quoted provisions would show that the differentiation that the
Court in Dans referred to was narrowly restricted to what is otherwise deemed as
“unprotected speech” (e.g., obscenity, national security, seditious and inciting
speech), or to validate a licensing or regulatory scheme necessary to allocate the
limited broadcast frequencies, which is absent in print media. Thus, when this Court
declared in Dans that the freedom given to broadcast media was “somewhat lesser in
scope than the freedom accorded to newspaper and print media,” it was not as to
what test should be applied, but the context by which requirements of licensing,
allocation of airwaves, and application of norms to unprotected speech. 85
In the same year that the Dans case was decided, it was reiterated in Gonzales v.
Katigbak,86 that the test to determine free expression challenges was the clear and
present danger, again without distinguishing the media. 87Katigbak, strictly speaking,
does not treat of broadcast media but motion pictures. Although the issue involved
obscenity standards as applied to movies,88 the Court concluded its decision with the
following obiter dictum that a less liberal approach would be used to resolve obscenity
issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of obscenity
applicable to motion pictures. It is the consensus of this Court that where television is
concerned, a less liberal approach calls for observance. This is so because unlike
motion pictures where the patrons have to pay their way, television reaches every
home where there is a set. Children then will likely be among the avid viewers of the
programs therein shown…..It cannot be denied though that the State as parens
patriae is called upon to manifest an attitude of caring for the welfare of the young.
More recently, in resolving a case involving the conduct of exit polls and
dissemination of the results by a broadcast company, we reiterated that the clear and
present danger rule is the test we unquestionably adhere to issues that involve
freedoms of speech and of the press.89
This is not to suggest, however, that the clear and present danger rule has
been applied to all cases that involve the broadcast media. The rule applies to all
media, including broadcast, but only when the challenged act is a content-based
regulation that infringes on free speech, expression and the press. Indeed,
in Osmena v. COMELEC,90which also involved broadcast media, the Court refused to
apply the clear and present danger rule to a COMELEC regulation of time and
manner of advertising of political advertisements because the challenged restriction
was content-neutral.91 And in a case involving due process and equal protection
issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines
v. COMELEC92 treated a restriction imposed on a broadcast media as a reasonable
condition for the grant of the media’s franchise, without going into which test would
apply.
That broadcast media is subject to a regulatory regime absent in print media is
observed also in other jurisdictions, where the statutory regimes in place over
broadcast media include elements of licensing, regulation by administrative bodies,
and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media differ
in a number of respects, but have a common historical basis. The stricter system of
controls seems to have been adopted in answer to the view that owing to
their particularimpact on audiences, films, videos and broadcasting require a
system of prior restraints, whereas it is now accepted that books and other printed
media do not. These media are viewed as beneficial to the public in a number of
respects, but are also seen as possible sources of harm.93
Parenthetically, these justifications are now the subject of debate. Historically, the
scarcity of frequencies was thought to provide a rationale. However, cable and
satellite television have enormously increased the number of actual and potential
channels. Digital technology will further increase the number of channels available.
But still, the argument persists that broadcasting is the most influential means of
communication, since it comes into the home, and so much time is spent watching
television. Since it has a unique impact on people and affects children in a way that
the print media normally does not, that regulation is said to be necessary in order to
preserve pluralism. It has been argued further that a significant main threat to free
expression—in terms of diversity—comes not from government, but from private
corporate bodies. These developments show a need for a reexamination of the
traditional notions of the scope and extent of broadcast media regulation. 94
The emergence of digital technology—which has led to the convergence of
broadcasting, telecommunications and the computer industry—has likewise led to the
question of whether the regulatory model for broadcasting will continue to be
appropriate in the converged environment.95 Internet, for example, remains largely
unregulated, yet the Internet and the broadcast media share similarities, 96 and the
rationales used to support broadcast regulation apply equally to the Internet. 97 Thus, it
has been argued that courts, legislative bodies and the government agencies
regulating media must agree to regulate both, regulate neither or develop a new
regulatory framework and rationale to justify the differential treatment. 98
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on broadcast
media, let us go to its application to the case at bar. To recapitulate, 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 who’s and the how’s of the wiretapping act is ambivalent, especially
considering the tape’s 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 does not endanger national
security. There are laws of great significance but their violation, by itself and without
more, cannot support suppression of free speech and free press. In fine, violation of
law is just a factor, a vital one to be sure, which should be weighed in adjudging
whether to 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 faultline in the stance of the respondents. We slide to the issue of
whether the mere press statements of the Secretary of Justice and of the NTC in
question constitute a form of content-based prior restraint that has transgressed the
Constitution. In resolving this issue, we hold that it is not decisive that the press
statements made by respondents were not reduced in or followed up with
formal orders or circulars. It is sufficient that the press statements were made
by respondents while in the exercise of their official functions. Undoubtedly,
respondent Gonzales made his statements as Secretary of Justice, while the NTC
issued its statement as the regulatory body of media. Any act done, such as a
speech uttered, for and on behalf of the government in an official capacity is
covered by the rule on prior restraint. The concept of an “act” does not limit
itself to acts already converted to a formal order or official circular. Otherwise,
the non formalization of an act into an official order or circular will result in the
easy circumvention of the prohibition on prior restraint. The press statements at
bar are acts that should be struck down as they constitute impermissible forms of
prior restraints on the right to free speech and press.
There is enough evidence of chilling effect of the complained acts on record.
The warnings given to media came from no less the NTC, a regulatory agency that
can cancel the Certificate of Authority of the radio and broadcast media. They also
came from the Secretary of Justice, the alter ego of the Executive, who wields the
awesome power to prosecute those perceived to be violating the laws of the
land. After the warnings, the KBP inexplicably joined the NTC in issuing an
ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left
alone to fight this battle for freedom of speech and of the press. This silence on the
sidelines on the part of some media practitioners is too deafening to be the subject of
misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts should always
be exercised with care and in light of the distinct facts of each case. For there are no
hard and fast rules when it comes to slippery constitutional questions, and the limits
and construct of relative freedoms are never set in stone. Issues revolving on their
construct must be decided on a case to case basis, always based on the peculiar
shapes and shadows of each case. But in cases where the challenged acts are
patent invasions of a constitutionally protected right, we should be swift in striking
them down as nullities per se. A blow too soon struck for freedom is preferred
than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition
are hereby issued, nullifying the official statements made by respondents on June 8,
and 11, 2005 warning the media on airing the alleged wiretapped conversation
between the President and other personalities, for constituting unconstitutional prior
restraint on the exercise of freedom of speech and of the press
SO ORDERED.
G.R. No. 133486           January 28, 2000
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
PANGANIBAN, J.:
The holding of exit polls and the dissemination of their results through mass media
constitute an essential part of the freedoms of speech and of the press. Hence, the
Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and
credible elections. Quite the contrary, exit polls — properly conducted and publicized
— can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly
tailored countermeasures may be prescribed by the Comelec so as to minimize or
suppress the incidental problems in the conduct of exit polls, without transgressing in
any manner the fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing
Commission on Elections (Comelec) en banc Resolution No. 98-14191 dated April 21,
1998. In the said Resolution, the poll body
RESOLVED to approve the issuance of a restraining order to stop ABS-CBN
or any other groups, its agents or representatives from conducting such exit
survey and to authorize the Honorable Chairman to issue the same.
The Resolution was issued by the Comelec allegedly upon "information from [a]
reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups,
to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the .
. . vote during the elections for national officials particularly for President and Vice
President, results of which shall be [broadcast] immediately."2 The electoral body
believed that such project might conflict with the official Comelec count, as well as the
unofficial quick count of the National Movement for Free Elections (Namfrel). It also
noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the
exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by
petitioner. We directed the Comelec to cease and desist, until further orders, from
implementing the assailed Resolution or the restraining order issued pursuant thereto,
if any. In fact, the exit polls were actually conducted and reported by media without
any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted
with grave abuse of discretion amounting to a lack or excess of jurisdiction when it
approved the issuance of a restraining order enjoining the petitioner or any [other
group], its agents or representatives from conducting exit polls during the . . . May 11
elections."3
In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings
up additional issues: (1) mootness and (2) prematurity, because of petitioner's failure
to seek a reconsideration of the assailed Comelec Resolution.
The Court's Ruling
The Petition5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the
May 11, 1998 election has already been held and done with. Allegedly, there is no
longer any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the
May 11, 1998 election, its implications on the people's fundamental freedom of
expression transcend the past election. The holding of periodic elections is a basic
feature of our democratic government. By its very nature, exit polling is tied up with
elections. To set aside the resolution of the issue now will only postpone a task that
could well crop up again in future elections.6
In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also
has the duty to formulate guiding and controlling constitutional principles, precepts,
doctrines, or rules. It has the symbolic function of educating bench and bar on the
extent of protection given by constitutional guarantees."7 Since the fundamental
freedoms of speech and of the press are being invoked here, we have resolved to
settle, for the guidance of posterity, whether they likewise protect the holding of exit
polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for
petitioner's failure to exhaust available remedies before the issuing forum, specifically
the filing of a motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be
glossed over to prevent a miscarriage of justice,8 when the issue involves the principle
of social justice or the protection of labor,9 when the decision or resolution sought to
be set aside is a nullity,10 or when the need for relief is extremely urgent
and certiorari is the only adequate and speedy remedy available.11
The instant Petition assails a Resolution issued by the Comelec en banc on April 21,
1998, only twenty (20) days before the election itself. Besides, the petitioner got hold
of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly
enough opportunity to move for a reconsideration and to obtain a swift resolution in
time or the May 11, 1998 elections. Moreover, not only is time of the essence; the
Petition involves transcendental constitutional issues. Direct resort to this Court
through a special civil action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or
groups of individuals for the purpose of determining the probable result of an election
by confidentially asking randomly selected voters whom they have voted for,
immediately after they have officially cast their ballots. The results of the survey are
announced to the public, usually through the mass media, to give an advance
overview of how, in the opinion of the polling individuals or organizations, the
electorate voted. In our electoral history, exit polls had not been resorted to until the
recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible
member of the mass media, committed to report balanced election-related data,
including "the exclusive results of Social Weather Station (SWS) surveys conducted
in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting their results are
valid exercises of the freedoms of speech and of the press. It submits that, in
precipitately and unqualifiedly restraining the holding and the reporting of exit polls,
the Comelec gravely abused its discretion and grossly violated the petitioner's
constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed
Resolution, it gravely abused its discretion. It insists that the issuance thereof was
"pursuant to its constitutional and statutory powers to promote a clean, honest,
orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain
the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys
might unduly confuse and influence the voters," and that the surveys were designed
"to condition the minds of people and cause confusion as to who are the winners and
the [losers] in the election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional
principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the
contents of ballots," in violation of Section 2, Article V of the Constitution; 12 and
relevant provisions of the Omnibus Election Code.13 It submits that the constitutionally
protected freedoms invoked by petitioner "are not immune to regulation by the State
in the legitimate exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose
a "clear and present danger of destroying the credibility and integrity of the electoral
process," considering that they are not supervised by any government agency and
can in general be manipulated easily. He insists that these polls would sow confusion
among the voters and would undermine the official tabulation of votes conducted by
the Commission, as well as the quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question
can thus be more narrowly defined: May the Comelec, in the exercise of its powers,
totally ban exit polls? In answering this question, we need to review quickly our
jurisprudence on the freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government.
It "is a 'preferred' right and, therefore, stands on a higher level than substantive
economic or other liberties. . . . [T]his must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is the indispensable
condition of nearly every other form of freedom."14
Our Constitution clearly mandates that no law shall be passed abridging the freedom
of speech or of the press.15 In the landmark case Gonzales v. Comelec,16 this Court
enunciated that at the very least, free speech and a free press consist of the liberty to
discuss publicly and truthfully any matter of public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment, of
attaining the truth, of securing participation by the people in social and political
decision-making, and of maintaining the balance between stability and change.17 It
represents a profound commitment to the principle that debates on public issues
should be uninhibited, robust, and wide open.18 It means more than the right to
approve existing political beliefs or economic arrangements, to lend support to official
measures, or to take refuge in the existing climate of opinion on any of public
consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes,19 we
stress that the freedom encompasses the thought we hate, no less than the thought
we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of
the freedoms of speech and of the press. Such freedoms could not remain unfettered
and unrestrained at all times and under all circumstances. 20 They are not immune to
regulation by the State in the exercise of its police power.21 While the liberty to think is
absolute, the power to express such thought in words and deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in
determining the validity of restrictions to such freedoms, as follows:
These are the "clear and present danger" rule and the "dangerous tendency"
rule. The first, as interpreted in a number of cases, means that the evil
consequence of the comment or utterance must be "extremely serious and
the degree of imminence extremely high" before the utterance can be
punished. The danger to be guarded against is the "substantive evil" sought
to be prevented. . . .23
The "dangerous tendency" rule, on the other hand, . . . may be epitomized
as follows: if the words uttered create a dangerous tendency which the state
has a right to prevent, then such words are punishable. It is not necessary
that some definite or immediate acts of force, violence, or unlawfulness be
advocated. It is sufficient that such acts be advocated in general terms. Nor
is it necessary that the language used be reasonably calculated to incite
persons to acts of force, violence, or unlawfulness. It is sufficient if the
natural tendency and probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to prevent.24
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly
did in its earlier decisions in Primicias v. Fugoso25 and American Bible Society v. City
of Manila;26 as well as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong
v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more recently, in Iglesia ni Cristo
v. MTRCB.31 In setting the standard or test for the "clear and present danger" doctrine,
the Court echoed the words of Justice Holmes: "The question in every case is
whether the words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive evils
that Congress has a right to prevent. It is a question of proximity and degree."32
A limitation on the freedom of expression may be justified only by a danger of such
substantive character that the state has a right to prevent. Unlike in the "dangerous
tendency" doctrine, the danger must not only be clear but also present. "Present"
refers to the time element; the danger must not only be probable but very likely to be
inevitable.33 The evil sought to be avoided must be so substantive as to justify a clamp
over one's mouth or a restraint of a writing instrument.34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
restriction is treated an exemption. The power to exercise prior restraint is not to be
presumed; rather the presumption is against its validity. 35 And it is respondent's
burden to overthrow such presumption. Any act that restrains speech should be
greeted with furrowed brows,36 so it has been said.
To justify a restriction, the promotion of a substantial government interest must be
clearly shown.37 Thus:
A government regulation is sufficiently justified if it is within the constitutional
power of the government, if it furthers an important or substantial
government interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance
of that interest.38
Hence, even though the government's purposes are legitimate and substantial, they
cannot be pursued by means that broadly stifle fundamental personal liberties, when
the end can be more narrowly achieved.39
The freedoms of speech and of the press should all the more be upheld when what is
sought to be curtailed is the dissemination of information meant. to add meaning to
the equally vital right of suffrage.40 We cannot support any ruling or order "the effect of
which would be to nullify so vital a constitutional right as free speech."41 When faced
with borderline situations in which the freedom of a candidate or a party to speak or
the freedom of the electorate to know is invoked against actions allegedly made to
assure clean and free elections, this Court shall lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate should
not be antagonistic. There can be no free and honest elections if, in the efforts to
maintain them, the freedom to speak and the right to know are unduly curtailed.42
True, the government has a stake in protecting the fundamental right to vote by
providing voting places that are safe and accessible. It has the duty to secure the
secrecy of the ballot and to preserve the sanctity and the integrity of the electoral
process. However, in order to justify a restriction of the people's freedoms of speech
and of the press, the state's responsibility of ensuring orderly voting must far
outweigh them.
These freedoms have additional importance, because exit polls generate important
research data which may be used to study influencing factors and trends in voting
behavior. An absolute prohibition would thus be unreasonably restrictive, because it
effectively prevents the use of exit poll data not only for election-day projections, but
also for long-term research.43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued
pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and
peaceful election. While admitting that "the conduct of an exit poll and the broadcast
of the results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress
freedom may be curtailed if the exercise thereof creates a clear and present danger
to the community or it has a dangerous tendency." It then contends that "an exit poll
has the tendency to sow confusion considering the randomness of selecting
interviewees, which further make[s] the exit poll highly unreliable. The probability that
the results of such exit poll may not be in harmony with the official count made by the
Comelec . . . is ever present. In other words, the exit poll has a clear and present
danger of destroying the credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very
nature of a survey, the interviewees or participants are selected at random, so that
the results will as much as possible be representative or reflective of the general
sentiment or view of the community or group polled. Second, the survey result is not
meant to replace or be at par with the official Comelec count. It consists merely of the
opinion of the polling group as to who the electorate in general has probably voted
for, based on the limited data gathered from polled individuals. Finally, not at stake
here are the credibility and the integrity of the elections, which are exercises that are
separate and independent from the exit polls. The holding and the reporting of the
results of exit polls cannot undermine those of the elections, since the former is only
part of the latter. If at all, the outcome of one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls —
disorder and confusion in the voting centers — does not justify a total ban on them.
Undoubtedly, the assailed Comelec Resolution is too broad, since its application is
without qualification as to whether the polling is disruptive or not. 44 Concededly, the
Omnibus Election Code prohibits disruptive behavior around the voting
centers.45 There is no showing, however, that exit polls or the means to interview
voters cause chaos in voting centers. Neither has any evidence been presented
proving that the presence of exit poll reporters near an election precinct tends to
create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their
use for any purpose. The valuable information and ideas that could be derived from
them, based on the voters' answer to the survey questions will forever remain
unknown and unexplored. Unless the ban is restrained, candidates, researchers,
social scientists and the electorate in general would be deprived of studies on the
impact of current events and of election-day and other factors on voters'
choices.1âwphi1.nêt
In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the
purposes of which was to prevent the broadcasting of early returns, was
unconstitutional because such purpose was impermissible, and the statute was
neither narrowly tailored to advance a state interest nor the least restrictive
alternative. Furthermore, the general interest of the State in insulating voters from
outside influences is insufficient to justify speech regulation. Just as curtailing
election-day broadcasts and newspaper editorials for the reason that they might
indirectly affect the voters' choices is impermissible, so is impermissible, so is
regulating speech via an exit poll restriction.47
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not
leave open any alternative channel of communication to gather the type of information
obtained through exit polling. On the other hand, there are other valid and reasonable
ways and means to achieve the Comelec end of avoiding or minimizing disorder and
confusion that may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be
kept at a reasonable distance from the voting center. They may be required to explain
to voters that the latter may refuse interviewed, and that the interview is not part of
the official balloting process. The pollsters may further be required to wear distinctive
clothing that would show they are not election officials. 48 Additionally, they may be
required to undertake an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a general prohibition
of disruptive behavior, could ensure a clean, safe and orderly election.
For its part, petitioner ABS-CBN explains its survey methodology as follows: (1)
communities are randomly selected in each province; (2) residences to be polled in
such communities are also chosen at random; (3) only individuals who have already
voted, as shown by the indelible ink on their fingers, are interviewed; (4) the
interviewers use no cameras of any sort; (5) the poll results are released to the public
only on the day after the elections. 49 These precautions, together with the possible
measures earlier stated, may be undertaken to abate the Comelec's fear, without
consequently and unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing
disruption is outweighed by the drastic abridgment of the constitutionally guaranteed
rights of the media and the electorate. Quite the contrary, instead of disrupting
elections, exit polls — properly conducted and publicized — can be vital tools for the
holding of honest, orderly, peaceful and credible elections; and for the elimination of
election-fixing, fraud and other electoral ills.
 Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity
and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek
access to the ballots cast by the voters. The ballot system of voting is not at issue
here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official
ballots to other persons, from making copies thereof, or from putting distinguishing
marks thereon so as to be identified. Also proscribed is finding out the contents of the
ballots cast by particular voters or disclosing those of disabled or illiterate voters who
have been assisted. Clearly, what is forbidden is the association of voters with their
respective votes, for the purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This result cannot, however, be
achieved merely through the voters' verbal and confidential disclosure to a pollster of
whom they have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore,
the revelation of whom an elector has voted for is not compulsory, but voluntary.
Voters may also choose not to reveal their identities. Indeed, narrowly tailored
countermeasures may be prescribed by the Comelec, so as to minimize or suppress
incidental problems in the conduct of exit polls, without transgressing the fundamental
rights of our people.
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order
issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute
Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby
NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
G.R. No. 155282            January 17, 2005
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD
(MTRCB), petitioner,
vs.
ABS-CBN BROADCASTING CORPORATION and LOREN
LEGARDA, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari under Rule 45 of the 1997
Rules of Court, as amended, filed by petitioner Movie and Television Review and
Classification Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-
CBN) and former Senator Loren Legarda, respondents, assailing the (a) Decision
dated November 18, 1997,1 and (b) Order dated August 26, 20022 of the Regional
Trial Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-
tuition," an episode of the television (TV) program "The Inside Story" produced and
hosted by respondent Legarda. It depicted female students moonlighting as
prostitutes to enable them to pay for their tuition fees. In the course of the program,
student prostitutes, pimps, customers, and some faculty members were interviewed.
The Philippine Women’s University (PWU) was named as the school of some of the
students involved and the facade of PWU Building at Taft Avenue, Manila
conspicuously served as the background of the episode.
The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia
P. de Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and
Teachers Association filed letter-complaints3 with petitioner MTRCB. Both
complainants alleged that the episode besmirched the name of the PWU and resulted
in the harassment of some of its female students.
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal
complaint with the MTRCB Investigating Committee, alleging among others, that
respondents (1) did not submit "The Inside Story" to petitioner for its review
and (2) exhibited the same without its permission, thus, violating Section 74 of
Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter III and Section
7,7 Chapter IV of the MTRCB Rules and Regulations.8
In their answer,9 respondents explained that the "The Inside Story" is a "public affairs
program, news documentary and socio-political editorial," the airing of which
is protected by the constitutional provision on freedom of expression and of the
press. Accordingly, petitioner has no power, authority and jurisdiction to impose any
form of prior restraint upon respondents.
On February 5, 1993, after hearing and submission of the parties’ memoranda, the
MTRCB Investigating Committee rendered a Decision, the decretal portion of which
reads:
"WHEREFORE, the aforementioned premises, the respondents are ordered to pay
the sum of TWENTY THOUSAND PESOS (₱20,000.00) for non-submission of the
program, subject of this case for review and approval of the MTRCB.
Heretofore, all subsequent programs of the ‘The Inside Story’ and all other programs
of the ABS-CBN Channel 2 of the same category shall be submitted to the Board of
Review and Approval before showing; otherwise the Board will act
accordingly."101awphi1.nét
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued
a Decision dated March 12, 1993 affirming the above ruling of its Investigating
Committee.11 Respondents filed a motion for reconsideration but was denied in a
Resolution dated April 14, 1993.12
Respondents then filed a special civil action for certiorari with the Regional Trial Court
(RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional Sections
3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Sections 3, 19 7,20 and
2821 (a) of the MTRCB Rules and Regulations;22 (2) (in the alternative) exclude the
"The Inside Story" from the coverage of the above cited provisions; and (3) annul and
set aside the MTRCB Decision dated March 12, 1993 and Resolution dated April 14,
1993. Respondents averred that the above-cited provisions constitute "prior restraint"
on respondents’ exercise of freedom of expression and of the press, and, therefore,
unconstitutional. Furthermore, the above cited provisions do not apply to the "The
Inside Story" because it falls under the category of "public affairs program, news
documentary, or socio-political editorials" governed by standards similar to those
governing newspapers.
On November 18, 1997, the RTC rendered a Decision 23 in favor of respondents, the
dispositive portion of which reads:
"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of
MTRCB dated March 12, 1993;
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of
P.D. No. 1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV
Program "The Inside Story" and other similar programs, they being public affairs
programs which can be equated to newspapers; and
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in
their behalf.
SO ORDERED."
Petitioner filed a motion for reconsideration but was denied.24
Hence, this petition for review on certiorari.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television
programs, including "public affairs programs, news documentaries, or socio-political
editorials," are subject to petitioner’s power of review under Section 3 (b) of P.D. No.
1986 and pursuant to this Court’s ruling in Iglesia ni Cristo vs. Court of
Appeals ;25 second, television programs are more accessible to the public than
newspapers, thus, the liberal regulation of the latter cannot apply to the
former; third, petitioner’s power to review television programs under Section 3(b) of P.
D. No. 1986 does not amount to "prior restraint;" and fourth, Section 3(b) of P. D. No.
1986 does not violate respondents’ constitutional freedom of expression and of the
press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or authority to
review the "The Inside Story" prior to its exhibition or broadcast by television.
The petition is impressed with merit.
The present controversy brings into focus the provisions of Section 3 of P. D. No.
1986, partly reproduced as follows:
"SEC. 3. Powers and Functions. – The BOARD shall have the following functions,
powers and duties:
xxxxxx
b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-theatrical
distribution, for television broadcast or for general viewing, imported or produced in
the Philippines, and in the latter case, whether they be for local viewing or for
export.1a\^/phi1.net
c) To approve or disapprove, delete objectionable portions from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease exhibition
and/or television broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the BOARD
applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous tendency
to encourage the commission of violence or of a wrong or crime, such as but not
limited to:
xxx
d) To supervise, regulate, and grant, deny or cancel, permits for the importation,
exportation, production, copying, distribution, sale, lease, exhibition, and/or television
broadcast of all motion pictures, television programs and publicity materials, to the
end and that no such pictures, programs and materials as are determined by the
BOARD to be objectionable in accordance with paragraph (c) hereof shall be
imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited
and/or broadcast by television;
x x x x x x."
Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has
the power to review the television program "The Inside Story." The task is not
Herculean because it merely resurrects this Court En Banc’s ruling in Iglesia ni Cristo
vs. Court of Appeals.26 There, the Iglesia ni Cristo sought exception from petitioner’s
review power contending that the term "television programs" under Sec. 3 (b) does
not include "religious programs" which are protected under Section 5, Article III of the
Constitution.27 This Court, through Justice Reynato Puno, categorically ruled that P.D.
No. 1986 gives petitioner "the power to screen, review and examine "all television
programs," emphasizing the phrase "all television programs," thus:
"The law gives the Board the power to screen, review and examine all
‘television programs.’ By the clear terms of the law, the Board has the power to
‘approve, delete x x x and/or prohibit the x x x exhibition and/or television broadcast of
x x x television programs x x x.’ The law also directs the Board to apply ‘contemporary
Filipino cultural values as standard’ to determine those which are objectionable for
being ‘immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime.’"
Settled is the rule in statutory construction that where the law does not make any
exception, courts may not except something therefrom, unless there is compelling
reason apparent in the law to justify it.28 Ubi lex non distinguit nec distinguere
debemos. Thus, when the law says "all television programs," the word "all" covers all
television programs, whether religious, public affairs, news documentary, etc. 29 The
principle assumes that the legislative body made no qualification in the use of general
word or expression.30
It then follows that since "The Inside Story" is a television program, it is within the
jurisdiction of the MTRCB over which it has power of review.
Here, respondents sought exemption from the coverage of the term "television
programs" on the ground that the "The Inside Story" is a "public affairs program, news
documentary and socio-political editorial" protected under Section 4,31 Article III of the
Constitution. Albeit, respondent’s basis is not freedom of religion, as in Iglesia ni
Cristo,32 but freedom of expression and of the press, the ruling in Iglesia ni
Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni
Cristo, this Court declared that freedom of religion has been accorded
a preferred status by the framers of our fundamental laws, past and present,
"designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs x x x." Yet despite the fact that freedom of religion
has been accorded a preferred status, still this Court, did not exempt the Iglesia ni
Cristo’s religious program from petitioner’s review power.
Respondents claim that the showing of "The Inside Story" is protected by the
constitutional provision on freedom of speech and of the press. However, there has
been no declaration at all by the framers of the Constitution that freedom of
expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the
jurisdiction and review power of petitioner MTRCB, with more reason, there is no
justification to exempt therefrom "The Inside Story" which, according to respondents,
is protected by the constitutional provision on freedom of expression and of the press,
a freedom bearing no preferred status.
The only exceptions from the MTRCB’s power of review are those expressly
mentioned in Section 7 of P. D. No. 1986, such as (1) television programs imprinted
or exhibited by the Philippine Government and/or its departments and agencies,
and (2) newsreels. Thus:
"SEC. 7. Unauthorized showing or exhibition. – It shall be unlawful for any person
or entity to exhibit or cause to be exhibited in any moviehouse, theatre, or public
place or by television within the Philippines any motion picture, television program or
publicity material, including trailers, and stills for lobby displays in connection with
motion pictures, not duly authorized by the owner or his assignee and passed by the
BOARD; or to print or cause to be printed on any motion picture to be exhibited in any
theater or public place or by television a label or notice showing the same to have
been officially passed by the BOARD when the same has not been previously
authorized, except motion pictures, television programs or publicity material
imprinted or exhibited by the Philippine Government and/or its departments
and agencies, and newsreels."
Still in a desperate attempt to be exempted, respondents contend that the "The Inside
Story" falls under the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define "newsreels." Webster’s dictionary defines newsreels
as short motion picture films portraying or dealing with current events.33 A glance at
actual samples of newsreels shows that they are mostly reenactments of events that
had already happened. Some concrete examples are those of Dziga Vertov’s
Russian Kino-Pravda newsreel series (Kino-Pravda means literally "film-truth," a term
that was later translated literally into the French cinema verite) and Frank
Capra’s Why We Fight series.34 Apparently, newsreels are straight presentation
of events. They are depiction of "actualities." Correspondingly, the MTRCB Rules
and Regulations35 implementing P. D. No. 1986 define newsreels as "straight news
reporting, as distinguished from news analyses, commentaries and opinions.
Talk shows on a given issue are not considered newsreels."36 Clearly, the "The
Inside Story" cannot be considered a newsreel. It is more of a public affairs program
which is described as a variety of news treatment; a cross between pure television
news and news-related commentaries, analysis and/or exchange of
opinions.37 Certainly, such kind of program is within petitioner’s review power.
It bears stressing that the sole issue here is whether petitioner MTRCB has authority
to review "The Inside Story." Clearly, we are not called upon to determine whether
petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing that
no law shall be passed abridging the freedom of speech, of oppression or the press.
Petitioner did not disapprove or ban the showing of the program. Neither did it cancel
respondents’ permit. Respondents were merely penalized for their failure to submit to
petitioner "The Inside Story" for its review and approval. Therefore, we need not
resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules and
Regulations specified by respondents contravene the Constitution.
Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7 and 11
of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations
are unconstitutional. It is settled that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the court unless
there is compliance with the legal requisites for judicial inquiry, namely: (1) that the
question must be raised by the proper party; (2) that there must be an actual case or
controversy; (3) that the question must be raised at the earliest possible opportunity;
and, (4) that the decision on the constitutional or legal question must be
necessary to the determination of the case itself.38
WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC
Decision dated November 18, 1997 and Order dated August 26, 2002 are hereby
REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED.
Costs against respondents.
SO ORDERED.
G.R. No. 82380 April 29, 1988
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM
PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.
G.R. No. 82398 April 29, 1988
HAL MCELROY petitioner,
vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the
Regional Trial Court of Makati, Branch 134 and JUAN PONCE
ENRILE, respondents.
FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his movie production company,
Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned, sometime in
1987, the for commercial viewing and for Philippine and international release, the
histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue).
Petitioners discussed this Project with local movie producer Lope V. Juban who
suggested th they consult with the appropriate government agencies and also with
General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles
in the events proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution" was endorsed by the
Movie Television Review and Classification Board as wel as the other government
agencies consulted. General Fidel Ramos also signified his approval of the intended
film production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private
respondent Juan Ponce Enrile about the projected motion picture enclosing a
synopsis of it, the full text of which is set out below:
The Four Day Revolution is a six hour mini-series about People Power—a unique
event in modern history that-made possible the Peaceful revolution in the Philippines
in 1986.
Faced with the task of dramatising these rerkble events, screenwriter David
Williamson and history Prof Al McCoy have chosen a "docu-drama" style and created
[four] fictitious characters to trace the revolution from the death of Senator Aquino, to
the Feb revolution and the fleeing of Marcos from the country.
These character stories have been woven through the real events to help our huge
international audience understand this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television journalist working for major network.
Tony reflects the average American attitude to the Phihppinence —once a colony,
now the home of crucially important military bases. Although Tony is aware of the
corruption and of Marcos' megalomania, for him, there appears to be no alternative to
Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly
caught up in the events as it becomes dear that the time has come for a change.
Through Angle and her relationship with one of the Reform Army Movement Colonels
(a fictitious character), we follow the developing discontent in the armed forces. Their
dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately
their defection from Marcos.
The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila
newspaper who despises the Marcos regime and is a supporter an promoter of Cory
Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of
the New People's Army, and Eva--a -P.R. girl, politically moderate and very much in
love with Tony. Ultimately, she must choose between her love and the revolution.
Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and thintertwining series of events and characters
that triggered these remarkable changes. Through them also, we meet all of the
principal characters and experience directly dramatic recreation of the revolution. The
story incorporates actual documentary footage filmed during the period which we
hope will capture the unique atmosphere and forces that combined to overthrow
President Marcos.
David Williamson is Australia's leading playwright with some 14 hugely successful
plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The
Year of Living Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian with a
deep understanding of the Philippines, who has worked on the research for this
project for some 18 months. Together with Davi Wilhamgon they have developed a
script we believe accurately depicts the complex issues and events that occurred
during th period .
The six hour series is a McElroy and McElroy co-production with Home Box Office in
American, the Australian Broadcast Corporation in Australia and Zenith Productions
in the United Kingdom
The proposed motion picture would be essentially a re-enact. ment of the events that
made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-
series television play, presented in a "docu-drama" style, creating four (4) fictional
characters interwoven with real events, and utilizing actual documentary footage as
background.
On 21 December 1987, private respondent Enrile replied that "[he] would not and will
not approve of the use, appropriation, reproduction and/or exhibition of his name, or
picture, or that of any member of his family in any cinema or television production,
film or other medium for advertising or commercial exploitation" and further advised
petitioners that 'in the production, airing, showing, distribution or exhibition of said or
similar film, no reference whatsoever (whether written, verbal or visual) should not be
made to [him] or any member of his family, much less to any matter purely personal
to them.
It appears that petitioners acceded to this demand and the name of private
respondent Enrile was deleted from the movie script, and petitioners proceeded to
film the projected motion picture.
On 23 February 1988, private respondent filed a Complaint with application for
Temporary Restraining Order and Wilt of Pretion with the Regional Trial Court of
Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin
petitioners from producing the movie "The Four Day Revolution". The complaint
alleged that petitioners' production of the mini-series without private respondent's
consent and over his objection, constitutes an obvious violation of his right of privacy.
On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order
and set for hearing the application for preliminary injunction.
On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the
Petition for Preliminary Injunction contending that the mini-series fim would not
involve the private life of Juan Ponce Enrile nor that of his family and that a
preliminary injunction would amount to a prior restraint on their right of free
expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging
lack of cause of action as the mini-series had not yet been completed.
2
In an Order   dated 16 March 1988, respondent court issued a writ of Preliminary
Injunction against the petitioners, the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and
all persons and entities employed or under contract with them, including actors,
actresses and members of the production staff and crew as well as all persons and
entities acting on defendants' behalf, to cease and desist from producing and filming
the mini-series entitled 'The Four Day Revolution" and from making any reference
whatsoever to plaintiff or his family and from creating any fictitious character in lieu of
plaintiff which nevertheless is based on, or bears rent substantial or marked
resemblance or similarity to, or is otherwise Identifiable with, plaintiff  in the production
and any similar film or photoplay, until further orders from this Court, upon plaintiff's
filing of a bond in the amount of P 2,000,000.00, to answer for whatever damages
defendants may suffer by reason of the injunction if the Court should finally decide
that plaintiff was not entitled thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for
certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or
Restraining Order, which petition was docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition
for certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction,
dated 22 March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and private
respondent was required to file a consolidated Answer. Further, in the same
Resolution, the Court granted a Temporary Restraining Order partially enjoining the
implementation of the respondent Judge's Order of 16 March 1988 and the Writ of
Preliminary Injunction issued therein, and allowing the petitioners to resume
producing and filming those portions of the projected mini-series which do not make
any reference to private respondent or his family or to any fictitious character based
on or respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988
invoking in the main a right of privacy.
I
The constitutional and legal issues raised by the present Petitions are sharply drawn.
Petitioners' claim that in producing and "The Four Day Revolution," they are
exercising their freedom of speech and of expression protected under our
Constitution. Private respondent, upon the other hand, asserts a right of privacy and
claims that the production and filming of the projected mini-series would constitute an
unlawful intrusion into his privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression the Court
would once more stress that this freedom includes the freedom to film and produce
motion pictures and to exhibit such motion pictures in theaters or to diffuse them
through television. In our day and age, motion pictures are a univesally utilized
vehicle of communication and medium Of expression. Along with the press, radio and
television, motion pictures constitute a principal medium of mass communication for
information, education and entertainment. In Gonzales v. Katigbak, 3 former Chief
Justice Fernando, speaking for the Court, explained:
1. Motion pictures are important both as a medium for the communication of Ideas
and the expression of the artistic impulse. Their effect on the perception by our
people of issues and public officials or public figures as well as the pre cultural traits
is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the
Importance of motion pictures as an organ of public opinion lessened by the fact that
they are designed to entertain as well as to inform' (Ibid, 501). There is no clear
dividing line between what involves knowledge and what affords pleasure. If such a
distinction were sustained, there is a diminution of the basic right to free
expression. ...4
This freedom is available in our country both to locally-owned and to foreign-owned
motion picture companies. Furthermore the circumstance that the production of
motion picture films is a commercial activity expected to yield monetary profit, is not a
disqualification for availing of freedom of speech and of expression. In our community
as in many other countries, media facilities are owned either by the government or the
private sector but the private sector-owned media facilities commonly require to be
sustained by being devoted in whole or in pailt to revenue producing activities.
Indeed, commercial media constitute the bulk of such facilities available in our country
and hence to exclude commercially owned and operated media from the exerciseof
constitutionally protected om of speech and of expression can only result in the
drastic contraction of such constitutional liberties in our country.
The counter-balancing of private respondent is to a right of privacy. It was
demonstrated sometime ago by the then Dean Irene R. Cortes that our law,
constitutional and statutory, does include a right of privacy. 5 It is left to case law,
however, to mark out the precise scope and content of this right in differing types of
particular situations. The right of privacy or "the right to be let alone," 6 like the right of
free expression, is not an absolute right. A limited intrusion into a person's privacy
has long been regarded as permissible where that person is a public figure and the
information sought to be elicited from him or to be published about him constitute of
apublic character. 7 Succinctly put, the right of privacy cannot be invoked resist
publication and dissemination of matters of public interest. 8 The interest sought to be
protected by the right of privacy is the right to be free from unwarranted publicity, from
the wrongful publicizing of the private affairs and activities of an individual which are
outside the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily,
recognized a right to privacy in a context which included a claim to freedom of speech
and of expression. Lagunzad involved a suit fortion picture producer as licensee and
the widow and family of the late Moises Padilla as licensors. This agreement gave the
licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a
mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros
Occidental during the November 1951 elections and for whose murder, Governor
Rafael Lacson, a member of the Liberal Party then in power and his men were tried
and convicted. 11 In the judgment of the lower court enforcing the licensing agreement
against the licensee who had produced the motion picture and exhibited it but refused
to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said:
Neither do we agree with petitioner's subon that the Licensing Agreement is null and
void for lack of, or for having an illegal cause or consideration, while it is true that
petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did
not dispense with the need for prior consent and authority from the deceased heirs to
portray publicly episodes in said deceased's life and in that of his mother and the
member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31
LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a
deperson to protect his memory, but the privilege wts for the benefit of the living, to
protect their feelings and to preventa violation of their own rights in the character and
memory of the deceased.'
Petitioners averment that private respondent did not have any property right over the
life of Moises Padilla since the latter was a public figure, is neither well taken. Being a
public figure ipso facto does not automatically destroy in toto a person's right to
privacy. The right to invade a person's privacy to disseminate public information does
not extend to a fictional or novelized representation of a person, no matter how public
a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549
[1951]). In the case at bar, while it is true that petitioner exerted efforts to present a
true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance
in the film because without it, it would be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with
contraposed claims to freedom of speech and of expression and to privacy. Lagunzad
the licensee in effect claimed, in the name of freedom of speech and expression, a
right to produce a motion picture biography at least partly "fictionalized" of Moises
Padilla without the consent of and without paying pre-agreed royalties to the widow
and family of Padilla. In rejecting the licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention that the Licensing Agreement
infringes on the constitutional right of freedom of speech and of the press, in that, as
a citizen and as a newspaperman, he had the right to express his thoughts in film on
the public life of Moises Padilla without prior restraint.The right freedom of expression,
indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine
Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51
SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger rule is such a limitation.
Another criterion for permissible limitation on freedom of speech and the press, which
includes such vehicles of the mass media as radio, television and the movies, is the
"balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights,
1970 ed. p. 79). The principle "requires a court to take conscious and detailed
consideration of the interplay of interests observable in given situation or type of
situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v.
Commission on Elections, supra, p. 899).
In the case at bar, the interests observable are the right to privacy asserted by
respondent and the right of freedom of expression invoked by petitioner. taking into
account the interplay of those interests, we hold that under the particular
circumstances presented, and considering the obligations assumed in the Licensing
Agreement entered into by petitioner, the validity of such agreement will have to be
upheld particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern." 13
Whether the "balancing of interests test" or the clear and present danger test" be
applied in respect of the instant Petitions, the Court believes that a different
conclusion must here be reached: The production and filming by petitioners of the
projected motion picture "The Four Day Revolution" does not, in the circumstances of
this case, constitute an unlawful intrusion upon private respondent's "right of privacy."
1. It may be observed at the outset that what is involved in the instant case is a prior
and direct restraint on the part of the respondent Judge upon the exercise of speech
and of expression by petitioners. The respondent Judge has restrained petitioners
from filming and producing the entire proposed motion picture. It is important to note
that in Lagunzad, there was no prior restrain of any kind imposed upon the movie
producer who in fact completed and exhibited the film biography of Moises Padilla.
Because of the speech and of expression, a weighty presumption of invalidity
vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that
no subsequent liability may lawfully be imposed upon a person claiming to exercise
such constitutional freedoms. The respondent Judge should have stayed his hand,
instead of issuing an ex-parte Temporary Restraining Order one day after filing of a
complaint by the private respondent and issuing a Preliminary Injunction twenty (20)
days later; for the projected motion picture was as yet uncompleted and hence not
exhibited to any audience. Neither private respondent nor the respondent trial Judge
knew what the completed film would precisely look like. There was, in other words, no
"clear and present danger" of any violation of any right to privacy that private
respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-bloody change
of government that took place at Epifanio de los Santos Avenue in February 1986,
and the trian of events which led up to that denouement. Clearly, such subject matter
is one of public interest and concern. Indeed, it is, petitioners' argue, of international
interest. The subject thus relates to a highly critical stage in the history of this
countryand as such, must be regarded as having passed into the public domain and
as an appropriate subject for speech and expression and coverage by any form of
mass media. The subject mater, as set out in the synopsis provided by the petitioners
and quoted above, does not relate to the individual life and certainly not to the private
life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life
story of Moises Padilla necessarily including at least his immediate family, what we
have here is not a film biography, more or less fictionalized, of private respondent
Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused
upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to
the role played by Juan Ponce Enrile in the precipitating and the constituent events of
the change of government in February 1986.
3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile
that would be entailed by the production and exhibition of "The Four Day Revolution"
would, therefore, be limited in character. The extent of that intrusion, as this Court
understands the synopsis of the proposed film, may be generally described as such
intrusion as is reasonably necessary to keep that film a truthful historical account.
Private respondent does not claim that petitioners threatened to depict in "The Four
Day Revolution" any part of the private life of private respondent or that of any
member of his family.
4. At all relevant times, during which the momentous events, clearly of public concern,
that petitioners propose to film were taking place, private respondent was what Profs.
Prosser and Keeton have referred to as a "public figure:"
A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be included in this
category are those who have achieved some degree of reputation by appearing
before the public, as in the case of an actor, a professional baseball player, a pugilist,
or any other entertainment. The list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and even ordinary soldiers, an
infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a position where public attention is
focused upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight to
privacy. Three reasons were given, more or less indiscrimately, in the decisions" that
they had sought publicity and consented to it, and so could not complaint when they
received it; that their personalities and their affairs has already public, and could no
longer be regarded as their own private business; and that the press had a privilege,
under the Constitution, to inform the public about those who have become legitimate
matters of public interest. On one or another of these grounds, and sometimes all, it
was held that there was no liability when they were given additional publicity, as to
matters legitimately within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public interest, was held
to arise out of the desire and the right of the public to know what is going on in the
world, and the freedom of the press and other agencies of information to tell
it. "News" includes all events and items of information which are out of the ordinary
hum-drum routine, and which have 'that indefinable quality of information which
arouses public attention.' To a very great extent the press, with its experience or
instinct as to what its readers will want, has succeeded in making its own definination
of news, as a glance at any morning newspaper will sufficiently indicate. It includes
homicide and othe crimes, arrests and police raides, suicides, marriages and
divorces, accidents, a death from the use of narcotics, a woman with a rare disease,
the birth of a child to a twelve year old girl, the reappearance of one supposed to
have been murdered years ago, and undoubtedly many other similar matters of
genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the
dissemination of news in the scene of current events. It extended also to information
or education, or even entertainment and amusement, by books, articles, pictures,
films and broadcasts concerning interesting phases of human activity in general, as
well as the reproduction of the public scene in newsreels and travelogues. In
determining where to draw the line, the courts were invited to exercise a species of
censorship over what the public may be permitted to read; and they were
understandably liberal in allowing the benefit of the doubt. 15
Private respondent is a "public figure" precisely because, inter alia, of his participation
as a principal actor in the culminating events of the change of government in
February 1986. Because his participation therein was major in character, a film
reenactment of the peaceful revolution that fails to make reference to the role played
by private respondent would be grossly unhistorical. The right of privacy of a "public
figure" is necessarily narrower than that of an ordinary citizen. Private respondent has
not retired into the seclusion of simple private citizenship. he continues to be a "public
figure." After a successful political campaign during which his participation in the
EDSA Revolution was directly or indirectly referred to in the press, radio and
television, he sits in a very public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between the
constitutional freedom of speech and of expression and the right of privacy, may be
marked out in terms of a requirement that the proposed motion picture must be fairly
truthful and historical in its presentation of events. There must, in other words, be no
knowing or reckless disregard of truth in depicting the participation of private
respondent in the EDSA Revolution. 16 There must, further, be no presentation of the
private life of the unwilling private respondent and certainly no revelation of intimate
or embarrassing personal facts. 17 The proposed motion picture should not enter into
what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of
essentially private concern." 18 To the extent that "The Four Day Revolution" limits
itself in portraying the participation of private respondent in the EDSA Revolution to
those events which are directly and reasonably related to the public facts of the EDSA
Revolution, the intrusion into private respondent's privacy cannot be regarded as
unreasonable and actionable. Such portrayal may be carried out even without a
license from private respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court
that a Temporary Restraining Order dated 25 March 1988, was issued by Judge
Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No.
88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film
Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production"
enjoining him and his production company from further filimg any scene of the
projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors
and paste" pleading, cut out straight grom the complaint of private respondent Ponce
Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate
Manifestation dated 4 April 1988, brought to the attention of the Court the same
information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio
B. Honasan was substantially identical to that filed by private respondent herein and
stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private
respondent, with whom counsel for Gregorio Honasan are apparently associated,
deliberately engaged in "forum shopping."
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the
"slight similarity" between private respondent's complaint and that on Honasan in the
construction of their legal basis of the right to privacy as a component of the cause of
action is understandable considering that court pleadings are public records; that
private respondent's cause of action for invasion of privacy is separate and distinct
from that of Honasan's although they arose from the same tortious act of petitioners'
that the rule on permissive joinder of parties is not mandatory and that, the cited
cases on "forum shopping" were not in point because the parties here and those in
Civil Case No. 88-413 are not identical.
For reasons that by now have become clear, it is not necessary for the Court to deal
with the question of whether or not the lawyers of private respondent Ponce Enrile
have engaged in "forum shopping." It is, however, important to dispose to the
complaint filed by former Colonel Honasan who, having refused to subject himself to
the legal processes of the Republic and having become once again in fugitive from
justice, must be deemed to have forfeited any right the might have had to protect his
privacy through court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16
March 1988 of respondent trial court granting a Writ of Preliminary Injunction is
hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court
on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation
of respondent Judge's Order of 16 March 1988 and made PERMANENT, and
b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as
separate Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining
Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby
REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147,
forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and
DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any
Preliminary Injunction that may have been issued by him.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 123881 March 13, 1997
VIVA PRODUCTIONS, INC., petitioner,
vs.
COURT OF APPEALS AND HUBERT J.P. WEBB, respondents.
MELO, J.:
Assailed in the petition before us are the decision and resolution of respondent Court
of Appeals sustaining both the order of the Regional Trial Court of the National
Capital Judicial Region (Paranaque, Branch 274 — hereinafter referred to as
the Paranaque court) restraining "the exhibition of the movie 'The Jessica Alfaro
Story" at its scheduled premiere showing at the New Frontier Theater on September
11, 1995 at 7:30 in the evening and at its regular public exhibition beginning
September 13, 1995, as well as to cease and desist from promoting and marketing of
the said movie" (Order; p. 96, Rollo); and the order of the Regional Trial Court also of
the National Capital Judicial Region (Makati Branch 58 — hereinafter referred to as
the Makati court) issuing a writ of preliminary "injunction" enjoining petitioner further
proceeding, engaging, using or implementing the promotional advertising and
marketing programs for the movie entitled "The Jessica Alfaro Story" and from
showing or causing the same to be shown or exhibited in all theaters in the entire
country UNTIL after the final termination and logical conclusion of the trial in the
criminal action now pending before the Paranaque Regional Trial Court" (Order; p.
299, Rollo).
Without filing any motion for reconsideration with the two regional trial courts,
petitioner elevated the matter to respondent Court of Appeals via petition
for certiorari, with an urgent prayer for the issuance of a temporary restraining order
and a writ of preliminary injunction, thereafter docketed and consolidated as C.A. G.R
No. SP-38407 and SP-38408. The factual antecedents were summarized by
respondent court in this manner:.
Both petitions are inexorably linked to the Rape with Homicide case, in connection
with what is now known as the "Vizconde Massacre". On June 19, 1995, after the
dismissal of two (2) sets of suspects, another group of nine (9), private respondent
Hubert J.P. Webb included were charged by the National Bureau of Investigation
(NBI) with the crime of Rape With Homicide, on the strength of a sworn statement of
Ma. Jessica M. Alfaro, which complaint was docketed as I.S. No. 95-402 before the
Department of Justice..
It is of public knowledge, nay beyond cavil, that the personalities involved in this
development of the Vizconde Massacre engendered a media frenzy. For at least two
successive months, all sorts of news and information about the case, the suspects
and witnesses occupied the front pages of newspapers. Focus of attention was Ma.
Jessica M. Alfaro (Alfaro, for short), alluded to as the NBI star witness. Offered a
movie contract by Viva Productions, Inc. for the filming of her life story, she inked with
the latter the said movie contract while the said case (I.S. 95-402) was under
investigation by the Department of Justice.
On August 10, 1995, after the conclusion of preliminary investigation before the
Department of Justice, an Information for Rape With Homicide was filed against
Hubert. J.P. Webb and eight (8) others, docketed as Criminal Case No. 95-404 before
the Regional Trial Court of Paranaque, Branch 274.
On August 25, 1995, the private respondent sent separate letters to Viva Productions,
Inc. and Alfaro, warning them that the projected showing of subject movie on the life
story of Alfaro would violate the sub judice rule, and his (Hubert J.P. Webb's)
constitutional rights as an accused in said criminal case. But such letters from private
respondent notwithstanding, petitioner persisted in promoting, advertising and
marketing "The Jessica Alfaro Story" in the print and broadcast media and, even on
billboards. Premier Showing of the movie in question was then scheduled for
September 11, 1995, at the New Frontier Theater, with regular public exhibition
thereof set for September 13, 1995, in some sixty (60) theaters.
And so, on September 6, 1995, Hubert J.P. Webb, the herein private respondent, filed
a Petition for Contempt in the same Criminal Case No. 95-404; complaining that the
acts of petitioner and Alfaro concerning "The Jessica Alfaro Story" movie were
contumacious, within the contemplation of Section 3, Rule 71 of the Revised Rules of
Court. Following the full day of hearing on September 8, 1995, and viewing of the
controversial movie itself, the respondent Regional Trial Court of Paranaque came
out with its Cease and Desist Order aforequoted.
On September 8, 1995, respondent Hubert J.P. Webb instituted a case for Injunction
With Damages, docketed as Civil Case No. 951365 before the Regional Trial Court of
Makati City, Branch 58, which court issued, ex parte, before the matter could be
heard on notice, the Temporary Restraining Order under attack.
(pp. 61-62, Rollo.)
On December 13, 1995, respondent court dismissed the consolidated petitions.
Following the denial of petitioner's motion for reconsideration, the instant petition was
filed wherein the following issues are ventilated:
I
WHETHER OR NOT THE PARAÑAQUE COURT CAN TOTALLY DISREGARD AND
INDISCRIMINATELY CURTAIL PETITIONER'S CONSTITUTIONAL RIGHT TO
FREEDOM OF EXPRESSION AND OF THE PRESS WITHOUT THE PRESENCE
OF A CLEAR AND PRESENT DANGER.
II
WHETHER OR NOT THE MAKATI COURT HAS JURISDICTION TO TAKE
COGNIZANCE OF THE INJUNCTION CASE FILED BEFORE IT WHICH IS
IDENTICAL TO THE CASE PENDING BEFORE THE PARAÑAQUE COURT WHICH
HAS ALREADY ACQUIRED JURISDICTION OVER THE ACT COMPLAINED OF.
III
WHETHER OR NOT PRIVATE RESPONDENT COMMITTED FORUM SHOPPING
BY FILING TWO (2) CASES WITH EXACTLY THE SAME FACTUAL SET-UP,
ISSUES INVOLVED AND RELIEFS SOUGHT BEFORE TWO (2) DIFFERENT
COURTS OF COORDINATE JURISDICTION.
(p. 20, Rollo.)
We rule to grant the petition, reversing and setting aside the orders of respondent
Court of Appeals, thus innulling and setting aside the orders of the Makati court and
lifting the restraining order of the Parañaque court for forum shopping.
The key issue to be resolved is whether or not respondent court ruled correctly in
upholding the jurisdiction of the Makati court to take cognizance of the civil action for
injunction filed before it despite the fact that the same relief, insofar as preventing
petitioner from showing of the movie is concerned had also been sought by the same
private respondent before the Parañaque court in proceedings for contempt of court.
Corollarily, it may be asked if private respondent and/or his counsel can be held guilty
of forum shopping.
Petitioner contends that the Makati court has no jurisdiction to take cognizance of the
action for damages because the same had been impliedly instituted in the contempt
proceedings before the Parañaque court, which after acquiring and exercising
jurisdiction over the case, excludes all other courts of concurrent jurisdiction from
taking cognizance of the same. Moreover, citing Circular No. 28-91, petitioner
accuses private respondent of forum shopping.
Private respondent, on the other hand, posits that the Makati court's  jurisdiction
cannot be validly and legally disputed for it is invested with authority, by express
provision of law, to exercise jurisdiction in the action for damages, as may be
determined by the allegations in the complaint. The temporary restraining order and
writ of injunction issued by the Makati court are mere provisional remedies expressly
sanctioned under Rule 58 of the Revised Rules of Court. He also maintains that there
is no forum shopping because there is no identity of causes of action. Besides, the
action for damages before the Makati court cannot be deemed instituted in the
contempt proceedings before the Parañaque court because the rightful parties
therein are only the court itself, as the offended party, and petitioner and witness
Jessica Alfaro, as accused.
We find the shrewd and astute maneuverings of private respondent ill-advised. It will
not escape anybody's notice that the act of filing the supposed action for injunction
with damages with the Makati court, albeit a separate and distinct action from the
contempt proceedings then pending before the Parañaque court, is obviously and
solely intended to obtain the preliminary relief of injunction so as to prevent petitioner
from exhibiting the movie on its premiere showing on September 11, 1995 and on its
regular showing beginning September 13, 1995. The alleged relief for damages
becomes a mere subterfuge to camouflage private respondent's real intent and to
feign the semblance of a separate and distinct action from the contempt proceedings
already filed and on- going with the Parañaque court.
Significantly, the primordial issue involved in the Makati court and the Parañaque
court is one and the same — whether or not the showing of the movie "The Jessica
Alfaro Story" violates the sub-judice rule. Should the Parañaque court find so, it would
have no alternative but to enjoin petitioner from proceeding with the intended
contumacious act lest it may be cited for contempt. In the case of the Makati court, if it
finds such violation, it will have to enjoin petitioner from proceeding with the
prejudicial act lest it may be held liable for damages.
The query posed before respondent court, simply stated, is whether or not
the Parañaque court and the Makati court, obviously having concurrent jurisdiction
over the subject matter, can both take cognizance of the two actions and resolve the
same identical issue on the alleged violation of the sub judice rule. Respondent court
erred in ruling in the affirmative. This is the very evil sought to be avoided by this
Court in issuing Circular No. 28-91 which pertinently reads:
The attention of the Court has been called to the filing of multiple petitions and
camplaints involving the same issues in the supreme Court, the Court of Appeals or
different Divisions thereof or any other tribunal or agency, with the result that said
tribunals or agency have to resolve the same issues.  (Emphasis supplied.)
On February 8, 1994, this was magnified through Administrative Circular No. 04-94,
effective on April 1, 1994, to include all courts and agencies other than the Supreme
Court and the Court of Appeals, to prevent forum shopping or the multiple filing of
such pleadings even at that level. Sanctions for violation thereof are expressly stated
as follows:
(2) Any violation of this Circular shall be a cause for the dismissal of the complaint,
petition, application or other initiatory pleading, upon motion and after hearing.
However, any clearly willful and deliberate forum shopping by any party and his
counsel through the filing of multiple complaints or other initiatory pleadings to obtain
favorable action shall be a ground for summary dismissal thereof and shall constitute
direct contempt of court, Furthermore, the submission of a false certification or non-
compliance with the undertaking therein, as provided in Paragraph 1 hereof, shall
constitute indirect contempt of court, without prejudice to disciplinary proceedings
against counsel and the filing of a criminal action against the guilty party..
Private respondent's intention to engage in forum shopping becomes manifest with
undoubted clarity upon the following considerations. Notably, if not only to ensure the
issuance of an injunctive relief the significance of the action for damages before
the Makati court would be nil. What damages against private respondent would there
be to speak about if the Parañaque court already enjoins the performance of the very
same act complained of in the Makati court? Evidently, the action for damages is
premature if not for the preliminary injunctive relief sought. Thus, we find grave abuse
of discretion on the part of the Makati court, being a mere co-equal of the Parañaque
court, in not giving due deference to the latter before which the issue of the alleged
violation of the sub-judice rule had already been raised and submitted. In such
instance, the Makati court, if it was wary of dismissing the action outrightly under
Administrative Circular No. 04-94, should have, at least, ordered the consolidation of
its case with that of the Parañaque court, which had first acquired jurisdiction over the
related case in accordance with Rule 31 of the Revised Rules of Court (Superlines
Trans. Co. vs. Victor, et al., 124 SCRA 939 [1983]; Vallacar Transit Inc. vs. Yap, 126
SCRA 500 [1983]), or it should have suspended the proceedings until the Parañaque
court  may have ruled on the issue (Salazar vs. CFI of Laguna, 64 Phil. 785 [1937]).
Ordinarily, where a litigant sues the same party against whom another action or
actions for the alleged violation of the same right and the enforcement of the same
relief or reliefs is or are still pending any one action may be dismissed on the ground
of litis pendentia and a final judgment in any one case would constitute res
judicata on the other. In either instance, there is a clear and undeniable case of forum
shopping, another ground for the summary dismissal of both actions, and at the same
time an act of direct contempt of court, which includes a possible criminal prosecution
and disciplinary action against the erring lawyer (Buan vs. Lopez, Jr., 145 SCRA 34
[1986]).
In First Philippine International Bank vs.  Court of`Appeals  (252 SCRA 259 [1996]),
this Court, through the same herein Division, per Justice Panganiban, found therein
petitioner bank guilty of forum shopping because —
. . . the objective or the relief being sought, though worded differently, is the same,
namely, to enable the petitioner Bank to escape from the obligation to sell the
property to respondent. In Danville Maritime vs.  Commission on Audit, this Court
ruled that the filing by any party of two apparently different actions, but with the same
objective, constituted forum shopping:
In the attempt to make the two actions appear to be different, petitioner impleaded
different respondents therein — PNOC in the case before the lower court and the
COA in the case before this Court and sought what seems to be different reliefs.
Petitioner asks this Court to set aside the questioned letter-directive of the COA dated
October 10, 1988 and to direct said body to approve the Memorandum of Agreement
entered into by and between the PNOC and petitioner, while in the complaint before
the lower court petitioner seeks to enjoin the PNOC from conducting a rebidding and
from selling to other parties the vessel "T/T Andres Bonifacio," and for an extension of
time for it to comply with the paragraph 1 of the memorandum of agreement and
damages. One can see that although the relief prayed for in the two (2) actions are
ostensibly different, the ultimate objective in both actions is the same, that is, the
approval of the sale of vessel in favor of petitioner, and to overturn the letter directive
of the COA of October 10, 1988 disapproving the sale."
(p. 285)
In Palm Avenue Really Development Corporation vs.  PCGG (153 SCRA 579 [1987]),
we have these words from then Justice, now Chief Justice Narvasa:
. . the filing by the petitioners of the instant special civil action for certiorari and
prohibition in this Court despite the pendency of their action in the Makati Regional
Trial Court, is a species of forum shopping. Both actions unquestionably involve the
same transactions, the same essential facts and circumstances. The petitioner's claim
of absence of identity simply because the PCGG had not been impleaded in the RTC
suit, and the suit did not involve certain acts which transpired after its
commencement, is specious. In the RTC action, as in the action before this Court, the
validity of the contract to purchase and sell of September 1, 1986, i.e., whether or not
it had been efficaciously rescinded and the propriety of implementing the same . . .
were the basic issues. So, too, the relief was the same: the prevention of such
implementation and/or the restoration of the status quo ante. When the acts sought to
be restrained took place anyway despite the issuance by the Trial Court of a
temporary restraining order, the RTC suit did not become functus officio. It remained
an effective vehicle for obtention of relief; and petitioners' remedy in the premises was
plain and patent; the filing of an amended and supplemental pleading in the RTC suit,
so as to include the PCGG as defendant and seek nullification of the acts sought to
be enjoined but nonetheless done. The remedy was certainly not the institution of
another action in another forum based on essentially the same facts. The adoption of
this latter recourse renders the petitioner amenable to disciplinary action and both
their actions, in this Court as well as in the Court a quo dismissible.
(pp. 591-592)
Thus, while we might admit that the causes of action before the Makati court and
the Parañaque court are distinct, and that private respondent cannot seek civil
indemnity in the contempt proceedings, the same being in the nature of criminal
contempt, we nonetheless cannot ignore private respondent's intention of seeking
exactly identical reliefs when it sought the preliminary relief of injunction in the Makati
court. As earlier indicated had private respondent been completely in good faith, there
would have been no hindrance in filing the action for damages with the regional trial
court of Parañaque and having it consolidated with the contempt proceedings before
Branch 274, so that the same issue on the alleged violation of the sub judice rule will
not have to be passed upon twice, and there would be no possibility of having two
courts of concurrent jurisdiction making two conflicting resolutions.
Yet from another angle, it may be said that when the Parañaque court  acquired
jurisdiction over the said issue, it excluded all other courts of concurrent jurisdiction
from acquiring jurisdiction over the same. To hold otherwise would be to risk
instances where courts of concurrent jurisdiction might have conflicting orders.This
will create havoc and result in an extremely disordered administration of justice.
Therefore, even on the assumption that the Makati court  may acquire jurisdiction over
the subject matter of the action for damages, without prejudice to the application of
Administrative Circular No. 04-94, it cannot nonetheless acquire jurisdiction over the
issue of whether or not petitioner has violated the sub judice rule. At best, the Makati
court  may hear the case only with respect to the alleged injury suffered by private
respondent after the Parañaque court shall have ruled favorably on the said issue.
In fine, applying the sanction against forum shopping under Administrative Circular
No. 04-94, the action filed by private respondent with the Makati court,  may be
ordered summarily dismissed. Considering the nature and purpose of contempt
proceedings before the Parañaque court  and the public policy of protecting the
integrity of the court, we reserve the imposition of a similar sanction to dismiss the
same and leave that matter to the discretion of the presiding judge concerned,
although it is worthy to stress that insofar as injunctive relief against the showing of
the movie before the Parañaque court is concerned, we resolved to also dismiss the
same by reason of forum shopping. The sanction of twin dismissal under Buan
vs.  Lopez is applicable. This, however, is without prejudice to the other aspects of the
contempt proceedings which may still be pending before the Parañaque court.
In view of the foregoing disposition, we find no further need to resolve the issue of
whether or not there was valid and lawful denial by both lower courts of petitioner's
right to free speech and expression. Suffice it to mention, however,that the Court
takes note of the rather unreasonable period that had elapsed from the time of the
issuance of the restraining order by the Parañaque court  up to the writing of this
decision. The Court also notes that the order of the said court specifically failed to lay
down any factual basis constituting a clear and present danger which will justify prior
restraint of the constitutionally protected freedom of speech and expression save its
plea for time to hear and resolve the issues raised in the petition for contempt.
WHEREFORE, the assailed decision and order of respondent court are hereby SET
ASIDE, and a new one entered declaring null and void all orders of Branch 58 of the
Regional Trial Court of the National Capital Judicial Region stationed in Makati City in
its Civil Case No. 95-1365 and forthwith dismissing said case, and declaring the order
of the Regional Trial Court of the same National Capital Judicial Region stationed in
Parañaque (Branch 274), functus officio insofar as it restrains the public showing of
the movie "The Jessica Alfaro Story."
Private respondent and his counsel are admonished to refrain from repeating a
similar act of forum shopping, with the stern warning that any repetition of similar acts
will be dealt with more severely.
SO ORDERED.
G.R. No. L-69500 July 22, 1985
JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA,
JOSE F. LACABA, and DULCE Q. SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA
(Ret.), and THE BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION
(BRMPT), respondents.
Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for
petitioners.
The Solicitor General for respondents.
FERNANDO, C.J.:
In this case of first impression, a certiorari proceeding filed on January 10, 1985,
there is a persuasive ring to the invocation of the constitutional right to freedom of
expression 1 of an artist—and for that matter a man of letters too—as the basis for a
ruling on the scope of the power of respondent Board of Review for Motion Pictures
and Television and how it should be exercised. The dispute between the parties has
been narrowed down. The motion picture in question, Kapit sa Patalim was classified
"For Adults Only." There is the further issue then, also one of first impression, as to
the proper test of what constitutes obscenity in view of the objections raised. Thus the
relevance of this constitutional command: "Arts and letters shall be under the
patronage of the State.2
The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films,
a movie production outfit duly registered as a single proprietorship with the Bureau of
Domestic Trade. The respondent is the Board of Review for Motion Pictures and
Television, with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C.
Estrada as its Vice-Chairman, also named respondents.
In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit
to exhibit the film Kapit sa Patalim under the classification "For Adults Only," with
certain changes and deletions enumerated was granted. A motion for reconsideration
was filed by petitioners stating that the classification of the film "For Adults Only" was
without basis. 4 Then on November 12, 1984, respondent Board released its decision:
"Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the
Board, after a review of the resolution of the sub-committee and an examination of
the film, Resolves to affirm  in toto the ruling of the sub-committee. Considering,
however, certain vital deficiencies in the application, the Board further Resolves to
direct the Chairman of the Board to Withheld the issuance of the Permit to exhibit until
these deficiencies are supplied. 5 Hence this petition.
This Court, in a resolution of January 12, 1985, required respondent to answer. In
such pleading submitted on January 21, 1985, as one of its special and affirmative
defenses, it was alleged that the petition is moot as "respondent Board has revoked
its questioned resolution, replacing it with one immediately granting petitioner
company a permit to exhibit the film Kapit without any deletion or cut [thus an]
adjudication of the questions presented above would be academic on the
case." 6 Further: "The modified resolution of the Board, of course, classifies Kapit as
for-adults-only, but the petition does not raise any issue as to the validity of this
classification. All that petitioners assail as arbitrary on the part of the Board's action
are the deletions ordered in the film. 7 The prayer was for the dismissal of the petition.
An amended petition was then filed on January 25, 1985. The main objection was the
classification of the film as "For Adults Only." For petitioners, such classification "is
without legal and factual basis and is exercised as impermissible restraint of artistic
expression. 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. 8 There was an answer to the amended
petition filed on February 18, 1985. It was therein asserted that the issue presented
as to the previous deletions ordered by the Board as well as the statutory provisions
for review of films and as to the requirement to submit the master negative have been
all rendered moot. It was also submitted that the standard of the law for classifying
films afford a practical and determinative yardstick for the exercise of judgment. For
respondents, the question of the sufficiency of the standards remains the only
question at issue.
It would be unduly restrictive under the circumstances to limit the issue to one of the
sufficiency of standards to guide respondent Board in the exercise of its power. Even
if such were the case, there is justification for an inquiry into the controlling standard
to warrant the classification of "For Adults Only." This is especially so, when obscenity
is the basis for any alleged invasion of the right to the freedom of artistic and literary
expression embraced in the free speech and free press guarantees of the
Constitution.
1. Motion pictures are important both as a medium for the communication of Ideas
and the expression of the artistic impulse. Their effects on the perception by our
people of issues and public officials or public figures as well as the prevailing cultural
traits is considerable. Nor as pointed out in Burstyn v. Wilson9 is the "importance of
motion pictures as an organ of public opinion lessened by the fact that they are
designed to entertain as well as to inform. 10 There is no clear dividing line between
what involves knowledge and what affords pleasure. If such a distinction were
sustained, there is a diminution of the basic right to free expression. Our recent
decision in Reyes v. Bagatsing11 cautions against such a move. Press freedom, as
stated in the opinion of the Court, "may be Identified with the liberty to discuss publicly
and truthfully any matter of public concern without censorship or punishment. 12 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. 13
2. 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. Nonetheless, for the purposes of this litigation, the emphasis should rightly be
on freedom from censorship. It is, beyond question, a well-settled principle in our
jurisdiction. As early as 1909, in the case of United States v. Sedano, 14 a prosecution
for libel, the Supreme Court of the Philippines already made clear that freedom of the
press consists in the right to print what one chooses without any previous license.
There is reaffirmation of such a view in Mutuc v. Commission on Elections, 15 where
an order of respondent Commission on Elections giving due course to the certificate
of candidacy of petitioner but prohibiting him from using jingles in his mobile units
equipped with sound systems and loud speakers was considered an abridgment of
the right of the freedom of expression amounting as it does to censorship. It is the
opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation,
the power of respondent 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.16
3. The test, to repeat, to determine whether freedom of excession 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. There should
be no doubt that what is feared may be traced to the expression complained of. The
causal connection must be evident. Also, there must be reasonable apprehension
about its imminence. The time element cannot be ignored. Nor does it suffice if such
danger be only probable. There is the require of its being well-nigh inevitable. The
basic postulate, wherefore, as noted earlier, 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 public morals,
public health or any other legitimate public interest. 17 There is merit to the
observation of Justice Douglas that "every writer, actor, or producer, no matter what
medium of expression he may use, should be freed from the censor. 18
4. The law, however, frowns on obscenity and rightly so. As categorically stated
by Justice Brennan in Roth v. United States  19 speaking of the free speech and press
guarantee of the United States Constitution: "All Ideas having even the slightest
redeeming social importance — unorthodox Ideas, controversial Ideas, even Ideas
hateful to the prevailing climate of opinion — have the full protection of the
guaranties, unless excludable because they encroach upon the limited area of the
First Amendment is the rejection of obscenity as utterly without redeeming social
importance. 20 Such a view commends itself for approval.
5. There is, however, some difficulty in determining what is obscene. There is
persuasiveness to the approach followed in Roth: "The early leading standard of
obscenity allowed material to be judged merely by the effect of an isolated excerpt
upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some
American courts adopted this standard but later decisions have rejected it and
substituted this test: whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a whole appeals
to prurient interest. The Hicklin test, judging obscenity by the effect of isolated
passages upon the most susceptible persons, might well encompass material
legitimately treating with sex, and so it must be rejected as unconstitutionally
restrictive of the freedoms of speech and press. On the other hand, the substituted
standard provides safeguards adequate to withstand the charge of constitutional
infirmity. 21
6. The above excerpt which imposes on the judiciary the duty to be ever on guard
against any impermissible infringement on the freedom of artistic expression calls to
mind the landmark ponencia of Justice Malcolm in United States v. Bustos, 22 decided
in 1918. While recognizing the principle that libel is beyond the pale of constitutional
protection, it left no doubt that in determining what constitutes such an offense, a
court should ever be mindful that no violation of the right to freedom of expression is
allowable. It is a matter of pride for the Philippines that it was not until 1984 in New
York Timer v. Sullivan, 23 thirty-years later, that the United States Supreme Court
enunciated a similar doctrine.
7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains
to emphasize that "sex and obscenity are not synonymous. 24 Further: "Obscene
material is material which deals with sex in a manner appealing to prurient interest.
The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient
reason to deny material the constitutional protection of freedom of speech and press.
Sex, a great and mysterious motive force in human life has indisputably been a
subject of absorbing interest to mankind through the ages; it is one of the vital
problems of human interest and public concern. 25
8. In the applicable law, Executive Order No. 876, reference was made to respondent
Board "applying contemporary Filipino cultural values as standard, 26 words which can
be construed in an analogous manner. Moreover, as far as the question of sex and
obscenity are concerned, it cannot be stressed strongly that the arts and letters "shall
be under the patronage of the State. 27 That is a constitutional mandate. It will be less
than true to its function if any government office or agency would invade the sphere of
autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for
reality. It is for the artist to determine what for him is a true representation. It is not to
be forgotten that art and belleslettres deal primarily with imagination, not so much
with ideas in a strict sense. What is seen or perceived by an artist is entitled to
respect, unless there is a showing that the product of his talent rightfully may be
considered obscene. As so wen put by Justice Frankfurter in a concurring opinion,
"the widest scope of freedom is to be given to the adventurous and imaginative
exercise of the human spirit" 28 in this sensitive area of a man's personality. On the
question of obscenity, therefore, and in the light of the facts of this case, such
standard set forth in Executive Order No. 878 is to be construed in such a fashion to
avoid any taint of unconstitutionality. To repeat, what was stated in a recent
decision 29 citing the language of Justice Malcolm in Yu Cong Eng v. Trinidad, 30 it is
"an elementary, a fundamental, and a universal role of construction, applied when
considering constitutional questions, that when a law is susceptible of two
constructions' one of which will maintain and the other destroy it, the courts will
always adopt the former. 31 As thus construed, there can be no valid objection to the
sufficiency of the controlling standard and its conformity to what the Constitution
ordains.
9. This being a certiorari petition, the question before the Court is whether or not there
was a grave abuse of discretion. That there was an abuse of discretion by respondent
Board is evident in the light of the difficulty and travail undergone by petitioners
before Kapit sa Patalim was classified as "For Adults Only," without any deletion or
cut. Moreover its perception of what constitutes obscenity appears to be unduly
restrictive. This Court concludes then that there was an abuse of discretion.
Nonetheless, there are not enough votes to maintain that such an abuse can be
considered grave. Accordingly, certiorari does not lie. This conclusion finds support in
this explanation of respondents in its Answer to the amended petition: "The adult
classification given the film serves as a warning to theater operators and viewers that
some contents of Kapit are not fit for the young. Some of the scenes in the picture
were taken in a theater-club and a good portion of the film shots concentrated on
some women erotically dancing naked, or at least nearly naked, on the theater stage.
Another scene on that stage depicted the women kissing and caressing as lesbians.
And toward the end of the picture, there exists scenes of excessive violence attending
the battle between a group of robbers and the police. The vulnerable and imitative in
the young audience will misunderstand these scenes." 32 Further: "Respondents
further stated in its answer that petitioner company has an option to have the film
reclassified to For-General-Patronage if it would agree to remove the obscene scenes
and pare down the violence in the film." 33 Petitioners, however, refused the "For
Adults Only" classification and instead, as noted at the outset, filed this suit for
certiorari.
10. All that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court that where
television is concerned: a less liberal approach calls for observance. This is so
because unlike motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely will be among the
avid viewers of the programs therein shown. As was observed by Circuit Court of
Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the
sexual fantasies of the adult population. 34 it cannot be denied though that the State
as parens patriae is called upon to manifest an attitude of caring for the welfare of the
young.
WHEREFORE, this Court, in the light of the principles of law enunciated in the
opinion, dismisses this petition for certiorari solely on the ground that there are not
enough votes for a ruling that there was a grave abuse of discretion in the
classification of Kapit sa Patalim as "For-Adults-Only."
G.R. No. 132922 April 21, 1998
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE
PHILIPPINES, INC. and GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
In Osmeña v.  COMELEC, G.R. No. 132231, decided March 31, 1998,1 we upheld the
validity of § 11(b) of R.A. No. 6646 which prohibits the sale or donation of print space
or air time for political ads, except to the Commission on Elections under §90, of B.P.
No. 881, the Omnibus Election Code, with respect to print media, and §92, with
respect to broadcast media. In the present case, we consider the validity of §92 of
B.P. Blg. No. 881 against claims that the requirement that radio and television time be
given free takes property without due process of law; that it violates the eminent
domain clause of the Constitution which provides for the payment of just
compensation; that it denies broadcast media the equal protection of the laws; and
that, in any event, it violates the terms of the franchise of petitioner GMA Network,
Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an
organization of lawyers of radio and television broadcasting companies. They are
suing as citizens, taxpayers, and registered voters. The other petitioner, GMA
Network, Inc., operates radio and television broadcasting stations throughout the
Philippines under a franchise granted by Congress.
Petitioners challenge the validity of §92 on the ground (1) that it takes property
without due process of law and without just compensation; (2) that it denies radio and
television broadcast companies the equal protection of the laws; and (3) that it is in
excess of the power given to the COMELEC to supervise or regulate the operation of
media of communication or information during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner
Telecommunications and Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As
already noted, its members assert an interest as lawyers of radio and television
broadcasting companies and as citizens, taxpayers, and registered voters.
In those cases2 in which citizens were authorized to sue, this Court upheld their
standing in view of the "transcendental importance" of the constitutional question
raised which justified the granting of relief. In contrast, in the case at bar, as will
presently be shown, petitioner's substantive claim is without merit. To the extent,
therefore, that a party's standing is determined by the substantive merit of his case or
preliminary estimate thereof, petitioner TELEBAP must be held to be without
standing. Indeed, a citizen will be allowed to raise a constitutional question only when
he can show that he has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government; the injury fairly is fairly
traceable to the challenged action; and the injury is likely to be redressed by a
favorable action.3 Members of petitioner have not shown that they have suffered harm
as a result of the operation of §92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since
this case does not concern their right of suffrage. Their interest in §92 of B.P. Blg. 881
should be precisely in upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve the
exercise by Congress of its taxing or spending power.4 A party suing as a taxpayer
must specifically show that he has a sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he will sustain a direct injury as a
result of the enforcement of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of
radio and television broadcasting companies. Standing jus tertii will be recognized
only if it can be shown that the party suing has some substantial relation to the third
party, or that the third party cannot assert his constitutional right, or that the eight of
the third party will be diluted unless the party in court is allowed to espouse the third
party's constitutional claim. None of these circumstances is here present. The mere
fact that TELEBAP is composed of lawyers in the broadcast industry does not entitle
them to bring this suit in their name as representatives of the affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA
Network, Inc., appears to have the requisite standing to bring this constitutional
challenge. Petitioner operates radio and television broadcast stations in the
Philippines affected by the enforcement of §92 of B.P. Blg. 881 requiring radio and
television broadcast companies to provide free air time to the COMELEC for the use
of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing
COMELEC Time in connection with the 1992 presidential election and the 1995
senatorial election and that it stands to suffer even more should it be required to do
so again this year. Petitioner's allegation that it will suffer losses again because it is
required to provide free air time is sufficient to give it standing to question the validity
of §92.5
Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmeña v. COMELEC, §11(b) of R.A. No. 6646 and
§90 and §92 of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed
to equalize the opportunity of candidates in an election in regard to the use of mass
media for political campaigns. These statutory provisions state in relevant parts:
R.A.  No. 6646
Sec. 11. Prohibited Forms of Election Propaganda.  — In addition to the forms of
election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall
be unlawful:
x x x           x x x          x x x
(b) for any newspapers, radio broadcasting or television station, or other mass media,
or any person making use of the mass media to sell or to give free of charge print
space or air time for campaign or other political purposes except to the Commission
as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate for any elective
public office shall take a leave of absence from his work as such during the campaign
period.
B.P.  Blg. 881, (Omnibus Election Code)
Sec. 90. Comelec space. — The Commission shall procure space in at least one
newspaper of general circulation in every province or city; Provided, however, That in
the absence of said newspaper, publication shall be done in any other magazine or
periodical in said province or city, which shall be known as "Comelec Space" wherein
candidates can announce their candidacy. Said space shall be allocated, free of
charge, equally and impartially by the Commission among all candidates within the
area in which the newspaper is circulated. (Sec. 45, 1978 EC).
Sec. 92. Comelec time. — The commission shall procure radio and television time to
be known as "Comelec Time" which shall be allocated equally and impartially among
the candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge, during the period of
the campaign. (Sec. 46, 1978 EC)
Thus, the law prohibits mass media from selling or donating print space and air time
to the candidates and requires the COMELEC instead to procure print space and air
time for allocation to the candidates. It will be noted that while §90 of B.P. Blg. 881
requires the COMELEC to procure print space which, as we have held, should be
paid for, §92 states that air time shall be procured by the COMELEC free of charge.
Petitioners contend that §92 of BP Blg. 881 violates the due process clause 6 and the
eminent domain provision7 of the Constitution by taking air time from radio and
television broadcasting stations without payment of just compensation. Petitioners
claim that the primary source of revenue of the radio and television stations is the
sale of air time to advertisers and that to require these stations to provide free air time
is to authorize a taking which is not "a de minimis  temporary limitation or restraint
upon the use of private property." According to petitioners, in 1992, the GMA
Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour every
morning from Mondays to Fridays and one (1) hour on Tuesdays and Thursday from
7:00 to 8:00 p.m. (prime time) and, in this year's elections, it stands to lose
P58,980,850.00 in view of COMELEC'S requirement that radio and television stations
provide at least 30 minutes of prime time daily for the COMELEC Time.8
Petitioners' argument is without merit, All broadcasting, whether by radio or by
television stations, is licensed by the government. Airwave frequencies have to be
allocated as there are more individuals who want to broadcast than there are
frequencies to assign.9 A franchise is thus a privilege subject, among other things, to
amended by Congress in accordance with the constitutional provision that "any such
franchise or right granted . . . shall be subject to amendment, alteration or repeal by
the Congress when the common good so requires."10
The idea that broadcast stations may be required to provide COMELEC Time free of
charge is not new. It goes back to the Election Code of 1971 (R.A. No. 6388), which
provided:
Sec. 49. Regulation of election propaganda through mass media. — (a) The franchise
of all radio broadcasting and television stations are hereby amended so as to require
each such station to furnish free of charge, upon request of the Commission [on
Elections], during the period of sixty days before the election not more than fifteen
minutes of prime time once a week which shall be known as "Comelec Time" and
which shall be used exclusively by the Commission to disseminate vital election
information. Said "Comelec Time" shall be considered as part of the public service
time said stations are required to furnish the Government for the dissemination of
public information and education under their respective franchises or permits.
The provision was carried over with slight modification by the 1978 Election Code
(P.D. No. 1296), which provided:
Sec. 46. COMELEC Time. — The Commission [on Elections] shall procure radio and
television time to be known as "COMELEC Time" which shall be allocated equally
and impartially among the candidates within the area of coverage of said radio and
television stations. For this purpose, the franchises of all radio broadcasting and
television stations are hereby amended so as to require such stations to furnish the
Commission radio or television time, free of charge, during the period of the
campaign, at least once but not oftener than every other day.
Substantially the same provision is now embodied in §92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Tima have been made by amendment of the
franchises of radio and television broadcast stations and, until the present case was
brought, such provisions had not been thought of as taking property without just
compensation. Art. XII, §11 of the Constitution authorizes the amendment of
franchises for "the common good." What better measure can be conceived for the
common good than one for free air time for the benefit not only of candidates but
even more of the public, particularly the voters, so that they will be fully informed of
the issues in an election? "[I]t is the right of the viewers and listeners, not the right of
the broadcasters, which is paramount."11
Nor indeed can there be any constitutional objection to the requirement that
broadcast stations give free air time. Even in the United States, there are responsible
scholars who believe that government controls on broadcast media can
constitutionally be instituted to ensure diversity of views and attention to public affairs
to further the system of free expression. For this purpose, broadcast stations may be
required to give free air time to candidates in an election. 12 Thus, Professor Cass R.
Sunstein of the University of Chicago Law School, in urging reforms in regulations
affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns. Most
important, government should ensure free media time for candidates. Almost all
European nations make such provisions; the United States does not. Perhaps
government should pay for such time on its own. Perhaps broadcasters should have
to offer it as a condition for receiving a license. Perhaps a commitment to provide free
time would count in favor of the grant of a license in the first instance. Steps of this
sort would simultaneously promote attention to public affairs and greater diversity of
view. They would also help overcome the distorting effects of "soundbites" and the
corrosive financial pressures faced by candidates in seeking time on the media. 13
In truth, radio and television broadcasting companies, which are given franchises, do
not own the airwaves and frequencies through which they transmit broadcast signals
and images. They are merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service. Thus,
in De Villata v. Stanley,14 a regulation requiring interisland vessels licensed to engage
in the interisland trade to carry mail and, for this purpose, to give advance notice to
postal authorities of date and hour of sailings of vessels and of changes of sailing
hours to enable them to tender mail for transportation at the last practicable hour prior
to the vessel's departure, was held to be a reasonable condition for the state grant of
license. Although the question of compensation for the carriage of mail was not in
issue, the Court strongly implied that such service could be without compensation, as
in fact under Spanish sovereignty the mail was carried free.15
In Philippine Long Distance Telephone Company v. NTC,16 the Court ordered the
PLDT to allow the interconnection of its domestic telephone system with the
international gateway facility of Eastern Telecom. The Court cited (1) the provisions of
the legislative franchise allowing such interconnection; (2) the absence of any
physical, technical, or economic basis for restricting the linking up of two separate
telephone systems; and (3) the possibility of increase in the volume of international
traffic and more efficient service, at more moderate cost, as a result of
interconnection.
Similarly, in the earlier case of PLDT v.  NTC,17 it was held:
Such regulation of the use and ownership of telecommunications systems is in the
exercise of the plenary police power of the State for the promotion of the general
welfare. The 1987 Constitution recognizes the existence of that power when it
provides:
Sec. 6. The use of property bears a social function, and all economic agents shall
contribute to the common good. Individuals and private groups, including
corporations, cooperatives, and similar collective organizations, shall have the right to
own, establish, and operate economic enterprises, subject to the duty of the State to
promote distributive justice and to intervene when the common good so demands
(Article XII).
The interconnection which has been required of PLDT is a form of "intervention" with
property rights dictated by "the objective of government to promote the rapid
expansion of telecommunications services in all areas of the Philippines, . . . to
maximize the use of telecommunications facilities available, . . . in recognition of the
vital role of communications in nation building . . . and to ensure that all users of the
public telecommunications service have access to all other users of the service
wherever they may be within the Philippines at an acceptable standard of service and
at reasonable cost" (DOTC Circular No. 90-248). Undoubtedly, the encompassing
objective is the common good. The NTC, as the regulatory agency of the State,
merely exercised its delegated authority to regulate the use of telecommunications
networks when it decreed interconnection.
In the granting of the privilege to operate broadcast stations and thereafter
supervising radio and television stations, the state spends considerable public funds
in licensing and supervising such stations. 18 It would be strange if it cannot even
require the licensees to render public service by giving free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the
production of television programs involves large expenditure and requires the use of
equipment for which huge investments have to be made. The dissent cites the claim
of GMA Network that the grant of free air time to the COMELEC for the duration of the
1998 campaign period would cost the company P52,380,000, representing revenue it
would otherwise earn if the air time were sold to advertisers, and the amount of
P6,600,850, representing the cost of producing a program for the COMELEC Time, or
the total amount of P58,980,850.
The claim that petitioner would be losing P52,380,000 in unrealized revenue from
advertising is based on the assumption that air time is "finished product" which, it is
said, become the property of the company, like oil produced from refining or similar
natural resources after undergoing a process for their production. But air time is not
owned by broadcast companies. As held in Red Lion Broadcasting
Co. v. F.C.C.,19 which upheld the right of a party personally attacked to reply,
"licenses to broadcast do not confer ownership of designated frequencies, but only
the temporary privilege of using them." Consequently, "a license permits
broadcasting, but the license has no constitutional right to be the one who holds the
license or to monopolize a radio frequency to the exclusion of his fellow citizens.
There is nothing in the First Amendment which prevents the Government from
requiring a licensee to share his frequency with others and to conduct himself as a
proxy or fiduciary with obligations to present those views and voices which are
representative of his community and which would otherwise, by necessity, be barred
from the airwaves." 20 As radio and television broadcast stations do not own the
airwaves, no private property is taken by the requirement that they provide air time to
the COMELEC.
Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that
"the air lanes themselves 'are not property because they cannot be appropriated for
the benefit of any individual.'" (p. 5) That means neither the State nor the stations own
the air lanes. Yet the dissent also says that "The franchise holders can recover their
huge investments only by selling air time to advertisers." (p. 13) If air lanes cannot be
appropriated, how can they be used to produce air time which the franchise holders
can sell to recover their investment? There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of
producing a program and it is for such items as "sets and props," "video tapes,"
"miscellaneous (other rental, supplies, transportation, etc.)," and "technical facilities
(technical crew such as director and cameraman as well as 'on air plugs')." There is
no basis for this claim. Expenses for these items will be for the account of the
candidates. COMELEC Resolution No. 2983, §6(d) specifically provides in this
connection:
(d) Additional services such as tape-recording or video-taping of programs, the
preparation of visual aids, terms and condition thereof, and consideration to be paid
therefor may be arranged by the candidates with the radio/television station
concerned. However, no radio/television station shall make any discrimination among
candidates relative to charges, terms, practices or facilities for in connection with the
services rendered.
It is unfortunate that in the effort to show that there is taking of private property worth
millions of pesos, the unsubstantiated charge is made that by its decision the Court
permits the "grand larceny of precious time," and allows itself to become "the people's
unwitting oppressor." The charge is really unfortunate. In Jackson
v. Rosenbaun,21 Justice Holmes was so incensed by the resistance of property
owners to the erection of party walls that he was led to say in his original draft, "a
statute, which embodies the community's understanding of the reciprocal rights and
duties of neighboring landowners, does not need to invoke the  penalty larceny of the
police power in its justification." Holmes's brethren corrected his taste, and Holmes
had to amend the passage so that in the end it spoke only of invoking "the police
power."22 Justice Holmes spoke of the "petty larceny" of the police power. Now we are
being told of the "grand larceny [by means of the police power] of precious air time."
Giving Free Air Time a Duty
Assumed by Petitioner
Petitioners claim that §92 is an invalid amendment of R.A. No. 7252 which granted
GMA Network, Inc. a franchise for the operation of radio and television broadcasting
stations. They argue that although §5 of R.A. No. 7252 gives the government the
power to temporarily use and operate the stations of petitioner GMA Network or to
authorize such use and operation, the exercise of this right must be compensated.
The cited provision of. R.A. No. 7252 states:
Sec. 5. Right of Government. — A special right is hereby reserved to the President of
the Philippines, in times of rebellion, public peril, calamity, emergency, disaster or
disturbance of peace and order, to temporarily take over and operate the stations of
the grantee, to temporarily suspend the operation of any station in the interest of
public safety, security and public welfare, or to authorize the temporary use and
operation thereof by any agency of the Government, upon due compensation to the
grantee, for the use of said stations during the period when they shall be so operated.
The basic flaw in petitioner's argument is that it assumes that the provision for
COMELEC Time constitutes the use and operation of the stations of the GMA
Network, Inc., This is not so. Under §92 of B.P. Blg. 881, the COMELEC does not
take over the operation of radio and television stations but only the allocation of air
time to the candidates for the purpose of ensuring, among other things, equal
opportunity, time, and the right to reply as mandated by the Constitution.23
Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that
B.P. Blg. 881, which is said to have amended R.A. No. 7252, actually antedated
it.24 The provision of §92 of B.P. Blg. 881 must be deemed instead to be incorporated
in R.A. No. 7252. And, indeed, §4 of the latter statute does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to
render "adequate public service time" implements §92 of B.P. Blg. 881. Undoubtedly,
its purpose is to enable the government to communicate with the people on matters of
public interest. Thus, R.A. No. 7252 provides:
Sec. 4. Responsibility to the Public. — The grantee shall provide adequate public
service time to enable the Government, through the said broadcasting stations, to
reach the population on important public issues; provide at all times sound and
balanced programming; promote public participation such as in community
programming; assist in the functions of public information and education; conform to
the ethics of honest enterprise; and not use its station for the broadcasting of obscene
and indecent language, speech, act or scene, or for the dissemination of deliberately
false information or willful misrepresentation, or to the detriment of the public interest,
or to incite, encourage, or assist in subversive or treasonable acts. (Emphasis
added).
It is noteworthy that §40 of R.A. No. 6388, from which §92 of B.P. Blg. 881 was taken,
expressly provided that the COMELEC Time should "be considered as part of the
public service time said stations are required to furnish the Government for the
dissemination of public information and education under their respective franchises or
permits." There is no reason to suppose that §92 of B.P. Blg. 881 considers the
COMELEC Time therein provided to be otherwise than as a public service which
petitioner is required to render under §4 of its charter (R.A. No. 7252). In sum, B.P.
Blg. 881, §92 is not an invalid amendment of petitioner's franchise but the
enforcement of a duty voluntarily assumed by petitioner in accepting a public grant of
privilege.
Thus far, we have confined the discussion to the provision of §92 of B.P. Blg. 881 for
free air time without taking into account COMELEC Resolution No. 2983-A, §2 of
which states:
Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as
"Comelec Time", effective February 10, 1998 for candidates for President, Vice-
President and Senators, and effective March 27, 1998, for candidates for local
elective offices, until May 9, 1998. (Emphasis added).
This is because the amendment providing for the payment of "just compensation" is
invalid, being in contravention of §92 of B.P. Blg. 881 that radio and television time
given during the period of the campaign shall be "free of charge." Indeed, Resolution
No. 2983 originally provided that the time allocated shall be "free of charge," just as
§92 requires such time to be given "free of charge." The amendment appears to be a
reaction to petitioner's claim in this case that the original provision was
unconstitutional because it allegedly authorized the taking of property without just
compensation.
The Solicitor General, relying on the amendment, claims that there should be no more
dispute because the payment of compensation is now provided for. It is basic,
however, that an administrative agency cannot, in the exercise of lawmaking, amend
a statute of Congress. Since §2 of Resolution No. 2983-A is invalid, it cannot be
invoked by the parties.
Law Allows Flextime for Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the COMELEC in procuring
free air time and that "theoretically the COMELEC can demand all of the air time of
such stations."25 Petitioners do not claim that COMELEC Resolution No. 2983-A
arbitrarily sequesters radio and television time. What they claim is that because of the
breadth of the statutory language, the provision in question is susceptible of
"unbridled, arbitrary and oppressive exercise."26
The contention has no basis. For one, the COMELEC is required to procure free air
time for candidates "within the area of coverage" of a particular radio or television
broadcaster so that it cannot, for example, procure such time for candidates outside
that area. At what time of the day and how much time the COMELEC may procure
will have to be determined by it in relation to the overall objective of informing the
public about the candidates, their qualifications and their programs of government. As
stated in Osmeña v. COMELEC, the COMELEC Time provided for in §92, as well as
the COMELEC Space provided for in §90, is in lieu of paid ads which candidates are
prohibited to have under §11(b) of R.A. No. 6646. Accordingly, this objective must be
kept in mind in determining the details of the COMELEC Time as well as those of the
COMELEC Space.
There would indeed be objection to the grant of power to the COMELEC if §92 were
so detailed as to leave no room for accommodation of the demands of radio and
television programming. For were that the case, there could be an intrusion into the
editorial prerogatives of radio and television stations.
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations
to provide free air time. They contend that newspapers and magazines are not
similarly required as, in fact, in Philippine Press Institute v.  COMELEC,27 we upheld
their right to the payment of just compensation for the print space they may provide
under §90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are
entitled to the same treatment under the free speech guarantee of the Constitution as
the print media. There are important differences in the characteristics of the two
media, however, which justify their differential treatment for free speech purposes.
Because of the physical limitations of the broadcast spectrum, the government must,
of necessity, allocate broadcast frequencies to those wishing to use them. There is no
similar justification for government allocation and regulation of the print media.28
In the allocation of limited resources, relevant conditions may validly be imposed on
the grantees or licensees. The reason for this is that, as already noted, the
government spends public funds for the allocation and regulation of the broadcast
industry, which it does not do in the case of the print media. To require the radio and
television broadcast industry to provide free air time for the COMELEC Time is a fair
exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique and
pervasive influence of the broadcast media, "[n]ecessarily . . . the freedom of
television and radio broadcasting is somewhat lesser in scope than the freedom
accorded to newspaper and print media."29
The broadcast media have also established a uniquely pervasive presence in the
lives of all Filipinos. Newspapers and current books are found only in metropolitan
areas and in the poblaciones of municipalities accessible to fast and regular
transportation. Even here, there are low income masses who find the cost of books,
newspapers, and magazines beyond their humble means. Basic needs like food and
shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be
within reach of a blaring radio or television set. The materials broadcast over the
airwaves reach every person of every age, persons of varying susceptibilities to
persuasion, persons of different I.Q.s and mental capabilities, persons whose
reactions to inflammatory or offensive speech would he difficult to monitor or predict.
The impact of the vibrant speech is forceful and immediate. Unlike readers of the
printed work, the radio audience has lesser opportunity to cogitate, analyze, and
reject the utterance. 30
Petitioners' assertion therefore that §92 of B.P. Blg. 881 denies them the equal
protection of the law has no basis. In addition, their plea that §92 (free air time) and
§11(b) of R.A. No. 6646 (ban on paid political ads) should be invalidated would pave
the way for a return to the old regime where moneyed candidates could monopolize
media advertising to the disadvantage of candidates with less resources. That is what
Congress tried to reform in 1987 with the enactment of R.A. No. 6646. We are not
free to set aside the judgment of Congress, especially in light of the recent failure of
interested parties to have the law repealed or at least modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the
State's Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC
under Art. IX-C, §4 of the Constitution does not include the power to prohibit. In the
first place, what the COMELEC is authorized to supervise or regulate by Art. IX-C, §4
of the Constitution,31 among other things, is the use by media of information of their
franchises or permits, while what Congress (not the COMELEC) prohibits is the sale
or donation of print space or air time for political ads. In other words, the object of
supervision or regulation is different from the object of the prohibition. It is another
fallacy for petitioners to contend that the power to regulate does not include the power
to prohibit. This may have force if the object of the power were the same.
In the second place, the prohibition in §11(b) of R.A. No. 6646 is only half of the
regulatory provision in the statute. The other half is the mandate to the COMELEC to
procure print space and air time for allocation to candidates. As we said in Osmeña
v. COMELEC:
The term political "ad ban" when used to describe §11(b) of R.A. No. 6646, is
misleading, for even as §11(b) prohibits the sale or donation of print space and air
time to political candidates, it mandates the COMELEC to procure and itself allocate
to the candidates space and time in the media. There is no suppression of political
ads but only a regulation of the time and manner of advertising.
x x x           x x x          x x x
. . . What is involved here is simply regulation of this nature. Instead of leaving
candidates to advertise freely in the mass media, the law provides for allocation, by
the COMELEC of print space and air time to give all candidates equal time and space
for the purpose of ensuring "free, orderly, honest, peaceful, and credible elections."
With the prohibition on media advertising by candidates themselves, the COMELEC
Time and COMELEC Space are about the only means through which candidates can
advertise their qualifications and programs of government. More than merely
depriving their qualifications and programs of government. More than merely
depriving candidates of time for their ads, the failure of broadcast stations to provide
air time unless paid by the government would clearly deprive the people of their right
to know. Art III, §7 of the Constitution provides that "the right of the people to
information on matters of public concern shall be recognized," while Art. XII, §6 states
that "the use of property bears a social function [and] the right to own, establish, and
operate economic enterprises [is] subject to the duty of the State to promote
distributive justice and to intervene when the common good so demands."
To affirm the validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their
obligation to see to it that the variety and vigor of public debate on issues in an
election is maintained. For while broadcast media are not mere common carriers but
entities with free speech rights, they are also public trustees charged with the duty of
ensuring that the people have access to the diversity of views on political issues. This
right of the people is paramount to the autonomy of broadcast media. To affirm the
validity of §92, therefore, is likewise to uphold the people's right to information on
matters of public concern. The use of property bears a social function and is subject
to the state's duty to intervene for the common good. Broadcast media can find their
just and highest reward in the fact that whatever altruistic service they may render in
connection with the holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and
Quisumbing, JJ., concur.
G.R. No. 102653 March 5, 1992
NATIONAL PRESS CLUB, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
G.R. No. 102925 March 5, 1992
PHILIPPINE PRESS INSTITUTE represented by ZOILO DEJARESCO, JR., as its
Past Chairman and President, and FRAULIN A. PEÑASALES as its Corporate
Secretary, petitioners,
vs.
COMMISSION ON ELECTIONS, represented by HON. CHRISTIAN MONSOD, its
Chairman; HON. GUILLERMO CARAGUE and HON. ROSALINA S.
CAJUCOM, respondents.
G.R. No. 102983 March 5, 1992
FELICIANO, J.:
In the three (3) consolidated Petitions before us, the common question raised by
petitioners is the constitutionality of Section 11 (b) of Republic Act No. 6646.
Petitioners in these cases consist of representatives of the mass media which are
prevented from selling or donating space and time for political advertisements; two (2)
individuals who are candidates for office (one for national and the other for provincial
office) in the coming May 1992 elections; and taxpayers and voters who claim that
their right to be informed of election issues and of credentials of the candidates is
being curtailed.
It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646
invades and violates the constitutional guarantees comprising freedom of expression.
Petitioners maintain that the prohibition imposed by Section 11 (b) amounts to
censorship, because it selects and singles out for suppression and repression with
criminal sanctions, only publications of a particular content, namely, media-based
election or political propaganda during the election period of 1992. It is asserted that
the prohibition is in derogation of media's role, function and duty to provide adequate
channels of public information and public opinion relevant to election issues. Further,
petitioners contend that Section 11 (b) abridges the freedom of speech of candidates,
and that the suppression of media-based campaign or political propaganda except
those appearing in the Comelec space of the newspapers and on Comelec time of
radio and television broadcasts, would bring about a substantial reduction in the
quantity or volume of information concerning candidates and issues in the election
thereby curtailing and limiting the right of voters to information and opinion.
The statutory text that petitioners ask us to strike down as unconstitutional is that of
Section 11 (b) of Republic Act No. 6646, known as the Electoral Reforms Law of
1987:

KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI Sec. 11 Prohibited Forms of Election Propaganda. —  In addition to the forms of
BROADCASTING NETWORK; MOLAVE BROADCASTING NETWORK; MASBATE election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it
COMMUNITY BROADCASTING CO., INC., RADIO MINDANAO NETWORK, INC.; shall be unlawful;
ABS-CBN BROADCASTING CORP.; FILIPINAS BROADCASTING; RADIO
xxx xxx xxx
PILIPINO CORP.; RADIO PHILIPPINES NETWORK, INC.; EAGLE
BROADCASTING CORP.; MAGILIW COMMUNITY BROADCASTING CO., INC.; b) for any newspapers, radio broadcasting or television station, other mass media, or
for themselves and in behalf of the mass media owners as a class; ANDRE S. any person making use of the mass media to sell or to give free of charge print space
KHAN; ARCADIO M. CARANDANG, JR.; MALOU ESPINOSA MANALASTAS; or air time for campaign or other political purposes except to the Commission as
MIGUEL C. ENRIQUEZ; JOSE ANTONIO K. VELOSO; DIANA G. DE GUZMAN; provided under Sections 90 and 92 of Batas Pambansa Blg. 881.  Any mass media
JOSE E. ESCANER, JR.; RAY G. PEDROCHE; PETER A. LAGUSAY; ROBERT columnist, commentator, announcer or personality who is a candidate for any elective
ESTRELLA; ROLANDO RAMIREZ; for themselves as voters and in behalf of the public office shall take a leave of absence from his work as such during the campaign
Philippine electorate as a class; ORLANDO S. MERCADO and ALEJANDRO de period. (Emphasis supplied)
G. RODRIGUEZ; for themselves as prospective candidates and in behalf of all
candidates in the May 1992 election as a class, petitioners, Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90
vs. and 92 of B.P. Blg. 881, known as the Omnibus Election Code of the Philippines,
COMMISSION ON ELECTIONS, respondent. which provide respectively as follows:
Sec. 90. Comelec space. — The Commission shall procure space  in at least one
newspaper of general circulation in every province or city: Provided, however, That in
the absence of said newspaper, publication shall be done in any other magazine or
periodical in said province or city, which shall be known as "Comelec Space" wherein
candidates can announce their candidacy. Said space shall be allocated, free of
charge, equally  and impartially by the Commission among all candidates within the
area in which the newspaper is circulated.
xxx xxx xxx
Sec. 92. Comelec time. — The Commission shall procure radio and television time  to
be known as "Comelec Time" which shall be allocated equally  and impartially among
the candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge, during the period of
the campaign. (Emphasis supplied)
The objective which animates Section 11 (b) is the equalizing, as far as practicable,
the situations of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign "war chests." Section 11 (b) prohibits the
sale or donation of print space and air time "for campaign or other political purposes"
except to the Commission on Elections ("Comelec"). Upon the other hand, Sections
90 and 92 of the Omnibus Election Code require the Comelec to procure "Comelec
space" in newspapers of general circulation in every province or city and "Comelec
time" on radio and television stations. Further, the Comelec is statutorily commanded
to allocate "Comelec space" and "Comelec time" on a free of charge, equal and
impartial basis among all candidates within the area served by the newspaper or
radio and television station involved.
No one seriously disputes the legitimacy or the importance of the objective sought to
be secured by Section 11 (b) (of Republic Act No. 6646) in relation to Sections 90 and
92 (of the Omnibus Election Code). That objective is of special importance and
urgency in a country which, like ours, is characterized by extreme disparity in income
distribution between the economic elite and the rest of society, and by the prevalence
of poverty, with the bulk of our population falling below that "poverty line." It is
supremely important, however, to note that objective is not only a concededly
legitimate one; it has also been given constitutional status by the terms of Article
IX(C) (4) of the 1987 Constitution which provides as follows:
Sec. 4. The Commission [on Elections] may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation
of transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful,
and credible elections. (Emphasis supplied)
The Comelec has thus been expressly authorized by the Constitution to supervise or
regulate the enjoyment or utilization of the franchises or permits for the operation of
media of communication and information. The fundamental purpose of such
"supervision or regulation" has been spelled out in the Constitution as the ensuring of
"equal opportunity, time, and space, and the right to reply," as well as uniform and
reasonable rates of charges for the use of such media facilities, in connection with
"public information campaigns and forums among candidates." 1
It seems a modest proposition that the provision of the Bill of Rights which enshrines
freedom of speech, freedom of expression and freedom of the press (Article III [4],
Constitution) has to be taken in conjunction with Article IX (C) (4) which may be seen
to be a special provision applicable during a specific limited period — i.e., "during the
election period." It is difficult to overemphasize the special importance of the rights of
freedom of speech and freedom of the press in a democratic polity, in particular when
they relate to the purity and integrity of the electoral process itself, the process by
which the people identify those who shall have governance over them. Thus, it is
frequently said that these rights are accorded a preferred status in our constitutional
hierarchy. Withal, the rights of free speech and free press are not unlimited rights for
they are not the only important and relevant values even in the most democratic of
polities. In our own society, equality of opportunity to proffer oneself for public office,
without regard to the level of financial resources that one may have at one's disposal,
is clearly an important value. One of the basic state policies given constitutional rank
by Article II, Section 26 of the Constitution is the egalitarian demand that "the State
shall guarantee equal access to opportunities for public service  and prohibit political
dynasties as may be defined by law." 2
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may
result in some  limitation of the rights of free speech and free press. For supervision or
regulation of the operations of media enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the general, time-honored one
— that a statute is presumed to be constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly and convincingly proving that
assertion. 3
Put in slightly different terms, there appears no present necessity to fall back upon
basic principles relating to the police power of the State and the requisites for
constitutionally valid exercise of that power. The essential question is whether or not
the assailed legislative or administrative provisions constitute a permissible exercise
of the power of supervision or regulation of the operations of communication and
information enterprises during an election period, or whether such act has gone
beyond permissible supervision or regulation of media operations so as to constitute
unconstitutional repression of freedom of speech and freedom of the press. The Court
considers that Section 11 (b) has not gone outside the permissible bounds of
supervision or regulation of media operations during election periods.
In the constitutional assaying of legislative provisions like Section 11 (b), the
character and extent of the limitations resulting from the particular measure being
assayed upon freedom of speech and freedom of the press are essential
considerations. It is important to note that the restrictive impact upon freedom of
speech and freedom of the press of Section 11 (b) is circumscribed by certain
important limitations.
Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By
virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited
in its applicability in time to election periods. By its Resolution No. 2328 dated 2
January 1992, the Comelec, acting under another specific grant of authority by the
Constitution (Article IX [C] [9]), has defined the period from 12 January 1992 until 10
June 1992 as the relevant election period.
Secondly, and more importantly, Section 11 (b) is limited in its scope of application.
Analysis of Section 11 (b) shows that it purports to apply only to the purchase and
sale, including purchase and sale disguised as a donation, 4 of print space and air
time for "campaign or other political purposes." Section 11 (b) does not  purport in any
way to restrict the reporting by newspapers or radio or television stations of news or
news-worthy events relating to candidates, their qualifications, political parties and
programs of government. Moreover, Section 11 (b) does not  reach commentaries and
expressions of belief or opinion by reporters or broadcasters or editors or
commentators or columnists in respect of candidates, their qualifications, and
programs and so forth, so long at least as such comments, opinions and beliefs are
not in fact advertisements for particular candidates covertly paid for. In sum, Section
11 (b) is not to be read as reaching any report or commentary other coverage that, in
responsible media, is not paid for by candidates for political office. We read Section
11 (b) as designed to cover only paid political advertisements of particular candidates.
The above limitation in scope of application of Section 11 (b) — that it does not
restrict either the reporting of or the expression of belief or opinion or comment upon
the qualifications and programs and activities of any and all candidates for office —
constitutes the critical distinction which must be made between the instant case and
that of Sanidad v. Commission on Elections.5 In Sanidad, the Court declared
unconstitutional Section 19 of Comelec Resolution No. 2167 which provided as
follows:
Sec. 19. Prohibition on Columnists, Commentators or Announcers — During the
plebiscite campaign period, on the day before and on plebiscite day, no mass media
columnist, commentator, announcer or personality shall use his column or radio or
television time to campaign for or against the plebiscite issues.
Resolution No. 2167 had been promulgated by the Comelec in connection with the
plebiscite mandated by R.A. No. 6766 on the ratification or adoption of the Organic
Act for the Cordillera Autonomous Region. The Court held that Resolution No. 2167
constituted a restriction of the freedom of expression of petitioner Sanidad, a
newspaper columnist of the Baguio Midland Courier, "for no justifiable reason." The
Court, through Medialdea, J., said:
. . . [N]either Article, IX-C of the Constitution nor Section 11 [b], 2nd par. of R.A. 6646
can be construed to mean that the Comelec has also been granted the right to
supervise and regulate the exercise by media practitioners themselves  of their right to
expression during plebiscite periods. Media practitioners exercising their freedom of
expression during plebiscite periods are neither the franchise holders nor the
candidates. In fact, there are no candidates involved in the plebiscite. Therefore,
Section 19 of Comelec Resolution No. 2167 has no statutory basis." 6 (Emphasis
partly in the original and partly supplied)
There is a third limitation upon the scope of application of Section 11 (b). Section 11
(b) exempts from its prohibition the purchase by or donation to the Comelec of print
space or air time, which space and time Comelec is then affirmatively required to
allocate on a fair and equal basis, free of charge, among the individual candidates for
elective public offices in the province or city served by the newspaper or radio or
television station. Some of the petitioners are apparently apprehensive that Comelec
might not allocate "Comelec time" or "Comelec space" on a fair and equal basis
among the several candidates. Should such apprehensions materialize, candidates
who are in fact prejudiced by unequal or unfair allocations effected by Comelec will
have appropriate judicial remedies available, so long at least as this Court sits. Until
such time, however, the Comelec is entitled to the benefit of the presumption that
official duty will be or is being regularly carried out. It seems appropriate here to recall
what Justice Laurel taught in Angara v. Electoral Commission7 that the possibility of
abuse is no argument against the concession of the power or authority involved, for
there is no power or authority in human society that is not susceptible of being
abused. Should it be objected that the Comelec might refrain from procuring
"Comelec time" and "Comelec space," much the same considerations should be
borne in mind. As earlier noted, the Comelec is commanded by statute to buy or
"procure" "Comelec time" and "Comelec space" in mass media, and it must be
presumed that Comelec will carry out that statutory duty in this connection, and if it
does fail to do so, once again, the candidate or candidates who feel aggrieved have
judicial remedies at their disposal.
The points that may appropriately be underscored are that Section 11 (b)
does not cut off the flow of media reporting, opinion or commentary about candidates,
their qualifications and platforms and promises. Newspaper, radio broadcasting and
television stations remain quite free to carry out their regular and normal information
and communication operations. Section 11 (b) does not authorize any intervention
and much less control on the part of Comelec in respect of the content  of the normal
operations of media, nor in respect of the content  of political advertisements which
the individual candidates are quite free to present within their respective allocated
Comelec time and Comelec space. There is here no "officious functionary of [a]
repressive government" dictating what events or ideas reporters, broadcasters,
editors or commentators may talk or write about or display on TV screens. There is
here no censorship, whether disguised or otherwise. What Section 11 (b), viewed in
context, in fact does is to limit  paid partisan political advertisements to for a other
than modern mass media, and to "Comelec time" and "Comelec space" in such mass
media.
Section 11 (b) does, of course, limit the right of free speech and of access to mass
media of the candidates themselves. The limitation, however, bears a clear and
reasonable connection with the constitutional objective set out in Article IX(C) (4) and
Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print
space and radio and television time that the resources of the financially affluent
candidates are likely to make a crucial difference. Here lies the core problem of
equalization of the situations of the candidates with deep pockets and the candidates
with shallow or empty pockets that Article IX(C) (4) of the Constitution and Section 11
(b) seek to address. That the statutory mechanism which Section 11 (b) brings into
operation is designed and may be expected to bring about or promote equal
opportunity, and equal time and space, for political candidates to inform all and
sundry about themselves, cannot be gainsaid.
My learned brother in the Court Cruz, J. remonstrates, however, that "t[he] financial
disparity among the candidates is a fact of life that cannot be corrected by legislation
except only by the limitation of their respective expenses to a common
maximum. The flaw in the prohibition under challenge is that while the rich candidate
is barred from buying mass media coverage, it nevertheless allows him to spend his
funds on other campaign activities also inaccessible to his strained rival." True
enough Section 11 (b) does not, by itself or in conjunction with Sections 90 and 92 of
the Omnibus Election Code, place political candidates on complete and perfect
equality inter se without regard to their financial affluence or lack thereof. But a
regulatory measure that is less than perfectly comprehensive or which does not
completely obliterate the evil sought to be remedied, is not for that reason alone
constitutionally infirm. The Constitution does not, as it cannot, exact perfection in
governmental regulation. All it requires, in accepted doctrine, is that the regulatory
measure under challenge bear a reasonable nexus with the constitutionally
sanctioned objective. That the supervision or regulation of communication and
information media is not, in itself, a forbidden modality is made clear by the
Constitution itself in Article IX (C) (4).
It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right
to free speech of the candidates themselves may be seen to be not unduly repressive
or unreasonable. For, once again, there is nothing in Section 11 (b) to prevent media
reporting of and commentary on pronouncements, activities, written statements of the
candidates themselves. All other fora remain accessible to candidates, even for
political advertisements. The requisites of fairness and equal opportunity are, after all,
designed to benefit the candidates themselves.
Finally, the nature and characteristics of modern mass media, especially electronic
media, cannot be totally disregarded. Realistically, the only limitation upon the free
speech of candidates imposed is on the right of candidates to bombard the helpless
electorate with paid advertisements commonly repeated in the mass media ad
nauseam. Frequently, such repetitive political commercials when fed into the
electronic media themselves constitute invasions of the privacy of the general
electorate. It might be supposed that it is easy enough for a person at home simply to
flick off his radio of television set. But it is rarely that simple. For the candidates with
deep pockets may purchase radio or television time in many, if not all, the major
stations or channels. Or they may directly or indirectly own or control the stations or
channels themselves. The contemporary reality in the Philippines is that, in a very
real sense, listeners and viewers constitute a "captive audience." 8
The paid political advertisement introjected into the electronic media and repeated
with mind-deadening frequency, are commonly intended and crafted, not so much to
inform and educate as to condition and manipulate, not so much to provoke rational
and objective appraisal of candidates' qualifications or programs as to appeal to the
non-intellective faculties of the captive and passive audience. The right of the general
listening and viewing public to be free from such intrusions and their subliminal effects
is at least as important as the right of candidates to advertise themselves through
modern electronic media and the right of media enterprises to maximize their
revenues from the marketing of "packaged" candidates.
WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of
merit. No pronouncement as to costs.
SO ORDERED.
G.R. No. L-12592            March 8, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
FELIPE BUSTOS, ET AL., defendants-appellants.
Kincaid and Perkins for appellants.
Acting Attorney-General Paredes, for appellee.
MALCOLM, J.:
This appeal presents the specific question of whether or not the defendants and
appellants are guilty of a libel of Roman Punsalan, justice of the peace of Macabebe
and Masantol, Province of Pampanga. The appeal also submits the larger question of
the attitude which the judiciary should take interpreting and enforcing the Libel Law in
connection with the basic prerogatives of freedom of speech and press, and of
assembly and petition. For a better understanding, the facts in the present appeal are
the first narrated in the order of their occurrence, then certain suggestive aspects
relative to the rights of freedom of speech and press and of assembly and petition are
interpolated, then the facts are tested by these principles, and, finally, judgment is
rendered.
First, the facts. In the latter part of 1915, numerous citizens of the Province of
Pampanga assembled, and prepared and signed a petition to the Executive Secretary
through the law office of Crossfield and O'Brien, and five individuals signed affidavits,
charging Roman Punsalan, justice of the peace of Macabebe and Masantol,
Pampanga, with malfeasance in office and asking for his removal. Crossfield and
O'Brien submitted this petition and these affidavits with a complaint to the Executive
Secretary. The petition transmitted by these attorneys was signed by thirty-four
citizens apparently of considerable standing, including councilors and property
owners (now the defendants), and contained the statements set out in the information
as libelous. Briefly stated the specific charges against the justice of the peace were.
1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes,
visited the justice of the peace, who first told her that he would draw up complaint for
P5; afterwards he said he would take P3 which she paid; also kept her in the house
for four days as a servant and took from her two chickens and twelve "gandus;"
2. That Valentin Sunga being interested in a case regarding land which was on trial
before the justice of the peace, went to see the justice of the peace to ascertain the
result of the trial, and was told by the justice of the peace that if he wished to win he
must give him P50. Not having this amount, Sunga gave the justice nothing, and a
few days later was informed that he had lost the case. Returning again to the office of
the justice of the peace in order to appeal, the justice told him that he could still win if
he would pay P50;
3. That Leoncio Quiambao, having filed a complaint for assault against four persons,
on the day of the trial the justice called him over to his house, where he secretly gave
him (Quiambao) P30; and the complaint was thereupon shelved.
The Executive Secretary referred the papers to the judge of first instance for the
Seventh Judicial District requesting investigation, proper action, and report. The
justice of the peace was notified and denied the charges. The judge of first instance
found the first count not proved and counts 2 and 3 established. In view of this result,
the judge, the Honorable Percy M. Moir, was of the opinion "that it must be, and it is
hereby, recommended to the Governor-General that the respondent be removed from
his position as justice of the peace of Macabebe and Masantol, Province of
Pampanga, and it is ordered that the proceedings had in this case be transmitted to
the Executive Secretary."
Later the justice of the peace filled a motion for a new trial; the judge of first instance
granted the motion and reopened the hearing; documents were introduced, including
a letter sent by the municipal president and six councilors of Masantol, Pampanga,
asserting that the justice of the peace was the victim of prosecution, and that one
Agustin Jaime, the auxiliary justice of the peace, had instituted the charges for
personal reasons; and the judge of first instance ordered a suppression of the
charges against Punsalan and acquitted him the same. Attorneys for complainants
thereupon appealed to the Governor-General, but whether the papers were forwarded
to the Governor-General as requested the record does not disclose.
Criminal action against the petitioners, now become the defendants, was instituted on
October 12, 1916, by virtue of the following information:
That on or about the month of December, 1915, in the municipality of Macabebe,
Pampanga, P. I., the said accused, voluntarily, illegally, and criminally and with
malicious intent to prejudice and defame Mr. Roman Punsalan Serrano who was at
said time and place justice of the peace of Macabebe and Masantol of this province,
wrote, signed, and published a writing which was false, scandalous, malicious,
defamatory, and libelous against the justice of the peace Mr. Roman Punsalan
Serrano, in which writing appear among other things the following:
That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of
Macabebe, on account of the conduct observed by him heretofore, a conduct highly
improper of the office which he holds, is found to be a public functionary who is
absolutely unfair, eminently immoral and dangerous to the community, and
consequently unworthy of the office.
That this assertion of the undersigned is evidenced in a clear and positive manner by
facts so certain, so serious, and so denigrating which appear in the affidavits attached
hereto, and by other facts no less serious, but which the undersigned refrain from
citing herein for the sake of brevity and in order not to bother too much the attention
of your Honor and due to lack of sufficient proof to substantiate them.
That should the higher authorities allow the said justice of the peace of this town to
continue in his office, the protection of the rights and interests of its inhabitants will be
illusory and utopic; rights and interest solemnly guaranteed by the Philippine Bill of
Rights, and justice in this town will not be administered in accordance with law.
That on account of the wrongful discharge of his office and of his bad conducts as
such justice of the peace, previous to this time, some respectable citizens of this town
of Macabebe were compelled to present an administrative case against the said
Roman Punsalan Serrano before the judge of first instance of Pampanga, in which
case there were made against him various charges which were true and certain and
of different characters.
That after the said administrative case was over, the said justice of the peace, far
from charging his bad and despicable conduct, which has roused the indignation of
this town of Macabebe, subsequently performed the acts abovementioned, as stated
in the affidavits herewith attached, as if intending to mock at the people and to show
his mistaken valor and heroism.'
All of this has been written and published by the accused with deliberate purpose of
attacking the virtue, honor, and reputation of the justice of the peace, Mr. Roman
Punsalan Serrano, and thus exposing him to public hatred contempt, and ridicule. All
contrary to law.
It should be noted that the information omits paragraphs of the petition mentioning the
investigation before the judge of first instance, the affidavits upon which based and
concluding words, "To the Executive Secretary, through the office of Crossfield and
O'Brien."
The Honorable Percy M. Moir found all the defendants, with the exception of Felix
Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel Mallari, guilty and
sentenced each of them to pay a fine of P10 and one thirty-second part of the costs,
or to suffer subsidiary imprisonment in case of insolvency. New attorneys for the
defense, coming into the case, after the handing down of the decision, file on
December 16, 1916, a motion for a new trial, the principal purpose of which was to
retire the objection interposed by the then counsel for the defendants to the
admission of Exhibit A consisting of the entire administrative proceedings. The trial
court denied the motion. All the defendants, except Melecio S. Sabado and Fortunato
Macalino appealed making the following assignments of error:
1. The court erred in overruling the motion of the convicted defendants for a new trial.
2. The court erred in refusing to permit the defendants to retire the objection in
advertently interposed by their counsel to the admission in evidence of
the expediente administrativo out of which the accusation in this case arose.
3. The court erred in sustaining the objection of the prosecution to the introduction in
evidence by the accused of the affidavits upon which the petition forming the basis of
the libelous charge was based.
4. The court erred in not holding that the alleged libelous statement was unqualifiedly
privileged.
5. The court erred in assuming and impliedly holding that the burden was on the
defendants to show that the alleged libelous statements were true and free from
malice.
6. The court erred in not acquitting the defendants.
7. The evidence adduced fails to show the guilt of the defendants beyond a
reasonable doubt. This is especially true of all the defendants, except Felipe Bustos,
Dionisio Mallari, and Jose T. Reyes.
We have thus far taken it for granted that all the proceedings, administrative and
judicial, were properly before this court. As a matter of fact counsel for defendants in
the lower court made an improvident objection to the admission of the administrative
proceedings on the ground that the signatures were not identified and that the same
was immaterial, which objection was partially sustained by the trial court.
Notwithstanding this curious situation by reason of which the attorney for the defense
attempted to destroy through his objection the very foundation for the justification of
his clients, we shall continue to consider all the proceedings as before us. Not
indicating specifically the reason for this action, let the following be stated: The
administrative proceedings were repeatedly mentioned during the trial. These
proceedings were the basis of the accusation, the information, the evidence, and the
judgment rendered. The prosecution cannot be understood without knowledge of
anterior action. Nothing more unjust could be imagined than to pick out certain words
which standing by themselves and unexplained are libelous and then by shutting off
all knowledge of facts which would justify these words, to convict the accused. The
records in question are attached to the rollo, and either on the ground that the
attorneys for the defense retired the objection to the introduction of the administrative
proceedings by the prosecution, or that a new trial should have been had because
under section 42 of the Code of Criminal Procedure "a case may be reopened on
account of errors at law committed at the trial," or because of the right of this court to
call in such records as are sufficiently incorporated into the complaint and are
essential to a determination of the case, or finally, because of our conceded right to
take judicial notice of official action in administrative cases and of judicial proceedings
supplemental to the basis action, we examine the record as before us, containing not
alone the trial for libel, but the proceedings previous to that trial giving rise to it. To
this action, the Government can not explain for it was the prosecution which tried to
incorporate Exhibit A into the record.
With these facts pleading justification, before testing them by certain principles which
make up the law of libel and slander, we feel warranted in seizing the opportunity to
intrude an introductory and general discussion of freedom of speech and press and
assembly and petition in the Philippine Islands. We conceive that the time is ripe thus
to clear up certain misapprehensions on the subject and to place these basic rights in
their proper light.
Turning to the pages of history, we state nothing new when we set down that freedom
of speech as cherished in democratic countries was unknown in the Philippine Islands
before 1900. A prime cause for revolt was consequently ready made. Jose Rizal in
"Filipinas Despues de Cien Años" (The Philippines a Century Hence, pages 62 et
seq.) describing "the reforms sine quibus non," which the Filipinos insist upon, said: "
The minister, . . . who wants his reforms to be reforms, must begin by declaring the
press in the Philippines free and by instituting Filipinos delegates.
The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other
means invariably in exposing the wants of the Filipino people demanded "liberty of
the press, of cults, and associations." (See Mabini, La Revolucion Filipina.) The
Malolos Constitution, the work of the Revolutionary Congress, in its Bill of Rights,
zealously guarded freedom of speech and press and assembly and petition.
Mention is made of the foregoing data only to deduce the proposition that a reform so
sacred to the people of these Islands and won at so dear a cost, should now be
protected and carried forward as one would protect and preserve the covenant of
liberty itself.
Next comes the period of American-Filipino cooperative effort. The Constitution of the
United States and the State constitutions guarantee to the right of freedom of speech
and press and the right of assembly and petition. We are therefore, not surprised to
find President McKinley in that Magna Charta of Philippine Liberty, the Instructions to
the Second Philippine Commission, of April 7, 1900, laying down the inviolable rule
"That no law shall be passed abridging the freedom of speech or of the press or of
the rights of the people to peaceably assemble and petition the Government for a
redress of grievances."
The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of
Congress of August 29, 1916, in the nature of organic acts for the Philippines,
continued this guaranty. The words quoted are not unfamiliar to students of
Constitutional Law, for they are the counterpart of the first amendment to the
Constitution of the United States, which the American people demanded before giving
their approval to the Constitution.
We mention the foregoing facts only to deduce the position never to be forgotten for
an instant that the guaranties mentioned are part and parcel of the Organic Law — of
the Constitution — of the Philippine Islands.
These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage.
The language carries with all the applicable jurisprudence of great English and
American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs.
Mortiga [1907], 204 U. S., 470.) And what are these principles? Volumes would
inadequately answer. But included are the following:
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Completely liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and the dignity of the individual be exalted. Of
course, criticism does not authorize defamation. Nevertheless, as the individual is
less than the State, so must expected criticism be born for the common good. Rising
superior to any official or set of officials, to the Chief of Executive, to the Legislature,
to the Judiciary — to any or all the agencies of Government — public opinion should
be the constant source of liberty and democracy. (See the well considered cases of
Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F., 372; The
Queen vs. Sir R. Carden, 5 Q. B. D., 1)
The guaranties of a free speech and a free press include the right to criticize judicial
conduct. The administration of the law is a matter of vital public concern. Whether the
law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the
people cannot criticize a justice of the peace or a judge the same as any other public
officer, public opinion will be effectively muzzled. Attempted terrorization of public
opinion on the part of the judiciary would be tyranny of the basest sort. The sword of
Damocles in the hands of a judge does not hang suspended over the individual who
dares to assert his prerogative as a citizen and to stand up bravely before any official.
On the contrary, it is a duty which every one owes to society or to the State to assist
in the investigation of any alleged misconduct. It is further the duty of all who know of
any official dereliction on the part of a magistrate or the wrongful act of any public
officer to bring the facts to the notice of those whose duty it is to inquire into and
punish them. In the words of Mr. Justice Gayner, who contributed so largely to the law
of libel. "The people are not obliged to speak of the conduct of their officials in
whispers or with bated breath in a free government, but only in a despotism."
(Howarth vs. Barlow [1906], 113 App. Div., N. Y., 510.)
The right to assemble and petition is the necessary consequence of republican
institutions and the complement of the part of free speech. Assembly means a right
on the part of citizens to meet peaceably for consultation in respect to public affairs.
Petition means that any person or group of persons can apply, without fear of penalty,
to the appropriate branch or office of the government for a redress of grievances. The
persons assembling and petitioning must, of course, assume responsibility for the
charges made.
Public policy, the welfare of society, and the orderly administration of government
have demanded protection for public opinion. The inevitable and incontestable result
has been the development and adoption of the doctrine of privilege.
The doctrine of privileged communications rests upon public policy, 'which looks to
the free and unfettered administration of justice, though, as an incidental result, it may
in some instances afford an immunity to the evil-disposed and malignant slanderer.'
(Abbott vs. National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.)
Privilege is classified as either absolute or qualified. With the first, we are not
concerned. As to qualified privilege, it is as the words suggest a prima facie privilege
which may be lost by proof of malice. The rule is thus stated by Lord Campbell, C. J.
A communication made bona fide upon any subject-matter in which the party
communicating has an interest, or in reference to which has a duty, is privileged, if
made to a person having a corresponding interest or duty, although it contained
criminatory matter which without this privilege would be slanderous and actionable.
(Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R.,
474; 85 E. C. L., 344.)
A pertinent illustration of the application of qualified privilege is a complaint made in
good faith and without malice in regard to the character or conduct of a public official
when addressed to an officer or a board having some interest or duty in the matter.
Even when the statements are found to be false, if there is probable cause for belief
in their truthfulness and the charge is made in good faith, the mantle of privilege may
still cover the mistake of the individual. But the statements must be made under an
honest sense of duty; a self-seeking motive is destructive. Personal injury is not
necessary. All persons have an interest in the pure and efficient administration of
justice and of public affairs. The duty under which a party is privileged is sufficient if it
is social or moral in its nature and this person in good faith believes he is acting in
pursuance thereof although in fact he is mistaken. The privilege is not defeated by the
mere fact that the communication is made in intemperate terms. A further element of
the law of privilege concerns the person to whom the complaint should be made. The
rule is that if a party applies to the wrong person through some natural and honest
mistake as to the respective functions of various officials such unintentional error will
not take the case out of the privilege.
In the usual case malice can be presumed from defamatory words. Privilege destroy
that presumption. The onus of proving malice then lies on the plaintiff. The plaintiff
must bring home to the defendant the existence of malice as the true motive of his
conduct. Falsehood and the absence of probable cause will amount to proof of
malice. (See White vs. Nicholls [1845], 3 How., 266.)
A privileged communication should not be subjected to microscopic examination to
discover grounds of malice or falsity. Such excessive scrutiny would defeat the
protection which the law throws over privileged communications. The ultimate test is
that of bona fides. (See White vs. Nicholls [1845], 3 How., 266; Bradley vs. Heath
[1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72; Street
Foundations of Legal Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various
citations; 25 Cyc. pages 385 et seq.)
Having ascertained the attitude which should be assumed relative to the basic rights
of freedom of speech and press and of assembly and petition, having emphasized the
point that our Libel Law as a statute must be construed with reference to the
guaranties of our Organic Law, and having sketched the doctrine of privilege, we are
in a position to test the facts of this case with these principles.
It is true that the particular words set out in the information, if said of a private person,
might well be considered libelous per se. The charges might also under certain
conceivable conditions convict one of a libel of a government official. As a general
rule words imputing to a judge or a justice of the peace dishonesty or corruption or
incapacity or misconduct touching him in his office are actionable. But as suggested
in the beginning we do not have present a simple case of direct and vicious
accusations published in the press, but of charges predicated on affidavits made to
the proper official and thus qualifiedly privileged. Express malice has not been proved
by the prosecution. Further, although the charges are probably not true as to the
justice of the peace, they were believed to be true by the petitioners. Good faith
surrounded their action. Probable cause for them to think that malfeasance or
misfeasance in office existed is apparent. The ends and the motives of these citizens
— to secure the removal from office of a person thought to be venal — were
justifiable. In no way did they abuse the privilege. These respectable citizens did not
eagerly seize on a frivolous matter but on instances which not only seemed to them of
a grave character, but which were sufficient in an investigation by a judge of first
instance to convince him of their seriousness. No undue publicity was given to the
petition. The manner of commenting on the conduct of the justice of the peace was
proper. And finally the charges and the petition were submitted through reputable
attorneys to the proper functionary, the Executive Secretary. In this connection it is
sufficient to note that justices of the peace are appointed by the Governor-General,
that they may be removed by the Governor-General upon the recommendation of a
Judge of First Instance, or on the Governor-General's own motion, and that at the
time this action took place the Executive Bureau was the office through which the
Governor-General acted in such matter. (See Administrative Code of 1917, secs. 203
and 229, in connection with the cases of U. S. vs. Galesa [1915], 31 Phil., 365, and of
Harrison vs. Bush, 5 E. and B., 344, holding that where defendant was subject to
removal by the sovereign, a communication to the Secretary of State was privileged.)
The present facts are further essentially different from those established in other
cases in which private individuals have been convicted of libels of public officials.
Malice, traduction, falsehood, calumny, against the man and not the officer, have
been the causes of the verdict of guilty. (See U. S. vs. Senado [1909], 14 Phil., 338,
339; U. S. vs. Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil.,
595.)
The Attorney-General bases his recommendation for confirmation on the case of the
United States vs. Julio Bustos ([1909], 13 Phil., 690). The Julio Bustos case, the
Attorney-General says, is identical with the Felipe Bustos case, with the exception
that there has been more publicity in the present instance and that the person to
whom the charge was made had less jurisdiction than had the Secretary of Justice in
the Julio Bustos case. Publicity is immaterial if the charge against Punsalan is in fact
a privileged communication. Moreover, in the Julio Bustos case we find wild
statements, with no basis in fact, made against reputable members of the judiciary,
"to persons who could not furnish protection." Malicious and untrue communications
are not privileged. A later case and one more directly in point to which we invite
especial attention is United States vs. Galeza ([1915], 31 Phil., 365). (Note
also Yancey vs. Commonwealth [1909], 122 So. W., 123.)
We find the defendants and appellants entitled to the protection of the rules
concerning qualified privilege, growing out of constitutional guaranties in our bill of
rights. Instead of punishing citizens for an honest endeavor to improve the public
service, we should rather commend them for their good citizenship. The defendants
and appellants are acquitted with the costs de officio. So ordered.
U.S. Supreme Court Miller v. California, 413 U.S. 15 (1973)
Miller v. California No. 70-73 Argued January 18-19, 1972
Reargued November 7, 1972 Decided June 21, 1973
413 U.S. 15
APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT
OF CALIFORNIA, COUNTY OF ORANGE
Syllabus
Appellant was convicted of mailing unsolicited sexually explicit material in violation of
a California statute that approximately incorporated the obscenity test formulated
in Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418 (plurality opinion). The
trial court instructed the jury to evaluate the materials by the contemporary community
standards of California. Appellant's conviction was affirmed on appeal. In lieu of the
obscenity criteria enunciated by the Memoirs plurality, it is held:
1. Obscene material is not protected by the First Amendment. Roth v. United
States, 354 U. S. 476, reaffirmed. A work may be subject to state regulation where
that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a
patently offensive way, sexual conduct specifically defined by the applicable state
law; and, taken as a whole, does not have serious literary, artistic, political, or
scientific value. Pp. 413 U. S. 23-24.
2. The basic guidelines for the trier of fact must be: (a) whether "the average person,
applying contemporary community standards" would find that the work, taken as a
whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 489, (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law, and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value. If a state obscenity law is thus
limited, First Amendment values are adequately protected by ultimate independent
appellate review of constitutional claims when necessary. Pp. 413 U. S. 24-25.
3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is
rejected as a constitutional standard. Pp. 413 U. S. 24-25.
4. The jury may measure the essentially factual issues of prurient appeal and patent
offensiveness by the standard that prevails in the forum community, and need not
employ a "national standard." Pp. 413 U. S. 30-34.
Vacated and remanded.
Page 413 U. S. 16
BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN,
POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting
opinion, post, p. 413 U. S. 37. BRENNAN, J., filed a dissenting opinion, in which
STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 47.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This is one of a group of "obscenity-pornography" cases being reviewed by the Court
in a reexamination of standards enunciated in earlier cases involving what Mr. Justice
Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390
U. S. 676, 390 U. S. 704 (1968) (concurring and dissenting).
Appellant conducted a mass mailing campaign to advertise the sale of illustrated
books, euphemistically called "adult" material. After a jury trial, he was convicted of
violating California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing
obscene matter, [Footnote 1]
Page 413 U. S. 17
and the Appellate Department, Superior Court of California, County of Orange,
summarily affirmed the judgment without opinion. Appellant's conviction was
specifically
Page 413 U. S. 18
based on his conduct in causing five unsolicited advertising brochures to be sent
through the mail in an envelope addressed to a restaurant in Newport Beach,
California. The envelope was opened by the manager of the restaurant and his
mother. They had not requested the brochures; they complained to the police.
The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex
Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled
"Marital Intercourse." While the brochures contain some descriptive printed material,
primarily they consist of pictures and drawings very explicitly depicting men and
women in groups of two or more engaging in a variety of sexual activities, with
genitals often prominently displayed.
I
This case involves the application of a State's criminal obscenity statute to a situation
in which sexually explicit materials have been thrust by aggressive sales action upon
unwilling recipients who had in no way indicated any desire to receive such materials.
This Court has recognized that the States have a legitimate interest in prohibiting
dissemination or exhibition of obscene material [Footnote 2]
Page 413 U. S. 19
when the mode of dissemination carries with it a significant danger of offending the
sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394
U. S. 557, 394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-
643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v. New
York, 386 U. S. 767, 386 U. S. 769 (1967); Jacobellis v. Ohio, 378 U. S. 184, 378 U.
S. 195 (1964). See Rabe v. Washington, 405 U. S. 313, 405 U. S. 317 (1972)
(BURGER, C.J., concurring); United States v. Reidel, 402 U. S. 351, 402 U. S. 360-
362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S.
495, 343 U. S. 502 (1952); Breard v. Alexandria, 341 U. S. 622, 341 U. S. 644 645
(1951); Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 88-89 (1949); Prince v.
Massachusetts, 321 U. S. 158, 321 U. S. 169-170 (1944). Cf. Butler v. Michigan, 352
U. S. 380, 352 U. S. 382-383 (1957); Public Utilities Comm'n v. Pollak, 343 U. S.
451, 343 U. S. 464-465 (1952) It is in this context that we are called
Page 413 U. S. 20
on to define the standards which must be used to identify obscene material that a
State may regulate without infringing on the First Amendment as applicable to the
States through the Fourteenth Amendment.
The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity
problem, but since the Court now undertakes to formulate standards more concrete
than those in the past, it is useful for us to focus on two of the landmark cases in the
somewhat tortured history of the Court's obscenity decisions. In Roth v. United
States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute
punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to
that holding was the Court's rejection of the claim that obscene materials were
protected by the First Amendment. Five Justices joined in the opinion stating:
"All ideas having even the slightest redeeming social importance -- unorthodox ideas,
controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the
full protection of the [First Amendment] guaranties, unless excludable because they
encroach upon the limited area of more important interests. But implicit in the history
of the First Amendment is the rejection of obscenity as utterly without redeeming
social importance. . . . This is the same judgment expressed by this Court
in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572: "
". . . There are certain well defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene. . . . It has been well
observed that such utterances are no essential part of any exposition of ideas, and
are of such slight social
Page 413 U. S. 21
value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. . . ."
[Emphasis by Court in Roth opinion.]
"We hold that obscenity is not within the area of constitutionally protected speech or
press."
354 U.S. at 354 U. S. 48 85 (footnotes omitted).
Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court
veered sharply away from the Roth concept and, with only three Justices in the
plurality opinion, articulated a new test of obscenity. The plurality held that, under
the Roth definition,
"as elaborated in subsequent cases, three elements must coalesce: it must be
established that (a) the dominant theme of the material, taken as a whole, appeals to
a prurient interest in sex; (b) the material is patently offensive because it affronts
contemporary community standards relating to the description or representation of
sexual matters; and (c) the material is utterly without redeeming social value."
Id. at 383 U. S. 418. The sharpness of the break with Roth, represented by the third
element of the Memoirs test and emphasized by MR. JUSTICE WHITE's
dissent, id. at 383 U. S. 460-462, was further underscored when the Memoirs plurality
went on to state:
"The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly
worthless before it can be deemed obscene.' A book cannot be proscribed unless it is
found to be utterly without redeeming social value."
Id. at 383 U. S. 419 (emphasis in original).
While Roth presumed "obscenity" to be "utterly without redeeming social
importance," Memoirs required
Page 413 U. S. 22
that to prove obscenity it must be affirmatively established that the material is
"utterly without redeeming social value." Thus, even as they repeated the words
of Roth, the Memoirs plurality produced a drastically altered test that called on the
prosecution to prove a negative, i.e., that the material was "utterly without redeeming
social value" -- a burden virtually impossible to discharge under our criminal
standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the
"utterly without redeeming social value" test had any meaning at all. See Memoirs v.
Massachusetts, id. at 383 U. S. 459 (Harlan, J., dissenting). See also id. at 383 U. S.
461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d 577, 579581 (CA5
1973).
Apart from the initial formulation in the Roth case, no majority of the Court has at any
given time been able to agree on a standard to determine what constitutes obscene,
pornographic material subject to regulation under the States' police power. See, e.g.,
Redrup v. New York, 386 U.S. at 386 U. S. 770-771. We have seen "a variety of
views among the members of the Court unmatched in any other course of
constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S.
704-705 (Harlan, J., concurring and dissenting) (footnote omitted). [Footnote 3] This
is not remarkable, for in the area
Page 413 U. S. 23
of freedom of speech and press the courts must always remain sensitive to any
infringement on genuinely serious literary, artistic, political, or scientific expression.
This is an area in which there are few eternal verities.
The case we now review was tried on the theory that the California Penal Code § 311
approximately incorporates the three-stage Memoirs test, supra. But now
the Memoirs test has been abandoned as unworkable by its author, [Footnote 4] and
no Member of the Court today supports the Memoirs formulation.
II
This much has been categorically settled by the Court, that obscene material is
unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United
States v. Reidel, 402 U.S. at 402 U. S. 354; Roth v. United States, supra, at 354 U. S.
485. [Footnote 5] "The First and Fourteenth Amendments have never been treated as
absolutes [footnote omitted]." Breard v. Alexandria, 341 U.S. at 341 U. S. 642, and
cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 47-50
(1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502. We acknowledge,
however, the inherent dangers of undertaking to regulate any form of expression.
State statutes designed to regulate obscene materials must be
Page 413 U. S. 24
carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682-685. As
a result, we now confine the permissible scope of such regulation to works which
depict or describe sexual conduct. That conduct must be specifically defined by the
applicable state law, as written or authoritatively construed. [Footnote 6] A state
offense must also be limited to works which, taken as a whole, appeal to the prurient
interest in sex, which portray sexual conduct in a patently offensive way, and which,
taken as a whole, do not have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (a) whether "the average person,
applying contemporary community standards" would find that the work, taken as a
whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230,
quoting Roth v. United States, supra, at 354 U. S. 489; (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. We do not adopt as a constitutional
standard the "utterly without redeeming social value" test of Memoirs v.
Massachusetts,
Page 413 U. S. 25
383 U.S. at 383 U. S. 419; that concept has never commanded the adherence of
more than three Justices at one time. [Footnote 7] See supra at 413 U. S. 21. If a
state law that regulates obscene material is thus limited, as written or construed, the
First Amendment values applicable to the States through the Fourteenth Amendment
are adequately protected by the ultimate power of appellate courts to conduct an
independent review of constitutional claims when necessary. See Kois v. Wisconsin,
supra, at 408 U. S. 232; Memoirs v. Massachusetts, supra, at 383 U. S. 459-460
(Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan, J.,
dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 284-285
(1964); Roth v. United States, supra, at 354 U. S. 497-498 (Harlan, J., concurring and
dissenting).
We emphasize that it is not our function to propose regulatory schemes for the
States. That must await their concrete legislative efforts. It is possible, however, to
give a few plain examples of what a state statute could define for regulation under
part (b) of the standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal
or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals.
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold
in places of public accommodation any more than live sex and nudity can
Page 413 U. S. 26
be exhibited or sold without limit in such public places. [Footnote 8] At a minimum,
prurient, patently offensive depiction or description of sexual conduct must have
serious literary, artistic, political, or scientific value to merit First Amendment
protection. See Kois v. Wisconsin, supra, at 408 U. S. 230-232; Roth v. United
States, supra, at 354 U. S. 487; Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-
102 (1940). For example, medical books for the education of physicians and related
personnel necessarily use graphic illustrations and descriptions of human anatomy. In
resolving the inevitably sensitive questions of fact and law, we must continue to rely
on the jury system, accompanied by the safeguards that judges, rules of evidence,
presumption of innocence, and other protective features provide, as we do with rape,
murder, and a host of other offenses against society and its individual members.
[Footnote 9]
MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality
opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v.
United
Page 413 U. S. 27
States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966);
and Memoirs v. Massachusetts, supra, has abandoned his former position and now
maintains that no formulation of this Court, the Congress, or the States can
adequately distinguish obscene material unprotected by the First Amendment from
protected expression, Paris Adult Theatre I v. Slaton, post, p. 413 U. S.
73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN indicates
that suppression of unprotected obscene material is permissible to avoid exposure to
unconsenting adults, as in this case, and to juveniles, although he gives no indication
of how the division between protected and nonprotected materials may be drawn with
greater precision for these purposes than for regulation of commercial exposure to
consenting adults only. Nor does he indicate where in the Constitution he finds the
authority to distinguish between a willing "adult" one month past the state law age of
majority and a willing "juvenile" one month younger.
Under the holdings announced today, no one will be subject to prosecution for the
sale or exposure of obscene materials unless these materials depict or describe
patently offensive "hard core" sexual conduct specifically defined by the regulating
state law, as written or construed. We are satisfied that these specific prerequisites
will provide fair notice to a dealer in such materials that his public and commercial
activities may bring prosecution. See Roth v. United States, supra, at 354 U. S. 491-
492. Cf. Ginsberg v. New York, 390 U.S. at 390 U. S. 643. [Footnote 10] If
Page 413 U. S. 28
the inability to define regulated materials with ultimate, god-like precision altogether
removes the power of the States or the Congress to regulate, then "hard core"
pornography may be exposed without limit to the juvenile, the passerby, and the
consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR.
JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U.
S. 363, 402 U. S. 379-380 (1971) (Black, J., joined by DOUGLAS, J.,
dissenting); Ginzburg v. United States, supra, at 383 U. S. 476, 383 U. S. 491-492
(Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S.
196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 354 U. S. 508-
514 (DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS
now stands alone.
MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his
change of view. Noting that "[t]he number of obscenity cases on our docket gives
ample testimony to the burden that has been placed upon this Court," he quite rightly
remarks that the examination of contested materials "is hardly a source of edification
to the members of this Court." Paris Adult
Page 413 U. S. 29
Theatre I v. Slaton, post, at 413 U. S. 92, 413 U. S. 93. He also notes, and we agree,
that "uncertainty of the standards creates a continuing source of tension between
state and federal courts. . . ."
"The problem is . . . that one cannot say with certainty that material is obscene until at
least five members of this Court, applying inevitably obscure standards, have
pronounced it so."
Id. at 413 U. S. 93, 413 U. S. 92.
It is certainly true that the absence, since Roth, of a single majority view of this Court
as to proper standards for testing obscenity has placed a strain on both state and
federal courts. But today, for the first time since Roth was decided in 1957, a majority
of this Court has agreed on concrete guidelines to isolate "hard core" pornography
from expression protected by the First Amendment. Now we may abandon the casual
practice of Redrup v. New York, 386 U. S. 767 (1967), and attempt to provide positive
guidance to federal and state courts alike.
This may not be an easy road, free from difficulty. But no amount of "fatigue" should
lead us to adopt a convenient "institutional" rationale -- an absolutist, "anything goes"
view of the First Amendment -- because it will lighten our burdens. [Footnote 11]
"Such an abnegation of judicial supervision in this field would be inconsistent with our
duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 378 U. S.
187-188 (opinion of BRENNAN, J.). Nor should we remedy "tension between state
and federal courts" by arbitrarily depriving the States of a power reserved to them
under the Constitution, a power which they have enjoyed and exercised continuously
from before the adoption of the First Amendment to this day. See Roth v. United
States, supra, at 354 U. S. 482-485.
"Our duty admits of no 'substitute for facing up
Page 413 U. S. 30
to the tough individual problems of constitutional judgment involved in every obscenity
case.' [Roth v. United States, supra, at 354 U. S. 498]; see Manual Enterprises, Inc.
v. Day, 370 U. S. 478, 370 U. S. 488 (opinion of Harlan, J.) [footnote omitted]."
Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.).
III
Under a National Constitution, fundamental First Amendment limitations on the
powers of the States do not vary from community to community, but this does not
mean that there are, or should or can be, fixed, uniform national standards of
precisely what appeals to the "prurient interest" or is "patently offensive." These are
essentially questions of fact, and our Nation is simply too big and too diverse for this
Court to reasonably expect that such standards could be articulated for all 50 States
in a single formulation, even assuming the prerequisite consensus exists. When triers
of fact are asked to decide whether "the average person, applying contemporary
community standards" would consider certain materials "prurient," it would be
unrealistic to require that the answer be based on some abstract formulation. The
adversary system, with lay jurors as the usual ultimate factfinders in criminal
prosecutions, has historically permitted triers of fact to draw on the standards of their
community, guided always by limiting instructions on the law. To require a State to
structure obscenity proceedings around evidence of a national "community standard"
would be an exercise in futility.
As noted before, this case was tried on the theory that the California obscenity statute
sought to incorporate the tripartite test of Memoirs. This, a "national" standard of First
Amendment protection enumerated by a plurality of this Court, was correctly regarded
at the time of trial as limiting state prosecution under the controlling case
Page 413 U. S. 31
law. The jury, however, was explicitly instructed that, in determining whether the
"dominant theme of the material as a whole . . . appeals to the prurient interest," and,
in determining whether the material "goes substantially beyond customary limits of
candor and affronts contemporary community standards of decency," it was to apply
"contemporary community standards of the State of California."
During the trial, both the prosecution and the defense assumed that the relevant
"community standards" in making the factual determination of obscenity were those of
the State of California, not some hypothetical standard of the entire United States of
America. Defense counsel at trial never objected to the testimony of the State's expert
on community standards [Footnote 12] or to the instructions of the trial judge on
"state-wide" standards. On appeal to the Appellate Department, Superior Court of
California, County of Orange, appellant for the first time contended that application of
state, rather than national, standards violated the First and Fourteenth Amendments.
We conclude that neither the State's alleged failure to offer evidence of "national
standards," nor the trial court's charge that the jury consider state community
standards, were constitutional errors. Nothing in the First Amendment requires that a
jury must consider hypothetical and unascertainable "national standards" when
attempting to determine whether certain materials are obscene as a matter
Page 413 U. S. 32
of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v.
Ohio, supra, at 378 U. S. 200:
"It is my belief that, when the Court said in Roth that obscenity is to be defined by
reference to 'community standards,' it meant community standards -- not a national
standard, as is sometimes argued. I believe that there is no provable 'national
standard.' . . . At all events, this Court has not been able to enunciate one, and it
would be unreasonable to expect local courts to divine one."
It is neither realistic nor constitutionally sound to read the First Amendment as
requiring that the people of Maine or Mississippi accept public depiction of conduct
found tolerable in Las Vegas, or New York City. [Footnote 13]
Page 413 U. S. 33
See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970) (BLACKMUN, J.,
dissenting); Walker v. Ohio, 398 U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at
434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (BURGER,
C.J., dissenting); id. at 397 U. S. 319-320 (Harlan, J., dissenting); United States v.
Groner, 479 F.2d at 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A
Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v.
Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio,
supra, at 378 U. S. 203-204 (Harlan, J., dissenting); Roth v. United States,
supra, at 354 U. S. 505-506 (Harlan, J., concurring and dissenting). People in
different States vary in their tastes and attitudes, and this diversity is not to be
strangled by the absolutism of imposed uniformity. As the Court made clear
in Mishkin v. New York, 383 U.S. at 383 U. S. 508-509, the primary concern with
requiring a jury to apply the standard of "the average person, applying contemporary
community standards" is to be certain that, so far as material is not aimed at a deviant
group, it will be judged by its impact on an average person, rather than a particularly
susceptible or sensitive person -- or indeed a totally insensitive one. See Roth v.
United States, supra, at 354 U. S. 489. Cf. the now discredited test in Regina v.
Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate
the materials with reference to "contemporary
Page 413 U. S. 34
standards of the State of California" serves this protective purpose and is
constitutionally adequate. [Footnote 14]
IV
The dissenting Justices sound the alarm of repression. But, in our view, to equate the
free and robust exchange of ideas and political debate with commercial exploitation of
obscene material demeans the grand conception of the First Amendment and its high
purposes in the historic struggle for freedom. It is a "misuse of the great guarantees of
free speech and free press. . . ." Breard v. Alexandria, 341 U.S. at 341 U. S. 645. The
First Amendment protects works which, taken as a whole, have serious literary,
artistic, political, or scientific value, regardless of whether the government or a
majority of the people approve of the ideas these works represent.
"The protection given speech and press was fashioned to assure unfettered
interchange of ideas for the bringing about of
Page 413 U. S. 35
political and social changes desired by the people,"
Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v.
Wisconsin, 408 U.S. at 408 U. S. 230-232; Thornhill v. Alabama, 310 U.S. at 310 U.
S. 101-102. But the public portrayal of hard-core sexual conduct for its own sake, and
for the ensuing commercial gain, is a different matter. [Footnote 15]
There is no evidence, empirical or historical, that the stern 19th century American
censorship of public distribution and display of material relating to sex, see Roth v.
United States, supra, at 354 U. S. 482-485, in any way limited or affected expression
of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond
any question that the era following Thomas Jefferson to Theodore Roosevelt was an
"extraordinarily vigorous period" not just in economics and politics, but in belles
lettres and in "the outlying fields of social and political philosophies." [Footnote 16]
We do not see the harsh hand
Page 413 U. S. 36
of censorship of ideas -- good or bad, sound or unsound -- and "repression" of
political liberty lurking in every state regulation of commercial exploitation of human
interest in sex.
MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of
our minds can ever be forestalled." Paris Adult Theatre I v. Slaton, post, at 413 U. S.
110 (BRENNAN, J., dissenting). These doleful anticipations assume that courts
cannot distinguish commerce in ideas, protected by the First Amendment, from
commercial exploitation of obscene material. Moreover, state regulation of hard-core
pornography so as to make it unavailable to nonadults, a regulation which MR.
JUSTICE BRENNAN finds constitutionally permissible, has all the elements of
"censorship" for adults; indeed even more rigid enforcement techniques may be
called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390
U.S. at 390 U. S. 690. [Footnote 17] One can concede that the "sexual revolution" of
recent years may have had useful byproducts in striking layers of prudery from a
subject long irrationally kept from needed ventilation. But it does not follow that no
regulation of patently offensive "hard core" materials is needed or permissible;
civilized people do not allow unregulated access to heroin because it is a derivative of
medicinal morphlne.
In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the
First Amendment; (b) hold that such material can be regulated by the States, subject
to the specific safeguards enunciated
Page 413 U. S. 37
above, without a showing that the material is "utterly without redeeming social value";
and (c) hold that obscenity is to be determined by applying "contemporary community
standards," see Kois v. Wisconsin, supra, at 408 U. S. 230, and Roth v. United
States, supra, at 354 U. S. 489, not "national standards." The judgment of the
Appellate Department of the Superior Court, Orange County, California, is vacated
and the case remanded to that court for further proceedings not inconsistent with the
First Amendment standards established by this opinion. See United States v. 12 200-
ft. Reels of Film, post at 413 U. S. 130 n. 7.
Vacated and remanded.
[Footnote 1]
At the time of the commission of the alleged offense, which was prior to June 25,
1969, §§ 311.2(a) and 311 of the California Penal Code read in relevant part:
"§ 311.2 Sending or bringing into state for sale or distribution; printing, exhibiting,
distributing or possessing within state"
"(a) Every person who knowingly: sends or causes to be sent, or brings or causes to
be brought, into this state for sale or distribution, or in this state prepares, publishes,
prints, exhibits, distributes, or offers to distribute, or has in his possession with intent
to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a
misdemeanor. . . ."
"§ 311. Definitions"
"As used in this chapter: "
"(a) 'Obscene' means that to the average person, applying contemporary standards,
the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a
shameful or morbid interest in nudity, sex, or excretion, which goes substantially
beyond customary limits of candor in description or representation of such matters
and is matter which is utterly without redeeming social importance."
"(b) 'Matter' means any book, magazine, newspaper, or other printed or written
material or any picture, drawing, photograph, motion picture, or other pictorial
representation or any statue or other figure, or any recording, transcription or
mechanical, chemical or electrical reproduction or any other articles, equipment,
machines or materials."
"(c) 'Person' means any individual, partnership, firm, association, corporation, or other
legal entity."
"(d) 'Distribute' means to transfer possession of, whether with or without
consideration."
"(e) 'Knowingly' means having knowledge that the matter is obscene."
Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969,
to read as follows:
"(e) 'Knowingly' means being aware of the character of the matter."
Cal. Amended Stats.1969, c. 249, § 1, p. 598. Despite appellant's contentions to the
contrary, the record indicates that the new § 311(e) was not applied ex post facto to
his case, but only the old § 311(e) as construed by state decisions prior to the
commission of the alleged offense. See People v. Pinkus, 256 Cal.App.2d 941, 948-
950, 63 Cal.Rptr. 680, 685-686 (App. Dept., Superior Ct., Los Angeles, 1967); People
v. Campise, 242 Cal.App.2d 905, 914, 51 Cal.Rptr. 815, 821 (App.Dept., Superior Ct.,
San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U. S. 347 (1964). Nor did §
311.2, supra, as applied, create any "direct, immediate burden on the performance of
the postal functions," or infringe on congressional commerce powers under Art. I, § 8,
cl. 3. Roth v. United States, 354 U. S. 476, 354 U. S. 494 (1957), quoting Railway
Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 96 (1945). See also Mishkin v. New
York, 383 U. S. 502, 383 U. S. 506 (1966); Smith v. California, 361 U. S. 147, 361 U.
S. 150-152 (1959).
[Footnote 2]
This Court has defined "obscene material" as "material which deals with sex in a
manner appealing to prurient interest," Roth v. United States, supra, at 354 U. S. 487,
but the Roth definition does not reflect the precise meaning of "obscene" as
traditionally used in the English language. Derived from the Latin obscaenus ob, to,
plus caenum, filth, "obscene" is defined in the Webster's Third New International
Dictionary (Unabridged 1969) as
"1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted
notions of what is appropriate . . . 2: offensive or revolting as countering or violating
some ideal or principle."
The Oxford English Dictionary (1933 ed.) gives a similar definition, "[o]ffensive to the
senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable,
loathsome."
The material we are discussing in this case is more accurately defined as
"pornography" or "pornographic material." "Pornography" derives from the Greek
(porne, harlot, and graphos, writing). The word now means
"1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of
licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual
excitement."
Webster's Third New International Dictionary, supra. Pornographic material which is
obscene forms a sub-group of all "obscene" expression, but not the whole, at least as
the word "obscene" is now used in our language. We note, therefore, that the words
"obscene material," as used in this case, have a specific judicial meaning which
derives from the Roth case, i.e., obscene material "which deals with sex." Roth,
supra, at 354 U. S. 487. See also ALI Model Penal Code § 251.4(1) "Obscene
Defined." (Official Draft 1962.)
[Footnote 3]
In the absence of a majority view, this Court was compelled to embark on the practice
of summarily reversing convictions for the dissemination of materials that, at least five
members of the Court, applying their separate tests, found to be protected by the First
Amendment. Redrup v. New York, 386 U. S. 767 (1967). Thirty-one cases have been
decided in this manner. Beyond the necessity of circumstances, however, no
justification has ever been offered in support of the Redrup "policy." See Walker v.
Ohio, 398 U.S. at 398 U. S. 434-435 (1970) (dissenting opinions of BURGER, C.J.,
and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable
board of censorship for the 50 States, subjectively judging each piece of material
brought before us.
[Footnote 4]
See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v.
Slaton, post, p. 413 U. S. 73.
[Footnote 5]
As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U. S.
184, 378 U. S. 200 (1964):
"For all the sound and fury that the Roth test has generated, it has not been proved
unsound, and I believe that we should try to live with it -- at least until a more
satisfactory definition is evolved. No government -- be it federal, state, or local --
should be forced to choose between repressing all material, including that within the
realm of decency, and allowing unrestrained license to publish any material, no
matter how vile. There must be a rule of reason in this as in other areas of the law,
and we have attempted in the Roth case to provide such a rule."
[Footnote 6]
See, e.g., Oregon Laws 1971, c. 743, Art. 29, §§ 255-262, and Hawaii Penal Code,
Tit. 37, §§ 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt.. II, pp. 126-129, as
examples of state laws directed at depiction of defined physical conduct, as opposed
to expression. Other state formulations could be equally valid in this respect. In giving
the Oregon and Hawaii statutes as examples, we do not wish to be understood as
approving of them in all other respects nor as establishing their limits as the extent of
state power.
We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than
Oregon must now enact new obscenity statutes. Other existing state statutes, as
construed heretofore or hereafter, may well be adequate. See United States v. 12
200-ft. Reel of Film, post, at 413 U. S. 130 n. 7.
[Footnote 7]
"A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an
otherwise obscene publication. . . ." Kois v. Wisconsin, 408 U. S. 229, 408 U. S.
231 (1972). See Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 461 (1966)
(WHITE, J., dissenting). We also reject, as a constitutional standard, the ambiguous
concept of "social importance." See id. at 383 U. S. 462 (WHITE, J., dissenting).
[Footnote 8]
Although we are not presented here with the problem of regulating lewd public
conduct itself, the States have greater power to regulate nonverbal, physical conduct
than to suppress depictions or descriptions of the same behavior. In United States v.
O'Brien, 391 U. S. 367, 391 U. S. 377 (1968), a case not dealing with obscenity, the
Court held a State regulation of conduct which itself embodied both speech and
nonspeech elements to be
"sufficiently justified if . . . it furthers an important or substantial governmental interest;
if the governmental interest is unrelated to the suppression of free expression; and if
the incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest."
See California v. LaRue, 409 U. S. 109, 409 U. S. 117-118 (1972).
[Footnote 9]
The mere fact juries may reach different conclusions as to the same material does not
mean that constitutional rights are abridged. As this Court observed in Roth v. United
States, 354 U.S. at 354 U. S. 492 n. 30,
"it is common experience that different juries may reach different results under any
criminal statute. That is one of the consequences we accept under our jury
system. Cf. Dunlop v. United States, 165 U. S. 486, 165 U. S. 499-500."
[Footnote 10]
As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States,
supra at 354 U. S. 491-492:
"Many decisions have recognized that these terms of obscenity statutes are not
precise. [Footnote omitted.] This Court, however, has consistently held that lack of
precision is not itself offensive to the requirements of due process. '. . . [T]he
Constitution does not require impossible standards;' all that is required is that the
language 'conveys sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practices. . . .' United States v. Petrillo, 332
U. S. 1, 332 U. S. 7-8. These words, applied according to the proper standard for
judging obscenity, already discussed, give adequate warning of the conduct
proscribed and mark"
". . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . .
. That there may be marginal cases in which it is difficult to determine the side of the
line on which a particular fact situation falls is no sufficient reason to hold the
language too ambiguous to define a criminal offense. . . ."
"Id. at 332 U. S. 7. See also United States v. Harriss, 347 U. S. 612, 347 U. S. 624, n.
15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 U. S. 340; United
States v. Ragen, 314 U. S. 513, 314 U. S. 523-524; United States v. Wurzbach, 280
U. S. 396; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Fox v. Washington, 236
U. S. 273; Nash v. United States, 229 U. S. 373."
[Footnote 11]
We must note, in addition, that any assumption concerning the relative burdens of the
past and the probable burden under the standards now adopted is pure speculation.
[Footnote 12]
The record simply does not support appellant's contention, belatedly raised on
appeal, that the State's expert was unqualified to give evidence on California
"community standards." The expert, a police officer with many years of specialization
in obscenity offenses, had conducted an extensive state-wide survey and had given
expert evidence on 26 occasions in the year prior to this trial. Allowing such expert
testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393
U. S. 348, 393 U. S. 356 (1969).
[Footnote 13]
In Jacobellis v. Ohio, 378 U. S. 184 (1964), two Justices argued that application of
"local" community standards would run the risk of preventing dissemination of
materials in some places because sellers would be unwilling to risk criminal
conviction by testing variations in standards from place to place. Id. at 378 U. S. 193-
195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of "national"
standards, however, necessarily implies that materials found tolerable in some
places, but not under the "national" criteria, will nevertheless be unavailable where
they are acceptable. Thus, in terms of danger to free expression, the potential for
suppression seems at least as great in the application of a single nationwide standard
as in allowing distribution in accordance with local tastes, a point which Mr. Justice
Harlan often emphasized. See Roth v. United States, 354 U.S. at 354 U. S. 506.
Appellant also argues that adherence to a "national standard" is necessary "in order
to avoid unconscionable burdens on the free flow of interstate commerce." As
noted supra at 413 U. S. 18 n. 1, the application of domestic state police powers in
this case did not intrude on any congressional powers under Art. I, § 8, cl. 3, for there
is no indication that appellant's materials were ever distributed interstate. Appellant's
argument would appear without substance in any event. Obscene material may be
validly regulated by a State in the exercise of its traditional local power to protect the
general welfare of its population despite some possible incidental effect on the flow of
such materials across state lines. See, e.g., Head v. New Mexico Board, 374 U. S.
424 (1963); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960); Breard v.
Alexandria, 341 U. S. 622 (1951); H. P. Hood & Sons v. Du Mond, 336 U. S.
525 (1949); Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945); Baldwin v. G.A.F.
Seelig, Inc., 294 U. S. 511 (1935); Sligh v. Kirkwood, 237 U. S. 52 (1915).
[Footnote 14]
Appellant's jurisdictional statement contends that he was subjected to "double
jeopardy" because a Los Angeles County trial judge dismissed, before trial, a prior
prosecution based on the same brochures, but apparently alleging exposures at a
different time in a different setting. Appellant argues that, once material has been
found not to be obscene in one proceeding, the State is "collaterally estopped" from
ever alleging it to be obscene in a different proceeding. It is not clear from the record
that appellant properly raised this issue, better regarded as a question of procedural
due process than a "double jeopardy" claim, in the state courts below. Appellant failed
to address any portion of his brief on the merits to this issue, and appellee contends
that the question was waived under California law because it was improperly pleaded
at trial. Nor is it totally clear from the record before us what collateral effect the pretrial
dismissal might have under state law. The dismissal was based, at least in part, on a
failure of the prosecution to present affirmative evidence required by state law,
evidence which was apparently presented in this case. Appellant's contention,
therefore, is best left to the California courts for further consideration on remand. The
issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383
U. S. 502, 383 U. S. 512-514 (1966).
[Footnote 15]
In the apt words of Mr. Chief Justice Warren, appellant in this case was
"plainly engaged in the commercial exploitation of the morbid and shameful craving
for materials with prurient effect. I believe that the State and Federal Governments
can constitutionally punish such conduct. That is all that these cases present to us,
and that is all we need to decide."
Roth v. United States, supra, at 354 U. S. 496 (concurring opinion).
[Footnote 16]
See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the
latter part of the 19th century, Parrington observed
"A new age had come and other dreams -- the age and the dreams of a middle-class
sovereignty. . . . From the crude and vast romanticisms of that vigorous sovereignty
emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this
new America, and discover if possible other philosophies to take the place of those
which had gone down in the fierce battles of the Civil War."
Id. at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the
American Republic 197-233 (6th ed.1969); Paths of American Thought 123-166, 203-
290 (A. Schlesinger & M. White ed.1963) (articles of Fleming, Lerner, Morton & Lucia
White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought
in Modern America 337-386 (1952).
[Footnote 17]
"[W]e have indicated . . . that, because of its strong and abiding interest in youth, a
State may regulate the dissemination to juveniles of, and their access to, material
objectionable as to them, but which a State clearly could not regulate as to
adults. Ginsberg v. New York, . . . [390 U.S. 629 (1968)]."
Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 690 (1968) (footnote
omitted).
MR. JUSTICE DOUGLAS, dissenting.
I
Today we leave open the way for California [Footnote 2/1] to send a man to prison for
distributing brochures that advertise books and a movie under freshly written
standards defining obscenity which until today is decision were never the part of any
law.
The Court has worked hard to define obscenity and concededly has failed. In Roth v.
United States, 354 U. S. 476, it ruled that "[o]bscene material is material which deals
with sex in a manner appealing to prurient interest." Id. at 354 U. S. 487. Obscenity, it
was said, was rejected by the First Amendment because it is "utterly without
redeeming
Page 413 U. S. 38
social importance." Id. at 354 U. S. 484. The presence of a "prurient interest" was to
be determined by "contemporary community standards." Id. at 354 U. S. 489. That
test, it has been said, could not be determined by one standard here and another
standard there, Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 194, but "on the basis of
a national standard." Id. at 378 U. S. 195. My Brother STEWART,
in Jacobellis, commented that the difficulty of the Court in giving content to obscenity
was that it was "faced with the task of trying to define what may be
indefinable." Id. at 378 U. S. 197.
In Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418, the Roth test was
elaborated to read as follows:
"[T]hree elements must coalesce: it must be established that (a) the dominant theme
of the material taken as a whole appeals to a prurient interest in sex; (b) the material
is patently offensive because it affronts contemporary community standards relating
to the description or representation of sexual matters; and (c) the material is utterly
without redeeming social value."
In Ginzburg v. United States, 383 U. S. 463, a publisher was sent to prison, not for
the kind of books and periodicals he sold, but for the manner in which the publications
were advertised. The "leer of the sensualist" was said to permeate the
advertisements. Id. at 383 U. S. 468. The Court said,
"Where the purveyor's sole emphasis is on the sexually provocative aspects of his
publications, that fact may be decisive in the determination of obscenity."
Id. at 383 U. S. 470. As Mr. Justice Black said in dissent,
". . . Ginzburg . . . is now finally and authoritatively condemned to serve five years in
prison for distributing printed matter about sex which neither Ginzburg nor anyone
else could possibly have known to be criminal."
Id. at 383 U. S. 476. That observation by Mr. Justice Black is underlined by the fact
that the Ginzburg decision was five to four.
Page 413 U. S. 39
A further refinement was added by Ginsberg v. New York, 390 U. S. 629, 390 U. S.
641, where the Court held that "it was not irrational for the legislature to find that
exposure to material condemned by the statute is harmful to minors."
But even those members of this Court who had created the new and changing
standards of "obscenity" could not agree on their application. And so we adopted a
per curiam treatment of so-called obscene publications that seemed to pass
constitutional muster under the several constitutional tests which had been
formulated. See Redrup v. New York, 386 U. S. 767. Some condemn it if its
"dominant tendency might be to deprave or corrupt' a reader." [Footnote 2/2] Others
look not to the content of the book, but to whether it is advertised "`to appeal to the
erotic interests of customers.'" [Footnote 2/3] Some condemn only "hard-core
pornography," but even then a true definition is lacking. It has indeed been said of
that definition, "I could never succeed in [defining it] intelligibly," but "I know it when I
see it." [Footnote 2/4]
Today we would add a new three-pronged test:
"(a) whether 'the average person, applying contemporary community standards,'
would find that the work, taken as a whole, appeals to the prurient interest, . . . (b)
whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law, and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value."
Those are the standards we ourselves have written into the Constitution. [Footnote
2/5] Yet how under these vague tests can
Page 413 U. S. 40
we sustain convictions for the sale of an article prior to the time when some court has
declared it to be obscene?
Today the Court retreats from the earlier formulations of the constitutional test and
undertakes to make new definitions. This effort, like the earlier ones, is earnest and
well intentioned. The difficulty is that we do not deal with constitutional terms, since
"obscenity" is not mentioned in the Constitution or Bill of Rights. And the First
Amendment makes no such exception from "the press" which it undertakes to protect
nor, as I have said on other occasions, is an exception necessarily implied, for there
was no recognized exception to the free press at the time the Bill of Rights was
adopted which treated "obscene" publications differently from other types of papers,
magazines, and books. So there are no constitutional guidelines for deciding what is
and what is not "obscene." The Court is at large because we deal with tastes and
standards of literature. What shocks me may
Page 413 U. S. 41
be sustenance for my neighbor. What causes one person to boil up in rage over one
pamphlet or movie may reflect only his neurosis, not shared by others. We deal here
with a regime of censorship which, if adopted, should be done by constitutional
amendment after full debate by the people.
Obscenity cases usually generate tremendous emotional outbursts. They have no
business being in the courts. If a constitutional amendment authorized censorship,
the censor would probably be an administrative agency. Then criminal prosecutions
could follow as, if, and when publishers defied the censor and sold their literature.
Under that regime, a publisher would know when he was on dangerous ground.
Under the present regime -- whether the old standards or the new ones are used --
the criminal law becomes a trap. A brand new test would put a publisher behind bars
under a new law improvised by the courts after the publication. That was done
in Ginzburg, and has all the evils of an ex post facto law.
My contention is that, until a civil proceeding has placed a tract beyond the pale, no
criminal prosecution should be sustained. For no more vivid illustration of vague and
uncertain laws could be designed than those we have fashioned. As Mr. Justice
Harlan has said:
"The upshot of all this divergence in viewpoint is that anyone who undertakes to
examine the Court's decisions since Roth which have held particular material
obscene or not obscene would find himself in utter bewilderment."
Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 707.
In Bouie v. City of Columbia, 378 U. S. 347, we upset a conviction for remaining on
property after being asked to leave, while the only unlawful act charged by the statute
was entering. We held that the defendants had received no "fair warning, at the time
of their conduct"
Page 413 U. S. 42
while on the property "that the act for which they now stand convicted was rendered
criminal" by the state statute. Id. at 378 U. S. 355. The same requirement of "fair
warning" is due here, as much as in Bouie. The latter involved racial discrimination;
the present case involves rights earnestly urged as being protected by the First
Amendment. In any case -- certainly when constitutional rights are concerned -- we
should not allow men to go to prison or be fined when they had no "fair warning" that
what they did was criminal conduct.
II
If a specific book, play, paper, or motion picture has in a civil proceeding been
condemned as obscene and review of that finding has been completed, and
thereafter a person publishes, shows, or displays that particular book or film, then a
vague law has been made specific. There would remain the underlying question
whether the First Amendment allows an implied exception in the case of obscenity. I
do not think it does, [Footnote 2/6] and my views
Page 413 U. S. 43
on the issue have been stated over and over again. [Footnote 2/7] But at least a
criminal prosecution brought at that juncture would not violate the time-honored "void
for vagueness" test. [Footnote 2/8]
No such protective procedure has been designed by California in this case. Obscenity
-- which even we cannot define with precision -- is a hodge-podge. To send
Page 413 U. S. 44
men to jail for violating standards they cannot understand, construe, and apply is a
monstrous thing to do in a Nation dedicated to fair trials and due process.
III
While the right to know is the corollary of the right to speak or publish, no one can be
forced by government to listen to disclosure that he finds offensive. That was the
basis of my dissent in Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 467,
where I protested against making streetcar passengers a "captive" audience. There is
no "captive audience" problem in these obscenity cases. No one is being compelled
to look or to listen. Those who enter newsstands or bookstalls may be offended by
what they see. But they are not compelled by the State to frequent those places; and
it is only state or governmental action against which the First Amendment, applicable
to the States by virtue of the Fourteenth, raises a ban.
The idea that the First Amendment permits government to ban publications that are
"offensive" to some people puts an ominous gloss on freedom of the press. That test
would make it possible to ban any paper or any journal or magazine in some
benighted place. The First Amendment was designed "to invite dispute," to induce "a
condition of unrest," to "create dissatisfaction with conditions as they are," and even
to stir "people to anger." Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4. The idea
that the First Amendment permits punishment for ideas that are "offensive" to the
particular judge or jury sitting in judgment is astounding. No greater leveler of speech
or literature has ever been designed. To give the power to the censor, as we do
today, is to make a sharp and radical break with the traditions of a free society. The
First Amendment was not fashioned as a vehicle for
Page 413 U. S. 45
dispensing tranquilizers to the people. Its prime function was to keep debate open to
"offensive" as well as to "staid" people. The tendency throughout history has been to
subdue the individual and to exalt the power of government. The use of the standard
"offensive" gives authority to government that cuts the very vitals out of the First
Amendment. [Footnote 2/9] As is intimated by the Court's opinion, the materials
before us may be garbage. But so is much of what is said in political campaigns, in
the daily press, on TV, or over the radio. By reason of the First Amendment -- and
solely because of it -- speakers and publishers have not been threatened or subdued
because their thoughts and ideas may be "offensive" to some.
The standard "offensive" is unconstitutional in yet another way. In Coates v. City of
Cincinnati, 402 U. S. 611, we had before us a municipal ordinance that made it a
crime for three or more persons to assemble on a street and conduct themselves "in a
manner annoying to persons
Page 413 U. S. 46
passing by." We struck it down, saying:
"If three or more people meet together on a sidewalk or street corner, they must
conduct themselves so as not to annoy any police officer or other person who should
happen to pass by. In our opinion, this ordinance is unconstitutionally vague because
it subjects the exercise of the right of assembly to an unascertainable standard, and
unconstitutionally broad because it authorizes the punishment of constitutionally
protected conduct."
"Conduct that annoys some people does not annoy others. Thus, the ordinance is
vague not in the sense that it requires a person to conform his conduct to an
imprecise but comprehensive normative standard, but rather in the sense that no
standard of conduct is specified at all."
Id. at 402 U. S. 614.
How we can deny Ohio the convenience of punishing people who "annoy" others and
allow California power to punish people who publish materials "offensive" to some
people is difficult to square with constitutional requirements.
If there are to be restraints on what is obscene, then a constitutional amendment
should be the way of achieving the end. There are societies where religion and
mathematics are the only free segments. It would be a dark day for America if that
were our destiny. But the people can make it such if they choose to write obscenity
into the Constitution and define it.
We deal with highly emotional, not rational, questions. To many, the Song of Solomon
is obscene. I do not think we, the judges, were ever given the constitutional power to
make definitions of obscenity. If it is to be defined, let the people debate and decide
by a constitutional amendment what they want to ban as obscene and what standards
they want the legislatures and the courts to apply. Perhaps the people will decide that
the path towards a mature, integrated society requires
Page 413 U. S. 47
that all ideas competing for acceptance must have no censor. Perhaps they will
decide otherwise. Whatever the choice, the courts will have some guidelines. Now we
have none except our own predilections.
[Footnote 2/1]
California defines "obscene matter" as
"matter, taken as a whole, the predominant appeal of which to the average person,
applying contemporary standards, is to prurient interest, i.e., a shameful or morbid
interest in nudity, sex, or excretion; and is matter which taken as a whole goes
substantially beyond customary limits of candor in description or representation of
such matters; and is matter which taken as a whole is utterly without redeeming social
importance."
Calif. Penal Code § 311(a).
[Footnote 2/2]
Roth v. United States, 354 U. S. 476, 354 U. S. 502 (opinion of Harlan, J.).
[Footnote 2/3]
Ginzburg v. United States, 383 U. S. 463, 383 U. S. 467.
[Footnote 2/4]
Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 197 (STEWART, J., concurring).
[Footnote 2/5]
At the conclusion of a two-year study, the U.S. Commission on Obscenity and
Pornography determined that the standards we have written interfere with
constitutionally protected materials:
"Society's attempts to legislate for adults in the area of obscenity have not been
successful. Present laws prohibiting the consensual sale or distribution of explicit
sexual materials to adults are extremely unsatisfactory in their practical application.
The Constitution permits material to be deemed 'obscene' for adults only if, as a
whole, it appeals to the 'prurient' interest of the average person, is 'patently offensive'
in light of 'community standards,' and lacks 'redeeming social value.' These vague
and highly subjective aesthetic, psychological and moral tests do not provide
meaningful guidance for law enforcement officials, juries or courts. As a result, law is
inconsistently and sometimes erroneously applied, and the distinctions made by
courts between prohibited and permissible materials often appear indefensible. Errors
in the application of the law and uncertainty about its scope also cause interference
with the communication of constitutionally protected materials."
Report of the Commission on Obscenity and Pornography 53 (1970).
[Footnote 2/6]
It is said that "obscene" publications can be banned on authority of restraints on
communications incident to decrees restraining unlawful business monopolies or
unlawful restraints of trade, Sugar Institute v. United States, 297 U. S. 553, 297 U. S.
597, or communications respecting the sale of spurious or fraudulent securities. Hall
v. Geier-Jones Co., 242 U. S. 539, 242 U. S. 549; Caldwell v. Sioux Falls Stock
Yards Co., 242 U. S. 559, 242 U. S. 567; Merrick v. Halsey & Co., 242 U. S. 568, 242
U. S. 584. The First Amendment answer is that, whenever speech and conduct are
brigaded -- as they are when one shouts "Fire" in a crowded theater -- speech can be
outlawed. Mr. Justice Black, writing for a unanimous Court in Giboney v. Empire
Storage Co., 336 U. S. 490, stated that labor unions could be restrained from
picketing a firm in support of a secondary boycott which a State had validly outlawed.
Mr. Justice Black said:
"It rarely has been suggested that the constitutional freedom for speech and press
extends its immunity to speech or writing used as an integral part of conduct in
violation of a valid criminal statute. We reject the contention now."
G.R. No. 159751             December 6, 2006
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,
vs.
COURT OF APPEALS, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Decision1 dated March 21, 2003 and
the Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No.
25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC),
Branch 21, in Criminal Case No. 99-176582.
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of
Article 2012 of the Revised Penal Code, as amended by Presidential Decree Nos. 960
and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six
(6) years of prision correccional,  and to pay the fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials, officers of the
Philippine National Police Criminal Investigation and Detection Group in the National
Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing
the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge
Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search
Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against
petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant
ordered the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd.,
corner Zigay Street, Quiapo, Manila, and the seizure of the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures; and
3 hereby confiscated in favor of the government.
d. Copies of VHS tapes containing pornographic shows.
On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy
Estorninos, who, according to the prosecution, introduced himself as the store
attendant of Music Fair. The police searched the premises and confiscated twenty-
five (25) VHS tapes and ten (10) different magazines, which they deemed
pornographic.
On September 13, 1999, petitioners with Warren Tingchuy, were charged in an
Information which reads as follows:
That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did
then and there willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or
immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd., corner
Zigay [S]t., Quiapo[,] this City[,] by then and there selling and exhibiting obscene
copies of x-rated VHS Tapes, lewd films depicting men and women having sexual
intercourse[,] lewd photographs of nude men and women in explicating (sic) positions
which acts serve no other purpose but to satisfy the market for lust or pornography to
public view.
Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged.
Thereafter, trial ensued.
The prosecution offered the confiscated materials in evidence and presented the
following witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando
Buenaventura and Barangay Chairperson Socorro Lipana, who were all present
during the raid. After the prosecution presented its evidence, the counsel for the
accused moved for leave of court to file a demurrer to evidence, which the court
granted. On October 5, 2000, the RTC however denied the demurrer to evidence and
scheduled the reception of evidence for the accused. A motion for reconsideration
was likewise denied.
Thereafter, the accused waived their right to present evidence and instead submitted
the case for decision.5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted
herein petitioners as follows:
WHEREFORE, premises considered, the Court finds accused GAUDENCIO
FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable doubt of the
crime charged and are hereby sentenced to suffer the indeterminate penalty of FOUR
(4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision correccional
as maximum, to pay fine of P6,000.00 each and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY
beyond reasonable doubt, he is hereby ACQUITTED of the crime charged.
The VHS tapes and the nine (9) magazines utilized as evidence in this case are
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in
toto  the decision of the trial court, as follows,
WHEREFORE, finding no reversible error on the part of the trial court, the decision
appealed from is AFFIRMED IN TOTO.
Costs against accused-appellants.
SO ORDERED.7
Hence the instant petition assigning the following errors:
I. Respondent court erred in convicting petitioner Fernando even if he was not
present at the time of the raid
II. Respondent erred in convicting petitioner Estorninos who was not doing anything
illegal at the time of the raid.8
Simply, the issue in this case is whether the appellate court erred in affirming the
petitioners’ conviction.
Petitioners contend that the prosecution failed to prove that at the time of the search,
they were selling pornographic materials. Fernando contends that since he was not
charged as the owner of an establishment selling obscene materials, the prosecution
must prove that he was present during the raid and that he was selling the said
materials. Moreover, he contends that the appellate court’s reason for convicting him,
on a presumption of continuing ownership shown by an expired mayor’s permit, has
no sufficient basis since the prosecution failed to prove his ownership of the
establishment. Estorninos, on the other hand, insists that he was not an attendant in
Music Fair, nor did he introduce himself so.9
The Solicitor General counters that owners of establishments selling obscene
publications are expressly held liable under Article 201, and petitioner Fernando’s
ownership was sufficiently proven. As the owner, according to the Solicitor General,
Fernando was naturally a seller of the prohibited materials and liable under the
Information. The Solicitor General also maintains that Estorninos was identified by
Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise
liable.10
At the outset, we note that the trial court gave petitionersthem the opportunity to
adduce present their evidence to disprove refute the prosecution’s evidence. 11 .
Instead, they waived their right to present evidence and opted to submitted the case
for decision.a1 12 The trial court therefore resolved the case on the basis of
prosecution’s evidence against the petitioners.
As obscenity is an unprotected speech which the State has the right to regulate, the
State in pursuing its mandate to protect, as parens patriae, the public from obscene,
immoral and indecent materials must justify the regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be held liable, the
prosecution must prove that (a) the materials, publication, picture or literature are
obscene; and (b) the offender sold, exhibited, published or gave away such
materials.13 Necessarily, that the confiscated materials are obscene must be proved.
Almost a century has passed since the Court first attempted to define obscenity
in People v. Kottinger.14 There the Court defined obscenity as something which is
offensive to chastity, decency or delicacy. The test to determine the existence of
obscenity is, whether the tendency of the matter charged as obscene, is to deprave or
corrupt those whose minds are open to such immoral influences and into whose
hands a publication or other article charged as being obscene may fall. 15 Another test
according to Kottinger  is "that which shocks the ordinary and common sense of men
as an indecency."16 But, Kottinger hastened to say that whether a picture is obscene
or indecent must depend upon the circumstances of the case, and that ultimately, the
question is to be decided by the judgment of the aggregate sense of the community
reached by it.17
Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et
al.,19  involving a prosecution under Article 201 of the Revised Penal Code, laid the
tests which did little to clearly draw the fine lines of obscenity.
In People v. Go Pin, the Court said:
If such pictures, sculptures and paintings are shown in art exhibits and art galleries for
the cause of art, to be viewed and appreciated by people interested in art, there
would be no offense committed. However, the pictures here in question were used
not exactly for art’s sake but rather for commercial purposes. In other words, the
supposed artistic qualities of said pictures were being commercialized so that the
cause of art was of secondary or minor importance. Gain and profit would appear to
have been the main, if not the exclusive consideration in their exhibition; and it would
not be surprising if the persons who went to see those pictures and paid entrance
fees for the privilege of doing so, were not exactly artists and persons interested in art
and who generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste,
and lust, and for love [of] excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of these pictures.20
People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but
with its own test of "redeeming feature." The Court therein said that:
[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have
no redeeming feature. In it, there is no room for art. One can see nothing in it but
clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring
and causing as it does, nothing but lust and lewdness, and exerting a corrupting
influence specially on the youth of the land.21
Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion
pictures, still applied the "contemporary community standards" of Kottinger but
departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court
measures obscenity in terms of the "dominant theme" of the material taken as a
"whole" rather than in isolated passages.
Later, in Pita v. Court of Appeals, concerning alleged pornographic publications,  the
Court recognized that Kottinger  failed to afford a conclusive definition of obscenity,
and that both Go Pin and Padan y Alova  raised more questions than answers such
as, whether the absence or presence of artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their artistic tastes,
determine what art is; or that if they find inspiration in the exhibitions, whether such
exhibitions cease to be obscene.23 Go Pin and Padan y Alova  gave too much latitude
for judicial arbitrament, which has permitted ad lib  of ideas and "two-cents worths"
among judges as to what is obscene or what is art.24
The Court in Pita  also emphasized the difficulty of the question and pointed out how
hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle
questions on the matter. Significantly, the dynamism of human civilization does not
help at all. It is evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization.25 It seems futile at
this point to formulate a perfect definition of obscenity that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average
person, applying contemporary standards would find the work, taken as a whole,
appeals to the prurient interest; (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.26 But, it would be a serious misreading of Miller to
conclude that the trier of facts has the unbridled discretion in determining what is
"patently offensive."27 No one will be subject to prosecution for the sale or exposure of
obscene materials unless these materials depict or describe patently offensive "hard
core" sexual conduct.28 Examples included (a) patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b)
patently offensive representations or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals.29 What remains clear is that obscenity is
an issue proper for judicial determination and should be treated on a case to case
basis and on the judge’s sound discretion.
In this case, the trial court found the confiscated materials obscene and the Court of
Appeals affirmed such findings. The trial court in ruling that the confiscated materials
are obscene, reasoned as follows:
Are the magazines and VHS tapes confiscated by the raiding team obscene or
offensive to morals? . . .
Pictures of men and women in the nude doing the sexual act appearing in the nine (9)
confiscated magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse,
Gallery and two (2) issues of QUI are offensive to morals and are made and shown
not for the sake of art but rather for commercial purposes, that is gain and profit as
the exclusive consideration in their exhibition. The pictures in the magazine exhibited
indecent and immoral scenes and acts…The exhibition of the sexual act in their
magazines is but a clear and unmitigated obscenity, indecency and an offense to
public morals, inspiring…lust and lewdness, exerting a corrupting influence especially
on the youth. (Citations omitted)
The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The
tape entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the
naked body of the actress. The tape exhibited indecent and immoral scenes and acts.
Her dancing movements excited the sexual instinct of her male audience. The motive
may be innocent, but the performance was revolting and shocking to good minds...
In one (1) case the Supreme Court ruled:
Since the persons who went to see those pictures and paid entrance fees were
usually not artists or persons interested in art to satisfy and inspire their artistic tastes
but persons who are desirous of satisfying their morbid curiosity, taste and lust and
for [love] of excitement, including the youth who because of their immaturity are not in
a position to resist and shield themselves from the ill and perverting effects of the
pictures, the display of such pictures for commercial purposes is a violation of Art.
201. If those pictures were shown in art exhibits and art galleries for the cause of art,
to be viewed and appreciated by people interested in art, there would be no offense
committed (People vs. Go Pin, 97 Phil 418).
[B]ut this is not so in this case.30
Findings of fact of the Court of Appeals affirming that of the trial court are accorded
great respect, even by this Court, unless such findings are patently unsupported by
the evidence on record or the judgment itself is based on misapprehension of
facts.31 In this case, petitioners neither presented contrary evidence nor questioned
the trial court’s findings. There is also no showing that the trial court, in finding the
materials obscene, was arbitrary.
Did petitioners participate in the distribution and exhibition of obscene materials?
We emphasize that mere possession of obscene materials, without intention to sell,
exhibit, or give them away, is not punishable under Article 201, considering the
purpose of the law is to prohibit the dissemination of obscene materials to the public.
The offense in any of the forms under Article 201 is committed only when there is
publicity.32 The law does not require that a person be caught in the act of selling,
giving away or exhibiting obscene materials to be liable, for as long as the said
materials are offered for sale, displayed or exhibited to the public. In the present case,
we find that petitioners are engaged in selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio E. Fernando
Music Fair, named after petitioner Fernando.33 The mayor’s permit was under his
name. Even his bail bond shows that Hhe lives in the same place.34 Moreover, the
mayor’s permit dated August 8, 1996, shows that he is the owner/operator of the
store.35 While the mayor’s permit had already expired, it does not negate the fact that
Fernando owned and operated the establishment. It would be absurd to make his
failure to renew his business permit and illegal operation a shield from prosecution of
an unlawful act. Furthermore, when he preferred not to present contrary evidence, the
things which he possessed were presumptively his.36
Petitioner Estorninos is likewise liable as the store attendant actively engaged in
selling and exhibiting the obscene materials. Prosecution witness Police Inspector
Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as
the store attendant upon whom the search warrant was served. 37 Tababan had no
motive for testifying falsely against Estorninos and we uphold the presumption of
regularity in the performance of his duties. Lastly, this Court accords great respect to
and treats with finality the findings of the trial court on the matter of credibility of
witnesses, absent any palpable error or arbitrariness in their findings. 38 In our view, no
reversible error was committed by the appellate court as well as the trial court in
finding the herein petitioners guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated
September 2, 2003, of the Court of Appeals affirming the Decision of the Regional
Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are
hereby AFFIRMED.
SO ORDERED.
G.R. No. 127930               December 15, 2000
MIRIAM COLLEGE FOUNDATION, INC., petitioner,
vs.
HON. COURT OF APPEALS, JASPER BRIONES, JEROME GOMEZ, RELLY
CARPIO, ELIZABETH VALDEZCO, JOSE MARI RAMOS, CAMILLE PORTUGAL,
JOEL TAN and GERALD GARY RENACIDO, respondents.
KAPUNAN, J.:
"Obscene," "vulgar," "indecent," "gross," "sexually explicit," "injurious to young
readers," and devoid of all moral values." 1 This was now some members of the Miriam
College community allegedly described the contents of the September-October 1994
issue (Vol. 41, No. 14) of Miriam College's school paper (Chi-Rho), and magazine
(Ang Magasing Pampanitikan ng Chi-Rho). The articles in the Chi-Rho included:
. . . a story, clearly fiction, entitled 'Kaskas' written by one Gerald Garry Renacido . . .
Kaskas, written in Tagalog, treats of the experience of a group of young, male, combo
players who, one evening, after their performance went to see a bold show in a place
called "Flirtation". This was the way the author described the group's exposure during
that stage show:
"Sige, sa Flirtation tayo. Happy hour na halos . . . he! he! he! sambit ng kanilang
bokalistang kanina pa di maitago ang pagkahayok sa karneng babae na kanyang
pinananabikan nuong makalawa pa, susog naman ang tropa.
". . . Pumasok ang unang mananayaw. Si 'Red Raven' ayon sa emcee. Nakasuot
lamang ng bikining pula na may palamuting dilaw sa gilid-gilid at sa bandang utong.
Nagsimula siya sa kanyang pag-giling nang tumugtog na ang unang tono ng
"Goodbye" ng Air Supply. Dahan-dahan ang kanyang mga malalantik at mapang-akit
na galaw sa una. Mistulang sawa na nililingkis ang hangin, paru-parong padapo-dapo
sa mga bulaklak na lamesa, di-upang umamoy o kumuha ng nektar, ngunit para
ipaglantaran ang sariling bulaklak at ang angkin nitong malansang nektar.
"Kaskas mo babe, sige . . . kaskas."
Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang natipuhan, dahil sa
harap niya'y nagtagal. Nag-akmang mag-aalis ng pangitaas na kapirasong tela. Hindi
nakahinga si Mike, nanigas sa kanyang kinauupuan, nanigas pati ang nasa gitna ng
kanyang hita. Ang mga mata niya'y namagnet sa kayamanang ngayo'y halos isang
pulgada lamang mula sa kanyang naglalaway na bunganga. Naputol-putol ang
kanyang hininga nang kandungan ni 'Red Raven' ang kanyang kanang hita. Lalo
naghingalo siya nang kabayuhin ito ng dahan dahan . . . Pabilis ng pabilis.'
The author further described Mike's responses to the dancer as follows (quoted in
part):
. . . Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi nagpatalo ang
ibong walang pakpak, inipit ng husto ang hita ni Mike at pinag-udyukan ang kanyang
dibdib sa mukha nito.
"Kaskas mo pa, kaskas mo pa!"
Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan siya
nito sa labi at iniwang bigla, upang kanyang muniin ang naudlot niyang pagtikim ng
karnal na nektar. Hindi niya maanto kung siya ay nanalo o natalo sa nangyaring
sagupaan ng libog. Ang alam lang niya ay nanlata na siya."
After the show the group went home in a car with the bokalista driving. A pedestrian
happened to cross the street and the driver deliberately hit him with these words:
"Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He! Sabad ng
sabog nilang drayber/bokalista."
The story ends (with their car about to hit a truck) in these words: . . . "Pare . . . trak!!!
Put . . .!!!!
Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the cover title of
"Libog at iba pang tula."
In his foreword which Jerome Gomez entitled "Foreplay", Jerome wrote: "Alam ko,
nakakagulat ang aming pamagat." Jerome then proceeded to write about previous
reactions of readers to women-writers writing about matters erotic and to gay
literature. He justified the Magazine's erotic theme on the ground that many of the
poems passed on to the editors were about "sekswalidad at iba't ibang karanasan
nito." Nakakagulat ang tapang ng mga manunulat . . . tungkol sa maselang usaping
ito . . . at sa isang institusyon pang katulad ng Miriam!"
Mr. Gomez quoted from a poem entitled "Linggo" written by himself:
may mga palangganang nakatiwangwang -
mga putang biyak na sa gitna,
'di na puwedeng paglabhan,
'di na maaaring pagbabaran . . ."
Gomez stated that the poems in the magazine are not "garapal" and "sa mga tulang
ito namin maipagtatanggol ang katapangan (o pagka-sensasyonal) ng pamagat na
"Libog at iba pang Tula." He finished "Foreplay" with these words: "Dahil para saan
pa ang libog kung hindi ilalabas?"
The cover title in question appears to have been taken from a poem written by Relly
Carpio of the same title. The poem dealt on a woman and a man who met each other,
gazed at each other, went up close and "Naghalikan, Shockproof." The poem
contained a background drawing of a woman with her two mammary and nipples
exposed and with a man behind embracing her with the woman in a pose of passion-
filled mien.
Another poem entitled 'Virgin Writes Erotic' was about a man having fantasies in his
sleep. The last verse said: "At zenith I pull it out and find myself alone in this fantasy."
Opposite the page where this poem appeared was a drawing of a man asleep and
dreaming of a naked woman (apparently of his dreams) lying in bed on her buttocks
with her head up (as in a hospital bed with one end rolled up). The woman's right
nipple can be seen clearly. Her thighs were stretched up with her knees akimbo on
the bed.
In the next page (page 29) one finds a poem entitled "Naisip ko Lang" by Belle
Campanario. It was about a young student who has a love-selection problem: ". . .
Kung sinong pipiliin: ang teacher kong praning, o ang boyfriend kong bading." The
word "praning" as the court understands it, refers to a paranoid person; while the
word "bading" refers to a sward or "bakla" or "badidang". This poem also had an
illustration behind it: of a young girl with large eyes and sloping hair cascading down
her curves and holding a peeled banana whose top the illustrator shaded up with
downward-slanting strokes. In the poem, the girl wanted to eat banana topped by
peanut butter. In line with Jerome's "Foreplay" and by the way it was drawn that
banana with peanut butter top was meant more likely than not, to evoke a spiritedly
mundane, mental reaction from a young audience.
Another poem entitled "Malas ang Tatlo" by an unknown author went like this:
'Na picture mo na ba
no'ng magkatabi tayong dalawa in their capacity as campus journalists." Hence, he argued that "what applies is
Republic Act No. 7079 The Campus Journalism Act and its implementing rules and
sa pantatluhang sofa - regulations." He also questioned the partiality of the members of said Committee who
allegedly "had already articulated their position" against his clients.
ikaw, the legitimate asawa
The Discipline Committee proceeded with its investigation ex parte. Thereafter, the
at ako, biro mo, ang kerida?
Discipline Board, after a review of the Discipline Committee's report, imposed
tapos, tumabi siya, shit! disciplinary sanctions upon the students, thus:

kumpleto na: 1. Jasper Briones Expulsion. Briones is the Editor-in-Chief of Chi-Rho

and a 4th year student;
ikaw, ako at siya

kulang na lang, kamera." 2. Daphne Cowper suspension up to (summer) March, 1995;

A poem "Sa Gilid ng Itim" by Gerald Renacido in the Chi-Rho broadsheet spoke of a
fox (lobo) yearning for "karneng sariwa, karneng bata, karneng may kalambutan . . . 3. Imelda Hilario suspension for two (2) weeks to expire on February
isang bahid ng dugong dalaga, maamo't malasa, ipahid sa mga labing sakim sa 2, 1995;
romansa' and ended with 'hinog na para himukin bungang bibiyakin."2
4. Deborah Ligon suspension up to May, 1995. Miss Ligon is a 4th year
Following the publication of the paper and the magazine, the members of the editorial student and could graduate as summa cum laude;
board,3 and Relly Carpio, author of Libog, all students of Miriam College, received a
letter signed by Dr. Aleli Sevilla, Chair of the Miriam College Discipline Committee.
5. Elizabeth Valdezco suspension up to (summer) March, 1995;
The Letter dated 4 November 1994 stated:

This is to inform you that the letters of complain filed against you by members of the 6. Camille Portugal graduation privileges withheld, including diploma.
Miriam Community and a concerned Ateneo grade five student have been forwarded She is an Octoberian;
to the Discipline Committee for inquiry and investigation. Please find enclosed
complaints.
7. Joel Tan suspension for two (2) weeks to expire on February
As expressed in their complaints you have violated regulations in the student 2, 1995;
handbook specifically Section 2 letters B and R, pages 30 and 32, Section 4 (Major
offenses) letter j, page 36 letters m, n, and p, page 37 and no. 2 (minor offenses) 8. Gerald Gary Expelled and given transfer credentials. He is a 2nd
letter a, page 37. Renacido year student. He wrote the fiction story "Kaskas";

You are required to submit a written statement in answer to the charge/s on or before
the initial date of hearing to be held on November 15, 1994, Tuesday, 1:00 in the 9. Relly Carpio Dismissed and given transfer credentials. He is in 3rd
afternoon at the DSA Conference Room.4 year and wrote the poem "Libog";

None of the students submitted their respective answers. They instead requested Dr. 10. Jerome Gomez Dismissed and given transfer credentials. He is in 3rd
Sevilla to transfer the case to the Regional Office of the Department of Education, year. He wrote the foreword "Foreplay" to the
Culture and Sports (DECS) which under Rule XII of DECS Order No. 94, Series of questioned Anthology of Poems; and
1992, supposedly had jurisdiction over the case.5

In a Letter dated 21 November 1994, Dr. Sevilla again required the students to file 11. Jose Mari Ramos Expelled and given transfer papers. He is a 2nd year
their written answers. student and art editor of Chi-Rho.7

In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a letter6 to the The above students thus filed a petition for prohibition and certiorari with preliminary
Discipline Committee reiterating his clients' position that said Committee had no injunction/restraining order before the Regional Trial Court of Quezon City
jurisdiction over them. According to Atty. Valmonte, the Committee was "trying to questioning the jurisdiction of the Discipline Board of Miriam College over them.
impose discipline on his clients on account of their having written articles and poems
On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge Jaime
N. Salazar, Jr., issued an order denying the plaintiffs' prayer for a Temporary
Restraining Order. It held:
There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that
excludes school Administrators from exercising jurisdiction over cases of the nature
involved in the instant petition. R.A. 7079 also does not state anything on the matter
of jurisdiction. The DECS undoubtedly cannot determine the extent of the nature of
jurisdiction of schools over disciplinary cases. Moreover, as this Court reads that
DECS Order No. 94, S. of 1992, it merely prescribes for purposes of internal
administration which DECS officer or body shall hear cases arising from R A. 7079 if
and when brought to it for resolution. The said order never mentioned that it
has exclusive jurisdiction over cases falling under R.A. 707.8
The students thereafter filed a "Supplemental Petition and Motion for
Reconsideration." The College followed with its Answer.
Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of
preliminary injunction.
ACCORDINGLY, so as not to render the issues raised moot and academic, let a writ
of preliminary injunction issue enjoining the defendants, including the officers and
members of the Disciplinary Committee, the Disciplinary Board, or any similar body
and their agents, and the officers and members of the Security Department, Division,
or Security Agency securing the premises and campus of Miriam College Foundation,
Inc. from:
1. Enforcing and/or implementing the expulsion or dismissal resolutions or orders
complained of against herein plaintiffs (a) Jasper Briones; (b) Gerald Gary Renacido;
(c) Relly Carpio; (d) Jerome Gomez; and (e) Jose Mari Ramos, but otherwise allowing
the defendants to impose lesser sanctions on aforementioned plaintiffs; and
2. Disallowing, refusing, barring or in any way preventing the herein plaintiffs (all
eleven of them) from taking tests or exams and entering the Miriam campus for such
purpose as extended to all students of Miriam College Foundation, Inc.; neither
should their respective course or subject teachers or professors withhold their grades,
including final grades, if and when they meet the requirements similarly prescribed for
all other students, this current 2nd Semester of 1994-95.
The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda Hilario,
Elizabeth Valdezco, Camille Portugal and Daphne Cowper, shall remain in force and
shall not be covered by this Injunction: Provided, that Camille Portugal now a
graduate, shall have the right to receive her diploma, but defendants are not hereby
prevented from refusing her the privilege of walking on the graduation stage so as to
prevent any likely public tumults.
The plaintiffs are required to post an injunction bond in the sum of Four Thousand
Pesos (P4,000.00) each.
SO ORDERED.9
Both parties moved for a reconsideration of the above order. In an Order dated 22
February 1995, the RTC dismissed the petition, thus:
4. On the matter raised by both parties that it is the DECS which has jurisdiction,
inasmuch as both parties do not want this court to assume jurisdiction here then this
court will not be more popish than the Pope and in fact is glad that it will have one
more case out of its docket.
ACCORDINGLY, the instant case is hereby DISMISSED without prejudice to the
parties going to another forum.
All orders heretofore issued here are hereby recalled and set aside.
SO ORDERED.10
The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper, sought
relief in this Court through a petition for certiorari and prohibition of preliminary
injunction/restraining order11 questioning the Orders of the RTC dated 10 and 24
February 1995.
On 15 March 1995, the Court resolved to refer the case to the Court of Appeals (CA)
for disposition.12 On 19 May 1995, the CA issued a resolution stating:
The respondents are hereby required to file comment on the instant petition and to
show cause why no writ of preliminary injunction should be issued, within ten (10)
days from notice hereof, and the petitioners may file reply thereto within five (5) days
from receipt of former's comment.
In order not to render ineffectual the instant petition, let a Temporary Restraining
Order be issued enjoining the public respondents from enforcing letters of
dismissal/suspension dated January 19, 1995.
SO ORDERED.13
In its Decision dated 26 September 1996, respondent court granted the students'
petition. The CA declared the RTC Order dated 22 February 1995, as well as the
students' suspension and dismissal, void.
Hence, this petition by Miriam College.
We limit our decision to the resolution of the following issues:
(1) The alleged moot character of the case.
(2) The jurisdiction of the trial court to entertain the petition for certiorari filed by the
students.
(3) The power of petitioner to suspend or dismiss respondent students.
(4) The jurisdiction of petitioner over the complaints against the students.
We do not tackle the alleged obscenity of the publication, the propriety of the penalty
imposed or the manner of the imposition thereof. These issues, though touched upon
by the parties in the proceedings below, were not fully ventilated therein.
I the case or that what is issued was a preliminary injunction. In either case, it was
Petitioner asserts the Court of Appeals found the case moot thus:
While this petition may be considered moot and academic since more than one year
have passed since May 19, 1995 when this court issued a temporary restraining order
enjoining respondents from enforcing the dismissal and suspension on petitioners . . .
14
Since courts do not adjudicate moot cases, petitioner argues that the CA should not
have proceeded with the adjudication of the merits of the case.
We find that the case is not moot.
It may be noted that what the court issued in 19 May 1995 was a temporary
restraining order, not a preliminary injunction. The records do not show that the CA
ever issued a preliminary injunction.
Preliminary injunction is an order granted at any stage of an action or proceeding
prior to the judgment or final order, requiring a party or a court, agency or a person to
perform to refrain from performing a particular act or acts.15 As an extraordinary
remedy, injunction is calculated to preserve or maintain the status quo of things and is
generally availed of to prevent actual or threatened acts, until the merits of the case
can be heard.16 A preliminary injunction persists until it is dissolved or until the
termination of the action without the court issuing a final injunction.
The basic purpose of restraining order, on the other hand, is to preserve the status
quo until the hearing of the application for preliminary injunction.17 Under the former 5,
Rule 58 of the Rules of Court, as amended by 5, Batas Pambansa Blg. 224, a judge
(or justice) may issue a temporary restraining order with a limited life of twenty days
from date of issue.18 If before the expiration of the 20-day period the application for
preliminary injunction is denied, the temporary order would thereby be deemed
automatically vacated. If no action is taken by the judge on the application for
preliminary injunction within the said 20 days, the temporary restraining order would
automatically expire on the 20th day by the sheer force of law, no judicial declaration
to that effect being necessary.19 In the instant case, no such preliminary injunction
was issued; hence, the TRO earlier issued automatically expired under the aforesaid
provision of the Rules of Court.20
This limitation as to the duration of the temporary restraining order was the rule
prevailing when the CA issued its TRO dated 19 May 1995.21 By that time
respondents Elizabeth Valdezco and Joel Tan had already served their respective
suspensions. The TRO was applicable only to respondents Jasper Briones, Jerome
Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary Renacido all of whom were
dismissed, and respondent Camille Portugal whose graduation privileges were
withheld. The TRO, however, lost its effectivity upon the lapse of the twenty days. It
can hardly be said that in that short span of time, these students had already
graduated as to render the case moot.
Either the CA was of the notion that its TRO was effective throughout the pendency of
error on the part of the CA to assume that its order supposedly enjoining Miriam from
enforcing the dismissal and suspension was complied with. A case becomes moot
and academic when there is no more actual controversy between the parties or no
useful purpose can be served in passing upon the merits. 22 To determine the moot
character of a question before it, the appellate court may receive proof or take notice
of facts appearing outside the record.23 In the absence of such proof or notice of facts,
the Court of Appeals should not have assumed that its TRO was enforced, and that
the case was rendered moot by the mere lapse of time.
Indeed, private respondents in their Comment herein24 deny that the case has
become moot since Miriam refused them readmission in violation of the TRO. This
fact is unwittingly conceded by Miriam itself when, to counter this allegation by the
students, it says that private respondents never sought readmission after the
restraining order was issued.25 In truth, Miriam relied on legal technicalities to subvert
the clear intent of said order, which states:
In order not to render ineffectual the instant petition, let a Temporary Restraining
Order be issued enjoining the public respondents from enforcing letters of
dismissal/suspension dated January 19, 1995.
Petitioner says that the above order is "absurd" since the order "incorrectly
directs public respondent, the Hon. Jaime Salazar, presiding judge of the Regional
Trial Court of Quezon City not to dismiss or suspend the students."26
We do not agree. Padua vs. Robles27 lays down the rules in construing judgments.
We find these rules to be applicable to court orders as well:
The sufficiency and efficacy of a judgment must be tested by its substance rather
than its form. In construing a judgment, its legal effects including such effects that
necessarily follow because of legal implications, rather than the language used,
govern. Also, its meaning, operation, and consequences must be ascertained like any
other written instrument. Thus, a judgment rests on the intent of the court as gathered
from every part thereof, including the situation to which it applies and attendant
circumstances. (Emphasis supplied.)
Tested by such standards, we find that the order was indeed intended
for private respondents (in the appellate court) Miriam College, et al., and not public
respondent Judge. In dismissing the case, the trial judge recalled and set aside all
orders it had previously issued, including the writ of preliminary injunction. In doing
so, the trial court allowed the dismissal and suspension of the students to remain in
force. Thus, it would indeed be absurd to construe the order as being directed to the
RTC. Obviously, the TRO was intended for Miriam College.
True, respondent-students should have asked for a clarification of the above order.
They did not. Nevertheless, if Miriam College found the order "absurd," then it should
have sought a clarification itself so the Court of Appeals could have cleared up any
confusion. It chose not to. Instead, it took advantage of the supposed vagueness of
the order and used the same to justify its refusal to readmit the students.
As Miriam never readmitted the students, the CA's ruling that the case is moot has no
basis. How then can Miriam argue in good faith that the case had become moot when
it knew all along that the facts on which the purported moot character of the case
were based did not exist? Obviously, Miriam is clutching to the CA's wrongful
assumption that the TRO it issued was enforced to justify the reversal of the CA's
decision.
Accordingly, we hold that the case is not moot, Miriam's pretensions to the contrary
notwithstanding.
II
"To uphold and protect the freedom of the press even at the campus level and to
promote the development and growth of campus journalism as a means of
strengthening ethical values, encouraging critical and creative thinking, and
developing moral character and personal discipline of the Filipino youth,"28 Congress
enacted in 1991 Republic Act No. 7079. Entitled "AN ACT PROVIDING FOR THE
DEVELOPMENT AND PROMOTION OF CAMPUS JOURNALISM AND FOR OTHER
PURPOSES,"29 the law contains provisions for the selection of the editorial
board30 and publication adviser,31 the funding of the school publication,32 and the grant
of exemption to donations used actually, directly and exclusively for the promotion of
campus journalism from donor's or gift tax.33
Noteworthy are provisions clearly intended to provide autonomy to the editorial board
and its members. Thus, the second paragraph of Section 4 states that "(o)nce the
publication is established, its editorial board shall freely determine its editorial policies
and-manage the publication's funds."
Section 7, in particular, provides:
A member of the publication staff must maintain his or her status as student in order
to retain membership in the publication staff. A student shall not be expelled or
suspended solely on the basis of articles he or she has written, or on the basis of the
performance of his or her duties in the student publication.
Section 9 of the law mandates the DECS to "promulgate the rules and regulations
necessary for the effective implementation of this Act."34 Pursuant to said authority,
then DECS Secretary Armand Fabella, issued DECS Order No. 94, Series of 1992,
providing under Rule XII that:
GENERAL PROVISIONS
SECTION 1. The Department of Education, Culture and Sports (DECS) shall help
ensure and facilitate the proper carrying out of the Implementing Rules and
Regulations of Republic Act No. 7079. It shall also act on cases on appeal brought
before it.
The DECS regional office shall have the original jurisdiction over cases as a result of
the decisions, actions and policies of the editorial board of a school within its area of
administrative responsibility. It shall conduct investigations and hearings on the these
cases within fifteen (15) days after the completion of the resolution of each case.
(Emphasis supplied.)
The latter two provisions of law appear to be decisive of the present case.
It may be recalled that after the Miriam Disciplinary Board imposed disciplinary
sanctions upon the students, the latter filed a petition for certiorari and prohibition in
the Regional Trial Court raising, as grounds therefor, that:
I
DEFENDANT'S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF
DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE CASE.35
II
DEFENDANT SCHOOL'S DISCIPLINARY COMMITTEE AND THE DISCIPLINARY
BOARD DO NOT HAVE THE QUALIFICATION OF AN IMPARTIAL AND NEUTRAL
ARBITER AND, THEREFORE THEIR TAKING COGNIZANCE OF THE CASE
AGAINST PLAINTIFFS WILL DENY THE LATTER OF THEIR RIGHT TO DUE
PROCESS.36
Anent the first ground, the students theorized that under Rule XII of the Rules and
Regulations for the Implementation of R.A. No. 7079, the DECS Regional Office, and
not the school, had jurisdiction over them. The second ground, on the other hand,
alleged lack of impartiality of the Miriam Disciplinary Board, which would thereby
deprive them of due process. This contention, if true, would constitute grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the trial court.
These were the same grounds invoked by the students in their refusal to answer the
charges against them. The issues were thus limited to the question of jurisdiction - a
question purely legal in nature and well within the competence and the jurisdiction of
the trial court, not the DECS Regional Office. This is an exception to the doctrine of
primary jurisdiction. As the Court held in Phil. Global Communications, Inc. vs.
Relova.37
Absent such clarity as to the scope and coverage of its franchise, a legal question
arises which is more appropriate for the judiciary than for an administrative agency to
resolve. The doctrine of primary jurisdiction calls for application when there is such
competence to act on the part of an administrative body. Petitioner assumes that
such is the case. That is to beg the question. There is merit, therefore, to the
approach taken by private respondents to seek judicial remedy as to whether or not
the legislative franchise could be so interpreted as to enable the National
Telecommunications Commission to act on the matter. A jurisdictional question thus
arises and calls for an answer.
However, when Miriam College in its motion for reconsideration contended that the
DECS Regional Office, not the RTC, had jurisdiction, the trial court, refusing to "be
more popish than the Pope," dismissed the case. Indeed, the trial court could hardly
contain its glee over the fact that "it will have one more case out of its docket." We
remind the trial court that a court having jurisdiction of a case has not only the right
and the power or authority, but also the duty, to exercise that jurisdiction and to
render a decision in a case properly submitted to it. 38 Accordingly, the trial court
should not have dismissed the petition without settling the issues presented before it.
III
Before we address the question of which between the DECS Regional Office and
Miriam College has jurisdiction over the complaints against the students, we first
delve into the power of either to impose disciplinary sanctions upon the students.
Indeed, the resolution of the issue of jurisdiction would be reduced to an academic
exercise if neither the DECS Regional Office nor Miriam College had the power to
impose sanctions upon the students.
Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act
prohibits the expulsion or suspension of a student solely on the basis of articles he or
she has written.
A.
Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher
learning academic freedom. This institutional academic freedom includes the right of
the school or college to decide for itself, its aims and objectives, and how best to
attain them free from outside coercion or interference save possibly when the
overriding public welfare calls for some restraint.39 The essential freedoms subsumed
in the term "academic freedom" encompasses the freedom to determine for itself on
academic grounds:
(1) Who may teach,
(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study.40
The right of the school to discipline its students is at once apparent in the third
freedom, i.e., "how it shall be taught." A school certainly cannot function in an
atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an educational institution
requires rules and regulations necessary for the maintenance of an orderly
educational program and the creation of an educational environment conducive to
learning. Such rules and regulations are equally necessary for the protection of the
students, faculty, and property.41
Moreover, the school has an interest in teaching the student discipline, a necessary, if
not indispensable, value in any field of learning. By instilling discipline, the school
teaches discipline. Accordingly, the right to discipline the student likewise finds basis
in the freedom "what to teach."
Incidentally, the school not only has the right but the duty to develop discipline in its
students. The Constitution no less imposes such duty.
All educational institutions shall inculcate patriotism and nationalism, foster love of
humanity, respect for human rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and duties of citizenship,
strengthen ethical and spiritual values, develop moral character and personal
discipline, encourage critical and creative thinking, broaden scientific and
technological knowledge, and promote vocational efficiency.42
In Angeles vs. Sison, we also said that discipline was a means for the school to carry
out its responsibility to help its students "grow and develop into mature, responsible,
effective and worthy citizens of the community."43
Finally, nowhere in the above formulation is the right to discipline more evident than in
"who may be admitted to study." If a school has the freedom to determine whom to
admit, logic dictates that it also has the right to determine whom to exclude or expel,
as well as upon whom to impose lesser sanctions such as suspension and the
withholding of graduation privileges.
Thus, in Ateneo de Manila vs. Capulong,44 the Court upheld the expulsion of students
found guilty of hazing by petitioner therein, holding that:
No one can be so myopic as to doubt that the immediate reinstatement of respondent
students who have been investigated and found guilty by the Disciplinary Board to
have violated petitioner university's disciplinary rules and standards will certainly
undermine the authority of the administration of the school. This we would be most
loathe to do.
More importantly, it will seriously impair petitioner university's academic freedom
which has been enshrined in the 1935, 1973 and the present 1987 Constitution.45
Tracing the development of academic freedom, the Court continued:
Since Garcia vs. Loyola School of Theology, we have consistently upheld the salutary
proposition that admission to an institution of higher learning is discretionary upon a
school, the same being a privilege on the part of the student rather than a right. While
under the Education Act of 1982, students have a right "to freely choose their field of
study, subject to existing curricula and to continue their course therein up to
graduation," such right is subject, as all rights are, to the established academic and
disciplinary standards laid down by the academic institution.
"For private schools have the right to establish reasonable rules and regulations for
the admission, discipline and promotion of students. This right . . . extends as well to
parents . . . as parents under a social and moral (if not legal) obligation, individually
and collectively, to assist and cooperate with the schools."
Such rules are "incident to the very object of incorporation and indispensable to the
successful management of the college. The rules may include those governing
student discipline." Going a step further, the establishment of the rules governing
university-student relations, particularly those pertaining to student discipline, may be
regarded as vital, not merely to the smooth and efficient operation of the institution,
but to its very survival.
Within memory of the current generation is the eruption of militancy in the academic
groves as collectively, the students demanded and plucked for themselves from the
panoply of academic freedom their own rights encapsulized under the rubric of "right
to education" forgetting that, In Hohfeldian terms, they have the concomitant duty,
and that is, their duty to learn under the rules laid down by the school.
. . . It must be borne in mind that universities are established, not merely to develop
the intellect and skills of the studentry, but to inculcate lofty values, ideals and
attitudes; may, the development, or flowering if you will, of the total man.
In essence, education must ultimately be religious - not in the sense that the founders
or charter members of the institution are sectarian or profess a religious ideology.
Rather, a religious education, as the renowned philosopher Alfred North Whitehead
said, is 'an education which inculcates duty and reverence.' It appears that the
particular brand of religious education offered by the Ateneo de Manila University has
been lost on the respondent students.
Certainly, they do not deserve to claim such a venerable institution as the Ateneo de
Manila University as their own a minute longer, for they may foreseeably cast a
malevolent influence on the students currently enrolled, as well as those who come
after them.1avvphi1
Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of
Appeals that: "The maintenance of a morally conducive and orderly educational
environment will be seriously imperilled, if, under the circumstances of this case,
Grace Christian is forced to admit petitioner's children and to reintegrate them to the
student body." Thus, the decision of petitioner university to expel them is but
congruent with the gravity of their misdeeds.46
B.
Section 4 (1), Article XIV of the Constitution recognizes the State's power to regulate
educational institution:
The State recognizes the complementary roles of public and private institutions in the
educational system and shall exercise reasonable supervision and regulation of all
educational institutions.
As may be gleaned from the above provision, such power to regulate is subject to the
requirement of reasonableness. Moreover, the Constitution allows merely
the regulation and supervision of educational institutions, not the deprivation of their
rights.
C.
In several cases, this Court has upheld the right of the students to free speech in
school premises. In the landmark case of Malabanan vs. Ramento,47 students of the
Gregorio Araneta University Foundation, believing that the merger of the Institute of
Animal Science with the Institute of Agriculture would result in the increase in their
tuition, held a demonstration to protest the proposed merger. The rally however was
held at a place other than that specified in the school permit and continued longer
than the time allowed. The protest, moreover, disturbed the classes and caused the
stoppage of the work of non-academic personnel. For the illegal assembly, the
university suspended the students for one year. In affirming the students' rights to
peaceable assembly and free speech, the Court through Mr. Chief Justice Enrique
Fernando, echoed the ruling of the US Supreme Court in Tinker v. Des Moines
School District.48
Petitioners invoke their rights to peaceable assembly and free speech. They are
entitled to do so. They enjoy like the rest of the citizens the freedom to express their
views and communicate their thoughts to those disposed to listen in gatherings such
as was held in this case. They do not, to borrow from the opinion of Justice Fortas in
Tinker v. Des Moines Community School District, 'shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.' While, therefore, the
authority of educational institutions over the conduct of students must be recognized,
it cannot go so far as to be violative of constitutional safeguards. On a more specific
level there is persuasive force to this Fortas opinion. "The principal use to which the
schools are dedicated is to accommodate students during prescribed hours for the
purpose of certain types of activities. Among those activities is personal
intercommunication among the students. This is not only inevitable part of the
educational process. A student's rights, therefore, do not embrace merely the
classroom hours. When he is in the cafeteria, or on the playing field, or on the
campus during the authorized hours, he may express his opinions, even on
controversial subjects like the conflict in Vietnam, if he does so without 'materially and
substantially interfering with the requirements of appropriate discipline in the
operation of the school' and without colliding with the rights of others. . . . But conduct
by the student, in class or out of it, which for any reason - whether it stems from time,
place, or type of behavior - materially disrupts classwork or involves substantial
disorder or invasion of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech.49
The Malabanan ruling was followed in Villar vs. Technological Institute of the
Philippines,50 Arreza vs. Gregorio Araneta University Foundation,51 and Non vs.
Dames II.52
The right of the students to free speech in school premises, however, is not absolute.
The right to free speech must always be applied in light of the special characteristics
of the school environment.53 Thus, while we upheld the right of the students to free
expression in these cases, we did not rule out disciplinary action by the school for
"conduct by the student, in class or out of it, which for any reason - whether it stems
from time, place, or type of behavior - which materially disrupts classwork or involves
substantial disorder or invasion of the rights of others."54 Thus, in Malabanan, we held:
6. Objection is made by private respondents to the tenor of the speeches by the
student leaders. That there would be a vigorous presentation of view opposed to the
proposed merger of the Institute of Animal Science with the Institute of Agriculture
was to be expected. There was no concealment of the fact that they were against
such a move as it confronted them with a serious problem ("isang malaking
suliranin.") They believed that such a merger would result in the increase in tuition
fees, an additional headache for their parents ("isa na naman sakit sa ulo ng ating
mga magulang.") If in the course of such demonstration, with an enthusiastic
audience goading them on, utterances extremely critical at times, even vitriolic, were
let loose, that is quite understandable. Student leaders are hardly the timid, different
types. They are likely to be assertive and dogmatic. They would be ineffective if
during a rally they speak in the guarded and judicious language of the academe. At
any rate, even a sympathetic audience is not disposed to accord full credence to their
fiery exhortations. They take into account the excitement of the occasion, the
propensity of speakers to exaggerate, the exuberance of youth. They may give the
speakers the benefit of their applause, but with the activity taking place in the school
premises and during the daytime, no clear and present danger of public disorder is
discernible. This is without prejudice to the taking of disciplinary action for conduct,
which, to borrow from Tinker, "materially disrupts classwork or involves substantial
disorder or invasion of the rights of others."55
It is in the light of this standard that we read Section 7 of the Campus Journalism Act.
Provisions of law should be construed in harmony with those of the Constitution; acts
of the legislature should be construed, wherever possible, in a manner that would
avoid their conflicting with the fundamental law.56 A statute should not be given a
broad construction if its validity can be saved by a narrower one. 57 Thus, Section 7
should be read in a manner as not to infringe upon the school's right to discipline its
students. At the same time, however, we should not construe said provision as to
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 article materially disrupt class work or involve
substantial disorder or invasion of the rights of others.
IV.
From the foregoing, the answer to the question of who has jurisdiction over the cases
filed against respondent students becomes self-evident. The power of the school to
investigate is an adjunct of its power to suspend or expel. It is a necessary corollary
to the enforcement of rules and regulations and the maintenance of a safe and
orderly educational environment conducive to learning.58 That power, like the power to
suspend or expel, is an inherent part of the academic freedom of institutions of higher
learning guaranteed by the Constitution. We therefore rule that Miriam College has
the authority to hear and decide the cases filed against respondent
students.1âwphi1.nêt
WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE.
Petitioner Miriam College is ordered to READMIT private respondent Joel Tan whose
suspension has long lapsed.
SO ORDERED.
U.S. Supreme Court Schenck v. United States, 249 U.S. 47 (1919)
Schenck v. United States Nos. 437, 438
Argued January 9, 10, 1919 Decided March 3, 1919
249 U.S. 47
ERROR TO THE DISTRICT COURT OF THE UNITED STATES
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Syllabus
Evidence held sufficient to connect the defendants with the mailing of printed circulars
in pursuance of a conspiracy to obstruct the recruiting and enlistment service,
contrary to the Espionage Act of June 15, 1917. P 249 U. S. 49.
Page 249 U. S. 48
Incriminating document seized under a search warrant directed against a Socialist
headquarters, held admissible in evidence, consistently with the Fourth and Fifth
Amendment, in a criminal prosecution against the general secretary of a Socialist
party, who had charge of the office. P. 249 U. S. 50.
Words which, ordinarily and in many places, would be within the freedom of speech
protected by the First Amendment may become subject to prohibition when of such a
nature and used in such circumstances a to create a clear and present danger that
they will bring about the substantive evils which Congress has a right to prevent. The
character of every act depends upon the circumstances in which it is done. P. 249 U.
S. 51.
A conspiracy to circulate among men called and accepted for military service under
the Selective Service Act of May 18, 1917, a circular tending to influence them to
obstruct the draft, with the intent to effect that result, and followed by the sending of
such circulars, is within the power of Congress to punish, and is punishable under the
Espionage Act, § 4, although unsuccessful. P. 249 U. S. 52.
The word "recruiting," as used in the Espionage Act, § 3, means the gaining of fresh
supplies of men for the military forces, as well by draft a otherwise. P. 249 U. S. 52
The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553,
did not affect the prosecution of offenses under the former. P. 249 U. S. 53.
Affirmed.
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an indictment in three counts. The first charges a conspiracy to violate the
Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and
attempting
Page 249 U. S. 49
to cause insubordination, &c., in the military and naval forces of the United States,
and to obstruct the recruiting and enlistment service of the United States, when the
United States was at war with the German Empire, to-wit, that the defendants willfully
conspired to have printed and circulated to men who had been called and accepted
for military service under the Act of May 18, 1917, a document set forth and alleged to
be calculated to cause such insubordination and obstruction. The count alleges overt
acts in pursuance of the conspiracy, ending in the distribution of the document set
forth. The second count alleges a conspiracy to commit an offence against the United
States, to-wit, to use the mails for the transmission of matter declared to be
nonmailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned
document, with an averment of the same overt acts. The third count charges an
unlawful use of the mails for the transmission of the same matter and otherwise as
above. The defendants were found guilty on all the counts. They set up the First
Amendment to the Constitution forbidding Congress to make any law abridging the
freedom of speech, or of the press, and bringing the case here on that ground have
argued some other points also of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the
defendant Schenck was concerned in sending the documents. According to the
testimony, Schenck said he was general secretary of the Socialist party, and had
charge of the Socialist headquarters from which the documents were sent. He
identified a book found there as the minutes of the Executive Committee of the party.
The book showed a resolution of August 13, 1917, that 15,000 leaflets should be
printed on the other side of one of them in use, to be mailed to men who had passed
exemption boards, and for distribution. Schenck personally attended to the printing.
On
Page 249 U. S. 50
August 20, the general secretary's report said "Obtained new leaflets from printer and
started work addressing envelopes" &c., and there was a resolve that Comrade
Schenck be allowed $125 for sending leaflets through the mail. He said that he had
about fifteen or sixteen thousand printed. There were files of the circular in question in
the inner office which he said were printed on the other side of the one sided circular,
and were there for distribution. Other copies were proved to have been sent through
the mails to drafted men. Without going into confirmatory details that were proved, no
reasonable man could doubt that the defendant Schenck was largely instrumental in
sending the circulars about. As to the defendant Baer, there was evidence that she
was a member of the Executive Board, and that the minutes of its transactions were
hers. The argument as to the sufficiency of the evidence that the defendants
conspired to send the documents only impairs the seriousness of the real defence.
It is objected that the documentary evidence was not admissible because obtained
upon a search warrant, valid so far as appears. The contrary is established. Adams v.
New York, 192 U. S. 585; Weeks v. United States, 232 U. S. 383, 232 U. S. 395, 232
U. S. 396. The search warrant did not issue against the defendant, but against the
Socialist headquarters at 1326 Arch Street, and it would seem that the documents
technically were not even in the defendants' possession. See Johnson v. United
States, 228 U. S. 457. Notwithstanding some protest in argument, the notion that
evidence even directly proceeding from the defendant in a criminal proceeding is
excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United
States, 218 U. S. 245, 218 U. S. 252, 218 U. S. 253.
The document in question, upon its first printed side, recited the first section of the
Thirteenth Amendment, said that the idea embodied in it was violated by the
Conscription Act, and that a conscript is little better than a
Page 249 U. S. 51
convict. In impassioned language, it intimated that conscription was despotism in its
worst form, and a monstrous wrong against humanity in the interest of Wall Street's
chosen few. It said "Do not submit to intimidation," but in form, at least, confined itself
to peaceful measures such as a petition for the repeal of the act. The other and later
printed side of the sheet was headed "Assert Your Rights." It stated reasons for
alleging that anyone violated the Constitution when he refused to recognize "your
right to assert your opposition to the draft," and went on
"If you do not assert and support your rights, you are helping to deny or disparage
rights which it is the solemn duty of all citizens and residents of the United States to
retain."
It described the arguments on the other side as coming from cunning politicians and a
mercenary capitalist press, and even silent consent to the conscription law as helping
to support an infamous conspiracy. It denied the power to send our citizens away to
foreign shores to shoot up the people of other lands, and added that words could not
express the condemnation such cold-blooded ruthlessness deserves, &c., &c.,
winding up, "You must do your share to maintain, support and uphold the rights of the
people of this country." Of course, the document would not have been sent unless it
had been intended to have some effect, and we do not see what effect it could be
expected to have upon persons subject to the draft except to influence them to
obstruct the carrying of it out. The defendants do not deny that the jury might find
against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the
First Amendment to the Constitution. Two of the strongest expressions are said to be
quoted respectively from well known public men. It well may be that the prohibition of
laws abridging the freedom of speech is not confined to previous restraints, although
to prevent them may have been the
Page 249 U. S. 52
main purpose, as intimated in Patterson v. Colorado, 205 U. S. 454, 205 U. S. 462.
We admit that, in many places and in ordinary times, the defendants, in saying all that
was said in the circular, would have been within their constitutional rights. But the
character of every act depends upon the circumstances in which it is done. Aikens v.
Wisconsin, 195 U. S. 194, 195 U. S. 205, 195 U. S. 206. The most stringent
protection of free speech would not protect a man in falsely shouting fire in a theatre
and causing a panic. It does not even protect a man from an injunction against
uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range
Co., 221 U. S. 418, 221 U. S. 439. 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. When a nation is at war,
many things that might be said in time of peace are such a hindrance to its effort that
their utterance will not be endured so long as men fight, and that no Court could
regard them as protected by any constitutional right. It seems to be admitted that, if
an actual obstruction of the recruiting service were proved, liability for words that
produced that effect might be enforced. The statute of 1917, in § 4, punishes
conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or
circulating a paper), its tendency, and the intent with which it is done are the same,
we perceive no ground for saying that success alone warrants making the act a
crime. Goldman v. United States, 245 U. S. 474, 245 U. S. 477. Indeed, that case
might be said to dispose of the present contention if the precedent covers all media
concludendi. But, as the right to free speech was not referred to specially, we have
thought fit to add a few words.
It was not argued that a conspiracy to obstruct the draft was not within the words of
the Act of 1917. The
Page 249 U. S. 53
words are "obstruct the recruiting or enlistment service," and it might be suggested
that they refer only to making it hard to get volunteers. Recruiting heretofore usually
having been accomplished by getting volunteers, the word is apt to call up that
method only in our minds. But recruiting is gaining fresh supplies for the forces, as
well by draft as otherwise. It is put as an alternative to enlistment or voluntary
enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act
of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present
indictment, and would not even if the former act had been repealed. Rev.Stats., § 13.
Judgments affirmed.
G.R. No. L-8974           October 18, 1957
APOLONIO CABANSAG, plaintiff,
vs.
GEMINIANA MARIA FERNANDEZ, ET AL., defendants.
APOLONIO CABANSAG, ROBERTO V. MERRERA and RUFINO V.
MERRERA, respondents-appellants.
Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose G.
Bautista and Solicitor Troadio T. Quiazon, Jr., appellee.
Merrera and Merrera for appellants.
BAUTISTA ANGELO, J.:
This is a contempt proceeding which arose in Civil Case No. 9564 of the Court of First
Instance of Pangasinan wherein Apolonio Cabansag and his lawyers Roberto V.
Merrera were found guilty and sentenced the first to pay a fine of P20 and the last two
P50 each with the warning that a repetition of the of offense will next time be heavily
dealt with.
Apolonio Cabansag filed on January 13, 1947 in the Court of First Instance of
Pangasinan a complaint seeking the ejectment of Geminiana Fernandez, et al. from a
parcel of land. Defendants filed their answer on January 31, 1947 and a motion to
dismiss on February 2, 1947 and a motion of plaintiff's counsel, set the case for
hearing on July 30, 1947. The meeting was postponed to August 8, 1947. On that day
only one witness testified and the case was postponed to August 25, 1947.
Thereafter, three incidents developed, namely: one regarding a claim for damages
which was answered by defendants, another concerning the issuance of a writ of
preliminary injunction which was set for on March 23, 1948, and the third relative to
an alleged contempt for violation of an agreement of the parties approved by the
court. Pleadings were filed by the parties on these incidents and the court set the
case for hearing on October 27, 1948. Hearing was postponed to December 10,
1948. On this date, only part of the evidence was received and the next hearing was
scheduled for January 24,1949 when again only a part of the evidence was received
and the case was continued to October 4, 1949.
On October 4, 1949, the court, presided over by Judge Villamor upon petition of both
parties, ordered the stenographers who took down the notes during the previous
hearings to transcribe them within 15 days upon payment of their fees, and the
hearing was postponed until the transcript of said notes had been submitted.
Notwithstanding the failure of the stenographers to transcribe their notes, the hearing
was set for March 17, 1950. Two more postponements followed for March 23, 1950
and March 27, 1950. On August 9, 1950, August 23, 1950, September 26, 1950 and
November 29, 1950, hearings were had but the case was only partly tried to be
postponed again to January 30, 1951 and February 19, 1951. Partial hearings were
held on February 20, 1951, March 12, 1951 and June 6,1951. These hearings were
followed by three more postponements and on August 15, 1951, the case was
partially heard. After this partial hearing, the trial was continued on March 6, 1952
only to be postponed to May 27, 1952. No hearing took place on said date and the
case was set for continuation on December 9, 1952 when the court, Judge Pasicolan
presiding, issued an order suggesting to the parties to arrange with the stenographers
who took down the notes to transcribe their respective notes and that the case would
be set for hearing after the submission of the transcript. From December 9, 1952 to
August 12, 1954, no further step was taken either by the court or any of the
contending parties in the case. .
On December 30, 1953, President Magsaysay assumed office, he issued Executive
Order No. I creating the Presidential Complaints and Action Commission (PCAC),
which was later superseded by Executive Order 19 promulgated on March 17, 1954.
And on August 12, 1954 Apolonio Cabansag, apparently irked and disappointed by
the delay in the disposition of his case, wrote the PCAC, a letter copy which he
furnished the Secretary of Justice and the Executive Judge of the Court of First
Instance of Pangasinan, which reads:
We, poor people of the Philippines are very grateful for the creation of your Office.
Unlike in the old days, poor people are not heard, but now the PCAC is the sword of
Damocles ready to smite bureaucratic aristocracy. Poor people can now rely on
PCAC to help them.
Undaunted, the undersigned begs to request the help of the PCAC in the interest of
public service, as President Magsaysay has in mind to create the said PACC, to have
his old case stated above be terminated once and for all. The undersigned has long
since been deprived of his land thru the careful maneuvers of a tactical lawyer. The
said case which had long been pending could not be decided due to the fact that the
transcript of the records has not, as yet, been transcribed by the stenographers who
took the stenographic notes. The new Judges could not proceed to hear the case
before the transcription of the said notes. The stenographers who took the notes are
now assigned in another courts. It seems that the undersigned will be deprived
indefinitely of his right of possession over the land he owns. He has no other recourse
than to ask the help of the ever willing PCAC to help him solve his predicament at an
early date.
Now then, Mr. Chief, the undersigned relies on you to do your utmost best to bring
justice to its final destination. My confidence reposes in you. Thanks.
Most confidently yours,
(Sgd.) APOLONIO CABANSAG
                     Plaintiff
Upon the receipt of the letter, the Secretary of Justice indorsed it to the Clerk of Court
of First Instance of Pangasinan instructing him to require the stenographers
concerned to transcribe their notes in Civil Case No. 9564. The clerk of court, upon
receipt of this instruction on August 27, 1954, referred the matter to Judge Jesus P.
Morfe before whom the case was then informing him that the two stenographers
concerned, Miss Iluminada Abello and Juan Gaspar, have already been assigned
elsewhere. On the same date, Judge Morfe wrote the Secretary of Justice informing
him that under provisions of Act No. 2383 and Section 12 of Rule 41 of the Rules of
Court, said stenographers are not obliged to transcribe their notes except in cases of
appeal and that since the parties are not poor litigants, they are not entitled to
transcription free of charge, aside from the fact that said stenographers were no
longer under his jurisdiction.
Meanwhile, on September 1, 1954, Atty. Manuel Fernandez, counsel for defendants,
filed a motion before Judge Morfe praying that Apolonio Cabansag be declared in
contempt of court for an alleged scurrilous remark he made in his letter to the PCAC
to the effect that he, Cabansag, has long been deprived of his land "thru the careful
maneuvers of a tactical lawyer", to which counsel for Cabansag replied with a
counter-charge praying that Atty. Fernandez be in turn declared in contempt because
of certain contemptuous remarks made by him in his pleading. Acting on these
charges and counter- charges, on September 14, 1954, Judge Morfe dismissed both
charges but ordered Cabansag to show cause in writing within 10 days why he should
not be held liable for contempt for sending the above letter to the PCAC which tended
to degrade the court in the eyes of the President and the people. Cabansag filed his
answer stating that he did not have the idea to besmirch the dignity or belittle the
respect due the court nor was he actuated with malice when he addressed the letter
to the PCAC; that there is no single contemptuous word in said letter nor was it
intended to give the Chief Executive a wrong impression or opinion of the court; and
that if there was any inefficiency in the disposal of his case, the same was committed
by the judges who previously intervened in the case.
In connection with this answer, the lawyers of Cabansag, Roberto V. Merrera and
Rufino V. Merrera' also submitted a written manifestation stating that the sending of
the letter to their client to the PCAC was through their knowledge and consent
because they believed that there was nothing wrong in doing so. And it appearing that
said attorneys had a hand in the writing and remittance of the letter to the PCAC,
Judge Morfe on, on September 29, 1954, issued another order requiring also said
attorneys to show cause why they should not likewise be held for contempt for having
committed acts which tend to impede, obstruct or degrade the administration of
justice.
Anent the charge for contempt preferred by Judge Morfe against Apolonio Cabansag,
several incidents took place touching on the right of the Special Counsel of the
Department of Justice to appear as counsel for Cabansag, which were however
settled when the court allowed said Special Counsel to appear as amicus curiae in his
official capacity. In addition to this Special Counsel, other members of the local bar
were likewise allowed to appear for respondents in view of the importance of the
issues involved. After due hearing, where the counsel of respondents were allowed to
argue and submit memoranda, the decision finding respondents guilty of contempt
and sentencing them to pay a fine as stated in the early part of this decision.
Respondents in due time appealed to this Court.
The issues involved in this appeal appear well stated in the decision of the trial Court.
They are: (a) Did the writing in the letter in question to the PCAC tend directly or
indirectly to put the lower court into disrepute or belittle, degrade or embarrass it in its
administration of justice?; and (b) Did writing of said letter tend to draw the
intervention of the PCAC in the instant case which will have the effect of undermining
the court's judicial independence?
We agree that the trial court that courts have the power to preserve their integrity and
maintain their dignity without which their administration of justice is bound to falter or
fail (Villavicencio vs. Lukban, 39 Phil., 778; Borromeo vs. Mariano, 41 Phil., 322). This
is the preservative power to punish for contempt (Rule 64, Rules of Court;
Villavicencio vs. Lukban, supra). This power is inherent in all courts and essential to
their right of self-preservation (Slade Perkins vs. Director of Prisons, 58 Phil., 271). In
order that it may conduct its business unhampered by publications which tends to
impair the impartiality of its decisions or otherwise obstruct the administration of
justice, the court will not hesitate to exercise it regardless of who is affected. For, "as
important as is the maintenance of unmuzzled press and the free exercise of the
rights of the citizen is the maintenance of the independence of the judiciary" (In re
Lozano and Quevedo, 54 Phil., 801).The reason for this is that respect of the courts
guarantees the stability of their institution. Without such said institution would be
resting on a very shaky foundation (Salcedo vs. Hernandez, 61 Phil., 724).
The question that now arises is: Has the lower court legitimately and justifiably
exercised this power in the instant case?
The lower court tells us that it has because in its opinion the act of respondents to put
it belittle or degrade or embarrass it in its administration of justice, and so it punished
them for contempt to protect its judicial independence. But appellants believe
otherwise, for they contend that in sending the letter in question to the PCAC, they did
nothing but to exercise their right to petition the government for redress of their
grievance as guaranteed by our constitution (section 1, paragraph 8, Article III).
The very idea of a government, republican in form, implies a right on the part of its
citizens to meet peaceably for consultation in respect affairs and to petition for a
redress of grievances." The First Amendments of the Federal expressly guarantees
that right against abridgement by Congress. But mention does not argue exclusion
elsewhere. For the right is one that cannot be denied without violating those
fundamental principles of liberty and justice which lie at the base of all civil and
political institutions,- principles which the Fourteenth Amendment embodies in the
general terms of its due process clause. (Emerson and Haber, Political and Civil
Rights in the United States, p. 419.).
We are therefore confronted with a clash of two fundamental rights which lie at the
bottom of our democratic institutions-the independence of the judiciary the right to
petition the government for redress of grievance. How to balance and reconcile the
exercise of these rights is the problem posed in the case before us.
. . . A free press is not to be judiciary, nor an independent judiciary to a free press.
Neither has primacy over the other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary through
which that freedom may, if necessary, be vindicated. And one of the potent means of
assuring judges their independence is a free press. (Justice Frankfurter, concurring in
Pennekamp vs. Florida, 328 U.S. 354-356)
Two theoretical formulas had been devised in the determination of conflicting rights of
similar import in an attempt to draw the proper constitutional boundary between
freedom of expression and independence of the judiciary. These are the "clear and
present danger" rule and the "dangerous tendency" rule. The first as interpreted in a
number of cases, means that the evil consequence of the comment or utterance must
be "extremely serious and the degree of imminence extremely high" before the
utterance can be punished. The danger to be guarded against is the "substantive evil"
sought to be prevented. And this evil is primarily the "disorderly and unfair
administration of justice." This test establishes a definite rule in constitutional law. It
provides the criterion as to what words maybe published. Under this rule, the
advocacy of ideas cannot constitutionally be abridged unless there is a clear and
present danger that such advocacy will harm the administration of justice.
This rule had its origin in Schenck vs. U. S. (249) U. S. 47), promulgated in 1919, and
ever since it has afforded a practical guidance in a great variety of cases in which the
scope of the constitutional protection of freedom of expression was put in issue. 1 In
one of said cases, the United States Supreme Court has made the significant
suggestion that this rule "is an appropriate guide in determining the constitutionality of
restriction upon expression where the substantial evil sought to be prevented by the
restriction is destruction of life or property or invasion of the right of privacy" Thornhill
vs. Alabama, 310 U.S. 88).
Thus, speaking of the extent and scope of the application of this rule, the Supreme
Court of the United States said "Clear and present danger of substantive evils as a
result of indiscriminate publications regarding judicial proceedings justifies an
impairment of the constitutional right of freedom of speech and press only if the evils
are extremely serious and the degree of imminence extremely high. . . . A public
utterance or publication is not to be denied the constitutional protection of freedom of
speech and press merely because it concerns a judicial proceeding still pending in
the courts, upon the theory that in such a case it must necessarily tend to obstruct the
orderly and fair administration of justice. The possibility of engendering disrespect for
the judiciary as a result of the published criticism of a judge is not such a substantive
evil as will justify impairment of the constitutional right of freedom of speech and
press." (Bridges vs. California, 314 U.S. 252, syllabi)
No less important is the ruling on the power of the court to punish for contempt in
relation to the freedom of speech and press. We quote; "Freedom of speech and
press should not be impaired through the exercise of the punish for contempt of court
unless there is no doubt that the utterances in question are a serious and imminent
threat to the administration of justice. A judge may hold in contempt one who ventures
to publish anything that tends to make him unpopular or to belittle him. . . . The
vehemence of the language used in newspaper publications concerning a judge's
decision is not alone the measure of the power to punish for contempt. The fires
which it kindles must constitute an imminent not merely a likely, threat to the
administration of justice. (Craig vs. Harney, 331 U. S. 367, syllabi)
And in weighing the danger of possible interference with the courts by newspaper
criticism against the right of free speech to determine whether such criticism may
constitutionally be punished as contempt, it was ruled that "freedom of public
comment should in borderline instances weigh heavily against a possible tendency to
influence pending cases." (Pennekamp vs. Florida, 328 U. S. 331).
The question in every case, according to Justice Holmes, 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 (Schenck vs. U. S., supra).
The "dangerous tendency" rule, on the other hand, has been adopted in cases where
extreme difficulty is confronted determining where the freedom of expression ends
and the right of courts to protect their independence begins. There must be a remedy
to borderline cases and the basic principle of this rule lies in that the freedom of
speech and of the press, as well as the right to petition for redress of grievance, while
guaranteed by the constitution, are not absolute. They are subject to restrictions and
limitations, one of them being the protection of the courts against contempt (Gilbert
vs. Minnesota, 254 U. S. 325.)
This rule may be epitomized as follows: If the words uttered create a dangerous
tendency which the state has a right to prevent, then such words are punishable. It is
not necessary that some definite or immediate acts of force, violence, or unlawfulness
be advocated. It is sufficient that such acts be advocated in general terms. Nor is it
necessary that the language used be reasonably calculated to incite persons to acts
of force, violence or unlawfulness. It is sufficient if the natural tendency and probable
effect of the utterance be to bring about the substantive evil the utterance be to bring
about the substantive evil which the legislative body seeks to prevent. (Gitlow vs.
New York, 268 U.S. 652.).
It is a fundamental principle, long established, that the freedom of speech and of the
press which is secured by the Constitution does not confer an absolute right to speak
or publish, without responsibility, whatever one may choose, or an unrestricted and
unbridled license that gives immunity for every possible use of language, and
prevents the punishment of those who abuse this freedom. . . . Reasonably limited, it
was said by story in the passage cited this freedom is an inestimable privilege in a
free government; without such limitation, it might become the scourge of the Republic.
xxx           xxx           xxx
And, for yet more imperative reasons, a state may punish utterances endangering the
foundations of organized government and threatening its overthrow by unlawful
means. These imperil its own existence as a constitutional state. . . .
xxx           xxx           xxx
. . . And the immediate danger is none the less real and substantial because the
effect of a given utterance cannot be accurately foreseen. The state cannot
reasonably be required to measure the danger from every such utterance in the nice
balance of a jeweler's scale. A single revolutionary spark, may kindle a fire that,
smoldering for a time, may burst into a sweeping and destructive conflagration. It
cannot be said that the state is acting arbitrarily or unreasonably when, in the
exercise of its judgment as to the measures necessary to protect the public peace
and safety it seeks to extinguish the spark without waiting until it has enkindled the
flame or blazed into the conflagration. It cannot reasonably be required to defer the
adoption of measures for its own peace and safety until the revolutionary utterances
lead to actual disturbances of the public peace or imminent and immediate danger of
its own destruction; but it may, in the exercise of its judgment, suppress the
threatened danger in its incipiency. In People vs. Lloyd, supra, p. 35 (136 N. E. 505),
it was aptly said: Manifestly, the legislature has authority to forbid the advocacy of a
doctrine until there is a present and imminent danger of the success of the plan
advocated. If the state were compelled to wait until the apprehended danger became
certain, than its right to protect itself would come into being simultaneously with the
overthrow of the government, when there would be neither prosecuting officers nor
courts for the enforcement of the law." Gitlow va. New York, supra.)
The question then to be determined is: Has the letter of Cabansag created a sufficient
danger to a fair administration of justice? Did its remittance to the PCAC create a
danger sufficiently imminent to come under the two rules mentioned above?
Even if we make a careful analysis of the letter sent by appellant Cabansag to the
PCAC which has given rise to the present contempt proceedings, we would at once
see that it was far from his mind to put the court in ridicule and much less to belittle or
degrade it in the eyes of those to whom the letter was addressed for, undoubtedly, he
was compelled to act the way he did simply because he saw no other way of
obtaining the early termination of his case. This is clearly inferable from its context
wherein, in respectful and courteous language, Cabansag gave vent to his feeling
when he said that he "has long since been deprived of his land thru the careful
maneuvers of a tactical lawyer"; that the case which had long been pending could not
be decided due to the fact that the transcript of the records has not as yet, been
transcribed by the stenographer who took the stenographic notes", and that the new
Judges could not proceed to hear the case before the transcription of the said notes."
Analyzing said utterances, one would see that if they ever criticize, "the criticism
refers, not to the court, but to opposing counsel whose tactical maneuvers" has
allegedly caused the undue delay of the case. The grievance or complaint, if any, is
addressed to the stenographers for their apparent indifference in transcribing their
notes.
The only disturbing effect of the letter which perhaps has been the motivating factor of
the lodging of the contempt charge by the trial judge is the fact that the letter was sent
to the Office of the President asking for help because of the precarious predicament
of Cabansag. While the course of action he had taken may not be a wise one for it
would have been proper had he addressed his letter to the Secretary of Justice or to
the Supreme Court, such act alone would not be contemptuous. To be so the danger
must cause a serious imminent threat to the administration of justice. Nor can we infer
that such act has "a dangerous tendency" to belittle the court or undermine the
administration of justice for the writer merely exercised his constitutional right to
petition the government for redress of a legitimate grievance.
The fact is that even the trial court itself has at the beginning entertained such
impression when it found that the criticism was directed not against the court but
against the counsel of the opposite party, and that only on second thought did it
change its mind when it developed that the act of Cabansag was prompted by the
advice of his lawyers. Nor can it be contended that the latter is groundless or one
motivated by malice. The circumstances borne by the record which preceded the
sending of that letter show that there was an apparent cause for grievance.
Thus, the record shows that on January 13, 1947, or more than 8 years ago,
appellant Cabansag filed with the lower court a complaint against Geminiana
Fernandez, et al. seeking to eject them from a portion of land covered by a torrens
title. On October 4, 1949, or two years thereafter, the court, Judge Villamor presiding,
issued an order requiring the stenographers who took down the notes to transcribe
them within 15 days upon payment of their corresponding fees. On December 9,
1952, or almost 3 years thereafter, the court, Judge Pasicolan presiding, issued a
similar order requiring the stenographers to transcribe their notes and decreeing that
the case be set for hearing after said notes had been transcribed. No further step was
taken from his last date either by the by the court or by the opposing parties.
Meanwhile, the stenographers were given assignment elsewhere, and when this
matter brought to the attention of the court by its own clerk of court, said court in an
indorsement sent to the Secretary of Justice expressed its inability to take action in
view of the fact that the stenographers were no longer under its jurisdiction. And in
said indorsement nothing was said about its readiness to continue the trial even in the
absence of the transcript of the notes.
Under such a state of affairs, appellant Cabansag cannot certainly be blamed for
entertaining the belief that the only way by which he could obtain redress of his
grievance is to address his letter to the PCAC which after all is the office created by
the late President to receive and hear all complaints against officials and employees
of the government to facilitate which the assistance and cooperation of all the
executive departments were enjoined (Executive Order No. 1, as amended by
Executive Order No. 19). And one of the departments that come under the control of
the President is the Department of Justice which under the law has administrative
supervision over courts of first instance.(Section 83, Revised Administrative Code)
The PCAC is part of the Office of the President. It can, therefore, be said that the
letter of Cabansag though sent to the PCAC is intended for the Department of Justice
where it properly belongs. Consequently, the sending of that letter may be considered
as one sent to the Department of Justice and as such cannot constitute undue
publication that would place him beyond the mantle of protection of our constitution.
. . . under the presidential type of government which we adopted and considering the
departmental organization established and continued in force by paragraph, section
12, Article VII, of our Constitution, all executive and administrative organizations are
adjuncts of the Executive Department, the heads of the executive departments are
assistants and agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or the law to act in person or the exigencies
of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the
executive departments, and the acts of the secretaries of such departments,
performed and promulgated in the regular course of business, are unless disapproved
or reprobated by the Chief Executive presumptively the acts of the Chief Executive.
(Villena vs. The Secretary of the Interior, 67 Phil., 451, 463.)
We would only add one word in connection with the participation in the incident of
Cabansag's co-appellants, Attys. Roberto V. Merrera and Rufino V. Merrera. While
the conduct of Cabansag may be justified considering that, being a layman, he is
unaware of the technical rules of law and procedure which may place him under the
protective mantle of our constitution, such does not obtain with regard to his co-
appellants. Being learned in the law and officers of the court, they should have acted
with more care and circumspection in advising their client to avoid undue
embarrassment to the court or unnecessary interference with the normal course of its
proceedings. Their duty as lawyers is always to observe utmost respect to the court
and defend it against unjust criticism and clamor. Had they observed a more judicious
behavior, they would have avoided the unpleasant incident that had arisen. However,
the record is bereft of any proof showing improper motive on their part, much less bad
faith in their actuation. But they should be warned, as we now do, that a commission
of a similar misstep in the future would render them amenable to a more severe
disciplinary action.
Wherefore, the decision appealed from is reversed, without pronouncement as to
costs.
U.S. Supreme Court American Communications Assn. v. Douds, 339 U.S. 382
(1950)
American Communications Assn. v. Douds No. 10
Argued October 10-11, 1949 Decided May 8, 1950*
339 U.S. 382
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Syllabus
Section 9(h) of the National Labor Relations Act, as amended by the Labor
Management Relations Act, 1947, which imposes certain restrictions on, and denies
the benefits of certain provisions of the National Labor Relations Act to, any labor
organization the officers of which have not filed with the National Labor Relations
Board the so-called "non-Commmist" affidavits prescribed by § 9(h), is valid under the
Federal Constitution. Pp. 339 U. S. 385-415.
1. One of the purposes of the Labor Management Relations Act was to remove the
obstructions to the free flow of commerce resulting from "political strikes" instigated
by Communists who had infiltrated the management of labor organizations and were
subordinating legitimate trade union objectives to obstructive strikes when dictated by
Communist Party leaders, often in support of the policies of a foreign government.
Pp. 339 U. S. 387-389.
2. Section 9(h) does not merely withhold from noncomplying unions benefits granted
by the Government; it also imposes on them a number of restrictions which would not
exist if the National Labor Relations Act had not been enacted. However, it does not
prohibit persons who do not sign the prescribed affidavit from holding union office.
Pp. 339 U. S. 389-390.
3. The remedy provided by § 9(h) bears reasonable relation to the evil which it was
designed to reach, since Congress might reasonably find that Communists, unlike
members of other political parties, and persons who believe in the overthrow of the
Government by force, unlike persons of other beliefs, represent a continuing danger
of disruptive political strikes when they hold positions of union leadership. Pp. 339 U.
S. 390-393.
Page 339 U. S. 383
4. Section 9(h) is designed to protect the public not against what Communists and
others identified therein advocate or believe, but against what Congress has
concluded they have done and are likely to do again, and the probable effects of the
statute upon the free exercise of the right of speech and assembly must be weighed
against the congressional determination that political strikes are evils of conduct
which cause substantial harm to interstate commerce, and that Communists and
others identified by § 9(h) pose continuing threats to that public interest when in
positions of union leadership. Pp. 339 U. S. 393-400.
5. In view of the complexity of the problem of political strikes and how to deal with
their leaders, the public interest in the good faith exercise of the great powers
entrusted by Congress to labor bargaining representatives under the National Labor
Relations Act, the fact that § 9(h) touches only a relatively few persons who combine
certain political affiliations or beliefs with the occupancy of positions of great power
over the economy of the country, and the fact that injury to interstate commerce
would be an accomplished fact before any sanctions could be applied, the legislative
judgment that interstate commerce must be protected from a continuing threat of
political strikes is a permissible one in this case. Pp. 339 U. S. 400-406.
6. The belief identified in § 9(h) is a belief in the objective of overthrow by force or by
any illegal or unconstitutional methods of the Government of the United States as it
now exists under the Constitution and laws thereof. The sole effect of the statute
upon one who holds such beliefs is that he may be forced to relinquish his position as
a union leader. So construed, in the light of the circumstances surrounding the
problem, § 9(h) does not unduly infringe freedoms protected by the First Amendment.
Pp. 339 U. S. 406-412.
7. Section 9(h) is not unconstitutionally vague; it does not violate the prohibition of
Article I, § 9 of the Constitution against bills of attainder or ex post facto laws, and it
does not require a "test oath" contrary to the provision of Article VI that "no religious
Test shall ever be required as a Qualification to any Office or public Trust under the
United States." Pp. 339 U. S. 412-415.
79 F.Supp. 563, 170 F.2d 247, affirmed.
No. 10. Although the officers of appellant union had not filed with the National Labor
Relations Board the affidavit prescribed by § 9(h) of the National Labor
Page 339 U. S. 384
Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat.
136, 146, 29 U.S.C. (Supp. III) §§ 141, 159(h), appellant, claiming hat the section was
unconstitutional, sued to restrain the Board from holding a representation election in a
bargaining unit in which appellant was the employee representative, until a hearing
was granted to appellant. The three-judge district court dismissed the complaint. 79
F.Supp. 563. On appeal to this Court, affirmed, p. 339 U. S. 415.
No. 13. On an unfair labor practice complaint filed with the National Labor Relations
Board by petitioner unions, the Board found that the employer had violated the
National Labor Relations Act in refusing to bargain on the subject of pensions; but the
Board postponed the effective date of its order compelling the employer to bargain,
pending the unions' compliance with § 9(h). 77 N.L.R.B. 1. The Court of Appeals
sustained the Board's action on both counts. 170 F.2d 247. This Court denied
certiorari on the pension issue, 336 U.S. 960, but granted certiorari on an issue
regarding the constitutionality of § 9(h). 335 U.S. 910. Affirmed, p. 339 U. S. 415.
Page 339 U. S. 385
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
These cases present for decision the constitutionality of § 9(h) of the National Labor
Relations Act, as amended by the Labor Management Relations Act, 1947. [Footnote
1] This section, commonly referred to as the non-Communist affidavit provision, reads
as follows:
"No investigation shall be made by the [National Labor Relations] Board of any
question affecting commerce concerning the representation of employees, raised by a
labor organization under subsection (c) of this section, no petition under section 9(e)
(1) shall be entertained, and no complaint shall be issued pursuant to a charge made
by a labor organization under subsection (b) of section 10, unless there is on file with
the Board an affidavit executed contemporaneously or within the preceding twelve-
month period by each officer of such labor organization and the officers of any
national or international labor organization of which it is an affiliate or
Page 339 U. S. 386
constituent unit that he is not a member of the Communist Party or affiliated with such
party, and that he does not believe in, and is not a member of or supports any
organization that believes in or teaches, the overthrow of the United States
Government by force or by any illegal or unconstitutional methods. The provisions of
section 35 A of the Criminal Code shall be applicable in respect to such affidavits."
In No. 10, the constitutional issue was raised by a suit to restrain the Board from
holding a representation election in a bargaining unit in which appellant union was the
employee representative, without permitting its name to appear on the ballot, and,
should the election be held, to restrain the Board from announcing the results or
certifying the victor, until a hearing was granted to appellant. A hearing had been
denied because of the noncompliance with § 9(h). The complaint alleged that this
requirement was unconstitutional. Appellee's motion to dismiss the complaint was
granted by the statutory three-judge court, 79 F.Supp. 563 (1948), with one judge
dissenting. Since the constitutional issues were properly raised and substantial, we
noted probable jurisdiction.
No. 13 is the outcome of an unfair labor practice complaint filed with the Board by
petitioner unions. The Board found that Inland Steel Company had violated the Labor
Relations Act in refusing to bargain on the subject of pensions. 77 N.L.R.B. 1 (1948).
But the Board postponed the effective date of its order compelling the company to
bargain, pending the unions' compliance with § 9(h). Both sides appealed: the
company urged that the Act had been misinterpreted; the unions contended that §
9(h) was unconstitutional, and therefore an invalid condition of a Board order. When
the court below upheld the Board on both counts, 170 F.2d 247 (1948), with one
judge dissenting as to § 9(h), both sides filed petitions for certiorari. We denied the
petition pertain
Page 339 U. S. 387
ing to the pension issue, 336 U.S. 960 (1949), but granted the petition directed at the
affidavit requirement, 335 U.S. 910 (1949), because of the manifest importance of the
constitutional issues involved.
The constitutional justification for the National Labor Relations Act was the power of
Congress to protect interstate commerce by removing obstructions to the free flow of
commerce. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.
S. 1 (1937). That Act was designed to remove obstructions caused by strikes and
other forms of industrial unrest, which Congress found were attributable to the
inequality of bargaining power between unorganized employees and their employers.
It did so by strengthening employee groups, by restraining certain employer practices,
and by encouraging the processes of collective bargaining.
When the Labor Management Relations Act was passed twelve years later, it was the
view of Congress that additional impediments to the free flow of commerce made
amendment of the original Act desirable. It was stated in the findings and declaration
of policy that:
"Experience has further demonstrated that certain practices by some labor
organizations, their officers, and members have the intent or the necessary effect of
burdening or obstructing commerce by preventing the free flow of goods in such
commerce through strikes and other forms of industrial unrest or through concerted
activities which impair the interest of the public in the free flow of such commerce.
The elimination of such practices is a necessary condition to the assurance of the
rights herein guaranteed. [Footnote 2] "
Page 339 U. S. 388
One such obstruction, which it was the purpose of § 9(h) of the Act to remove, was
the so-called "political strike." Substantial amounts of evidence were presented to
various committees of Congress, including the committees immediately concerned
with labor legislation, that Communist leaders of labor unions had in the past, and
would continue in the future, to subordinate legitimate trade union objectives to
obstructive strikes when dictated by Party leaders, often in support of the policies of a
foreign government. And other evidence supports the view that some union leaders
who hold to a belief in violent overthrow of the Government for reasons other than
loyalty to the Communist Party likewise regard strikes and other forms of direct action
designed to serve ultimate revolutionary goals as the primary objectives of labor
unions which they control. [Footnote 3] At the committee hearings, the incident most
fully developed was a strike at the Milwaukee plant of the Allis-Chalmers
Manufacturing Company in 1941, when that plant was producing vital materials for
the national defense program. A full hearing was given not only to company officials,
but also to leaders of the international and local unions involved. Congress heard
testimony that the strike had been called solely in obedience to Party orders for the
purpose of starting the "snowballing of strikes" in defense plants. [Footnote 4]
No useful purpose would be served by setting out at length the evidence before
Congress relating to the problem
Page 339 U. S. 389
of political strikes, nor can we attempt to assess the validity of each item of evidence.
It is sufficient to say that Congress had a great mass of material before it which
tended to show that Communists and others proscribed by the statute had infiltrated
union organizations not to support and further trade union objectives, including the
advocacy of change by democratic methods, but to make them a device by which
commerce and industry might be disrupted when the dictates of political policy
required such action.
II
The unions contend that the necessary effect of § 9(h) is to make it impossible for
persons who cannot sign the oath to be officers of labor unions. They urge that such
a statute violates fundamental rights guaranteed by the First Amendment: the right of
union officers to hold what political views they choose and to associate with what
political groups they will, and the right of unions to choose their officers without
interference from government. [Footnote 5] The Board has argued, on the other hand,
that § 9(h) presents no First Amendment problem, because its sole sanction is the
withdrawal from noncomplying unions of the "privilege" of using its facilities.
Neither contention states the problem with complete accuracy. It cannot be denied
that the practical effect of denial of access to the Board and the denial of a place on
the ballot in representation proceedings is not merely to withhold benefits granted by
the Government, but to impose upon noncomplying unions a number of restrictions
which would not exist if the Board had not been
Page 339 U. S. 390
established. [Footnote 6] The statute does not, however, specifically forbid persons
who do not sign the affidavit from holding positions of union leadership, nor require
their discharge from office. The fact is that § 9(h) may well make it difficult for unions
to remain effective if their officers do not sign the affidavits. How difficult depends
upon the circumstances of the industry, the strength of the union and its
organizational discipline. We are, therefore, neither free to treat § 9(h) as if it merely
withdraws a privilege gratuitously granted by the Government, nor able to consider it
a licensing statute prohibiting those persons who do not sign the affidavit from holding
union office. The practicalities of the situation place the proscriptions of § 9(h)
somewhere between those two extremes. The difficult question that emerges is
whether, consistently with the First Amendment, Congress, by statute, may exert
these pressures upon labor unions to deny positions of leadership to certain persons
who are identified by particular beliefs and political affiliations.
III
There can be no doubt that Congress may, under its constitutional power to regulate
commerce among the several States, attempt to prevent political strikes and other
kinds of direct action designed to burden and interrupt the free flow of commerce. We
think it is clear, in addition, that the remedy provided by § 9(h) bears reasonable
Page 339 U. S. 391
relation to the evil which the statute was designed to reach. Congress could rationally
find that the Communist Party is not like other political parties in its utilization of
positions of union leadership as means by which to bring about strikes and other
obstructions of commerce for purposes of political advantage, and that many persons
who believe in overthrow of the Government by force and violence are also likely to
resort to such tactics when, as officers, they formulate union policy.
The fact that the statute identifies persons by their political affiliations and beliefs,
which are circumstances ordinarily irrelevant to permissible subjects of government
action, does not lead to the conclusion that such circumstances are never relevant. In
re Summers, 325 U. S. 561 (1945); Hamilton v. Regents, 293 U. S. 245 (1934). We
have held that aliens may be barred from certain occupations because of a
reasonable relation between that classification and the apprehended evil, Clarke v.
Deckebach, 274 U. S. 392 (1927); Pearl Assurance Co. v. Harrington, 313 U.S. 549
(1941), even though the Constitution forbids arbitrary banning of aliens from the
pursuit of lawful occupations. Truax v. Raich, 239 U. S. 33 (1915); Takahashi v. Fish
and Game Commission, 334 U. S. 410 (1948). Even distinctions based solely on
ancestry, which we declared "are, by their very nature, odious to a free people," have
been upheld under the unusual circumstances of wartime. Hirabayashi v. United
States, 320 U. S. 81 (1943). [Footnote 7] If accidents of birth and ancestry under
some circumstances justify an inference concerning future conduct, it can hardly be
doubted that voluntary affiliations and beliefs justify a similar inference when drawn by
the legislature on the basis of its investigations.
Page 339 U. S. 392
This principle may be illustrated by reference to statutes denying positions of public
importance to groups of persons identified by their business affiliations. One federal
statute, [Footnote 8] for example, provides that no partner or employee of a firm
primarily engaged in underwriting securities may be a director of a national bank. This
Court noted that the statute is directed
"to the probability or likelihood, based on the experience of the 1920's, that a bank
director interested in the underwriting business may use his influence in the bank to
involve it or its customers in securities which his underwriting house has in its portfolio
or has committed itself to take."
Board of Governors v. Agnew, 329 U. S. 441, 329 U. S. 447 (1947). It was designed
"to remove tempting opportunities from the management and personnel of member
banks." Id. at p. 329 U. S. 449. There was no showing, nor was one required, that all
employees of underwriting firms would engage in such conduct. Because of their
business connections, carrying as they do certain loyalties, interests and disciplines,
those persons were thought to pose a continuing threat of participation in the harmful
activities described above. Political affiliations of the kind here involved, no less than
business affiliations, provide rational ground for the legislative judgment that those
persons proscribed by § 9(h) would be subject to "tempting opportunities" to commit
acts deemed harmful to the national economy. In this respect, § 9(h) is not unlike a
host of other statutes which prohibit specified groups of persons from holding
positions of power and public interest because, in the legislative judgment, they
threaten to abuse the trust that is a necessary concomitant of the power of office.
If no more were involved than possible loss of position, the foregoing would dispose
of the case. But the more
Page 339 U. S. 393
difficult problem here arises because, in drawing lines on the basis of beliefs and
political affiliations, though it may be granted that the proscriptions of the statute bear
a reasonable relation to the apprehended evil, Congress has undeniably discouraged
the lawful exercise of political freedoms as well. Stated otherwise, the problem is this:
Communists, we may assume, carry on legitimate political activities. Beliefs are
inviolate. Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303 (1940). Congress
might reasonably find, however, that Communists, unlike members of other political
parties, and persons who believe in overthrow of the Government by force, unlike
persons of other beliefs, represent a continuing danger of disruptive political strikes
when they hold positions of union leadership. By exerting pressures on unions to
deny office to Communists and others identified therein, § 9(h) undoubtedly lessens
the threat to interstate commerce, but it has the further necessary effect of
discouraging the exercise of political rights protected by the First Amendment. Men
who hold union offices often have little choice but to renounce Communism or give up
their offices. Unions which wish to do so are discouraged from electing Communists
to office. To the grave and difficult problem thus presented, we must now turn our
attention.
IV
The unions contend that, once it is determined that this is a free speech case, the
"clear and present danger" test must apply. See Schenck v. United States, 249 U. S.
47 (1919). But they disagree as to how it should be applied. Appellant in No. 10 would
require that joining the Communist Party or the expression of belief in overthrow of
the Government by force be shown to be a clear and present danger of some
substantive evil, since those are the doctrines affected by the statute. Petitioner
Page 339 U. S. 394
in No. 13, on the other hand, would require a showing that political strikes, the
substantive evil involved, are a clear and present danger to the security of the Nation
or threaten widespread industrial unrest.
This confusion suggests that the attempt to apply the term, "clear and present
danger," as a mechanical test in every case touching First Amendment freedoms,
without regard to the context of its application, mistakes the form in which an idea
was cast for the substance of the idea. The provisions of the Constitution, said Mr.
Justice Holmes,
"are not mathematical formulas having their essence in their form; they are organic
living institutions transplanted from English soil. Their significance is vital not formal; it
is to be gathered not simply by taking the words and a dictionary, but by considering
their origin and the line of their growth."
Gompers v. United States, 233 U. S. 604, 233 U. S. 610 (1914). Still less should this
Court's interpretations of the Constitution be reduced to the status of mathematical
formulas. It is the considerations that gave birth to the phrase, "clear and present
danger," not the phrase itself, that are vital in our decision of questions involving
liberties protected by the First Amendment.
Although the First Amendment provides that Congress shall make no law abridging
the freedom of speech, press or assembly, it has long been established that those
freedoms themselves are dependent upon the power of constitutional government to
survive. If it is to survive it must have power to protect itself against unlawful conduct
and, under some circumstances, against incitements to commit unlawful acts.
Freedom of speech thus does not comprehend the right to speak on any subject at
any time. The important question that came to this Court immediately after the First
World War was not whether, but how far, the First Amendment permits the
suppression of speech which advocates conduct inimical
Page 339 U. S. 395
to the public welfare. [Footnote 9] Some thought speech having a reasonable
tendency to lead to such conduct might be punished. Justices Holmes and Brandeis
took a different view. They thought that the greater danger to a democracy lies in the
suppression of public discussion; that ideas and doctrines thought harmful or
dangerous are best fought with words. Only, therefore, when force is very likely to
follow an utterance before there is a chance for counter-argument to have effect may
that utterance be punished or prevented. [Footnote 10] Thus,
"the necessity which is essential to a valid restriction does not exist unless speech
would produce, or is intended to produce, a clear and imminent danger of some
substantive evil which the State [or Congress] constitutionally may seek to prevent. . .
."
Mr. Justice Brandeis, concurring in Whitney v. California, 274 U. S. 357, 274 U. S.
373. By this means, they sought to convey the philosophy that, under the First
Amendment, the public has a right to every man's views, and every man the right to
speak them. Government may cut him off only when his views are no longer merely
views, but threaten, clearly and imminently, to ripen into conduct against which the
public has a right to protect itself.
Page 339 U. S. 396
But the question with which we are here faced is not the same one that Justices
Holmes and Brandeis found convenient to consider in terms of clear and present
danger. Government's interest here is not in preventing the dissemination of
Communist doctrine or the holding of particular beliefs because it is feared that
unlawful action will result therefrom if free speech is practiced. Its interest is in
protecting the free flow of commerce from what Congress considers to be substantial
evils of conduct that are not the products of speech at all. Section 9(h), in other
words, does not interfere with speech because Congress fears the consequences of
speech; it regulates harmful conduct which Congress has determined is carried on by
persons who may be identified by their political affiliations and beliefs. The Board
does not contend that political strikes, the substantive evil at which § 9(h) is aimed,
are the present or impending products of advocacy of the doctrines of Communism or
the expression of belief in overthrow of the Government by force. On the contrary, it
points out that such strikes are called by persons who, so Congress has found, have
the will and power to do so without advocacy or persuasion that seeks acceptance in
the competition of the market. [Footnote 11] Speech may be fought with speech.
Falsehoods and fallacies must be exposed, not suppressed, unless there is not
sufficient time to avert the evil consequences of noxious doctrine by argument and
education. That is the command of the First Amendment. But force may and must be
met with force. Section 9(h) is designed to protect the public not against what
Communists and others identified therein advocate or believe, but against what
Congress has concluded they have done and are likely to do again.
Page 339 U. S. 397
The contention of petitioner in No. 13 that this Court must find that political strikes
create a clear and present danger to the security of the Nation or of widespread
industrial strife in order to sustain § 9(h) similarly misconceives the purpose that
phrase was intended to serve. In that view, not the relative certainty that evil conduct
will result from speech in the immediate future, but the extent and gravity of the
substantive evil, must be measured by the "test" laid down in the Schenck case. But
there the Court said that:
"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."
Schenck v. United States, supra, at 294 U. S. 52. (Emphasis supplied.)
So far as the Schenck case itself is concerned, imminent danger of any substantive
evil that Congress may prevent justifies the restriction of speech. Since that time, this
Court has decided that, however great the likelihood that a substantive evil will result,
restrictions on speech and press cannot be sustained unless the evil itself is
"substantial" and "relatively serious," Brandeis, J., concurring in Whitney v. California,
supra, at 274 U. S. 374, 274 U. S. 377, or sometimes "extremely serious," Bridges v.
California, 314 U. S. 252, 314 U. S. 263 (1941). And it follows therefrom that even
harmful conduct cannot justify restrictions upon speech unless substantial interests of
society are at stake. But, in suggesting that the substantive evil must be serious and
substantial, it was never the intention of this Court to lay down an absolutist test
measured in terms of danger to the Nation. When the effect of a statute or ordinance
upon the exercise of First Amendment freedoms is relatively small and the public
interest to be protected is substantial, it is obvious that a rigid test requiring a showing
of imminent danger to the security of the Nation is an absurdity. We recently
dismissed for want of substantiality
Page 339 U. S. 398
an appeal in which a church group contended that its First Amendment rights were
violated by a municipal zoning ordinance preventing the building of churches in
certain residential areas. Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter Day Saints v. Porterville, 338 U.S. 805 (1949). And recent cases in
this Court involving contempt by publication likewise have no meaning if imminent
danger of national peril is the criterion. [Footnote 12]
On the contrary, however, the right of the public to be protected from evils of conduct,
even though First Amendment rights of persons or groups are thereby in some
manner infringed, has received frequent and consistent recognition by this Court. We
have noted that the blaring sound truck invades the privacy of the home, and may
drown out others who wish to be heard. Kovacs v. Cooper, 336 U. S. 77 (1949). The
unauthorized parade through city streets by a religious or political group disrupts
traffic and may prevent the discharge of the most essential obligations of local
government. Cox v. New Hampshire, 312 U. S. 569, 312 U. S. 574 (1941). The
exercise of particular First Amendment rights may fly in the face of the public interest
in the health of children, Prince v. Massachusetts, 321 U. S. 158 (1944), or of the
whole community, Jacobson v. Massachusetts, 197 U. S. 11 (1905), and it may be
offensive to the moral standards of the community, Reynolds v. United States, 98 U.
S. 145 (1878); Davis v. Beason, 133 U. S. 333 (1890). And Government's obligation
to provide an efficient public service, United Public Workers v. Mitchell, 330 U. S.
75 (1947), and its interest in the character of members of the bar, In re Summers, 325
U. S. 561 (1945), sometimes admit of limitations upon rights set out in the First
Amendment. And see  336 U. S.  Empire Storage Co.,
Page 339 U. S. 399
336 U. S. 490, 336 U. S. 499-501 (1949). We have never held that such freedoms are
absolute. The reason is plain. As Mr. Chief Justice Hughes put it,
"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be lost in the
excesses of unrestrained abuses."
Cox v. New Hampshire, supra, at 312 U. S. 574.
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 these two conflicting interests demands the greater
protection under the particular circumstances presented. The high place in which the
right to speak, think, and assemble as you will was held by the Framers of the Bill of
Rights and is held today by those who value liberty both as a means and an end
indicates the solicitude with which we must view any assertion of personal freedoms.
We must recognize, moreover, that regulation of "conduct" has all too frequently been
employed by public authority as a cloak to hide censorship of unpopular ideas. We
have been reminded that
"[i]t is not often in this country that we now meet with direct and candid efforts to stop
speaking or publication as such. Modern inroads on these rights come from
associating the speaking with some other factor which the state may regulate so as to
bring the whole within official control. [Footnote 13]"
On the other hand, legitimate attempts to protect the public not from the remote
possible effects of noxious ideologies, but from present excesses of direct, active
conduct, are not presumptively bad because they interfere with and, in some of its
manifestations, restrain the exercise of First Amendment rights. Reynolds v. United
States, supra; Prince v. Massachusetts, supra; Cox v.
Page 339 U. S. 400
New Hampshire, supra; Giboney v. Empire Storage Co., supra. In essence, the
problem is one of weighing the probable effects of the statute upon the free exercise
of the right of speech and assembly against the congressional determination that
political strikes are evils of conduct which cause substantial harm to interstate
commerce and that Communists and others identified by § 9(h) pose continuing
threats to that public interest when in positions of union leadership. 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 the rights."
Schneider v. State, 308 U. S. 147, 308 U. S. 161 (1939).
V
The "reasons advanced in support of the regulation" are of considerable weight, as
even the opponents of § 9(h) agreed. They are far from being
"[m]ere legislative preferences or beliefs respecting matters of public convenience
[which] may well support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights so vital to the
maintenance of democratic institutions. [Footnote 14]"
It should be emphasized that Congress, not the courts, is primarily charged with
determination of the need for regulation of activities affecting interstate commerce.
This Court must, if such regulation unduly infringes personal freedoms, declare the
statute invalid under the First Amendment's command that the opportunities for free
public discussion be maintained. But insofar as the problem is one of drawing
inferences concerning the need for regulation of particular forms of conduct from
conflicting evidence, this Court is in no position to substitute its judgment as to the
necessity or desirability of the statute
Page 339 U. S. 401
for that of Congress. Cf. United Public Workers v. Mitchell, supra, at 330 U. S.
95, 330 U. S. 102. In Bridges v. California, supra, we said that even restrictions on
particular kinds of utterances, if enacted by a legislature after appraisal of the need,
come to this Court "encased in the armor wrought by prior legislative deliberation."
314 U.S. at 314 U. S. 261. Compare Gitlow v. New York, 268 U. S. 652 (1925). The
deference due legislative determination of the need for restriction upon particular
forms of conduct has found repeated expression in this Court's opinions.
When compared with ordinances and regulations dealing with littering of the streets or
disturbance of householders by itinerant preachers, the relative significance and
complexity of the problem of political strikes and how to deal with their leaders
becomes at once apparent. It must be remembered that § 9(h) is not an isolated
statute dealing with a subject divorced from the problems of labor peace generally. It
is a part of some very complex machinery set up by the Federal Government for the
purpose of encouraging the peaceful settlement of labor disputes. Under the statutory
scheme, unions which become collective bargaining representatives for groups of
employees often represent not only members of the union, but nonunion workers or
members of other unions as well. Because of the necessity to have strong unions to
bargain on equal terms with strong employers, individual employees are required by
law to sacrifice rights which, in some cases, are valuable to them. See J. I. Case Co.
v. Labor Board, 321 U. S. 332 (1944). The loss of individual rights for the greater
benefit of the group results in a tremendous increase in the power of the
representative of the group -- the union. But power is never without responsibility. And
when authority derives in part from Government's thumb on the scales, the exercise
of that lower by private persons becomes closely akin, in some respects, to its
exercise by Government itself.
Page 339 U. S. 402
See Graham v. Brotherhood of Locomotive Firemen, 338 U. S. 232 (1949); Steele v.
Louisville & N. R. Co., 323 U. S. 192 (1944); Tunstall v. Brotherhood of Locomotive
Firemen, 323 U. S. 210 (1944); Wallace Corp. v. Labor Board, 323 U. S. 248, 323 U.
S. 255 (1944); Railway Mail Association v. Corsi, 326 U. S. 88, 326 U. S. 94 (1945).
We do not suggest that labor unions which utilize the facilities of the National Labor
Relations Board become Government agencies or may be regulated as such. But it is
plain that, when Congress clothes the bargaining representative "with powers
comparable to those possessed by a legislative body both to create and restrict the
rights of those whom it represents," [Footnote 15] the public interest in the good faith
exercise of that power is very great.
What of the effects of § 9(h) upon the rights of speech and assembly of those
proscribed by its terms? The statute does not prevent or punish by criminal sanctions
the making of a speech, the affiliation with any organization, or the holding of any
belief. But, as we have noted, the fact that no direct restraint or punishment is
imposed upon speech or assembly does not determine the free speech question.
Under some circumstances, indirect "discouragements" undoubtedly have the same
coercive effect upon the exercise of First Amendment rights as imprisonment, fines,
injunctions or taxes. A requirement that adherents of particular religious faiths or
political parties wear identifying arm-bands, for example, is obviously of this nature.
But we have here no statute which is either frankly aimed at the suppression of
dangerous ideas, [Footnote 16] nor one
Page 339 U. S. 403
which, although ostensibly aimed at the regulation of conduct, may actually "be made
the instrument of arbitrary suppression of free expression of views." Hague v.
Committee for Industrial Organization, 307 U. S. 496, 307 U. S. 516 (1939). [Footnote
17] There are here involved none of the elements of censorship or prohibition of the
dissemination of information that were present in the cases mainly relied upon by
those attacking the statute. [Footnote 18] The "discouragements" of § 9(h) proceed,
not against the groups or beliefs identified therein, but only against the combination of
Page 339 U. S. 404
those affiliations or beliefs with occupancy of a position of great power over the
economy of the country. Congress has concluded that substantial harm, in the form of
direct, positive action, may be expected from that combination. In this legislation,
Congress did not restrain the activities of the Communist Party as a political
organization; nor did it attempt to stifle beliefs. Compare West Virginia State Board of
Education v. Barnette, 319 U. S. 624 (1943). [Footnote 19] Section 9(h) touches only
a relative handful of persons, leaving the great majority of persons of the identified
affiliations and beliefs completely free from restraint. And it leaves those few who are
affected free to maintain their affiliations and beliefs subject only to possible loss of
positions which Congress has concluded are being abused to the injury of the public
by members of the described groups.
We have previously had occasion to consider other statutes and regulations in which
the interests involved were, in large measure, like those now being considered.
In United Public Workers v. Mitchell, supra, we upheld
Page 339 U. S. 405
a statute which provided that employees of the Federal Government could not
participate in partisan political activities, concededly a First Amendment right if they
would retain their positions. The decision was not put upon the ground that
government employment is a privilege to be conferred or withheld at will. For it was
recognized that Congress may not
"enact a regulation providing that no Republican, Jew or Negro shall be appointed to
federal office, or that no federal employee shall attend Mass or take any active part in
missionary work."
330 U.S. at 330 U. S. 100. But the rational connection between the prohibitions of the
statute and its objects, the limited scope of the abridgment of First Amendment rights,
and the large public interest in the efficiency of government service which Congress
had found necessitated the statute, led us to the conclusion that the statute may
stand consistently with the First Amendment.
Similarly, in In re Summers, supra, we upheld the refusal of a state supreme court to
admit to membership of its bar an otherwise qualified person on the sole ground that
he had conscientious scruples against war, and would not use force to prevent wrong
under any circumstances. Since he could not, so the justices of the state court found,
swear in good faith to uphold the state constitution, which requires service in the
militia in time of war, we held that refusal to permit him to practice law did not violate
the First Amendment, as its commands are incorporated in the Due Process Clause
of the Fourteenth Amendment. Again, the relation between the obligations of
membership in the bar and service required by the state in time of war, the limited
effect of the state's holding upon speech and assembly, and the strong interest which
every state court has in the persons who become officers of the court were thought
sufficient to justify the state action. See also Hamilton v. Regents, supra.
Page 339 U. S. 406
It is contended that the principle that statutes touching First Amendment freedoms
must be narrowly drawn dictates that a statute aimed at political strikes should make
the calling of such strikes unlawful, but should not attempt to bring about the removal
of union officers, with its attendant effect upon First Amendment rights. We think,
however, that the legislative judgment that interstate commerce must be protected
from a continuing threat of such strikes is a permissible one in this case. The fact that
the injury to interstate commerce would be an accomplished fact before any sanctions
could be applied, the possibility that a large number of such strikes might be called at
a time of external or internal crisis, and the practical difficulties which would be
encountered in detecting illegal activities of this kind are factors which are persuasive
that Congress should not be powerless to remove the threat, not limited to punishing
the act. We recently said that
"nothing in the Constitution prevents Congress from acting in time to prevent potential
injury to the national economy from becoming a reality."
North American Co. v. Securities & Exchange Commission, 327 U. S. 686, 327 U. S.
711 (1946). While this statement may be subject to some qualification, it indicates the
wide scope of congressional power to keep from the channels of commerce that
which would hinder and obstruct such commerce.
VI
Previous discussion has considered the constitutional questions raised by § 9(h) as
they apply alike to members of the Communist Party and affiliated organizations and
to persons who believe in overthrow of the Government by force. The breadth of the
provision concerning belief in overthrow of the Government by force would raise
additional questions, however, if it were read
Page 339 U. S. 407
very literally to include all persons who might, under any conceivable circumstances,
subscribe to that belief. But we see no reason to construe the statute so broadly. It is
within the power, and is the duty, of this Court to construe a statute so as to avoid the
danger of unconstitutionality if it may be done in consonance with the legislative
purpose. United States v. Congress of Industrial Organizations, 335 U. S. 106, 335 U.
S. 120-121 (1948); United States v. Delaware & Hudson Co., 213 U. S. 366, 213 U.
S. 407-408 (1909). In enacting § 9(h), Congress had as its objective the protection of
interstate commerce from direct interference, not any intent to disturb or proscribe
beliefs as such. Its manifest purpose was to bring within the terms of the statute only
those persons whose beliefs strongly indicate a will to engage in political strikes and
other forms of direct action when, as officers, they direct union activities. The
congressional purpose is therefore served if we construe the clause
"that he does not believe in, and is not a member of or supports any organization that
believes in or teaches, the overthrow of the United States Government by force or by
any illegal or unconstitutional methods"
to apply to persons and organizations who believe in violent overthrow of the
Government as it presently exists under the Constitution as an objective, not merely a
prophecy. Congress might well find that such persons -- those who believe that the
present form of the Government of the United States should be changed by force or
other illegal methods -- would carry that objective into their conduct of union affairs by
calling political strikes designed to weaken and divide the American people, whether
they consider actual overthrow of the Government to be near or distant. It is to those
persons that § 9(h) is intended to apply, and only to them. We hold, therefore, that the
belief identified in § 9(h) is a belief in the objective of overthrow by force or by any
illegal or unconstitutional
Page 339 U. S. 408
methods of the Government of the United States as it now exists under the
Constitution and laws thereof.
As thus construed, we think that the "belief" provision of the oath presents no different
problem from that present in that part of the section having to do with membership in
the Communist Party. Of course, we agree that one may not be imprisoned or
executed because he holds particular beliefs. But to attack the straw man of "thought
control" is to ignore the fact that the sole effect of the statute upon one who believes
in overthrow of the Government by force and violence -- and does not deny his belief
-- is that he may be forced to relinquish his position as a union leader. That fact was
crucial in our discussion of the statute as it relates to membership in the Communist
Party. To quote, with pertinent substitutions, an apt statement of that
principle, post, p. 339 U. S. 434:
"The Act does not suppress or outlaw the [belief in overthrow of the Government], nor
prohibit it or [those who hold that belief] from engaging in any aboveboard activity. . . .
No individual is forbidden to be or to become a philosophical [believer in overthrow of
Government] or a full-fledged member of [a group which holds that belief]. No one is
penalized for writing or speaking in favor of [such a belief ] or its philosophy. Also, the
Act does not require or forbid anything whatever to any person merely because he is
[a believer in overthrow of the Government by force]. It applies only to one who
becomes an officer of a labor union."
If the principle that one may under no circumstances be required to state his beliefs
on any subject nor suffer the loss of any right or privilege because of his beliefs be a
valid one, its application in other possible situations becomes relevant. Suppose, for
example, that a federal statute provides that no person may become a member of the
Secret Service force assigned to protect the President unless he swears that he does
not believe in assassination
Page 339 U. S. 409
of the President. Is this beyond the power of Congress, whatever the need revealed
by its investigations? An affirmative answer hardly commends itself to reason unless,
indeed, the Bill of Rights has been converted into a "suicide pact." Terminiello v.
Chicago, 337 U. S. 1, 337 U. S. 37 (1949) (dissenting opinion). Yet the example
chosen is far-fetched only because of the manifest absurdity of reliance upon an oath
in such a situation. One can have no doubt that the screening process in the selection
of persons to occupy such positions probes far deeper than mere oath-taking can
possibly do.
To hold that such an oath is permissible, on the other hand, is to admit that the
circumstances under which one is asked to state his belief and the consequences
which flow from his refusal to do so or his disclosure of a particular belief make a
difference. The reason for the difference has been pointed out at some length above.
First, the loss of a particular position is not the loss of life or liberty. We have noted
that the distinction is one of degree, and it is for this reason that the effect of the
statute in proscribing beliefs -- like its effect in restraining speech or freedom of
association -- must be carefully weighed by the courts in determining whether the
balance struck by Congress comports with the dictates of the Constitution. But it is
inaccurate to speak of § 9(h) as "punishing" or "forbidding" the holding of beliefs, any
more than it punishes or forbids membership in the Communist Party.
Second, the public interest at stake in ascertaining one's beliefs cannot automatically
be assigned at zero without consideration of the circumstances of the inquiry. If it is
admitted that beliefs are springs to action, it becomes highly relevant whether the
person who is asked whether he believes in overthrow of the Government by force is
a general with five hundred thousand men at his command or a village constable. To
argue that, because the latter
Page 339 U. S. 410
may not be asked his beliefs the former must necessarily be exempt is to make a
fetish of beliefs. The answer to the implication that, if this statute is upheld,
"then the power of government over beliefs is as unlimited as its power over conduct,
and the way is open to force disclosure of attitudes on all manner of social, economic,
moral and political issues,"
post, p. 339 U. S. 438, is that that result does not follow "while this Court sits."
[Footnote 20] The circumstances giving rise to the inquiry, then, are likewise factors
to be weighed by the courts, giving due weight, of course, to the congressional
judgment concerning the need. In short, the problem of balancing the conflicting
individual and national interests involved is no different from the problem presented
by proscriptions based upon political affiliations. Insofar as a distinction between
beliefs and political affiliations is based upon absence of any "overt act" in the former
case, it is relevant, if at all, in connection with problems of proof. In proving that one
swore falsely
Page 339 U. S. 411
that he is not a Communist, the act of joining the Party is crucial. Proof that one lied in
swearing that he does not believe in overthrow of the Government by force, on the
other hand, must consist in proof of his mental state. To that extent, they differ.
To state the difference, however, is but to recognize that, while objective facts may be
proved directly, the state of a man's mind must be inferred from the things he says or
does. Of course, we agree that the courts cannot "ascertain the thought that has had
no outward manifestation." But courts and juries every day pass upon knowledge,
belief and intent -- the state of men's minds -- having before them no more than
evidence of their words and conduct, from which, in ordinary human experience,
mental condition may be inferred. See 2 Wigmore, Evidence (3d ed.) §§ 244, 256 et
seq. False swearing in signing the affidavit must, as in other cases where mental
state is in issue, be proved by the outward manifestations of state of mind. In the
absence of such manifestations, which are as much "overt acts" as the act of joining
the Communist Party, there can be no successful prosecution for false swearing.
[Footnote 21]
Considering the circumstances surrounding the problem -- the deference due the
congressional judgment concerning the need for regulation of conduct affecting
interstate commerce and the effect of the statute upon rights of speech, assembly
and belief -- we conclude that § 9(h)
Page 339 U. S. 412
of the National Labor Relations Act, as amended by the Labor Management Relations
Act, 1947, does not unduly infringe freedoms protected by the First Amendment.
Those who, so Congress has found, would subvert the public interest cannot escape
all regulation because, at the same time, they carry on legitimate political
activities. Cf. Valentine v. Chrestensen, 316 U. S. 52 (1942). To encourage unions to
displace them from positions of great power over the national economy, while at the
same time leaving free the outlets by which they may pursue legitimate political
activities of persuasion and advocacy, does not seem to us to contravene the
purposes of the First Amendment. That Amendment requires that one be permitted to
believe what he will. It requires that one be permitted to advocate what he will unless
there is a clear and present danger that a substantial public evil will result therefrom.
It does not require that he be permitted to be the keeper of the arsenal.
VII
There remain two contentions which merit discussion. One is that § 9(h) is
unconstitutionally vague. The other is that it violates the mandate of Art. I, § 9 of the
Constitution that "No Bill of Attainder or ex post facto Law shall be passed."
The argument as to vagueness stresses the breadth of such terms as "affiliated,"
"supports" and "illegal or unconstitutional methods." There is little doubt that
imagination can conjure up hypothetical cases in which the meaning of these terms
will be in nice question. The applicable standard, however, is not one of wholly
consistent academic definition of abstract terms. It is, rather, the practical criterion of
fair notice to those to whom the statute is directed. The particular context is all
important.
The only criminal punishment specified is the application of § 35(A) of the Criminal
Code, 18 U.S.C. § 1001, which covers only those false statements made
Page 339 U. S. 413
"knowingly and willfully." The question in any criminal prosecution involving a non-
Communist affidavit must therefore be whether the affiant acted in good faith or
knowingly lied concerning his affiliations, beliefs, support of organizations, etc. And
since the constitutional vice in a vague or indefinite statute is the injustice to the
accused in placing him on trial for an offense, the nature of which he is given no fair
warning, the fact that punishment is restricted to acts done with knowledge that they
contravene the statute makes this objection untenable. As this Court pointed out
in United States v. Ragen, 314 U. S. 513, 314 U. S. 524 (1942), "A mind intent upon
willful evasion is inconsistent with surprised innocence." Cf. Omaechevarria v.
Idaho, 246 U. S. 343 (1918); Hygrade Provision Co. v. Sherman, 266 U. S.
497 (1925); Screws v. United States, 325 U. S. 91 (1945). Without considering,
therefore, whether, in other circumstances, the words used in § 9(h) would render a
statute unconstitutionally vague and indefinite, we think that the fact that, under §
35(A) of the Criminal Code, no honest, untainted interpretation of those words is
punishable removes the possibility of constitutional infirmity.
The unions' argument as to bill of attainder cites the familiar cases, United States v.
Lovett, 328 U. S. 303 (1946); Ex parte Garland, 4 Wall. 333 (1867); Cummings v.
Missouri, 4 Wall. 277 (1867). Those cases and this also, according to the argument,
involve the proscription of certain occupations to a group classified according to belief
and loyalty. But there is a decisive distinction: in the previous decisions, the
individuals involved were, in fact, being punished for past actions, whereas, in this
case, they are subject to possible loss of position only because there is substantial
ground for the congressional judgment that their beliefs and loyalties will be
transformed into future conduct. Of course, the history of the past conduct is the
foundation for the judgment as to what
Page 339 U. S. 414
the future conduct is likely to be; but that does not alter the conclusion that § 9(h) is
intended to prevent future action, rather than to punish past action.
This distinction is emphasized by the fact that members of those groups identified in §
9(h) are free to serve as union officers if at any time they renounce the allegiances
which constituted a bar to signing the affidavit in the past. Past conduct, actual or
threatened by their previous adherence to affiliations and beliefs mentioned in § 9(h),
is not a bar to resumption of the position. In the cases relied upon by the unions, on
the other hand, this Court has emphasized that, since the basis of disqualification was
past action or loyalty, nothing that those persons proscribed, by its terms, could ever
do would change the result. See United States v. Lovett, supra, at p. 328 U. S.
314; Cummings v. Missouri, supra, at p. 71 U. S. 327. Here, the intention is to
forestall future dangerous acts; there is no one who may not, by a voluntary alteration
of the loyalties which impel him to action, become eligible to sign the affidavit. We
cannot conclude that this section is a bill of attainder.
In their argument on this point, the unions seek some advantage from references to
English history pertinent to a religious test oath. That experience is written into our
Constitution in the following provision of Article VI:
"The Senators and Representatives before mentioned, and the Members of the
several State Legislatures, and all executive and judicial Officers, both of the United
States and of the several States, shall be bound by Oath or Affirmation, to support
this Constitution; but no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States."
It is obvious that not all oaths were abolished; the mere fact that § 9(h) is in oath form
hardly rises to the stature of a constitutional objection. All that was forbidden was a
"religious Test." We do not think that the oath
Page 339 U. S. 415
here involved can rightly be taken as falling within that category.
Clearly the Constitution permits the requirement of oaths by officeholders to uphold
the Constitution itself. The obvious implication is that those unwilling to take such an
oath are to be barred from public office. For the President, a specific oath was set
forth in the Constitution itself. Art. II, § 1. And Congress has detailed an oath for other
federal officers. [Footnote 22] Obviously, the Framers of the Constitution thought that
the exaction of an affirmation of minimal loyalty to the Government was worth the
price of whatever deprivation of individual freedom of conscience was involved. All
that we need hold here is that the casting of § 9(h) into the mold of an oath does not
invalidate it, if it is otherwise constitutional.
We conclude that § 9(h) of the National Labor Relations Act, as amended by the
Labor Management Relations Act, 1947, as herein construed, is compatible with the
Federal Constitution, and may stand. The judgments of the courts below are therefore
Affirmed.
MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK and MR. JUSTICE MINTON took
no part in the consideration or decision of these cases.
* Together with No. 13, United Steelworkers of America et al. v. National Labor
Relations Board, on certiorari to the Court of Appeals for the Seventh Circuit, argued
October 11, 1949.
[Footnote 1]
61 Stat. 136, 146, 29 U.S.C. (Supp. III) § 141, § 159(h), amending the National Labor
Relations Act of 1935, 49 Stat. 449, 29 U.S.C. § 151 et seq.
[Footnote 2]
29 U.S.C. (Supp. III) § 151.
[Footnote 3]
A detailed description of the aims and tactics of the Socialist Workers Party, for
example, may be found in the transcript of record in Dunne v. United States, 320 U.S.
790 (1943), certiorari denied. We cite the record as evidence only, and express no
opinion whatever on the merits of the case. See record, pp 267-271, 273274, 330-
332, 439, 475, 491-42, 495-46, 535, 606, 683-688, 693, 737, 804-805.
[Footnote 4]
See Hearings before House Committee on Education and Labor on Bills to Amend
and Repeal the National Labor Relations Act, 80th Cong., 1st Sess. 3611-3615.
[Footnote 5]
The First Amendment provides:
"Congress shall make no law . . . abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances."
[Footnote 6]
For example, a union whose officers do not file an affidavit in compliance with § 9(h)
may not enter into a union shop contract with an employer, as it was free to do before
passage of the National Labor Relations Act. A noncomplying union is excluded from
the ballot in representation proceedings. If another union is certified, the
noncomplying union incurs the disabilities of §§ 8(b)(4)(C) and 303(a)(3), as it would
not have done prior to 1935. Similarly, certain strikes and boycotts are prohibited to
noncomplying unions by §§ 8(b)(4)(B), 8(b)(4)(C) and 8(b)(4)(D) of the Act.
[Footnote 7]
See also Luria v. United States, 231 U. S. 9 (1913); Mackenzie v. Hare, 239 U. S.
299 (1915); Lapides v. Clark, 85 U.S.App.D.C. 101, 176 F.2d 619 (1949).
[Footnote 8]
Sections 30 and 32 of the Banking Act of 1933, 48 Stat. 162, 193, 194, as amended,
49 Stat. 684, 709, 12 U.S.C. §§ 77, 78.
[Footnote 9]
See Schenck v. United States, 249 U. S. 47 (1919); Frohwerk v. United States, 249
U. S. 204 (1919); Debs v. United States, 249 U. S. 211 (1919); Abrams v. United
States, 250 U. S. 616 (1919); Schaefer v. United States, 251 U. S. 466 (1920); Pierce
v. United States, 252 U. S. 239 (1920); Gitlow v. New York, 268 U. S. 652 (1925).
[Footnote 10]
". . . no danger flowing from speech can be deemed clear and present unless the
incidence of the evil apprehended is so imminent that it may befall before there is
opportunity for full discussion. If there be time to expose through discussion the
falsehood and fallacies, to avert the evil by the processes of education, the remedy to
be applied is more speech, not enforced silence."
Mr. Justice Brandeis, concurring in Whitney v. California, 274 U. S. 357, 274 U. S.
377 (1927).
[Footnote 11]
See Mr. Justice Holmes, dissenting in Abrams v. United States, 250 U. S. 616, 250 U.
S. 630 (1919).
[Footnote 12]
Bridges v. California, 314 U. S. 252 (1941); Pennekamp v. Florida, 328 U. S.
331 (1946); Craig v. Harney, 331 U. S. 367 (1947).
[Footnote 13]
MR. JUSTICE JACKSON, concurring in Thomas v. Collins, 323 U. S. 516, 323 U. S.
547 (1945).
[Footnote 14]
Schneider v. State, 308 U. S. 147, 308 U. S. 161 (1939).
[Footnote 15]
Steele v. Louisville & N. R. Co., 323 U. S. 192, 323 U. S. 202 (1944).
[Footnote 16]
Cf. cases cited in note 9 supra, and Whitney v. California, 274 U. S.
357 (1927); Fiske v. Kansas, 274 U. S. 380 (1927); Stromberg v. California, 283 U. S.
359 (1931); Near v. Minnesota, 283 U. S. 697 (1931); De Jonge v. Oregon, 299 U. S.
353 (1937); Herndon v. Lowry, 301 U. S. 242 (1937).
[Footnote 17]
Cf. Grosjean v. American Press Co., 297 U. S. 233 (1936); Thomas v. Collins, 323 U.
S. 516 (1945).
[Footnote 18]
In Cox v. New Hampshire, 312 U. S. 569 (1941), Mr. Chief Justice Hughes, speaking
for a unanimous Court, stated the considerations thought controlling in a number of
these cases:
"In Lovell v. Griffin, [303 U.S. 444], the ordinance prohibited the distribution of
literature of any kind at any time, at any place, and in any manner without a permit
from the city manager, thus striking at the very foundation of the freedom of the press
by subjecting it to license and censorship. In Hague v. Committee for Industrial
Organization, [307 U.S. 496], the ordinance dealt with the exercise of the right of
assembly for the purpose of communicating views; it did not make comfort or
convenience in the use of streets the standard of official action, but enabled the local
official absolutely to refuse a permit on his mere opinion that such refusal would
prevent 'riots, disturbances or disorderly assemblage.' The ordinance thus created, as
the record disclosed, an instrument of arbitrary suppression of opinions on public
questions. The court said that"
"uncontrolled official suppression of the privilege cannot be made a substitute for the
duty to maintain order in connection with the exercise of the right."
"In Schneider v. State, [308 U.S. 147] (p. 308 U. S. 163) the ordinance was directed
at canvassing and banned unlicensed communication of any views, or the advocacy
of any cause, from door to door, subject only to the power of a police officer to
determine as a censor what literature might be distributed and who might distribute it.
In Cantwell v. Connecticut, [310 U.S. 296] (p. 310 U. S. 305), the statute dealt with
the solicitation of funds for religious causes and authorized an official to determine
whether the cause was a religious one and to refuse a permit if he determined it was
not, thus establishing a censorship of religion."
312 U.S. at 312 U. S. 577-578.
[Footnote 19]
In the Barnette case, the Court was careful to point out that the sole interest of the
State was in securing uniformity of belief by compelling utterance of a prescribed
pledge, and that refusal to comply with the State order resulted in punishment for both
parent and child:
"The freedom asserted by these appellees does not bring them into collision with
rights asserted by any other individual. It is such conflicts which most frequently
require intervention of the State to determine where the rights of one end and those of
another begin. But the refusal of these persons to participate in the ceremony does
not interfere with or deny rights of others to do so. Nor is there any question in this
case that their behavior is peaceable and orderly. The sole conflict is between
authority and rights of the individual. The State asserts power to condition access to
public education on making a prescribed sign and profession and at the same time to
coerce attendance by punishing both parent and child. The latter stand on a right of
self-determination in matters that touch individual opinion and personal attitude."
319 U.S. at 319 U. S. 630-631.
[Footnote 20]
Panhandle Oil Co. v. Knox, 277 U. S. 218, 277 U. S. 223 (1928) (dissenting opinion).
The words of Mr. Justice Holmes, while written concerning a very different problem,
are well worth rereading in this connection:
"It seems to me that the State Court was right. I should say plainly right, but for the
effect of certain dicta of Chief Justice Marshall which culminated in, or, rather, were
founded upon, his often quoted proposition that the power to tax is the power to
destroy. In those days, it was not recognized as it is today that most of the distinctions
of the law are distinctions of degree. If the States had any power, it was assumed that
they had all power, and that the necessary alternative was to deny it altogether. But
this Court, which so often has defeated the attempt to tax in certain ways, can defeat
an attempt to discriminate or otherwise go too far without wholly abolishing the power
to tax. The power to tax is not the power to destroy while this Court sits. The power to
fix rates is the power to destroy if unlimited, but this Court, while it endeavors to
prevent confiscation, does not prevent the fixing of rates. A tax is not an
unconstitutional regulation in every case where an absolute prohibition of sales would
be one. Hatch v. Reardon, 204 U. S. 152, 204 U. S. 162."
[Footnote 21]
While it is true that state of mind is ordinarily relevant only when it is incidental to, and
determines the quality of, some overt act (but cf. Hamilton v. Regents, 293 U. S.
245 (1934); In re Summer, 325 U. S. 561 (1945)), the fact must not be overlooked
that mental state in such cases is a distinct issue, 2 Wigmore, Evidence (3d ed.) §§
244, 266, of which the "overt act" may or may not be any proof. For example, the
physical facts surrounding a death by shooting may be as consistent with a finding of
accident as of murder. Willfulness, malice and premeditation must therefore be
proved by evidence wholly apart from the act of shooting.
[Footnote 22]
23 Stat. 22, 5 U.S.C. § 16.
MR. JUSTICE FRANKFURTER, concurring in the Court's opinion except as to Part
VII.
"Scarcely any political question arises in the United States," observed the perceptive
de Tocqueville as early as 1835, "that is not resolved, sooner or later, into a judicial
question." 1 Democracy in America 280 (Bradley ed.1948). And so it was to be
expected that the conflict of political ideas now dividing the world more pervasively
than any since this nation was founded would give rise to controversies for
adjudication by this Court.
Page 339 U. S. 416
"The judicial Power" with which alone this Court is invested comes into operation only
as to issues that the long tradition of our history has made appropriate for disposition
by judges. When such questions are properly here, they are to be disposed of within
those strict confines of legal reasoning which laymen too often deem invidiously
technical. This restriction to justiciable issues to be disposed of in the unrhetorical
manner of opinion-writing reflects respect by the judiciary for its very limited, however
great, function in the proper distribution of authority in our political scheme so as to
avoid autocratic rule. No doubt issues like those now before us cannot be completely
severed from the political and emotional context out of which they emerge. For that
very reason, adjudication touching such matters should not go one whit beyond the
immediate issues requiring decision, and what is said in support of the adjudication
should insulate the Court as far as is rationally possible from the political conflict
beneath the legal issues.
The central problem presented by the enactment now challenged is the power of
Congress, as part of its comprehensive scheme for industrial peace, to keep
Communists out of controlling positions in labor unions as a condition to utilizing the
opportunities afforded by the National Labor Relations Act, as amended by the Labor
Management Relations Act, 1947. [Footnote 2/1] Wrapped up
Page 339 U. S. 417
in this problem are two great concerns of our democratic society -- the right of
association for economic and social betterment and the right of association for
political purposes. It is too late in the day to deny to Congress the power to promote
industrial peace in all the far-flung range of interstate commerce. To that end,
Congress may take appropriate measures to protect interstate commerce against
disruptive conduct not fairly related to industrial betterment within our democratic
framework. It is one thing to forbid heretical political thought merely as heretical
thought. It is quite a different thing for Congress to restrict attempts to bring about
another scheme of society not through appeal to reason and the use of the ballot, as
democracy has been pursued throughout our history, but through an associated effort
to disrupt industry.
Thus, stated, it would make undue inroads upon the policymaking power of Congress
to deny it the right to protect the industrial peace of the country by excluding from
leadership in trade unions which seek to avail themselves of the machinery of the
Labor Management Relations Act those who are united for action against our
democratic process. This is so not because Congress, in affording a facility, can
subject it to any condition it pleases. It cannot. Congress may withhold all sorts of
facilities for a better life, but if it affords them, it cannot make them available in an
obviously arbitrary way or exact surrender of freedoms unrelated to the purpose of
the facilities. Congress surely can provide for certain clearly relevant qualifications of
responsibility on the part of leaders of trade unions invoking the machinery of the
Labor Management Relations Act. The essential question now is whether Congress
may determine that membership of union officers in the Communist Party creates
such an obvious hazard to the peace-promoting purposes of the Act that access to
the machinery
Page 339 U. S. 418
of the Act may be denied unions which prefer their freedom to have officers who are
Communists to their opportunities under the Act.
When we are dealing with conflicting freedoms, as we are on the issues before us, we
are dealing with large concepts that too readily lend themselves to explosive rhetoric.
We are also dealing with matters as to which different nuances in phrasing the same
conclusion lead to different emphasis, and thereby eventually may lead to different
conclusions in slightly different situations. From my point of view, these are issues as
to which it would be desirable for the members of the Court to write full-length
individual opinions. The Court's business in our time being what it is precludes this. It
must suffice for me to say that the judgment of Congress that trade unions which are
guided by officers who are committed by ties of membership to the Communist Party
must forego the advantages of the Labor Management Relations Act is reasonably
related to the accomplishment of the purposes which Congress constitutionally had a
right to pursue. To deny that that is a judgment which Congress may, as a matter of
experience, enforce even though it involves the indicated restrictions upon freedom
would be to make naivete a requirement in judges. Since the Court's opinion, in the
main, expresses the point of view which I have very inadequately sketched, I join it
except as qualified in what follows.
Congress was concerned with what it justifiably deemed to be the disorganizing
purposes of Communists who hold positions of official power in labor unions, or, at
the least, what it might well deem their lack of disinterested devotion to the basic
tenets of the American trade union movement because of a higher loyalty to a
potentially conflicting cause. But Congress did not choose merely to limit the freedom
of labor unions which seek the advantages of the Labor Management Relations Act to
Page 339 U. S. 419
be led by officers who are not willing to disavow membership in the Communist Party.
The scope of its legislation was much more extensive.
Legislation, in order to effectuate its purposes, may deal with radiations beyond the
immediate incidence of a mischief. If a particular mischief is within the scope of
congressional power, wide discretion must be allowed to Congress for dealing with it
effectively. It is not the business of this Court to restrict Congress too narrowly in
defining the extent or the nature of remedies. How to curb an evil, what remedies will
be effective; the reach of a particular evil, and therefore the appropriate scope of a
remedy against it -- all these are, in the main, matters of legislative policy not open to
judicial condemnation. There are, of course, some specific restrictions in devising
remedies. No matter what its notions of policy may be, the Eighth Amendment, for
example, bars Congress from inflicting "cruel and unusual punishments." I do not
suppose it is even arguable that Congress could ask for a disclosure of how union
officers cast their ballots at the last presidential election, even though the secret ballot
is a relatively recent institution. See Wigmore, The Australian Ballot System 3, 15, 22
(1889). So also, Congress must keep within the contours of the "due process"
requirement of the Fifth Amendment, vague as they are. In order to curb a mischief,
Congress cannot be so indefinite in its requirements that effort to meet them raises
hazards unfair to those who seek obedience or involves surrender of freedoms which
exceeds what may fairly be exacted. These restrictions on the broad scope of
legislative discretion are merely the law's application of the homely saws that one
should not throw out the baby with the bath or burn the house in order to roast the
pig.
In my view, Congress has cast its net too indiscriminately in some of the provisions of
§ 9(h). To ask
Page 339 U. S. 420
avowal that one
"does not believe in, and is not a member of or supports any organization that
believes in . . . the overthrow of the United States Government . . . by any illegal or
unconstitutional methods"
is to ask assurances from men regarding matters that open the door too wide to mere
speculation or uncertainty. It is asking more than rightfully may be asked of ordinary
men to take oath that a method is not "unconstitutional" or "illegal" when
constitutionality or legality is frequently determined by this Court by the chance of a
single vote. [Footnote 2/2] It does not meet the difficulty to suggest that the hazard of
a prosecution for perjury is not great, since the convictions for perjury must be
founded on willful falsity. To suggest that a judge might not be justified in allowing a
case to go to a jury, or that a jury would not be justified in convicting, or that, on the
possible happening of these events, an appellate court would be compelled to
reverse, or, finally, that resort could be had to this Court for review on a petition for
certiorari, affords safeguards too tenuous to neutralize the danger. See Musser v.
Utah, 333 U. S. 95. The hazards that were found to be fatal to the legislation under
review in Winters v. New York, 333 U. S. 507, appear trivial by comparison with what
is here involved.
It is not merely the hazard of prosecution for perjury that is dependent on a correct
determination as to the implications of a man's belief or the belief of others with whom
he may be associated in an organization concerned with political and social issues. It
should not be assumed that oaths will be lightly taken; fastidiously scrupulous regard
for them should be encouraged. Therefore, it becomes most relevant whether an oath
which Congress asks men to take may or may not be thought to touch
Page 339 U. S. 421
matters that may not be subjected to compulsory avowal of belief or disbelief. In the
uncertainty of the reach of § 9(h), one may withhold an oath because of conscientious
scruples that it covers beliefs whose disclosure Congress could not in terms exact. If
a man has scruples about taking an oath because of uncertainty as to whether it
encompasses some beliefs that are inviolate, the surrender of abstention is invited by
the ambiguity of the congressional exaction. As MR. JUSTICE JACKSON's opinion
indicates, probing into men's thoughts trenches on those aspects of individual
freedom which we rightly regard as the most cherished aspects of Western
civilization. The cardinal article of faith of our civilization is the inviolate character of
the individual. A man can be regarded as an individual, and not as a function of the
state, only if he is protected to the largest possible extent in his thoughts and in his
beliefs as the citadel of his person. Entry into that citadel can be justified, if at all, only
if strictly confined so that the belief that a man is asked to reveal is so defined as to
leave no fair room for doubt that he is not asked to disclose what he has a right to
withhold.
No one could believe more strongly than I do that every rational indulgence should be
made in favor of the constitutionality of an enactment by Congress. I deem it my duty
to go to the farthest possible limits in so construing legislation as to avoid a finding
that Congress has exceeded the limits of its powers. See, e.g., United States v.
Lovett, 328 U. S. 303, 328 U. S. 318, 328 U. S. 329; Shapiro v. United States, 335 U.
S. 1, 335 U. S. 36; United States v. CIO, 335 U. S. 106, 335 U. S. 124, 129.
If I possibly could, to avoid questions of unconstitutionality, I would construe the
requirements of § 9(h) to be restricted to disavowal of actual membership in the
Communist Party, or in an organization that is, in fact, a controlled cover for that Party
or of active belief,
Page 339 U. S. 422
as a matter of present policy, in the overthrow of the Government of the United States
by force. But what Congress has written does not permit such a gloss, nor deletion of
what it has written. See Yu Cong Eng v. Trinidad, 271 U. S. 500. I cannot deem it
within the rightful authority of Congress to probe into opinions that involve only an
argumentative demonstration of some coincidental parallelism of belief with some of
the beliefs of those who direct the policy of the Communist Party, though without any
allegiance to it. To require oaths as to matters that open up such possibilities invades
the inner life of men whose compassionate thought or doctrinaire hopes may be as
far removed from any dangerous kinship with the Communist creed as were those of
the founders of the present orthodox political parties in this country.
The offensive provisions of § 9(h) leave unaffected, however, the valid portions of the
section. In § 16, Congress has made express provision for such severance. Since the
judgments below were based in part on what I deem unconstitutional requirements, I
cannot affirm, but would remand to give opportunity to obey merely the valid portions
of § 9(h).
[Footnote 2/1]
Section 9(h) requires each officer of a union seeking to invoke the machinery of the
Labor Management Relations Act to submit an affidavit
"that he is not a member of the Communist Party or affiliated with such party, and that
he does not believe in, and is not a member of or supports any organization that
believes in or teaches, the overthrow of the United States Government by force or by
any illegal or unconstitutional methods."
61 Stat. 146, 29 U.S.C. (Supp. III) § 159(h). The provisions of what is now 18 U.S.C.
§ 1001, formerly § 35(A) of the Criminal Code, are made applicable in respect to such
affidavits.
[Footnote 2/2]
As to the dubious scope of the term "affiliated" in the statute, see Bridges v.
Wixon, 326 U. S. 135.
MR. JUSTICE JACKSON, concurring and dissenting, each in part.
If the statute before us required labor union officers to forswear membership in the
Republican Party, the Democratic Party or the Socialist Party, I suppose all agree that
it would be unconstitutional. But why, if it is valid as to the Communist Party?
The answer, for me, is in the decisive differences between the Communist Party and
every other party of any importance in the long experience of the United States with
party government. In order that today's decision may not be useful as a precedent for
suppression of any
Page 339 U. S. 423
political opposition compatible with our free institutions, I limit concurrence to grounds
and distinctions explicitly set forth herein, without which I should regard his Act as
unconstitutional.
To state controlling criteria definitively is both important and difficult, because those
Communist Party activities visible to the public closely resemble those of any other
party. Parties, whether in office or out, are often irresponsible in their use and abuse
of freedoms of speech and press. They all make scapegoats of unpopular persons or
classes and make promises of dubious sincerity or feasibility in order to win votes. All
parties, when in opposition, strive to discredit and embarrass the Government of the
day by spreading exaggerations and untruths and by inciting prejudiced or
unreasoning discontent, not even hesitating to injure the Nation's prestige among the
family of nations. The Communist Party, at least outwardly, only exaggerates these
well worn political techniques, and many persons are thus led to think of it as just
another more radical political party. If it were nothing but that, I think this legislation
would be unconstitutional. There are, however, contradictions between what meets
the eye and what is covertly done which, in my view of the issues, provide a rational
basis upon which Congress reasonably could have concluded [Footnote 3/1] that the
Communist Party is something different, in fact, from any other substantial party we
have known, and hence may constitutionally be treated as something different in law.
Page 339 U. S. 424
I 2. The Communist Party, alone among American parties past or present, is
From information before its several Committees and from facts of general knowledge,
Congress could rationally conclude that, behind its political party facade, the
Communist Party is a conspiratorial and revolutionary junta, organized to reach ends
and to use methods which are incompatible with our constitutional system. A rough
and compressed grouping of this data [Footnote 3/2] would permit Congress to draw
these important conclusions as to its distinguishing characteristics.
Page 339 U. S. 425
1. The goal of the Communist Party is to seize powers of government by and for a
minority, rather than to acquire power through the vote of a free electorate. It seeks
not merely a change of administration, or of Congress, or reform legislation within the
constitutional framework. Its program is not merely to socialize property more rapidly
and extensively than the other parties are doing. While the difference between other
parties in these matters is largely as to pace, the Communist Party's difference is one
of direction.
The Communist program only begins with seizure of government, which then
becomes a means to impose upon society an organization on principles
fundamentally opposed to those presupposed by our Constitution. It purposes forcibly
to recast our whole social and political structure after the Muscovite model of police
state dictatorship. It rejects the entire religious and cultural heritage of Western
civilization, as well as the American economic and political systems. This Communist
movement is a belated counter-revolution to the American Revolution, designed to
undo the Declaration of Independence, the Constitution, and our Bill of Rights, and
overturn our system of free, representative self-government.
Goals so extreme and offensive to American tradition and aspiration obviously could
not be attained or approached through order or with tranquility. If, by their better
organization and discipline, they were successful, more candid Communists admit
that it would be to an
Page 339 U. S. 426
accompaniment of violence, but at the same time they disclaim responsibility by
blaming the violence upon those who engage in resistance or reprisal. It matters little
by whom the first blow would he struck; no one can doubt that an era of violence and
oppression, confiscations and liquidations would be concurrent with a regime of
Communism.
Such goals set up a cleavage among us too fundamental to be composed by
democratic processes. Our constitutional scheme of elections will not settle issues
between large groups when the price of losing is to suffer extinction. When
dissensions cut too deeply, men will fight, even hopelessly, before they will submit.
[Footnote 3/3] And this is the kind of struggle projected by the Communist Party and
inherent in its program.
Page 339 U. S. 427
dominated and controlled by a foreign government. It is a satrap party which, to the
threat of civil disorder, adds the threat of betrayal into alien hands.
The chain of command from the Kremlin to the American party is stoutly denied and
usually invisible, but it was unmistakably disclosed by the American Communist Party
somersaulting in synchronism with shifts in the Kremlin's foreign policy. Before
Munich, Soviet policy was anti-German -- "anti-fascist" -- and the Communists in this
country were likewise. However, when Stalin concluded a nonaggression pact with
Hitler and Nazi Germany and the Soviet Union became partners in the war, the
Communists here did everything within their power to retard and embarrass the
United States' policy of rendering aid short of war to victims of aggression by that evil
partnership. When those partners again fell out and Russian policy once more
became anti-German, the Communists in this country made an abrupt and fierce
reversal and were unconscionable in their demands that American soldiers, whose
equipment they had delayed and sabotaged, be sacrificed in a premature second
front to spare Russia. American Communists, like Communists elsewhere in the
world, placed Moscow's demand above every patriotic interest.
By lineage and composition, the Communist Party will remain peculiarly susceptible
to this alien control. The entire apparatus of Communism -- its grievances, program,
propaganda and vocabulary -- were evolved for Eastern and Central Europe, whose
social and political conditions bear no semblance to our own. However gifted may
have been the Communist Party's founders and leaders -- Marx, Engels, Lenin and
Stalin -- not one of them ever lived in America, experienced our conditions, or imbibed
the spirit of our institutions. The Communist
Page 339 U. S. 428
Party is not native to this country, and its beginnings here were not an effort of
Americans to answer American problems. Nor is it the response to a quest by
American political leaders for lessons from European experiences. As a
consequence, the leaders of the American Communist Party have been otherwise
insignificant personalities, without personal political followings or aptitudes for our
political methods, adapted by training only to boring their way into the labor
movement, minority groups and coteries of naive and confused liberals, whose
organizations they have captured and discredited and among whom they lie in wait
for further orders.
The Old World may be rich in lessons which our statesmen could consult with
advantage. But it is one thing to learn from or support a foreign power because that
policy serves American interests, and another thing to support American policies
because they will serve foreign interests. [Footnote 3/4] In each country where the
Communists have seized control, they have so denationalized its foreign policy as to
make it a satellite and vassal of the Soviet Union and enforced a domestic policy in
complete conformity with the Soviet pattern, tolerating no deviation in deference to
any people's separate history, tradition or national interests.
Page 339 U. S. 429
3. Violent and undemocratic means are the calculated and indispensable methods to
attain the Communist Party's goal. It would be incredible naivete to expect the
American branch of this movement to forego the only methods by which a Communist
Party has anywhere come into power. In not one of the countries it now dominates
was the Communist Party chosen by a free or contestable election; in not one can it
be evicted by any election. The international police state has crept over Eastern
Europe by deception, coercion, coup d'etat, terrorism and assassination. Not only has
it overpowered its critics and opponents; it has usually liquidated them. The American
Communist Party has copied the organizational structure, and its leaders have been
schooled in the same technique and by the same tutors.
The American Communists have imported the totalitarian organization's disciplines
and techniques, notwithstanding the fact that this country offers them and other
discontented elements a way to peaceful revolution by ballot. [Footnote 3/5] If they
can persuade enough citizens, they may not only name new officials and inaugurate
new policies, but, by amendment of the Constitution, they can abolish the Bill of
Rights and set up an absolute government by legal methods. They are given liberties
of speech, press and assembly to enable them to present to the people their
proposals and propaganda for peaceful and lawful changes, however extreme. But
instead of resting their case upon persuasion and any appeal inherent in their ideas
and principles, the Communist Party adopts the techniques of a secret cabal -- false
names, forged passports, code messages, clandestine meetings. To these it adds
occasional terroristic and threatening methods,
Page 339 U. S. 430
such as picketing courts and juries, political strikes and sabotage.
This cabalism and terrorism is understandable in the light of what they want to
accomplish and what they have to overcome. The Communist program does not
presently, nor in foreseeable future elections, commend itself to enough American
voters to be a substantial political force. Unless the Communist Party can obtain
some powerful leverage on the population, it is doomed to remain a negligible factor
in the United States. Hence, conspiracy, violence, intimidation and the coup d'etat are
all that keep hope alive in the Communist breast.
4. The Communist Party has sought to gain this leverage and hold on the American
population by acquiring control of the labor movement. All political parties have
wooed labor and its leaders. But what other parties seek is principally the vote of
labor. The Communist Party, on the other hand, is not primarily interested in labor's
vote, for it does not expect to win by votes. It strives for control of labor's coercive
power -- the strike, the sit-down, the slow-down, sabotage, or other means of
producing industrial paralysis. Congress has legalized the strike as labor's weapon for
improving its own lot. But where Communists have labor control, the strike can be,
and sometimes is, perverted to a party weapon. In 1940 and 1941, undisclosed
Communists used their labor offices to sabotage this Nation's effort to rebuild its own
defenses. Disguised as leaders of free American labor, they were in truth secret
partisans of Stalin, who, in partnership with Hitler, was overrunning Europe, sending
honest labor leaders to concentration camps, and reducing labor to slavery in every
land either of them was able to occupy. No other important political party in our
history has attempted to use the strike to nullify a foreign or a domestic policy
adopted by those chosen under our representative system.
Page 339 U. S. 431
This labor leverage, however, usually can be obtained only by concealing the
Communist tie from the union membership. Whatever grievances American workmen
may have with American employers, they are too intelligent and informed to seek a
remedy through a Communist Party which defends Soviet conscription of labor,
forced labor camps and the police state. Hence the resort to concealment, and hence
the resentment of laws to compel disclosure of Communist Party ties. The
membership is not likely to entrust its bargaining power, its records, and its treasury
to such hands. When it does, the union finds itself a more or less helpless captive of
the Communist Party. Its officers cease to be interested in correcting grievances, but
seek to worsen and exploit them; they care less for winning strikes than that they be
long, bitter and disruptive. They always follow the Communist Party line, without even
knowing its source or its objectives. The most promising course of the Communist
Party has been the undercover capture of the coercive power of strategic labor unions
as a leverage to magnify its power over the American people.
5. Every member of the Communist Party is an agent to execute the Communist
program. What constitutes a party? Major political parties in the United States have
never been closely knit or secret organizations. Anyone who usually votes the party
ticket is reckoned a member, although he has not applied for or been admitted to
membership, pays no dues, has taken no pledge, and is free to vote, speak and act
as he wills. Followers are held together by rather casual acceptance of general
principles, the influence of leaders, and sometimes by the cohesive power of
patronage. Membership in the party carries with it little assurance that the member
understands or believes in its principles, and none at all that he will take orders from
its leaders. One may quarrel with the party and bolt its candidates, and return
Page 339 U. S. 432
again as much a member as those who were regular. And it is often a source of grief
to those who have labored long in the vineyard that late arrivals are taken into the
party councils from other parties without scrutiny. Of course, when party organization
is of this character, there is little ground for inference that all members are committed
to party plans or that they are agents for their execution.
Membership in the Communist Party is totally different. The Party is a secret
conclave. Members are admitted only upon acceptance as reliable and after
indoctrination in its policies, to which the member is fully committed. They are
provided with cards or credentials, usually issued under false names so that the
identification can only be made by officers of the Party who hold the code. Moreover,
each pledges unconditional obedience to party authority. Adherents are known by
secret or code names. They constitute "cells" in the factory, the office, the political
society, or the labor union. For any deviation from the party line, they are purged and
excluded.
Inferences from membership in such an organization are justifiably different from
those to be drawn from membership in the usual type of political party. Individuals
who assume such obligations are chargeable, on ordinary conspiracy principles, with
responsibility for and participation in all that makes up the Party's program. The
conspiracy principle has traditionally been employed to protect society against all
"ganging up" or concerted action in violation of its laws. No term passes that this
Court does not sustain convictions based on that doctrine for violations of the antitrust
laws or other statutes. [Footnote 3/6]
Page 339 U. S. 433
However, there has recently entered the dialectic of politics a cliche used to condemn
application of the conspiracy principle to Communists. "Guilt by association" is an
epithet frequently used and little explained, except that it is generally accompanied by
another slogan, "guilt is personal." Of course it is; but personal guilt may be incurred
by joining a conspiracy. That act of association makes one responsible for the acts of
others committed in pursuance of the association. It is wholly a question of the
sufficiency of evidence of association to imply conspiracy. There is certainly sufficient
evidence that all members owe allegiance to every detail of the Communist Party
program and have assumed a duty actively to help execute it, so that Congress could,
on familiar conspiracy principles, charge each member with responsibility for the
goals and means of the Party.
Such, then, is the background which Congress could reasonably find as a basis for
exerting its constitutional powers, and which the judiciary cannot disregard in testing
them. On this hypothesis, we may revert to consideration of the contention of
unconstitutionality of this oath insofar as it requires disclosure of Communist Party
membership or affiliation.
II
I cannot believe that Congress has less power to protect a labor union from
Communist Party domination than it has from employer domination. This Court has
uncompromisingly upheld power of Congress to disestablish labor unions where they
are company-dominated and to eradicate employer influence, even when exerted
only through spoken or written words which any person not the employer would be
free to utter. [Footnote 3/7]
Congress has conferred upon labor unions important rights and powers in matters
that affect industry, transport,
Page 339 U. S. 434
communications, and commerce. And Congress has not now denied any union full
self-government nor prohibited any union from choosing Communist officers. It seeks
to protect the union from doing so unknowingly. And if members deliberately choose
to put the union in the hands of Communist officers, Congress withdraws the
privileges it has conferred on the assumption that they will be devoted to the welfare
of their members. It would be strange indeed if it were constitutionally powerless to
protect these delegated functions from abuse and misappropriation to the service of
the Communist Party and the Soviet Union. Our Constitution is not a covenant of
nonresistance toward organized efforts at disruption and betrayal, either of labor or of
the country.
Counsel stress that this is a civil rights or a free speech or a free press case. But it is
important to note what this Act does not do. The Act does not suppress or outlaw the
Communist Party, nor prohibit it or its members from engaging in any above-board
activity normal in party struggles under our political system. It may continue to
nominate candidates, hold meetings, conduct campaigns and issue propaganda, just
as other parties may. No individual is forbidden to be or to become a philosophical
Communist or a full-fledged member of the Party. No one is penalized for writing or
speaking in favor of the Party or its philosophy. Also, the Act does not require or
forbid anything whatever to any person merely because he is a member of, or is
affiliated with, the Communist Party. It applies only to one who becomes an officer of
a labor union.
I am aware that the oath is resented by many labor leaders of unquestioned loyalty
and above suspicion of Communist connections, indeed by some who have
themselves taken bold and difficult steps to rid the labor movement of Communists. I
suppose no one likes to be compelled to exonerate himself from connections he has
never
Page 339 U. S. 435
acquired. I have sometimes wondered why I must file papers showing I did not steal
my car before I can get a license for it. But experience shows there are thieves
among automobile drivers, and that there are Communists among labor leaders. The
public welfare, in identifying both, outweighs any affront to individual dignity.
In weighing claims that any particular activity is above the reach of law, we have a
high responsibility to do so in the light of present-day actualities, not nostalgic
idealizations valid for a simpler age. Our own world, organized for liberty, has been
forced into deadly competition with another world, organized for power. We are faced
with a lawless and ruthless effort to infiltrate and disintegrate our society. In cases
involving efforts of Congress to deal with this struggle, we are clearly called upon to
apply the longstanding rule that an appointive Judiciary should strike down no act
produced by the democratic processes of our representative system unless
unconstitutionality is clear and certain.
I conclude that we cannot deny Congress power to take these measures under the
Commerce Clause to require labor union officers to disclose their membership in or
affiliation with the Communist Party.
III
Congress has, however, required an additional disclaimer which, in my view, does
encounter serious constitutional objections. A union officer must also swear that "he
does not believe in . . . the overthrow of the United States Government by force or by
any illegal or unconstitutional methods." [Footnote 3/8]
Page 339 U. S. 436
If Congress has power to condition any right or privilege of an American citizen
[Footnote 3/9] upon disclosure and disavowal of belief on any subject, it is obviously
this one. But the serious issue is whether Congress has power to proscribe any
opinion or belief which has not manifested itself in any overt act. While the forepart of
the oath requires disclosure and disavowal of relationships which depend on overt
acts of membership or affiliation, the after-part demands revelation and denial of mere
beliefs or opinions, even though they may never have matured into any act whatever
or even been given utterance. In fact, the oath requires one to form and express a
conviction on an abstract proposition which many good citizens, if they have thought
of it at all, have considered too academic and remote to bother about.
That this difference is decisive on the question of power becomes unmistakable when
we consider measures of enforcement. The only sanction prescribed, and probably
the only one possible in dealing with a false affidavit, is punishment for perjury. If one
is accused of falsely stating that he was not a member of, or affiliated with, the
Communist Party, his conviction would depend upon proof of visible and knowable
overt acts or courses of conduct sufficient to establish that relationship. But if one is
accused of falsely swearing that he did not believe
Page 339 U. S. 437
something that he really did believe, the trial must revolve around the conjecture as to
whether he candidly exposed his state of mind.
The law sometimes does inquire as to mental state, but only, so far as I recall, when it
is incidental to, and determines the quality of, some overt act in question. From its
circumstances, courts sometimes must decide whether an act was committed
intentionally or whether its results were intended, or whether the action taken was in
malice, or after deliberation, or with knowledge of certain facts. But, in such cases,
the law pries into the mind only to determine the nature and culpability of an act, as a
mitigating or aggravating circumstance, and I know of no situation in which a citizen
may incur civil or criminal liability or disability because a court infers an evil mental
state where no act at all has occurred. [Footnote 3/10] Our trial processes are clumsy
and unsatisfying for inferring cogitations which are incidental to actions, but they do
not even pretend to ascertain the thought that has had no outward manifestation.
Attempts of the courts to fathom modern political meditations of an accused would be
as futile and mischievous as the efforts in the infamous heresy trials of old to fathom
religious beliefs.
Our Constitution explicitly precludes punishment of the malignant mental state alone
as treason, most serious of all political crimes, of which the mental state of adherence
to the enemy is an essential part. It requires a duly witnessed overt act of aid and
comfort to the enemy. Cramer v. United States, 325 U. S. 1. It is true that, in England
of olden times, men were tried for treason for mental indiscretions such as imagining
the death of the king. But our Constitution was intended to end such prosecutions.
Only in the darkest periods of human history
Page 339 U. S. 438
has any Western government concerned itself with mere belief, however eccentric or
mischievous, when it has not matured into overt action, and, if that practice survives
anywhere, it is in the Communist countries whose philosophies we loathe.
How far we must revert toward these discredited systems if we are to sustain this
oath is made vivid by the Court's reasoning that the Act applies only to those "whose
beliefs strongly indicate a will to engage in political strikes. . . ." Since Congress has
never outlawed the political strike itself, the Court must be holding that Congress may
root out mere ideas which, even if acted upon, would not result in crime. It is a
strange paradox if one may be forbidden to have an idea in mind that he is free to put
into execution. But, apart from this, efforts to weed erroneous beliefs from the minds
of men have always been supported by the argument which the Court invokes today,
that beliefs are springs to action, that evil thoughts tend to become forbidden deeds.
Probably so. But if power to forbid acts includes power to forbid contemplating them,
then the power of government over beliefs is as unlimited as its power over conduct,
and the way is open to force disclosure of attitudes on all manner of social, economic,
moral and political issues.
These suggestions may be discounted as fanciful and far-fetched. But we must not
forget that in our country are evangelists and zealots of many different political,
economic and religious persuasions whose fanatical conviction is that all thought is
divinely classified into two kinds -- that which is their own and that which is false and
dangerous. Communists are not the only faction which would put us all in mental
straitjackets. Indeed, all ideological struggles, religious or political, are primarily
battles for dominance over the minds of people. It is not to be supposed that the age-
old readiness to
Page 339 U. S. 439
try to convert minds by pressure or suppression, instead of reason and persuasion, is
extinct. Our protection against all kinds of fanatics and extremists, none of whom can
be trusted with unlimited power over others, lies not in their forbearance, but in the
limitations of our Constitution.
It happens that the belief in overthrow of representative government by force and
violence which Congress conditionally proscribes is one that I agree is erroneous. But
"if there is any principle of the Constitution that more imperatively calls for attachment
than any other it is the principle of free thought -- not free thought for those who agree
with us, but freedom for the thought that we hate."
Holmes, J., dissenting in United States v. Schwimmer, 279 U. S. 644, 279 U. S. 654-
55. Moreover, in judging the power to deny a privilege to think otherwise, we cannot
ignore the fact that our own Government originated in revolution, and is legitimate
only if overthrow by force may sometimes be justified. That circumstances sometimes
justify it is not Communist doctrine, but an old American belief. [Footnote 3/11]
The men who led the struggle forcibly to overthrow lawfully constituted British
authority found moral support by asserting a natural law under which their revolution
was justified, and they broadly proclaimed these beliefs in the document basic to our
freedom. Such sentiments have also been given ardent and rather extravagant
Page 339 U. S. 440
expression by Americans of undoubted patriotism. [Footnote 3/12] Most of these
utterances were directed against a tyranny which left no way to change by suffrage. It
seems to me a perversion of their meaning to quote them, as the Communists often
do, to sanction violent attacks upon a representative government which does afford
such means. But while I think Congress may make it a crime
Page 339 U. S. 441
to take one overt step to use or to incite violence or force against our Government, I
do not see how, in the light of our history, a mere belief that one has a natural right
under some circumstances to do so can subject an American citizen to prejudice any
more than possession of any other erroneous belief. Can we say that men of our time
must not even think about the propositions on
Page 339 U. S. 442
which our own Revolution was justified? Or may they think, provided they reach only
one conclusion -- and that the opposite of Mr. Jefferson's?
While the Governments, State and Federal, have expansive powers to curtail action,
and some small powers to curtail speech or writing, I think neither has any power, on
any pretext, directly or indirectly to attempt foreclosure of any line of thought. Our
forefathers found the evils of free thinking more to be endured than the evils of
inquest or suppression. They gave the status of almost absolute individual rights to
the outward means of expressing belief. I cannot believe that they left open a way for
legislation to embarrass or impede the mere intellectual processes by which those
expressions of belief are examined and formulated. This is not only because
individual thinking presents no danger to society, but because thoughtful, bold and
independent minds are essential to wise and considered self-government.
Progress generally begins in skepticism about accepted truths. Intellectual freedom
means the right to reexamine much that has been long taken for granted. A free man
must be a reasoning man, and he must dare to doubt what a legislative or electoral
majority may most passionately assert. The danger that citizens will think wrongly is
serious, but less dangerous than atrophy from not thinking at all. Our Constitution
relies on our electorate's complete ideological freedom to nourish independent and
responsible intelligence and preserve our democracy from that submissiveness,
timidity and herd-mindedness of the masses which would foster a tyranny of
mediocrity. The priceless heritage of our society is the unrestricted constitutional right
of each member to think as he will. Thought control is a copyright of totalitarianism,
and we have no claim to it. It is not the function of our Government to keep the citizen
from falling into error; it is the function of the
Page 339 U. S. 443
citizen to keep the Government from falling into error. We could justify any censorship
only when the censors are better shielded against error than the censored.
The idea that a Constitution should protect individual nonconformity is essentially
American, and is the last thing in the world that Communists will tolerate. Nothing
exceeds the bitterness of their demands for freedom for themselves in this country
except the bitterness of their intolerance of freedom for others where they are in
power. [Footnote 3/13] An exaction of some profession of belief or nonbelief is
precisely what the Communists would enact -- each individual must adopt the ideas
that are common to the ruling group. Their whole philosophy is to minimize man as an
individual and to increase the power of man acting in the mass. If any single
characteristic distinguishes our democracy from Communism, it is our recognition of
the individual as a personality, rather than as a soulless part in the jigsaw puzzle that
is the collectivist state.
I adhere to views I have heretofore expressed, whether the Court agreed, West
Virginia Board of Education v. Barnette, 319 U. S. 624, or disagreed, see dissenting
opinion in United States v. Ballard, 322 U. S. 78, 322 U. S. 92, that our Constitution
excludes both general and local governments from the realm of opinions and ideas,
beliefs and doubts, heresy and orthodoxy, political, religious or scientific. The right to
speak out, or to publish, also
Page 339 U. S. 444
is protected when it does not clearly and presently threaten some injury to society
which the Government has a right to protect. Separate pinion, Thomas v. Collins, 323
U. S. 516. But I have protested the degradation of these constitutional liberties to
immunize and approve mob movements, whether those mobs be religious or political,
radical or conservative, liberal or illiberal, Douglas v. City of Jeannette, 319 U. S.
157; Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 13, or to authorize pressure
groups to use amplifying devices to drown out the natural voice and destroy the
peace of other individuals. Saia v. People of New York, 334 U. S. 558; Kovacs v.
Cooper, 336 U. S. 77. And I have pointed out that men cannot enjoy their right to
personal freedom if fanatical masses, whatever their mission, can strangle individual
thoughts and invade personal privacy. Martin v. Struthers, 319 U. S. 141, dissent
at 319 U. S. 166. A catalogue of rights was placed in our Constitution, in my view, to
protect the individual in his individuality, and neither statutes which put those rights at
the mercy of officials nor judicial decisions which put them at the mercy of the mob
are consistent with its text or its spirit.
I think that, under our system, it is time enough for the law to lay hold of the citizen
when he acts illegally, or in some rare circumstances when his thoughts are given
illegal utterance. I think we must let his mind alone. [Footnote 3/14]
Page 339 U. S. 445
IV
The task of this Court to maintain a balance between liberty and authority is never
done, because new conditions today upset the equilibriums of yesterday. The seesaw
between freedom and power makes up most of the history of governments, which, as
Bryce points out, on a long view, consists of repeating a painful cycle from anarchy to
tyranny and back again. The Court's day-to-day task is to reject, as false, claims in
the name of civil liberty which, if granted, would paralyze or impair authority to defend
existence of our society, and to reject, as false, claims in the name of security which
would undermine our freedoms and open the way to oppression. These are the
competing considerations involved in judging any measures which government may
take to suppress or disadvantage its opponents and critics.
I conclude that today's task can only be discharged by holding that all parts of this
oath which require disclosure of overt acts of affiliation or membership in the
Communist Party are within the competence of Congress to enact, and that any parts
of it that call for a disclosure of belief unconnected with any overt act are beyond its
power. [Footnote 3/15]
[Footnote 3/1]
Of course, it is not for any member of this Court to express or to act upon any opinion
he may have as to the wisdom, effectiveness or need of this legislation. Our
"inquiries, where the legislative judgment is drawn in question, must be restricted to
the issue whether any state of facts either known or which could reasonably be
assumed affords support for it."
United States v. Carolene Product Co., 304 U. S. 144, 304 U. S. 154.
[Footnote 3/2]
It is unnecessary to set out a comprehensive compendium of the materials which
Congress may or could have considered, or to review the voluminous evidence
before its several Committees, much of which is already referred to in the Court's
opinion. Most of this information would be of doubtful admissibility or credibility in a
judicial proceeding. Its persuasiveness, validity and credibility for Legislative purposes
are for Congress, see n. 1, supra. I intimate no opinion as to its sufficiency for
purposes of a criminal trial.
An introduction to the literature on the subject may be found in: Cohen and Fuchs,
Communism's Challenge and the Constitution, 34 Cornell L.Q. 182; Moore, The
Communist Party of the U.S.A. 39 Am.Pol.Sci.Rev. 31; Timasheff,
The Schneiderman Case -- Its Political Aspects, 12 Ford.L.Rev. 209; Note, 32
Georgetown L.J. 405, 411-418; Emerson & Helfeld, Loyalty Among Government
Employees, 58 Yale L.J. 1, 61-64; Donovan & Jones, Program For a Democratic
Counter Attack to Communist Penetration of Government Service, 58 Yale L.J. 1211,
1215-1222, and see Notes, 48 Col.L.Rev. 253; 96 U. of Pa.L.Rev. 381; 1 Stanford
L.Rev. 85; 23 Notre Dame Lawyer 577; 34 Va.L.Rev. 439, 450.
See also Mills, The New Men of Power (1948) 186-200; Levenstein, Labor Today and
Tomorrow (1945) 159-17; Teller, Management Functions under Collective Bargaining
(1947) 401-410; Smith, Spotlight on Labor Unions (1946) 40-43, 63-67, 79-82; Taft,
Economics and Problems of Labor (1948) 499-501, 722; Saposs, Left Wing Unionism
(1926) 48-65; Foster, From Bryan to Stalin (1937) 275-277; Gitlow, I Confess (1940)
334-395; The Communist in Labor Relations Today (Research Institute of America,
New York, March 28, 1946); Baldwin, Union Administration and Civil Liberties, 248
Annals 54, 59; Labor Abroad, Dec.1947, No. 5 (U.S. Dept. of Labor, Bureau of Labor
Statistics) 3; Labor Abroad, Feb.1948, No. 6 (U.S. Dept. of Labor, Bureau of Labor
Statistics) 1-3; Postwar Labor Movement in Italy, 68 Monthly Labor Review (U.S.
Dept. of Labor, Bureau of Labor Statistics) 49. For the story of American political
parties, see Binkley, American Political Parties (2d ed., 1945); 2 Bryce, The American
Commonwealth (2d ed. rev. 1891), and on the Communist Party, in addition to
materials above cited, Odegaard and Helms, American Politics (1938) 795-797.
[Footnote 3/3]
Such is the view of students of Western society, with outlook so opposed as Lord
Balfour and Harold Laski. Balfour wrote:
"Our alternating Cabinets, though belonging to different parties, have never differed
about the foundation of society, and it is evident that our whole political machinery
presupposes a people so fundamentally at one that they can afford to bicker, and so
sure of their own moderation that they are not dangerously disturbed by the never-
ending din of political conflict. May it always be so."
Preface to the World's Classics edition of Bagehot's English Constitution, p. xxiii.
Laski commented:
"In an interesting passage [citing the above], Lord Balfour has drawn attention to the
fact that the success of the British Constitution in the Nineteenth Century -- it is worth
adding, the general success of representative government -- was built upon an
agreement between parties in the state upon fundamental principles. There was, that
is, a kindred outlook upon large issues, and, since fighting was confined to matters of
comparative detail, men were prepared to let reason have its sway in the realm of
conflict. For it is significant that, in the one realm where depth of feeling was
passionate -- Irish home rule -- events moved rapidly to the test of the sword, and the
settlement made was effected by violence, and not by reason."
Laski, Liberty in the Modern State, 238.
similar gravity. As drawn, this clause might, however, apply to membership in a mere
philosophical or discussion group.
[Footnote 3/9]
This part of the oath was obviously intended to disclose persons not members of or
affiliated with the Communist Party but who were a part of the undertow of the
Communist movement. It was probably suggested by the longstanding requirement of
somewhat similar oaths in immigration and naturalization matters. There is, however,
no analogy between what Congress may require of aliens as a condition of admission
or of citizenship and what it may require of a citizen.

If we substitute the Civil War for Irish home rule, these statements become as [Footnote 3/10]
applicable to the United States as they are to England.
See Holmes, The Common Law, Lectures II, III and IV, pp. 668, 132 et seq.
[Footnote 3/4]
[Footnote 3/11]
To compare attacks against Thomas Jefferson with attacks against the Communist
Nothing is more pernicious than the idea that every radical measure is "Communistic"
leaders -- as Communists generally do [e.g. Dennis, Let the People Know (1947) 13]
or every liberal-minded person a "Communist." One of the tragedies of our time is the
-- would be meaningful only if his character and motives were comparable to those of
confusion between reform and Communism -- a confusion to which both the friends
the Communist leaders. When we consider that Jefferson was the author of Virginia's
and enemies of reform have contributed, the one by failing to take a clear stand
Statute of Religious Liberty, was war Governor of Virginia, risked his life to sign the
against Communists and Communism, and the other by characterizing even the most
Declaration of Independence, was Secretary of State in President Washington's
moderate suggestion of reform as "Communistic," and its advocates as
Cabinet, and became President of the United States through the influence of
"Communists." Unquestioning idolatry of the status quo has never been an American
Alexander Hamilton, it seems sacrilegious to liken Jefferson's motives in supporting
characteristic.
certain phases of French policy with Communist allegiance to the Kremlin.
[Footnote 3/12]
[Footnote 3/5]
A surprising catalogue of statements could be compiled. The following are selected
Changes as decisive as those wrought by most revolutions resulted from the election
from Mencken, A New Dictionary of Quotations, under the rubric "Revolution":
of Jefferson in 1800, Jackson in 1828, Lincoln in 1860, and Roosevelt in 1932.
"Whenever any government becomes destructive of these ends [life, liberty and the
[Footnote 3/6]
pursuit of happiness], it is the right of the people to alter or abolish it, and to institute a
I have taken pains to point out that the whole doctrine of conspiracy and its abuse new government, laying its foundations on such principles, and organizing its powers
presents a danger to the fair administration of justice. Concurring opinion, Krulewitch in such form, as to them shall seem most likely to effect their safety and happiness."
v. United States, 336 U. S. 440, 336 U. S. 445.
Thomas Jefferson, The Declaration of Independence, July 4, 1776.
[Footnote 3/7]
"The community hath an indubitable, inalienable, and indefeasible right to reform,
See cases collected in Thomas v. Collins, 323 U. S. 516, 323 U. S. 548. alter or abolish government, in such manner as shall be by that community judged
most conducive to the public weal."
[Footnote 3/8]
The Pennsylvania Declaration of Rights, 1776.
The Act lays down other requirements for the oath which do not require extended
discussion, as, for example, the clause "is not a member of or supports any "It is an observation of one of the profoundest inquirers into human affairs that a
organization that believes in or teaches, the overthrow of the United States revolution of government is the strongest proof that can be given by a people of their
Government by force." For reasons set forth in parts I and II, Congress would virtue and good sense."
undoubtedly have power to require disclosure of membership in an organization
John Adams, Diary, 1786.
which had the characteristics of the Communist Party or other characteristics of
"What country can preserve its liberties if their rulers are not warned from time to time
that their people preserve the spirit of resistance? Let them take arms."
Thomas Jefferson, Letter to W. S. Smith, Nov. 13, 1787. "An oppressed people are
authorized whenever they can to rise and break their fetters." Henry Clay, Speech in
the House of Representatives, March 4, 1818.
"Any people anywhere, being inclined and having the power, have the right to rise up
and shake off the existing government and form a new one that suits them better."
Abraham Lincoln, Speech in the House of Representatives, 1848.
"All men recognize the right of revolution: that is, the right to refuse allegiance to, and
to resist, the government when its tyranny or its inefficiency are great and
unendurable."
H. D. Thoreau, An Essay on Civil Disobedience, 1849.
"This country, with its institutions, belongs to the people who inhabit it. Whenever they
shall grow weary of the existing government, they can exercise their constitutional
right of amending it, or their revolutionary right to dismember or overthrow it."
Abraham Lincoln, Inaugural Address, March 4, 1861.
"Whenever the ends of government are perverted, and public liberty manifestly
endangered, and all other means of redress are ineffectual, the people may, and of a
right ought to, reform the old or establish a new government; the doctrine of
nonresistance against arbitrary power and oppression is absurd, slavish and
destructive of the good and happiness of mankind."
Declaration of Rights of Maryland, 1867.
"The right of revolution is an inherent one. When people are oppressed by their
government, it is a natural right they enjoy to relieve themselves of the oppression, if
they are strong enough, either by withdrawal from it or by overthrowing it and
substituting a government more acceptable."
U.S. Grant, Personal Memoirs, I, 1885.
Quotations of similar statements could be multiplied indefinitely. Of course, these
quotations are out of their context and out of their times. And despite their abstract
theories about revolt, it should also be noted that Adams, Jefferson, Lincoln and
Grant were uncompromising in putting down any show of rebellion toward the
Government they headed.
The revolutionary origin of our own Government has inclined Americans to value
revolution as a means to liberty and loosely to think that all revolutionists are liberals.
The fact is, however, that violent revolutions are rare which do more in the long run
than to overthrow one tyranny to make way for another. The cycle from revolt to
reaction has taken less than a score of bloody years in the great revolutions. The
Puritan Commonwealth under Cromwell led but to the Restoration; the French by
revolution escaped from the reign of Louis XVI to the dictatorship of Napoleon; the
Russians overthrew the Czar and won the dictatorship of Lenin and Stalin; the
Germans deposed the Kaiser and fell victims of a dictatorship by Hitler. I am
convinced that force and violence do not serve the cause of liberty as well as
nonviolence. See Fischer, Gandhi and Stalin, passim.
But the sentiments I have quoted have strong appeal to the impetuous, and are
deeply imbedded in American tradition.
[Footnote 3/13]
Prime Minister Attlee recently stated:
"I constantly get hypocritical resolutions protesting against alleged infringements of
freedom in this country. I get protests because we keep out from places where secret
work is carried on people who cannot be trusted. This from Communists who know
that their fellows in Communist countries carry on a constant purge and ruthlessly
remove from office anyone who shows the slightest sign of deviating from what their
rulers consider to be orthodoxy. It is sickening hypocrisy."
London Times Weekly Edition, July 6, 1949.
[Footnote 3/14]
The Court appears to recognize and compound the constitutional weakness of this
statute and, to save this part of the oath from unconstitutionality, declines to read the
text "very literally." It renders the Act to call for disclaimer of belief in forcible
overthrow only as an objective, but not as a prophecy. And, furthermore, one is
allowed to believe in forcible overthrow, even as an objective, so long as the belief
does not relate to the Government "as it now exists." I think we do not make an Act
constitutional by making it vague, but only compound its invalidity. Cf. Winters v. New
York, 333 U. S. 507.
[Footnote 3/15]
This conclusion, if it prevailed, would require decision of the effect of partial invalidity
on the whole and the applicability of the severability clause. As it does not prevail,
discussion of the question would be academic.
MR. JUSTICE BLACK, dissenting.
We have said that
"Freedom to think is absolute of its own nature; the most tyrannical government is
powerless to control the inward workings of the mind. [Footnote 4/1]"
But people can be, and, in less democratic countries, have
Page 339 U. S. 446
been, made to suffer for their admitted or conjectured thoughts. Blackstone recalls
that Dionysius is
"recorded to have executed a subject barely for dreaming that he had killed him,
which was held for a sufficient proof that he had thought thereof in his waking hours.
[Footnote 4/2]"
Such a result, while too barbaric to be tolerated in our nation, is not illogical if a
government can tamper in the realm of thought and penalize "belief" on the ground
that it might lead to illegal conduct. Individual freedom and governmental thought-
probing cannot live together. As the Court admits even today, under the First
Amendment, "Beliefs are inviolate."
Today's decision rejects that fundamental principle. The Court admits, as it must, that
the "proscriptions" of § 9(h) of the National Labor Relations Act as amended by the
Taft-Hartley Act rest on "beliefs and political affiliations," and that "Congress has
undeniably discouraged the lawful exercise of political freedoms" which are "protected
by the First Amendment." These inescapable facts should compel a holding that §
9(h) conflicts with the First Amendment.
Crucial to the Court's contrary holding is the premise that congressional power to
regulate trade and traffic includes power to proscribe "beliefs and political affiliations."
No case cited by the Court provides the least vestige of support for thus holding that
the Commerce Clause restricts the right to think. On the contrary, the First
Amendment was added after adoption of the Constitution for the express purpose of
barring Congress from using previously granted powers to abridge belief or its
expression. Freedom to think is inevitably abridged when beliefs are penalized by
imposition of civil disabilities.
Since § 9(h) was passed to exclude certain beliefs from one arena of the national
economy, it was quite natural
Page 339 U. S. 447
to utilize the test oath as a weapon. History attests the efficacy of that instrument for
inflicting penalties and disabilities on obnoxious minorities. It was one of the major
devices used against the Huguenots in France, and against "heretics" during the
Spanish Inquisition. It helped English rulers identify and outlaw Catholics, Quakers,
Baptists, and Congregationalists -- groups considered dangerous for political as well
as religious reasons. [Footnote 4/3] And wherever the test oath was in vogue, spies
and informers found rewards far more tempting than truth. [Footnote 4/4] Painful
awareness of the evils of thought espionage made
Page 339 U. S. 448
such oaths "an abomination to the founders of this nation," In re Summers, 325 U. S.
561, 325 U. S. 576, dissenting opinion. Whether religious, political, or both, test oaths
are implacable foes of free thought. By approving their imposition, this Court has
injected compromise into a field where the First Amendment forbids compromise.
The Court assures us that today's encroachment on liberty is just a small one, that
this particular statutory provision
"touches only a relative handful of persons, leaving the great majority of persons of
the identified affiliations and beliefs completely free from restraint."
But not the least of the virtues of the First Amendment is its protection of each
member of the smallest and most unorthodox minority. Centuries of experience testify
that laws aimed at one political or religious group, however rational these laws may
be in their beginnings, generate hatreds and prejudices which rapidly spread beyond
control. Too often it is fear which inspires such passions, and nothing is more
reckless or contagious. In the resulting hysteria, popular indignation tars with the
same brush
Page 339 U. S. 449
all those who have ever been associated with any member of the group under attack
or who hold a view which, though supported by reversed Americans as essential to
democracy, has been adopted by that group for its own purposes.
Under such circumstances, restrictions imposed on proscribed groups are seldom
static, [Footnote 4/5] even though the rate of expansion may not move in geometric
progression from discrimination to arm-band to ghetto and worse. Thus, I cannot
regard the Court's holding as one which merely bars Communists from holding union
office, and nothing more. For its reasoning would apply just as forcibly to statutes
barring Communists and their suspected sympathizers from election to political office,
mere membership in unions, and, in fact, from getting or holding any jobs whereby
they could earn a living.
The Court finds comfort in its assurance that we need not fear too much legislative
restriction of political belief or association "while this Court sits." That expression,
while felicitous, has no validity in this particular constitutional field. For it springs from
the assumption that individual mental freedom can be constitutionally abridged
whenever any majority of this Court finds a satisfactory legislative reason. Never
before has this Court held that the Government could for any reason attaint persons
for their political beliefs or affiliations. It does so today.
Today the "political affiliation" happens to be the Communist Party: testimony of an
ex-Communist that some Communist union officers had called "political
Page 339 U. S. 450
strikes" is held sufficient to uphold a law coercing union members not to elect any
Communist as an officer. Under this reasoning, affiliations with other political parties
could be proscribed just as validly. Of course, there is no practical possibility that
either major political party would turn this weapon on the other, even though
members of one party were accused of "political lockouts" a few years ago and
members of the other are now charged with fostering a "welfare state" alien to our
system. But with minor parties, the possibility is not wholly fanciful. One, for instance,
advocates socialism; [Footnote 4/6] another allegedly follows the Communist "line";
still another is repeatedly charged with a desire and purpose to deprive Negroes of
equal job opportunities. Under today's opinion, Congress could validly bar all
members of these parties from officership in unions or industrial corporations; the only
showing required would be testimony that some members in such positions had, by
attempts to further their party's purposes, unjustifiably fostered industrial strife which
hampered interstate commerce.
It is indicated, although the opinion is not thus limited and is based on threats to
commerce, rather than to national security, that members of the Communist Party or
its "affiliates" can be individually attainted without danger to others because there is
some evidence that, as a group, they act in obedience to the commands of a foreign
power. This was the precise reason given in Sixteenth Century England for attainting
all Catholics unless they subscribed to test oaths wholly incompatible with their
Page 339 U. S. 451
religion. [Footnote 4/7] Yet, in the hour of crisis, an overwhelming majority of the
English Catholics thus persecuted rallied loyally to defend their homeland against
Spain and its Catholic troops. [Footnote 4/8] And in our own country, Jefferson and
his followers were earnestly accused of subversive allegiance to France. [Footnote
4/9] At the time, imposition of civil disability on all members of his political party must
have seemed at least as desirable as does § 9(h) today. For at stake, so many
believed, was the survival of a newly founded nation, not merely a few potential
interruptions of commerce by strikes "political", rather than economic, in origin.
Page 339 U. S. 452
These experiences underline the wisdom of the basic constitutional precept that
penalties should be imposed only for a person's own conduct, not for his beliefs or for
the conduct of others with whom he may associate. Guilt should not be imputed solely
from association or affiliation with political parties or any other organization, however
much we abhor the ideas which they advocate. Schneiderman v. United States, 320
U. S. 118, 320 U. S. 136-139. [Footnote 4/10] Like anyone else, individual
Communists who commit overt acts in violation of valid laws can and should be
punished. But the postulate of the First Amendment is that our free institutions can be
maintained without proscribing or penalizing political belief, speech, press, assembly,
or party affiliation. [Footnote 4/11] This is a far bolder philosophy
Page 339 U. S. 453
than despotic rulers can afford to follow. It is the heart of the system on which our
freedom depends.
Fears of alien ideologies have frequently agitated the nation and inspired legislation
aimed at suppressing advocacy of those ideologies. [Footnote 4/12] At such times,
the fog of public excitement obscures the ancient landmarks set up in our Bill of
Rights. Yet then, of all times, should this Court adhere most closely to the course they
mark. This was done in De Jones v. Oregon, 299 U. S. 353, 299 U. S. 365, where the
Court struck down a state statute making it a crime to participate in a meeting
conducted by Communists. It had been stipulated that the Communist Party
advocated violent overthrow of the Government. Speaking through Chief Justice
Hughes, a unanimous Court calmly announced time-honored principles that should
govern this Court today:
"The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political discussion, to the end
that government may be responsive to the will of the people and that changes, if
desired, may be obtained by peaceful means. Therein lies the security of the
Republic, the very foundation of constitutional government."
G.R. No. 126183 March 25, 1999
LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON
GOMEZ, ELENA GUEVARRA, ROSALINA JINGCO, LOIDA IGNACIO, and
EMERITA PIZARRO, petitioners,
vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE SECRETARY OF
THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.
G.R. No. 129221 March 25, 1999
ROLANDO ALURA,CLARA ALVAREZ, POFIRIO AUSTRIA, VICENTE
CARRANZA, ELMER DALIDA, ROSALINDA DALIDA, NELSON DUL-DULAO, LEA
POCONG, ENRICO RAYMUNDO, MARGIE SERRANO, SUSAN SIERTE, JESSIE
VILLANUEVA, NORBERTO ABAD, MARIA ACEJO, ELVIRA ALANO, SUSANA
BANUA, CAROLINA BULACLAC, DANILO CABALLES, ECHELITA CALMA,
JESUSA CARAIG, CECILIA CASTILLO, ANACLETA CORRALES, GLORIA
CUEVAS, CONCORDIA DE GUZMAN, ROWENA DEL ROSARIO, MATILDE
DINGLE, ROSARIO DULDULAO, CONRADA ENDRINA, LUZVIMINDA ESPINO,
VIRGILIO ESTRADA, DAMIAN FETIZANAN, DEMOCRITO FLORES, ROSALIA
GARCENILA, CORAZON GONZALES, VIOLETA GUANIZO, SURENA GUNDRAN,
HILARIA HALAGO, NERISSA IGNACIO, LEONOR LACERNA, TERESITA
LAGUMBAY, TERESTTA LAURENTE, CARMELITA LEGION, LEONARDO LIMBO,
EDGARDO LIWANAG, ERLINA MAGALLANES, NEDA MAGSULIT, AMELITA
MANGAHAS, GUIA MORRIS, HIPOLITA NATIVIDAD, NATIVIDAD NEPOMUCENO,
ROSALINA NOCUM, MAXIMA NON, ESTELA PALILEO, ANA PALMA, GLICERIA
PANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA REAL,
BERNARDITA RINO, CELIA RONQUILLO, GLORIA SALVADOR, CATHERINE
SAN AGUSTIN, LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE, GINA
TIMBAS, BENJAMIN VALBUENA, DONATO VALDEMORO, ROSEMARIE
VEDEJA, RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA VILLAREAL,
WILSON PEREZ, ENRICO PILANDE, JOSEPHINE PARMISANO, FELIPE
ALACAR, JOSE FETAL ALVERO, JR., MYRNA BARLISO, CAROLINA
COLIGADO, ROLANDO CERBO and LORA CLEMENCIA, petitioners,
vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION, and SECRETARY OF
EDUCATION CULTURE AND SPORTS, respondents.
BELLOSILLO, J.:
These consolidated petitions 1 are among several petitions filed with this Court arising
from the much-publicized public school teachers' mass actions of September/October
1990.
Petitioners are public school teachers from various schools in Metro Manila who were
simultaneously charged, preventively suspended, and eventually dismissed in
October 1990 by then Secretary Isidro D. Cariño of the Department of Education,
Culture and Sports (DECS), in decisions issued by him which uniformly read —
This is a mutu-propio administrative complaint separately filed by the Secretary of
Education, Culture and Sports against the following public school teachers . . . .
based on the report submitted by their respective school principals wherein it was
alleged that the above-named teachers participated in the mass action/illegal strike in
Sept. 19-21, 1990 and subsequently defied the return-to-work order dated September
17, 1990 issued by this Office, which acts constitute grave misconduct, gross neglect
of duty, gross violation of Civil Service Law, Rules and Regulations and reasonable
office regulations, refusal to perform official duty, gross insubordination conduct
prejudicial to the best interest of the service and absence without official leave
(AWOL), in violation of Presidential Decree 807, otherwise known as the Civil Service
Decree of the Philippines.
Required to explain within a period of not less than 72 hours but not more than 5 days
from receipt of the complaint, respondents failed to submit the required answer within
the given time up to the present, and despite the denial of their request for extension
of 30 days within which to submit their answers dated September 25, 1990 filed by
their counsel, Atty. Gregorio Fabros, in a letter of this Office to him dated Septmber
28, 1990, respondents failed to submit the same, which failure, is considered a waiver
on their part of their right to answer the charges and to controvert the same.
Wherefore, after a careful evaluation of the records, this Office finds the respondents
guilty as charged.
In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission
on Guidelines in the Application of Penalty in Administrative Cases, the herein
respondents are dismissed from Office effective immediately.
The decisions dismissing petitioners were immediately implemented.
Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the
Civil Service Commission (CSC). In 1993 the CSC found petitioners guilty of "conduct
prejudicial to the best interest of the service" for having participated in the mass
actions and imposed upon them the reduced penalty of six (6) months' suspension.
However, in view of the length of time that petitioners had been out of the service by
reason of the immediate implementation of the dismissal orders of Secretary Cariño,
the CSC likewise ordered petitioners' automatic reinstatement in the service without
back wages.
Petitioners were unhappy with the CSC decision. They initially filed petitions
for certiorari with this Court, docketed as G.R. Nos. 111998, 2 114435-5506, 3 and
116312-19, 4 which were all referred to the Court of Appeals pursuant to Revised
Administrative Circular No. 1-95 5 and there re-docketed as CA-G.R. SP No. 37620,
CA-G.R. SP No. 37619 and CA-G.R. SP Nos. 37784, 37808-37014, respectively.
On 29 November 1995 the Special Third Division of the Court of Appeals 6 rendered a
joint decision in CA-G.R. SP Nos. 37619-20 dismissing the petitions for lack of
merit. 7 The appellate court ruled that the questioned resolutions of the Civil Service
Commission finding petitioners guilty of conduct prejudicial to the best interest of the
service were based on reasonable and justifiable grounds; that petitioners' perceived
grievances were no excuse for them not to conduct classes and defy the return-to-
work order issued by their superiors; that the immediate execution of the dismissal
orders of Secretary Cariño was sanctioned by Sec. 47, par. (2), of the Administrative
Code of 1987 (E.O. No. 292) as well as Sec. 37, par. (b), Art. IX of PD No. 807, 8 and
Sec. 32, Rule XIV of the Omnibus Rules Implementing Book V of E. O. No. 292. Their
motion for reconsideration having been denied on 15 May 1997, 9 petitioners then
appealed by certiorari to this Court on 26 June 1997, docketed as G.R. No. 129221.
Meanwhile, on 24 April 1998 the Tenth Division of the Court of
Appeals 10 rendered a joint decision in CA-G.R. SP No. 37784 and Nos. 37808-14
likewise dismissing the petitions for lack of merit. 11 The appellate court rejected
petitioners' contention that they should not have been penalized for participating in
the September/October 1990 mass actions because they were merely exercising their
constitutional right to free assembly. In so ruling the Court of Appeals cited Manila
Public School Teachers Association v. Laguio, Jr. 12 wherein this Court ruled that the
public school teachers' mass actions of September/October 1990 were "to all intents
and purposes a strike . . . constitut[ing] a concealed and unauthorized stoppage of, or
absence from, work which it was the teachers' duty to perform, undertaken for
essentially economic reasons." Petitioners' contention.that secretary Cariño's decision
to dismiss them was not supported by evidence was likewise rejected in view of
petitioners' admissions and/or failure to refute the factual finding that petitioners
actually joined the mass actions based on the report of absences submitted by their
respective school principals. Their motion for reconsideration having been denied in
the resolution of 20 August 1996, 13 petitioners then filed a petition for review
on certiorari with this Court on 1 October 1996, docketed as G.R. No. 126183.
By resolution of 7 October 1997 we granted petitioners' motion for the consolidation
of G.R. Nos. 126183 and 129221 involving as they did common questions of fact and
law.
Petitioners contend that the Court of Appeals grievously erred in affirming the CSC
resolutions finding them guilty of conduct prejudicial to the best interest of the service
when their only "offense" was to exercise their constitutional right to peaceably
assemble and petition the government for redress of their grievances. Moreover
petitioners insist that the mass actions of September/October 1990 were not "strikes"
as there was no actual disruption of classes. Petitioners therefore ask for exoneration
or, in the alternative, award of back wages for the period of three (3) years when they
were not allowed to work while awaiting resolution of their appeals by the MSPB and
CSC, deducting the period of six (6) months' suspension eventually meted them.
The petitions must be denied in view of previous rulings of this Court already settling
all the issues raised by petitioners. It is a very desirable and necessary judicial
practice that when a court has laid down a principle of law as applicable to a certain
state of facts, it will adhere to that principle and apply it to all future cases where the
facts are substantially the same. 14 Stare decisis et non quieta movere. Stand by the
decisions and disturb not what is settled. 15
As early as 18 December 1990 we have categorically ruled in the consolidated cases
of Manila Public School Teachers Association v.
Laguio Jr., 16 and Alliance of Concerned Teachers v. Hon. Isidro Cariño 17 that the
mass actions of September/October 1990 staged by Metro Manila public school
teachers "amounted to a strike in every sense of the term, constituting as they did, a
concerted and unauthorized stoppage of or absence from work which it was said
teachers' sworn duty to perform, carried out for essentially economic reasons — to
protest and pressure the Government to correct what, among other grievances, the
strikers perceived to be the unjust or prejudicial implementation of the salary
standardization law insofar as they were concerned, the non-payment or delay in
payment of various fringe benefits and allowances to which they were entitled, and
the imposition of additional teaching loads and longer teaching hours." In Rolando
Gan v. Civil Service Commission, 18 we denied the claim that the teachers were
thereby denied their rights to peaceably assemble and petition the government for
redress of grievances reasoning that this constitutional liberty to be upheld, like any
other liberty, must be exercised within reasonable limits so as not to prejudice the
public welfare. But the public school teachers in the case of the 1990 mass actions
did not exercise their constitutional rights within reasonable limits. On the contrary,
they committed acts prejudicial to the best interest of the service by staging the mass
protests on regular school days, abandoning their classes and refusing to go back
even after they had been ordered to do so. Had the teachers availed of their free time
— recess, after classes, weekends or holidays — to dramatize their grievances and
to dialogue with the proper authorities within the bounds of law, no one — not the
DECS, the CSC or even the Supreme Court — could have held them liable for their
participation in the mass actions.19
With respect to our ruling in PBM Employees Organization v. Philippine Blooming
Mills Co.,  Inc., 20 invoked by petitioners, we have likewise already ruled in the
Rolando Gan case 21 that the PBM ruling — that the rights of free expression and
assembly could not be lightly disregarded as they occupy a preferred position in the
hierarchy of civil liberties — was not applicable to defend the validity of the 1990
mass actions because what were pitted therein against the rights of free expression
and of assembly were inferior property rights while the higher consideration involved
in the case of the striking teachers was the education of the youth which must, at the
very least, be equated with the freedom of assembly and to petition the government
for redress of grievances.22
We affirmed the foregoing rulings in Bagana v. Court of Appeals 23 by denying a
similar petition filed by another group of teachers who participated in the 1990 mass
actions but who claimed to have been merely exercising their constitutional right to
free assembly. We held in Bagana that the Court of Appeals committed no reversible
error in affirming the CSC resolutions finding the teachers guilty of conduct prejudicial
to the best interest of the service and imposing penalties of six (6) months'
suspension without pay. In Bangalisan v. Court of Appeals 24 we added that the
persistent refusal of the striking teachers to call the mass actions by the conventional
term "strike" did not erase the true nature of the mass actions as unauthorized
stoppages of work the purpose of which was to obtain a favorable response to the
teachers' economic grievances. We again stressed that the teachers were penalized
not because they exercised their right to peaceably assemble but because of the
manner by which such right was exercised, i.e., going on unauthorized and unilateral
absences thus disrupting classes in various schools in Metro Manila which produced
adverse effects upon the students for whose education the teachers were
responsible. But herein petitioners contend that classes were not actually disrupted
because substitute teachers were immediately appointed by Secretary Cariño.
Besides being a purely factual assertion which this Court cannot take cognizance of
in a petition for review, the fact that the prompt remedial action taken by Secretary
Cariño might have partially deflected the adverse effects of the mass protests did not
erase the administrative liability of petitioners for the intended consequences thereof
which were the very reason why such prompt remedial action became necessary.
Considering the foregoing, we find that respondent Court of Appeals did not err in
sustaining the CSC resolutions finding petitioners guilty of conduct prejudicial to the
best interest of the service.
As an alternative prayer, petitioners ask that in the event their exoneration is not
decreed they be awarded back wages for the period when they were not allowed to
work by reason of the supposed unjustified immediate implementation of the
dismissal orders of Secretary Cariño while awaiting resolution of their appeals by the
MSPB and CSC.
The issue of whether back wages may be awarded to teachers ordered reinstated to
the service after the dismissal orders of Secretary Cariño were commuted by the CSC
to six (6) months' suspension is already settled.
In Bangalisan v. Court of Appeals 25 we resolved the issue in the negative on the
ground that the teachers were neither exonerated nor unjustifiably suspended, two (2)
circumstances necessary for the grant of back wages in administrative disciplinary
cases. Like herein petitioners, those in Bangalisan were also teachers who
participated in the 1990 mass actions for which they were dismissed by Secretary
Cariño but ordered merely suspended for six (6) months by the Civil Service
Commission. On a plea that the immediate implementation of the dismissal orders of
Secretary Cariño was unjustified, thus warranting an award of back wages the Court
said —
As to the immediate execution of the decision of the Secretary against petitioners, the
same is authorized by Section 47, paragraph (2), of Executive Order No. 292, thus:
"The Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. Their
decision shall be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days' salary. In case the decision
rendered by a bureau or office is appealable to the Commission, the same shall be
executory except when the penalty is removal, in which case the same shall be
executory only after confirmation by the Secretary concerned.
And since it was already the final dismissal orders of Secretary Cariño which were
being carried out, immediate implementation even pending appeal was clearly
sanctioned by the aforequoted provision of the Administrative Code of
1987. 26 Hence, being legal, the immediate execution of the dismissal orders could
not be considered unjustified.
The cases cited by petitioners to support their prayer for back salaries,
namely, Abellera v. City of Baguio 27 and Bautista v. Peralta 28 being cases which
involved the unjustified immediate execution of the dismissal orders of the then Civil
Service Commissioner pending appeal to the Civil Service Board of Appeals are
therefore not applicable to justify petitioners' prayer. Neither could petitioners be
considered to have been exonerated from the charges levelled against them by
Secretary Cariño from the mere fact that they were found guilty only of conduct
prejudicial to the best interest of the service by the CSC. It must be remembered that
Secretary Cariño charged petitioners with grave misconduct, gross neglect of duty,
gross violation of civil service law, rules and regulations, etc., for having participated
in the 1990 illegal mass actions. On appeal the CSC while affirming the factual finding
that petitioners indeed participated in the mass the factual finding that petitioners
indeed participated in the mass actions found them liable only for conduct prejudicial
to the best interest of the service. Clearly the CSC decision did not proceed from a
finding that petitioners did not commit the acts complained of. Having been found to
have actually participated in the illegal mass actions although found answerable for a
lesser offense, petitioners could not be considered as fully innocent of the charges
against them. 29 Being found liable for a lesser offense is not equivalent to
exoneration. 30
Thus in Bangalisan we denied the claim for back wages of those teachers who were
found to have actually participated in the 1990 mass actions but granted the claim of
one Rodolfo Mariano who was absent only because he attended the wake and
interment of his grandmother. In Jacinto v. Court of Appeals 31 we again denied the
claim for back wages of teachers found to have given cause for their suspension i.e.,
their unjustified abandonment of classes to the prejudice of their students but granted
the claim of Merlinda Jacinto who was absent because of illness.
Petitioners do not deny, nay they even admit, having participated in the 1990 mass
actions. Thus having given cause for their supension, their prayer for backwages
must be denied conformably with settled rulings of this Court.
WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of
Appeals dated 29 November 1995 and 24 April 1996 are AFFIRMED. No costs.
SO ORDERED.
G.R. No. 169838             April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP),
GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima
Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor
LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M.
LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District
Chief Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848             April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita
Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta
Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo
Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus,
Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon,
Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito
Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in
his personal capacity, ANGELO REYES, in his official capacity as Secretary of
the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity
as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity
as the Chief, National Capital Regional Police Office (NCRPO), PEDRO
BULAONG, in his official capacity as the Chief, Manila Police District (MPD)
AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND
INSTRUCTIONS, Respondents.
x---------------------------------x
G.R. No. 169881             April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and
Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National
President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M.
TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL
ARTURO LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF
SUPT. PEDRO BULAONG, Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens
and taxpayers of the Philippines and that their rights as organizations and individuals
were violated when the rally they participated in on October 6, 2005 was violently
dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R.
No. 169848,2 who allege that they were injured, arrested and detained when a
peaceful mass action they held on September 26, 2005 was preempted and violently
dispersed by the police. They further assert that on October 5, 2005, a group they
participated in marched to Malacañang to protest issuances of the Palace which, they
claim, put the country under an "undeclared" martial rule, and the protest was likewise
dispersed violently and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No.
169881,3 allege that they conduct peaceful mass actions and that their rights as
organizations and those of their individual members as citizens, specifically the right
to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of
"Calibrated Preemptive Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be
conducted at the Mendiola bridge but police blocked them along C.M. Recto and
Lepanto Streets and forcibly dispersed them, causing injuries to several of their
members. They further allege that on October 6, 2005, a multi-sectoral rally which
KMU also co-sponsored 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.4 Three other
rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only
Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop
violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy
recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To
Assemble And Petition The Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to
assemble and petition the government for redress of grievances is essential and vital
to the strength and stability of the State. To this end, the State shall ensure the free
exercise of such right without prejudice to the rights of others to life, liberty and equal
protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade, procession or
any other form of mass or concerted action held in a public place for the purpose of
presenting a lawful cause; or expressing an opinion to the general public on any
particular issue; or protesting or influencing any state of affairs whether political,
economic or social; or petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages
for religious purposes shall be governed by local ordinances; Provided, however, That
the declaration of policy as provided in Section 2 of this Act shall be faithfully
observed.
The definition herein contained shall not include picketing and other concerted action
in strike areas by workers and employees resulting from a labor dispute as defined by
the Labor Code, its implementing rules and regulations, and by the Batas Pambansa
Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge
or other thoroughfare, park, plaza, square, and/or any open space of public
ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police
and other peace keeping authorities shall observe during a public assembly or in the
dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time of the
public assembly, rerouting of the parade or street march, the volume of loud-speakers
or sound system and similar changes.
Sec. 4. Permit when required and when not required. – A written permit shall be
required for any person or persons to organize and hold a public assembly in a public
place. However, no permit shall be required if the public assembly shall be done or
made in a freedom park duly established by law or ordinance or in private property, in
which case only the consent of the owner or the one entitled to its legal possession is
required, or in the campus of a government-owned and operated educational
institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as
provided for by law are not covered by this Act.
Sec. 5. Application requirements. – All applications for a permit shall comply with the
following guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof,
and place or streets to be used for the intended activity; and the probable number of
persons participating, the transport and the public address systems to be used.
(b) The application shall incorporate the duty and responsibility of the applicant under
Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality
in whose jurisdiction the intended activity is to be held, at least five (5) working days
before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the
office of the city or municipal mayor shall cause the same to immediately be posted at
a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant
a permit unless there is clear and convincing evidence that the public assembly will
create a clear and present danger to public order, public safety, public convenience,
public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two
(2) working days from the date the application was filed, failing which, the permit shall
be deemed granted. Should for any reason the mayor or any official acting in his
behalf refuse to accept the application for a permit, said application shall be posted by
the applicant on the premises of the office of the mayor and shall be deemed to have
been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within
twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies
the terms thereof in his permit, the applicant may contest the decision in an
appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial
Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate
Appellate court, its decisions may be appealed to the appropriate court within forty-
eight (48) hours after receipt of the same. No appeal bond and record on appeal shall
be required. A decision granting such permit or modifying it in terms satisfactory to
the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24)
hours from date of filing. Cases filed hereunder shall be immediately endorsed to the
executive judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve
the use, for an appreciable length of time, of any public highway, boulevard, avenue,
road or street, the mayor or any official acting in his behalf may, to prevent grave
public inconvenience, designate the route thereof which is convenient to the
participants or reroute the vehicular traffic to another direction so that there will be no
serious or undue interference with the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the
leaders and organizers of a public assembly to take all reasonable measures and
steps to the end that the intended public assembly shall be conducted peacefully in
accordance with the terms of the permit. These shall include but not be limited to the
following:
(a) To inform the participants of their responsibility under the permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order to prevent non-demonstrators
from disrupting the lawful activities of the public assembly;
(c) To confer with local government officials concerned and law enforcers to the end
that the public assembly may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the time
stated in the permit; and
(e) To take positive steps that demonstrators do not molest any person or do any act
unduly interfering with the rights of other persons not participating in the public
assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement
agencies shall not interfere with the holding of a public assembly. However, to
adequately ensure public safety, a law enforcement contingent under the command of
a responsible police officer may be detailed and stationed in a place at least one
hundred (100) meters away from the area of activity ready to maintain peace and
order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to provide
proper protection to those exercising their right peaceably to assemble and the
freedom of expression is primordial. Towards this end, law enforcement agencies
shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall
be in complete uniform with their nameplates and units to which they belong
displayed prominently on the front and dorsal parts of their uniform and must observe
the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of
firearms but may be equipped with baton or riot sticks, shields, crash helmets with
visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not
be used unless the public assembly is attended by actual violence or serious threats
of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit
shall be dispersed. However, when an assembly becomes violent, the police may
disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the
latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property
causing damage to such property, the ranking officer of the law enforcement
contingent shall audibly warn the participants that if the disturbance persists, the
public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph
should not stop or abate, the ranking officer of the law enforcement contingent shall
audibly issue a warning to the participants of the public assembly, and after allowing a
reasonable period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the
public assembly unless he violates during the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall be governed by Article 125 of the Revised
Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the public
assembly shall not constitute a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is
held without a permit where a permit is required, the said public assembly may be
peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or
organizer without having first secured that written permit where a permit is required
from the office concerned, or the use of such permit for such purposes in any place
other than those set out in said permit: Provided, however, That no person can be
punished or held criminally liable for participating in or attending an otherwise
peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the
provisions of this Act by the mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the
application for a permit by the mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency
or any person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from the
area of activity of the public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,
bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by
the use of a motor vehicle, its horns and loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited
acts defined in the immediately preceding section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one month and
one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall
be punished by imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six
months and one day to six years without prejudice to prosecution under Presidential
Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by
imprisonment of one day to thirty days.
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six
months after the effectivity of this Act establish or designate at least one suitable
"freedom park" or mall in their respective jurisdictions which, as far as practicable,
shall be centrally located within the poblacion where demonstrations and meetings
may be held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity this
Act.
Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or
unconstitutional, the validity or constitutionality of the other provisions shall not be
affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions,
orders, ordinances or parts thereof which are inconsistent with the provisions of this
Act are hereby repealed, amended, or modified accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacañang dated
September 21, 2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to
inflame the political situation, sow disorder and incite people against the duly
constituted authorities, we have instructed the PNP as well as the local government
units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of
this standard and arrest all persons violating the laws of the land as well as
ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum
tolerance. The authorities will not stand aside while those with ill intent are herding a
witting or unwitting mass of people and inciting them into actions that are inimical to
public order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the
right to be protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful
conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., 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.5
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.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional
as it is a curtailment of the right to peacefully assemble and petition for redress of
grievances because it puts a condition for the valid exercise of that right. It also
characterizes public assemblies without a permit as illegal and penalizes them and
allows their dispersal. Thus, its provisions are not mere regulations but are actually
prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear
standards. The two standards stated in the laws (clear and present danger and
imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard
of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague
and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right
to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing
a permit. And even assuming that the legislature can set limits to this right, the limits
provided are unreasonable: First, allowing the Mayor to deny the permit on clear and
convincing evidence of a clear and present danger is too comprehensive. Second, the
five-day requirement to apply for a permit is too long as certain events require instant
public assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes
action even before the rallyists can perform their act, and that no law, ordinance or
executive order supports the policy. Furthermore, it contravenes the maximum
tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling
effect on the exercise by the people of the right to peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary,
Manila City Mayor Lito Atienza, Chief, of the Philippine National Police
(PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief,
PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro
Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in
his personal capacity; Angelo Reyes, as Secretary of the Interior and Local
Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro
Bulaong, as Chief, MPD, and all other public officers and private individuals acting
under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary,
PNP Director General Arturo Lomibao, the Honorable Mayor Joselito Atienza,
and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that they
had been "injured, arrested or detained because of the CPR," and that "those
arrested stand to be charged with violating Batas Pambansa [No.] 880 and other
offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim
that the time, place and manner regulation embodied in B.P. No. 880 violates the
three-pronged test for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e.,
it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly
tailored to serve a significant governmental interest, i.e., the interest cannot be
equally well served by a means that is less intrusive of free speech interests; and (c)
B.P. No. 880 leaves open alternative channels for communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires
the statement of the public assembly’s time, place and manner of conduct. It entails
traffic re-routing to prevent grave public inconvenience and serious or undue
interference in the free flow of commerce and trade. Furthermore, nothing in B.P. No.
880 authorizes the denial of a permit on the basis of a rally’s program content or the
statements of the speakers therein, except under the constitutional precept of the
"clear and present danger test." The status of B.P. No. 880 as a content-neutral
regulation has been recognized in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the
time, place and manner of holding public assemblies and the law passes the test for
such regulation, namely, these regulations need only a substantial governmental
interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has
the authority to exercise police power to meet "the demands of the common good in
terms of traffic decongestion and public convenience." Furthermore, the discretion
given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d),
(e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and convincing
evidence that the public assembly will create a clear and present danger to public
order, public safety, public convenience, public morals or public health" and
"imminent and grave danger of a substantive evil" both express the meaning of the
"clear and present danger test."10
7. CPR is simply the responsible and judicious use of means allowed by existing laws
and ordinances to protect public interest and restore public order. Thus, it is not
accurate to call it a new rule but rather it is a more pro-active and dynamic
enforcement of existing laws, regulations and ordinances to prevent chaos in the
streets. It does not replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the
petition in G.R. No. 169838 should be dismissed on the ground that Republic Act No.
7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his
denials of permits were under the "clear and present danger" rule as there was a
clamor to stop rallies that disrupt the economy and to protect the lives of other people;
that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have
affirmed the constitutionality of requiring a permit; that the permit is for the use of a
public place and not for the exercise of rights; and that B.P. No. 880 is not a content-
based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission
of all the Comments, the Court set the cases for oral arguments on April 4,
2006,14 stating the principal issues, as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6,
12 13(a) and 14(a) thereof, and Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal Declaration of
Human Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive
Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?
During the course of the oral arguments, the following developments took place and
were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the
portions of their petitions raising factual issues, particularly those raising the issue of
whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20,
October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that CPR
should no longer be used as a legal term inasmuch as, according to respondents, it
was merely a "catchword" intended to clarify what was thought to be a
misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that,
as stated in the affidavit executed by Executive Secretary Eduardo Ermita and
submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum
tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the
foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage
in peaceful assembly and exercise the right of petition, as guaranteed by the
Constitution, is directly affected by B.P. No. 880 which requires a permit for all who
would publicly assemble in the nation’s streets and parks. They have, in fact,
purposely engaged in public assemblies without the required permits to press their
claim that no such permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action as contrary
to law and dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
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. As stated in Jacinto v. CA,15 the Court,
as early as the onset of this century, in U.S. v. Apurado,16 already upheld the right to
assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition the
government for a redress of grievances and, for that matter, to organize or form
associations for purposes not contrary to law, as well as to engage in peaceful
concerted activities. These rights are guaranteed by no less than the Constitution,
particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and
Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements
defending and promoting the people’s exercise of these rights. As early as the onset
of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly
and petition and even went as far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater, the
grievance and the more intense the feeling, the less perfect, as a rule will be the
disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to assemble and
to petition for redress of grievances would become a delusion and a snare and the
attempt to exercise it on the most righteous occasion and in the most peaceable
manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to
be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor, but
the utmost discretion must be exercised in drawing the line
between disorderly and seditious conduct and between an essentially peaceable
assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom
of speech and to assembly and petition over comfort and convenience in the use of
streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not
absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the people
recognized and guaranteed by the constitutions of democratic countries. But it is a
settled principle growing out of the nature of well-ordered civil societies that the
exercise of those rights is not absolute for it may be so regulated that it shall not be
injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and
other constitutional rights is termed the sovereign "police power," which is the power
to prescribe regulations, to promote the health, morals, peace, education, good order
or safety, and general welfare of the people. This sovereign police power is exercised
by the government through its legislative branch by the enactment of laws regulating
those and other constitutional and civil rights, and it may be delegated to political
subdivisions, such as towns, municipalities and cities by authorizing their legislative
bodies called municipal and city councils to enact ordinances for the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate
rights to free speech and peaceful assembly, arising from the denial of a permit. The
Constitution is quite explicit: "No law shall be passed abridging the freedom of
speech, or of the press, or the right of the people peaceably to assemble and petition
the Government for redress of grievances." Free speech, like free press, may be
identified with the liberty to discuss publicly and truthfully any matter of public concern
without censorship or punishment. There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a "clear and
present danger of a substantive evil that [the State] has a right to prevent." Freedom
of assembly connotes the right of the people to meet peaceably for consultation and
discussion of matters of public concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much less denied, except on a showing,
as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935
Constitution, Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of free speech.
To paraphrase the opinion of Justice Rutledge, speaking for the majority of the
American Supreme Court in Thomas v. Collins, it was not by accident or coincidence
that the rights to freedom of speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the
exercise of this right, the judiciary is called upon to examine the effects of the
challenged governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic institutions, is
the danger, of a character both grave and imminent, of a serious evil to public safety,
public morals, public health, or any other legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter:
"It must never be forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal
to reason by all the peaceful means for gaining access to the mind. It was in order to
avert force and explosions due to restrictions upon rational modes of communication
that the guaranty of free speech was given a generous scope. But utterance in a
context of violence can lose its significance as an appeal to reason and become part
of an instrument of force. Such utterance was not meant to be sheltered by the
Constitution." What was rightfully stressed is the abandonment of reason, the
utterance, whether verbal or printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve, allowing parties the
opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to
non-peaceful means may be the only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the right to be heard of the person who
feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the
fact that there may be something worth hearing from the dissenter. That is to ensure
a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed
is peaceable assembly. One may not advocate disorder in the name of protest, much
less preach rebellion under the cloak of dissent. The Constitution frowns on disorder
or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of
violence to be avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is
rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers." It bears repeating
that for the constitutional right to be invoked, riotous conduct, injury to property, and
acts of vandalism must be avoided. To give free rein to one’s destructive urges is to
call for condemnation. It is to make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger
of a substantive evil, on the choice of Luneta as the place where the peace rally
would start. The Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of
streets and parks may rest, they have immemorially been held in trust for the use of
the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use
of the streets and public places has, from ancient times, been a part of the privileges,
immunities, rights and liberties of citizens. The privilege of a citizen of the United
States to use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be
abridged or denied." The above excerpt was quoted with approval in Primicias v.
Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a
1915 decision, where this Court categorically affirmed that plazas or parks and streets
are outside the commerce of man and thus nullified a contract that leased Plaza
Soledad of plaintiff-municipality. Reference was made to such plaza "being a
promenade for public use," which certainly is not the only purpose that it could serve.
To repeat, there can be no valid reason why a permit should not be granted for the
proposed march and rally starting from a public park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to the gates of the
US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso
has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso
of the City of Manila should grant a permit for a public meeting at Plaza Miranda in
Quiapo, this Court categorically declared: "Our conclusion finds support in the
decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that
case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no
parade or procession upon any ground abutting thereon, shall be permitted unless a
special license therefor shall first be obtained from the selectmen of the town or from
licensing committee,’ was construed by the Supreme Court of New Hampshire as not
conferring upon the licensing board unfettered discretion to refuse to grant the
license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme
Court, held that ‘a statute requiring persons using the public streets for a parade or
procession to procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom of speech and
press, where, as the statute is construed by the state courts, the licensing authorities
are strictly limited, in the issuance of licenses, to a consideration of the time, place,
and manner of the parade or procession, with a view to conserving the public
convenience and of affording an opportunity to provide proper policing, and are not
invested with arbitrary discretion to issue or refuse license, * * *. "Nor should the point
made by Chief Justice Hughes in a subsequent portion of the opinion be ignored:
"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be lost in the
excesses of unrestricted abuses. The authority of a municipality to impose regulations
in order to assure the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties but rather as
one of the means of safeguarding the good order upon which they ultimately depend.
The control of travel on the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of highways in that relation
is designed to promote the public convenience in the interest of all, it cannot be
disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection."
xxx
6. x x x The principle under American doctrines was given utterance by Chief Justice
Hughes in these words: "The question, if the rights of free speech and peaceable
assembly are to be preserved, is not as to the auspices under which the meeting is
held but as to its purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which the Constitution
protects." There could be danger to public peace and safety if such a gathering were
marked by turbulence. That would deprive it of its peaceful character. Even then, only assembly should inform the required if the public assembly
the guilty parties should be held accountable. It is true that the licensing official, here licensing authority of the date, the shall be done or made in a
respondent Mayor, is not devoid of discretion in determining whether or not a permit public place where and the time freedom park duly established by
would be granted. It is not, however, unfettered discretion. While prudence requires when it will take place. If it were a law or ordinance or in private
that there be a realistic appraisal not of what may possibly occur but of what private place, only the consent of property, in which case only the
may probably occur, given all the relevant circumstances, still the assumption – the owner or the one entitled to its consent of the owner or the one
especially so where the assembly is scheduled for a specific public place – is that the legal possession is required. Such entitled to its legal possession is
permit must be for the assembly being held there. The exercise of such a right, in the application should be filed well required, or in the campus of a
language of Justice Roberts, speaking for the American Supreme Court, is not to be ahead in time to enable the public government-owned and operated
"abridged on the plea that it may be exercised in some other place." official concerned to appraise educational institution which shall
xxx whether there may be valid be subject to the rules and
objections to the grant of the regulations of said educational
8. By way of a summary. The applicants for a permit to hold an assembly should permit or to its grant but at another institution. Political meetings or
inform the licensing authority of the date, the public place where and the time when it public place. It is an indispensable rallies held during any election
will take place. If it were a private place, only the consent of the owner or the one condition to such refusal or campaign period as provided for by
entitled to its legal possession is required. Such application should be filed well ahead modification that the clear and law are not covered by this Act.
in time to enable the public official concerned to appraise whether there may be valid present danger test be the
objections to the grant of the permit or to its grant but at another public place. It is an standard for the decision reached. Sec. 5. Application requirements.--
indispensable condition to such refusal or modification that the clear and present If he is of the view that there is All applications for a permit shall
danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave comply with the following
such an imminent and grave danger of a substantive evil, the applicants must be danger of a substantive evil, the guidelines:
heard on the matter. Thereafter, his decision, whether favorable or adverse, must be applicants must be heard on the
(a) The applications shall be in
transmitted to them at the earliest opportunity. Thus if so minded, they can have matter. Thereafter, his decision,
writing and shall include the names
recourse to the proper judicial authority. Free speech and peaceable assembly, along whether favorable or adverse,
of the leaders or organizers; the
with the other intellectual freedoms, are highly ranked in our scheme of constitutional must be transmitted to them at the
purpose of such public assembly;
values. It cannot be too strongly stressed that on the judiciary, -- even more so than earliest opportunity. Thus if so
the date, time and duration thereof,
on the other departments – rests the grave and delicate responsibility of assuring minded, they can have recourse to
and place or streets to be used for
respect for and deference to such preferred rights. No verbal formula, no sanctifying the proper judicial authority.
the intended activity; and the
phrase can, of course, dispense with what has been so felicitiously termed by Justice probable number of persons
Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption participating, the transport and the
must be to incline the weight of the scales of justice on the side of such rights, public address systems to be used.
enjoying as they do precedence and primacy. x x x.
(b) The application shall
B.P. No. 880 was enacted after this Court rendered its decision in Reyes. incorporate the duty and
The provisions of B.P. No. 880 practically codify the ruling in Reyes: responsibility of applicant under
Section 8 hereof.

(c) The application shall be filed

Reyes v. Bagatsing B.P. No. 880 with the office of the mayor of the
city or municipality in whose
(G.R. No. L-65366, November 9, Sec. 4. Permit when required and
jurisdiction the intended activity is
1983, when not required.-- A written
to be held, at least five (5) working
permit shall be required for any
125 SCRA 553, 569) days before the scheduled public
person or persons to organize and
assembly.
hold a public assembly in a public
8. By way of a summary. The
place. However, no permit shall be (d) Upon receipt of the application,
applicants for a permit to hold an
which must be duly acknowledged (e) If the mayor or any official
in writing, the office of the city or acting in his behalf denies the
municipal mayor shall cause the application or modifies the terms
same to immediately be posted at thereof in his permit, the applicant
a conspicuous place in the city or may contest the decision in an
municipal building. appropriate court of law.

Sec. 6. Action to be taken on the (f) In case suit is brought before

application. – the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal
(a) It shall be the duty of the mayor Circuit Trial Court, the Regional
or any official acting in his behalf to Trial Court, or the Intermediate
issue or grant a permit unless Appellate Court, its decisions may
there is clear and convincing be appealed to the appropriate
evidence that the public assembly court within forty-eight (48) hours
will create a clear and present after receipt of the same. No
danger to public order, public appeal bond and record on appeal
safety, public convenience, public shall be required. A decision
morals or public health. granting such permit or modifying it
in terms satisfactory to the
(b) The mayor or any official acting
applicant shall be immediately
in his behalf shall act on the
executory.
application within two (2) working
days from the date the application (g) All cases filed in court under
was filed, failing which, the permit this section shall be decided within
shall be deemed granted. Should twenty-four (24) hours from date of
for any reason the mayor or any filing. Cases filed hereunder shall
official acting in his behalf refuse to be immediately endorsed to the
accept the application for a permit, executive judge for disposition or,
said application shall be posted by in his absence, to the next in rank.
the applicant on the premises of
the office of the mayor and shall be (h) In all cases, any decision may
deemed to have been filed. be appealed to the Supreme Court.

(c) If the mayor is of the view that (i) Telegraphic appeals to be

there is imminent and grave followed by formal appeals are
danger of a substantive evil hereby allowed.
warranting the denial or
modification of the permit, he shall
immediately inform the applicant It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
who must be heard on the matter. assemblies but a restriction that simply regulates the time, place and manner of the
assemblies. This was adverted to in Osmeña v. Comelec,20 where the Court referred
(d) The action on the permit shall to it as a "content-neutral" regulation of the time, place, and manner of holding public
be in writing and served on the assemblies.21
applica[nt] within twenty-four
hours. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers
to all kinds of public assemblies22 that would use public places. The reference to
"lawful cause" does not make it content-based because assemblies really have to be
for lawful causes, otherwise they would not be "peaceable" and entitled to protection.
Neither are the words "opinion," "protesting" and "influencing" in the definition of
public assembly content based, since they can refer to any subject. The words
"petitioning the government for redress of grievances" come from the wording of the
Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the
protection and benefit of all rallyists and is independent of the content of the
expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present
danger to public order, public safety, public convenience, public morals or public
health. 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, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and full development
of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes
and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public
health or morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its
provisions. "Public" does not have to be defined. Its ordinary meaning is well-known.
Webster’s Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people
distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally,
demonstration, march, parade, procession or any other form of mass or concerted
action held in a public place." So it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful
assembly and petition only to the extent needed to avoid a clear and present danger
of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to
the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient
standard – the clear and present danger test stated in Sec. 6(a). The reference to
"imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means
the same thing and is not an inconsistent standard. As to whether respondent Mayor
has the same power independently under Republic Act No. 716024 is thus not
necessary to resolve in these proceedings, and was not pursued by the parties in
their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative
forum through the creation of freedom parks where no prior permit is needed for
peaceful assembly and petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six
months after the effectivity of this Act establish or designate at least one suitable
"freedom park" or mall in their respective jurisdictions which, as far as practicable,
shall be centrally located within the poblacion where demonstrations and meetings
may be held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity this
Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge, only
Cebu City has declared a freedom park – Fuente Osmeña.
That of Manila, the Sunken Gardens, has since been converted into a golf course, he
added.
If this is so, the degree of observance of B.P. No. 880’s mandate that every city and
municipality set aside a freedom park within six months from its effectivity in 1985, or
20 years ago, would be pathetic and regrettable. The matter appears to have been
taken for granted amidst the swell of freedom that rose from the peaceful revolution of
1986.
Considering that the existence of such freedom parks is an essential part of the law’s
system of regulation of the people’s exercise of their right to peacefully assemble and
petition, the Court is constrained to rule that after thirty (30) days from the finality of
this Decision, no prior permit may be required for the exercise of such right in any
public park or plaza of a city or municipality until that city or municipality shall have
complied with Section 15 of the law. For without such alternative forum, to deny the
permit would in effect be to deny the right. Advance notices should, however, be
given to the authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor
General has conceded that the use of the term should now be discontinued, since it
does not mean anything other than the maximum tolerance policy set forth in B.P. No.
880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita,
submitted by the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in
consonance with the legal definition of "maximum tolerance" under Section 3 (c) of
B.P. Blg. 880, which is the "highest degree of restraint that the military, police and
other peacekeeping authorities shall observe during a public assembly or in the
dispersal of the same." Unfortunately, however, the phrase "maximum tolerance" has
acquired a different meaning over the years. Many have taken it to mean inaction on
the part of law enforcers even in the face of mayhem and serious threats to public
order. More so, other felt that they need not bother secure a permit when holding
rallies thinking this would be "tolerated." Clearly, the popular connotation of
"maximum tolerance" has departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided under
the same law which requires all pubic assemblies to have a permit, which allows the
dispersal of rallies without a permit, and which recognizes certain instances when
water cannons may be used. This could only mean that "maximum tolerance" is not in
conflict with a "no permit, no rally policy" or with the dispersal and use of water
cannons under certain circumstances for indeed, the maximum amount of tolerance
required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the
view to preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu
of maximum tolerance I clearly was not referring to its legal definition but to the
distorted and much abused definition that it has now acquired. I only wanted to
disabuse the minds of the public from the notion that law enforcers would shirk their
responsibility of keeping the peace even when confronted with dangerously
threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have
instructed the PNP as well as the local government units to strictly enforce a no
permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful
mass actions will be dispersed." None of these is at loggerheads with the letter and
spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim
that I ordered my co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P.
No. 880, CPR serves no valid purpose if it means the same thing as maximum
tolerance and is illegal if it means something else. Accordingly, what is to be followed
is and should be that mandated by the law itself, namely, maximum tolerance, which
specifically means the following:
Sec. 3. Definition of terms. – For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint that the military, police
and other peace keeping authorities shall observe during a public assembly or in the
dispersal of the same.
xxx
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement
agencies shall not interfere with the holding of a public assembly. However, to
adequately ensure public safety, a law enforcement contingent under the command of
a responsible police officer may be detailed and stationed in a place at least one
hundred (100) meters away from the area of activity ready to maintain peace and
order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to provide
proper protection to those exercising their right peaceably to assemble and the
freedom of expression is primordial.1avvphil.net Towards this end, law enforcement
agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall
be in complete uniform with their nameplates and units to which they belong
displayed prominently on the front and dorsal parts of their uniform and must observe
the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of
firearms but may be equipped with baton or riot sticks, shields, crash helmets with
visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not
be used unless the public assembly is attended by actual violence or serious threats
of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit
shall be dispersed. However, when an assembly becomes violent, the police may
disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the
latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property
causing damage to such property, the ranking officer of the law enforcement
contingent shall audibly warn the participants that if the disturbance persists, the
public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph
should not stop or abate, the ranking officer of the law enforcement contingent shall
audibly issue a warning to the participants of the public assembly, and after allowing a
reasonable period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the
public assembly unless he violates during the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall be governed by Article 125 of the Revised
Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the public
assembly shall not constitute a ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is
held without a permit where a permit is required, the said public assembly may be
peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement agency or
any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from the
area of activity of the public assembly or on the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by
the use of a motor vehicle, its horns and loud sound systems.
Furthermore, there is need to address the situation adverted to by petitioners where
mayors do not act on applications for a permit and when the police demand a permit
and the rallyists could not produce one, the rally is immediately dispersed. In such a
situation, as a necessary consequence and part of maximum tolerance, rallyists who
can show the police an application duly filed on a given date can, after two days from
said date, rally in accordance with their application without the need to show a permit,
the grant of the permit being then presumed under the law, and it will be the burden of
the authorities to show that there has been a denial of the application, in which case
the rally may be peacefully dispersed following the procedure of maximum tolerance
prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our
people, especially freedom of expression and freedom of assembly. In several policy
addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the
liberty of our people and to nurture their prosperity. He said that "in cases involving
liberty, the scales of justice should weigh heavily against the government and in favor
of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed,
laws and actions that restrict fundamental rights come to the courts with a heavy
presumption against their validity. These laws and actions are subjected
to heightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no place in
our legal firmament and must be struck down as a darkness that shrouds freedom. It
merely confuses our people and is used by some police agents to justify abuses. On
the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not
curtail or unduly restrict freedoms; it merely regulates the use of public places as to
the time, place and manner of assemblies. Far from being insidious, "maximum
tolerance" is for the benefit of 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.
In this Decision, the Court goes even one step further in safeguarding liberty by giving
local governments a deadline of 30 days within which to designate specific freedom
parks as provided under B.P. No. 880. If, after that period, no such parks are so
identified in accordance with Section 15 of the law, all public parks and plazas of the
municipality or city concerned shall in effect be deemed freedom parks; no prior
permit of whatever kind shall be required to hold an assembly therein. The only
requirement will be written notices to the police and the mayor’s office to allow proper
coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more
particularly the Secretary of the Interior and Local Governments, are DIRECTED to
take all necessary steps for the immediate compliance with Section 15 of Batas
Pambansa No. 880 through the establishment or designation of at least one suitable
freedom park or plaza in every city and municipality of the country. After thirty (30)
days from the finality of this Decision, subject to the giving of advance notices, no
prior permit shall be required to exercise the right to peaceably assemble and petition
in the public parks or plazas of a city or municipality that has not yet complied with
Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR),
insofar as it would purport to differ from or be in lieu of maximum tolerance,
is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and
to STRICTLY OBSERVE the requirements of maximum tolerance. The petitions
are DISMISSED in all other respects, and the constitutionality of Batas Pambansa
No. 880 is SUSTAINED.

No costs.

SO ORDERED.